General Terms and Conditions of Sale of ATB WATER GmbH for its Online Shop
Section 1 – General; Scope
(1) Our General Terms and Conditions of Sale for the online shop of ATB WATER GmbH ("Terms of Sale") apply to all contracts entered into via our online shop as of 15 November 2020 and which relate to the delivery of movables ("Goods").
(2) Our Terms of Sale apply exclusively; we do not acknowledge any terms of the buyer conflicting with or deviating from our Terms of Sale and/or from the relevant legal provisions unless we have explicitly consented to the application of such terms in writing. Our silence with regard to the buyer’s terms and conditions does not constitute our acceptance of or our consent to such terms and conditions. Our Terms of Sale also apply if we accept the buyer’s performance or render performance without any reservation while having knowledge of the buyer’s terms conflicting with or deviating from our Terms of Sale. Unless we have expressly waived the applicability of our Terms of Sale, our Terms of Sale also take precedence over any terms and conditions of the buyer if, according to such terms and conditions of the buyer, our acceptance of the order is intended to constitute our unconditional acceptance of such terms of the buyer or if we deliver after the buyer has informed us that the buyer’s terms and conditions shall apply.
(3) Our Terms of Sale only apply if the buyer is an entrepreneur (Unternehmer) within the meaning of section 14 of the German Civil Code (Bürgerliches Gesetzbuch, hereinafter abbreviated with “BGB”), a legal entity under public law (juristische Person des öffentlichen Rechts) or a special fund under public law (öffentlich-rechtliches Sondervermögen).
(4) References to the application of legal provisions are made for clarification purposes only. Therefore, even in the absence of such clarification, legal provisions shall apply, unless directly amended or expressly excluded by these Terms of Sale.
Section 2 – Offer; Conclusion and Content of Contract; Detection and Correction of Input Data Errors
(1) The presentation of the Goods in the online shop does not constitute a legally binding offer from us, but rather an invitation to the buyer to place an order.
(2) Before submitting an order, the buyer shall register and then log in using the “Dealer Shop” button, specifying the buyer’s e-mail address used for registration and the password which is sent to the buyer within the registration process or is later chosen by the buyer. The buyer can then use the “Order” or “Add to Cart” button to put individual Goods in the virtual shopping cart without thereby submitting an offer to purchase. By subsequently clicking on the “Proceed to Checkout” button, buyer is taken to the further ordering process as indicated in Section 2(3) of these Terms of Sale. Instead of clicking the “Proceed to Checkout” button, buyer can also click the “Edit Cart” button to display an overview of the Goods in buyer’s virtual shopping cart. Before placing his order, buyer can add further Goods to the shopping cart or remove Goods from the shopping cart. Goods are removed from the shopping cart by selecting the “X” buttons which will delete the relevant Goods from the shopping cart. By clicking on the “Proceed to Checkout” button, buyer is taken to the further ordering process as indicated in Section 2(3) of these Terms of Sale. Buyer can also cancel the order process altogether by closing the browser.
(3) The Terms of Sale are made available to buyer for download, the invoice and delivery address stored in buyer’s customer account are displayed, and the payment and delivery options preselected by buyer in buyer’s customer account are indicated. If required, the “Select different delivery address” button can be used to enter a delivery address other than the one saved in the customer account. While viewing the default settings for payment and shipping, alternative payment methods can be selected by clicking the “Change” button. The payment conditions available are those individually agreed with the buyer, “PayPal”, “Credit Card” and/or “Direct Debit”. Below the above-mentioned information, an overview summary of the order data will be shown, followed by a clear presentation of the net subtotal due for the Goods in the shopping cart, the shipping costs, the value added tax, and the total amount. By clicking the button “Order subject to payment”, buyer places a binding order for the Goods contained in the shopping cart. Depending on the payment method chosen by buyer, the contract is then concluded as follows:
a. If payment is made according to ATB’s payment conditions, by credit card or by direct debit, the contract comes into effect upon our acceptance of buyer’s order by means of an order confirmation which must reach buyer no later than five (5) calendar days from receipt of buyer’s order.
b. If payment is made via PayPal, we request PayPal to initiate the payment transaction, whereupon buyer is redirected to PayPal; there, buyer can enter buyer’s payment details and confirm both the use of buyer’s data by PayPal and buyer’s payment instruction to PayPal. Buyer is then redirected to the order process, and the contract is concluded by buyer clicking the button “Order subject to payment”.
