General Business and Delivery Terms and Conditions
for use in business dealings with entrepreneurs
Version: January 2018
These General Business and Delivery Terms and Conditions apply exclusively to all legal relationships between ACHTE display system GmbH (the “Supplier”) and its business customers (each, a “Customer”) in connection with offers and contracts for deliveries, services, assemblies, and sales of the Supplier (hereinafter, the “Deliveries”). They also apply to all future business relationships, as well as to follow-on orders in connection with an existing contractual relationship, even where they are not once again expressly agreed to.
General business terms and conditions of the Customer that deviate from, conflict with, or supplement these General Business and Delivery Terms and Conditions are valid only if they are confirmed by the Supplier in writing. All amendments and supplementations to these General Business and Delivery Terms and Conditions (including this clause) must be made in writing in order to be valid.
These provisions apply starting in February 2018 and supersede all previous General Business and Delivery Terms and Conditions of the Supplier.
II. Offer and contract conclusion, scope of Delivery and service
The contract between the Supplier and the Customer comes into effect once the Supplier confirms the order to the Customer in writing by regular mail, fax, or email.
The Supplier’s offers are non-binding and subject to change, unless they were expressly characterised as binding.
The Supplier’s written order confirmation is controlling for the scope of the Deliveries.
III. Plans and documents, as well as duties of cooperation
The Supplier retains title, copyright, and other intellectual property rights in and to all images, calculations, drawings, plans, and other documents. The Customer may disclose same to third parties only with the Supplier’s written consent, irrespective of whether the Supplier has designated them as confidential, and may not use the plans and documents for purposes other than those for which they were provided to it.
If the Customer’s cooperation is necessary for performance of the order, such as the indication of dates, submission of plans, etc., then it is obligated to provide such cooperation in a timely manner.
IV. Prices, payment terms, and set-off
Prices are ex works and exclude packaging and shipping costs and applicable value-added tax. A discount for prompt payment is permissible only in the case of a special written agreement between the Supplier and the Customer.
If the Supplier agreed to handle set-up or assembly, then unless agreed otherwise, the Customer owes in addition to the agreed compensation all necessary ancillary costs, such as travel, transport, and assembly costs.
The price is due and payable net (without deduction) immediately upon the buyer’s receipt of invoice, unless different payment terms are specified in the order confirmation or the invoice.
The Customer may set off only such claims that are uncontested or have been reduced to an enforceable judgment.
V. Retention of title
The Supplier retains title to the delivered goods until payment in full of the purchase price.
The Customer must at its own expense preserve the goods for the duration of the retention of title, insure same for the benefit of the Supplier against theft, breakage, fire, water, and other risks, and in addition take all measures to prevent interference with or voiding of the Supplier’s claim to title.
The Customer is prohibited from pledging the goods or assigning them for the purposes of security while the Supplier retains title to them. The Customer is entitled to resell the delivered item in the ordinary course of business only under the condition that it receives payment from its customer or imposes the proviso that title does not pass to the customer until it has met its payment obligations.
If the Customer resells delivered goods, then it hereby assigns to the Supplier for the purposes of security its future claims against its customers from the resale, together with all ancillary rights, including any balance claims, without the need for additional special declarations. If the delivered goods are resold together with other items without a unit price having been agreed upon for the delivered goods subject to retention of title, then the Customer assigns to the Supplier that part of the total price claim that corresponds to the price invoiced by the Supplier for the goods subject to retention of title.
The Customer remains authorised after the assignment to collect its claim from the resale from its customer. The Supplier is entitled to revoke the Customer’s authorisation to collect for cause, including default in payment, discontinuation of payment, commencement of insolvency proceedings, justified indications of over-indebtedness, or imminent illiquidity of the Customer. After providing a warning and complying with a reasonable notice period, the Supplier is entitled to disclose the assignment for the purposes of security, to directly collect the assigned claims, and to demand that the Customer discloses the assignment for the purposes of security to its customer.
Any processing of the delivered item subject to retention of title, as well as its combination with other items, by the Customer or third parties is performed for the benefit of the Supplier. The Supplier is entitled to co-title to the newly created items corresponding to the value of the delivered item.