(4) By entering into the contract, we assume no procurement risk (Beschaffungsrisiko) within the meaning of section 276 of the BGB, even if we are obliged to deliver Goods which are defined only generically (Gattungsschuld). Furthermore, we do not assume any guarantee (Garantie) for the Goods.
(5) Even before entering into the contract, the buyer shall inform us in writing (Schriftform) if:
a. the buyer requires the Goods to be delivered to be suitable not only for the customary use or if the buyer is assuming suitability for a certain use;
b. the Goods are used under extraordinary conditions or are exposed to extraordinary strain;
c. the Goods are used under conditions which entail a particular health or safety risk;
d. the Goods are to be used outside Germany or are to be delivered to the buyer’s customers located outside Germany; or
e. public statements by the manufacturer or other third parties (e.g., advertising statements) are key to the buyer’s decision to purchase.
(6) Any information provided by us with regard to the Goods (e.g., weights, dimensions, use values, capacity, tolerances and technical data) and our representations thereof (e.g., drawings and illustrations) only serve as approximate indications of the quality of the Goods, unless the usability of the Goods for the contractually intended purpose requires exact conformity. Such information does not constitute a guarantee of quality (Beschaffenheitsgarantie) or a guarantee of durability (Haltbarkeitsgarantie) of the Goods to be delivered by us. Any guarantees which are to be assumed by us at the time of the conclusion of the contract require an express written confirmation that they do indeed constitute a “guarantee” (“Garantie”).
(7) Deviations that are customary in trade and deviations that are due to legal regulations or represent technical improvements, as well as any replacement of components with equivalent parts, is acceptable, provided this does not impair the usability of the Goods for the contractually intended purpose.
(8) Except for the acceptance of the Goods in accordance with section 433 para. 2 of the BGB, acceptance of the Goods (Abnahme) is not agreed.
(9) All agreements made between us and the buyer upon conclusion of the contract of sale for the purpose of execution of the contract of sale are set out in writing in the contract of sale and in these Terms of Sale.
(10) We reserve all property rights and copyrights pertaining to any documents we make available to the buyer.
Section 3 – Delivery; Delivery Time; Revocation in Case of Delay; Compensation for Damages in Case of Delay
(1) Delivery is made CPT (place of delivery: our registered office in Porta-Westfalica/Germany; place of destination: the “delivery address” specified by the buyer in the order process) Incoterms 2020. In deviation from the CPT clause of the Incoterms 2020, the buyer shall pay the shipping costs shown at the end of the ordering process (see Section 2(3) of these Terms of Sale). We have no obligation to inform the buyer about the delivery of the Goods or to insure the Goods.
(2) The passing of risk takes place with delivery. If delivery is delayed because we exercise a lien due to a total or partial delay in payment (Zahlungsverzug) by the buyer, or for any other reason for which the buyer is responsible (zu vertreten), the risk passes to the buyer no later than on the date on which the notification of readiness for dispatch and/or performance is received by the buyer.
(3) Agreed delivery periods do not constitute a fixed-date transaction (Fixgeschäft).
(4) We are entitled to make partial deliveries and render partial services within the agreed delivery periods and/or by the agreed delivery date, to the extent this can reasonably be expected to be accepted by the buyer.
(5) If the buyer wishes to make changes to the Goods after the contract has been concluded, this will lead to an extension of the delivery period (provided we agree to such changes, which we are not obliged to do). Depending on the order situation, the extension period may be longer than would be necessary for the mere implementation of the change requests.
(6) If we are unable to meet agreed delivery periods or delivery dates for reasons for which we are not responsible (non-availability of the performance; Nichtverfügbarkeit der Leistung), we are entitled to postpone the delivery for the duration of the hindrance, and we shall notify the buyer thereof immediately and at the same time shall inform the buyer of the expected new delivery period or date. If the performance is not available even within the newly defined delivery period or delivery date for reasons for which we are not responsible, we are entitled to revoke (Rücktritt) the contract in whole or in part; in such a case, we shall immediately refund to the buyer any consideration already paid. A case of unavailability of the performance in this sense includes, without limitation, any situation where we are not supplied in good time by our supplier for reasons for which we are not responsible, despite proper measures regarding replenishment of our stocks (i.e., despite such contractual agreement with our suppliers as would be sufficient to fulfil the buyer’s claim for performance under the contract in terms of quantity, quality and performance period). Cases of unavailability of the performance in this sense also include events of force majeure of not insignificant duration (i.e., lasting longer than 14 calendar days). Force majeure includes strikes, lock-outs, acts of public authorities, shortages of energy and raw materials outside our responsibility, transport bottlenecks or hindrances outside our responsibility, operational hindrances outside our responsibility (e.g., caused by fire, water, or mechanical breakdown) and any other hindrances for which, from an objective point of view, we are not responsible for. Section 3(6) of these Terms of Sale does not apply if we have assumed a procurement risk (Beschaffenheitsrisiko) within the meaning of section 276 of the BGB.
(7) If the buyer is in delay in taking delivery (Annahmeverzug) or culpably breaches any other duty to cooperate, we are entitled to claim compensation for any damage or loss incurred by us, including for any additional expenses. We reserve the right to assert further claims.
(8) The buyer is only entitled to revoke (Rücktritt) the contract due to late delivery and/or non-delivery if we are in default (Verzug) with the fulfilment of our primary obligations or have otherwise substantially breached obligations established by the contract, and if such delay or breach of obligation is attributable to us (von uns zu vertreten). Without prejudice to other legal provisions, in order to trigger the legal consequences of a delay (Verzug), a written notice (Mahnung) to us to perform delivery within a reasonable period of time shall always be required, even if the period for performance has been defined by calendar. In all other respects, the legal provisions regarding occurrence of delay (Verzug) shall apply.
(9) Should we be in delay with the delivery (Verzug) as stipulated by law, taking into account the provisions set out in these Terms of Sale, and should the buyer be entitled to claim damages from us for delay, our liability in the event of delay is limited to 0.5% of the net purchase price agreed with the buyer for the Goods delivered late or not delivered at all for each full week of delay; however, such liability does not in any case exceed 5% of the net purchase price agreed with the buyer for the Goods delivered late or not delivered at all. This limitation does not apply to claims
a. for malicious breach of contract,
b. for intentional and grossly negligent breach of contract,
c. for the assumption of a procurement risk within the meaning of section 276 of the BGB (Beschaffungsrisiko),
d. for injury to life, body or health, and
e. in the event of liability according to the product liability act (Produkthaftungsgesetz).
Section 4 – Prices; Terms of Payment; and Default of Payment
(1) The buyer shall pay the full purchase price (after deducting any discounts that may have been individually agreed with the buyer) as well as the transport costs, using one of the payment methods offered in the last step of the order process (see Section 2(3) of these Terms of Sale). The agreed price covers the services owed by us, including packaging. Value-added tax at the statutory rate is shown separately and shall be paid additionally by the buyer.
(2) The legal provisions on delay of payment (Zahlungsverzug) apply. During any such default, interest at the statutory default interest rate is payable on the purchase price. We reserve all rights to claim further damages for default. If the other party to the contract is a merchant (Kaufmann), our right to claim regular interest payable from the due date according to Section 353 of the German Commercial Code (Handelsgesetzbuch, abbreviated and hereinafter referred to as “HGB”) remains unaffected.
(3) The buyer may only offset any claims or exercise a right of retention insofar as the buyer’s counterclaim has been determined by a legally binding judgement or is undisputed or acknowledged by us or is based on the same contractual relationship.