The customer must promptly notify the Supplier of any liens, seizures, or other third-party dispositions or interference.
If the Customer is in breach of its duties, particularly in the event of default in payment, then after fruitless expiry of a reasonable deadline for performance that it set for the Customer, the Supplier is entitled to take back the goods as well as terminate the contract. The statutory cases in which the setting of a deadline can be dispensed with remain unaffected. The Customer is obligated to surrender the goods. If the Supplier takes back the goods, asserts retention of title, or places a lien on the goods subject to retention of title, this does not constitute termination of contract, other than where the Supplier expressly declared this.
The Supplier is obligated to release the securities to which it is entitled to the extent that the realisable value of the securities exceeds the secured claims by more than 10%. In such case, the Supplier is responsible for selecting the securities to be released.
VI. Delivery terms and conditions, delivery deadlines, and transfer of risk
All agreed delivery terms and conditions are to be interpreted in accordance with Incoterms (2010). Unless expressly agreed otherwise by contract, goods “ex works” (i.e. the Supplier’s warehouse) is deemed to be the delivery term.
All agreed delivery deadlines and dates that have not been expressly agreed upon as binding are solely non-binding indications and do not establish fixed-date transactions, and they are complied with by the Supplier subject to the proviso of normal material-procurement, fabrication, and transport possibilities. The delivery period indicated by the Supplier does not begin to run until all technical issues have been clarified.
Compliance with the deadlines for Deliveries presupposes the timely receipt of all documents to be provided by the Customer, particularly plans, and approvals by the Customer, as well as the proper and timely fulfilment of all obligations for which it is responsible. If these prerequisites are not met in a timely manner, the deadlines are suitably extended. The foregoing does not apply if the Supplier is responsible for the delay.
Apart from subsection 3, delivery deadlines and dates are suitably extended or postponed if impediments arise that the Supplier cannot prevent despite application of the requisite due care. Such impediments include force majeure, such as mobilisation, war, acts of terrorism, unrest, or similar events (e.g. strike, lock-out); virus or other attacks by third parties on the Supplier’s IT system, insofar as these occurred despite compliance with due care customary in the case of protective measures; untimely or improper supplying of the Supplier.
If the Supplier and the Customer expressly agreed in writing on a fixed-date transaction within the meaning of section 286 (2) No.4 of the German Civil Code (BGB) or section 376 of the German Commercial Code (HGB), the Supplier is liable in accordance with statutory provisions. The same applies where as a result of a delay in delivery for which the Supplier is responsible, the Customer is entitled to assert that it no longer has an interest in further contract performance. In such case, the Supplier’s liability is limited to foreseeable damage that is typically incurred, unless the delay in delivery is the result of a wilful breach of contract for which the Supplier is responsible, whereby fault on the part of its representatives or persons that it uses to perform an obligation (Erfüllungsgehilfen) is to be attributed to the Supplier.
Similarly, the Supplier is liable to the Customer in the event of delay in delivery in accordance with statutory provisions, if this is the result of a wilful or grossly negligent breach of contact for which the Supplier is responsible, whereby fault on the part of its representatives or persons that it uses to perform an obligation is to be attributed to the Supplier. The Supplier’s liability is limited to foreseeable damage that is typically incurred, unless the delay in delivery is the result of a wilful breach of contract for which the Supplier is responsible.
In the event that a delay in delivery for which the Supplier is responsible is the result of a culpable breach of a contractual obligation whose fulfilment is essential for the proper performance of the contract and on compliance with which the Customer normally relies and may rely, whereby fault on the part of its representatives or persons that it uses to perform an obligation is to be attributed to the Supplier, the Supplier is liable in accordance with statutory provisions, with the proviso that in such case, liability for compensation of damages is limited to foreseeable damage that is typically incurred.
The Supplier is at all times entitled to make partial deliveries and render partial performance, provided that the Customer can reasonably be expected to accept this.
Unless agreed otherwise, risk passes to the Customer when the item to be delivered is brought to the warehouse for shipment. The Supplier will insure the Delivery at the Customer’s request and expense against customary transport risks.