(4) If the buyer fails to pay any invoice due or exceeds the time limit set for payment, or if the buyer’s financial circumstances deteriorate after conclusion of the contract, or we receive information after conclusion of the contract giving rise to serious doubts concerning the buyer’s solvency or creditworthiness, we are entitled to demand immediate payment of all our claims based on the same legal relationship upon delivery.
Section 5 – Buyer’s Rights in Case of Defects
(1) Unless otherwise provided herein below, the statutory provisions shall apply to the buyer’s rights in the event of material defects (Sachmängel) or Goods with defect in title (Rechtsmängel) (including wrong or short delivery, as well as improper assembly and/or faulty assembly instructions). In any case – even if not specifically mentioned below – the legal provisions remain unaffected:
- if the unprocessed Goods are sold to a consumer (Verbraucher) at the end of the supply chain, even if such consumer has processed them further (recourse against suppliers pursuant to section 478 of the BGB [Lieferantenregress]); however, the provisions in section 478 of the BGB shall not apply if the defective Goods have been processed further by the buyer or by another entrepreneur, e.g., by incorporating the Goods into another product;
- in accordance with section 439 para. 2 and 3 of the BGB (reimbursement of expenses necessary for the purpose of remedial action [Nacherfüllung]) if the Goods sold by us are a newly manufactured item, unless the claim is time-barred according to these Terms of Sale;
- in accordance with section 445a of the BGB (buyer’s recourse against us in the event that the buyer shall bear expenses in relation to the buyer’s customer within the scope of remedial actions under section 439 para. 2 and/or para. 3, and/or section 475 para. 4 and/or para. 6 of the BGB), unless the claim is time-barred according to these Terms of Sale.
(2) The Goods have a material defect if they differ significantly from the agreed specifications at the time the risk passes. Only in cases where no specifications have been agreed upon, the Goods have a material defect if they deviate from the quality customary in Germany. Public statements of the manufacturer or other third parties (e.g., advertising statements), which the buyer has not pointed out to us as being key to the buyer’s decision to purchase the Goods, do not constitute grounds for claiming a material defect.
(3) The Goods have a defect in title only if they are not free from rights enforceable in Germany at the time the risk passes. However, if the Goods are not free from rights enforceable in Germany at the time the risk passes due to instructions from the buyer, then, contrary to the first sentence of Section 5 (3), the Goods do not have a defect in title.
(4) The buyer is entitled to assert claims only if the buyer has duly met the buyer’s obligation to give notice of any defect as provided for in sections 377 and 381 of the HGB, taking into account the provisions laid down in these Terms of Sale.
(5) The buyer shall give notice of obvious material defects to us in writing immediately after delivery of the Goods. The buyer shall give notice of obvious material defects to us in writing immediately and in any event no later than within seven (7) calendar days after delivery of the Goods. Furthermore, the buyer is obliged to examine the Goods immediately after delivery. The buyer shall give to us a notice in writing of any material defects recognisable by proper examination immediately after the buyer has, or should have, recognised such material defect. The buyer shall give to us a notice of hidden material defects immediately after their discovery. For the avoidance of doubt, it is agreed that an examination of the Goods is not a necessary prerequisite for giving a notice. Furthermore, the buyer shall ensure that building materials and other Goods intended for installation or other further processing are inspected for material defects immediately before processing.
(6) The notice (Rüge) is to be made in writing and addressed directly to us. It must be sufficiently detailed in such a way that we will be able to initiate remedial actions and to secure recourse claims against our suppliers without the need to make further inquiries with the buyer. Apart from that, the notice must comply with the legal provisions. Our employees have no permission to accept notices or make warranty declarations outside our business premises.
(7) If a material defect in the Goods is notified in good time, we are obliged, at our option, to provide remedial actions (Nacherfüllung) either by rectification by repair (Nachbesserung) or delivery of substitute Goods (Nachlieferung). The foregoing is without prejudice to our right to refuse remedial action provided that the legal requirements for such refusal have been met. At our option, remedial actions can be carried out at our place of business or at the place where the Goods are used. We shall not be liable for expenses incurred as a result of the Goods being transported to a location other than the buyer’s place of business, unless the buyer has informed us in writing in his order prior to conclusion of the contract that the Goods will be transferred to a location other than the buyer’s place of business and we have expressly agreed to this. In case of delivery of substitute Goods, the buyer shall return the defective item to us according to the legal provisions. Remedial actions do not include assembly or disassembly of the defective item if assembly was not among our obligations originally. We are entitled to make the owed remedial actions conditional on payment of the purchase price by the buyer. However, the buyer is entitled to withhold a reasonable part of the purchase price that is adequate in relation to the defect.
(8) If the Goods sold by us are a newly manufactured item, we are obliged, within the scope of the remedial actions, to reimburse the buyer for any expenses necessary for the disassembly of the defective Goods and for installing or attaching the repaired Goods or of the Goods which have been delivered as substitute Goods, provided that the buyer has installed the defective Goods into another item, or attached them to another item in a manner consistent with their nature and intended use; this applies without waiving the legal provisions and the provisions of these Terms of Sale, in particular and including without limitation without waiving the objection of unreasonableness pursuant to section 439 para. 4 of the BGB (Unverhältnismäßigkeit).
(9) If and when such remedial actions fail, the buyer, after having set a deadline with a warning that performance will be rejected thereafter, and provided the buyer complies with the respective legal provisions, is entitled to revoke the contract (Rücktritt) or reduce the purchase price. Rectification by repair will only be considered as failed - based on the specific individual defect – after the third unsuccessful attempt, unless especially the nature of the defect or other circumstances indicate other-wise.
(10) Insofar as the buyer has suffered damage, or incurred futile expense (vergebliche Aufwendungen), due to a defect in Goods delivered by us, the provisions of Section 6 of these Terms of Sale shall apply in addition. However, in the case of delivery of used Goods, we are not liable for damages and expenses (except for liability under the situations mentioned in Section 6 paragraph 2(a) and Section 6(4) of these Terms of Sale); instead, in the case of delivery of used Goods, the warranty rights (Gewährleistungsrechte) of the buyer (i.e., the buyer’s rights for breach of contract in the form of delivery of defective Goods) are limited to the remedies mentioned in Section 5(7) and (9) of these Terms of Sale.
(11) With the exception of the cases referred to in Section 5(12) of these Terms of Sale, the buyer`s claims in respect of the delivery of new defective Goods become time-barred one (1) year after the statutory start of the limitation period or, if based on the delivery of used defective Goods, six (6) months after the statutory start of the limitation period. The suspension of the limitation period under section 445(b) para. 2 of the BGB (limitation of recourse claims [Verjährung von Rückgriffsansprüchen] in the supply chain) remains unaffected in any case.
(12) In deviation from Section 5(11) of these Terms of Sale, the statutory limitation periods shall apply:
- to claims pursuant to section 438 para. 1 item 1 of the BGB (claims from a defect that consists in a third party’s right in rem on the basis of which the surrender of purchased item can be demanded, or in another right entered in the land register);
- if the Goods are a newly manufactured item which is a building and/or an item which, in accordance with its usual purpose, has been used for a building and has caused the defectiveness of the building;
- if the buyer’s claims are based on an intentional and/or grossly negligent breach of contract;
- in case of fraudulent concealment of a defect;
- if a guarantee (Garantie) for the quality of the Goods is assumed;
- if a procurement risk within the meaning of section 276 of the BGB (Beschaffungsrisiko) is assumed.
- to claims for injury to life, body and/or health;
- to claims under the product liability act;
- to claims falling within the scope of section 478 of the BGB (special provisions regarding recourse against suppliers [Lieferantenregress] in the case of a purchase of consumer goods), unless the defective Goods have been further processed by the buyer or by another entrepreneur, e.g., by incorporating it into another product.
The foregoing stipulations do not constitute a reversal of the burden of proof.
(13) The delivery of substitute Goods or the rectification by repair does not lead to a restart of limitation periods.