If a Delivery with set-up or assembly was agreed upon, risk passes on the date of acceptance at Customer’s facility.
If the shipment, delivery, start or performance of set-up or assembly, or acceptance at the Customer’s facility is delayed for reasons for which the Customer is responsible, or if the Customer is in default in acceptance for some other reason, risk passes to the Customer at the time originally envisioned for delivery. In such cases, the Supplier stores the goods at the Customer’s risk and expense.
VII. Testing and acceptance of the goods
The Customer must properly meet its duties to inspect and object pursuant to section 377 HGB.
The Customer may not refuse to accept Deliveries owing to minor defects.
VIII. Warranty/liability for material defects
The Supplier is liable for material defects as follows:
The Customer has claims for defects only if it properly met the duties to inspect and object that it owes under section 377 HGB.
If parts, Deliveries, or services have a material defect, the Supplier must at its choice provide a cure, re-deliver, or re-render at no charge, provided that its cause existed at the time of transfer of risk.
The Customer must promptly object to a defect in writing once it learns of it.
The Supplier is to be granted the opportunity to provide a cure by a reasonable deadline.
The Customer’s claims for material defects are prescribed 12 months after hand-over/delivery of the goods to the Customer. Exempt from the foregoing are claims for defects by consumers, as well as claims for compensation of damages due to injury to life, body, or health and/or claims for compensation of damages as a result of damages caused by the Supplier wilfully or with gross negligence. In this regard, the statutory prescription periods apply.
The warranty does not cover, in particular:
a) parts whose repair or replacement is necessary due to natural wear and tear (wear parts);
b) consumables, including but not limited to such parts as light bulbs and circuit breakers;
c) parts for which the Customer or third parties began or carried out repairs, changes, or modifications without the Supplier’s prior consent;
d) parts whose defects were not promptly notified during the warranty period;
e) parts with defects or damages resulting from negligence, accidents, overuse, improper installation (not performed by the Supplier), improper operation, or extreme environmental conditions, such as high temperatures, dampness, dirt, or corrosive substances, in each case where the Supplier was not responsible;
f) parts that were damaged without fault on the part of the Supplier.
The Customer’s claims for expenses necessary for the cure, including transport, travel, labour, and material costs, are excluded insofar as the expenses increase because the delivered item was subsequently relocated to a place other than the Customer’s establishment, unless such relocation is in conformity with its intended use.
The Customer's claims for compensation of damages due to a material defect are excluded. The foregoing does not apply in the case of fraudulent concealment of the defects, non-compliance with a guarantee of quality, injury to life, body, or health, or a wilful or grossly negligent breach of duty by the Supplier. The aforementioned arrangements are not associated with a change in the burden of proof to the detriment of the Customer.
IX. Other claims for compensation of damages
Unless provided otherwise in these General Business and Delivery Terms and Conditions, the Customer’s claims for compensation of damages are excluded, irrespective of the legal basis, particularly as a result of a breach of contractual duties or tort.
The foregoing does not apply where liability exists:
a) under the German Product Liability Act (Produkthaftungsgesetz)
b) in the case of wilful misconduct,
c) in the case of gross negligence by owners, statutory representatives, or senior executives,
d) in the case of fraud,
e) in the case of non-compliance with an assumed guarantee,
f) due to culpable injury to life, body, or health, or
g) due to the culpable breach of material contractual duties.
However, the claim to compensation of damages for the breach of material contractual duties is limited to foreseeable damage that is typical of the contract, unless one of the other aforementioned cases exists.
The aforementioned arrangements are not associated with a change in the burden of proof to the detriment of the Customer.
X. Place of jurisdiction and applicable law
The Supplier’s registered office is the sole place of jurisdiction, where the Customer is a merchant, for all disputes arising directly or indirectly from the contractual relationship.
This contract, including its interpretation, is subject to German law. The provisions of the United Nations Convention on Contracts for the International Sale of Goods are not applicable.
XI. Binding nature of the contract
If a part of the contract is ineffective, this does not affect the validity of the remaining part, provided that the ineffectiveness does not affect the material outlines of the contract.