(14) Without prejudice to further legal provisions, the suspension of the limitation period shall also end if the substantive negotiations triggering the suspension are not continued for more than four (4) weeks. A renewed commencement of a suspension of the statute of limitations for claims of the buyer requires our express written confirmation in any case.
Section 6 – Liability for Damages and Expenses
(1) Our liability for damages and expenses is governed by the following provisions in addition to the foregoing provisions of Section 5 of these Terms of Sale. Subject to a limitation period according to Section 5(11) read in conjunction with Section 5(12) of these Terms of Sale, the following legal provisions – even if not mentioned separately below – shall remain unaffected:
- the provisions under section 445a of the BGB (buyer’s recourse against us in the event that the buyer has to bear expenses in relation to his customer within the scope of remedial actions according to section 439 para. 2 and/or 3, and/or section 475 para. 4 and/or 6 of the BGB); and
- the provisions under section 478 of the BGB (special provisions for entrepreneurial recourse in the case of a purchase of consumer goods), unless the defective Goods have been further processed by the buyer or by another entrepreneur, e.g., by incorporation into another product; as well as
- our obligation to bear the expenses required for remedial actions under section 439 para. 2 and/or 3 of the BGB if the Goods sold by us are a newly manufactured item (provided that the claim for remedial actions in accordance with section 439 para. 1 of the BGB is not time-barred according to these Terms of Sale).
(2) Our liability for damages or for futile expenses by the buyer shall only arise if such damage or expense incurred in vain was caused by:
a. culpable (schuldhaft) breach of an obligation, the fulfilment of which is of the very essence for the proper performance of the contract and upon the fulfilment of which the buyer may normally rely), material contractual obligation (wesentliche Vertragspflicht), or by
b. a grossly negligent or intentional breach of duty.
(3) If we are liable for the breach of a material contractual obligation under Section 6 (2a) of these Terms of Sale, our liability for damages is limited to the typically occurring damage foreseeable at the time of conclusion of the contract; however, if such breach of a material contractual obligation occurs in connection with the delivery of Goods – e.g., when delivering defective Goods – our liability for damages shall be limited to twice the net purchase price of the Goods concerned, provided that this is less than the typically occurring damage foreseeable at the time of conclusion of the contract. However, even in that case, we shall not be liable for loss of profit. Regarding damages due to delay (Verzugschäden) Section 3(10) of these Terms of Sale apply.
(4) The above limitations of liability mentioned in Section 6(2) to (3) of these Terms of Sale shall not apply to liability
a. under the product liability act;
b. due to the assumption of a guarantee (Garantie) for the quality of the Goods;
c. if a procurement risk within the meaning of section 276 of the BGB is assumed (Beschaffungsrisiko);
d. due to the fraudulent concealment of a defect;
e. for damages resulting from culpable injury to life, body or health; and
f. for damages resulting from a grossly negligent or intentional breach of duty.
(5) With the exception of liability
a. under the product liability act;
b. due to the assumption of a guarantee for the quality of the Goods (Beschaffenheitsgarantie);
c. due to fraudulent concealment of a defect;
d. for damages resulting from culpable injury to life, body or health; and
e. for damages resulting from a grossly negligent or intentional breach of duty, any liability for damages caused by the delivery of used Goods is excluded.
(6) The buyer’s obligation to mitigate damages according to section 254 of the BGB remains unaffected. Any agreement between the buyer and the buyer’s customers by which the buyer’s statutory liability is aggravated to the buyer’s disadvantage constitutes a breach of the said obligation to mitigate damages and – to the extent the buyer’s statutory liability has been aggravated to the buyer’s disadvantage – leads to the exclusion of any claims for compensation against us.
(7) We are obliged to pay damages for the breach of contractual and/or pre-contractual obligations towards the buyer exclusively as provided for in these Terms of Sale. Any recourse to concurrent bases of claim, e.g., culpa in contrahendo according to section 311 para. 3 of the BGB, positive violations of contractual duties (positive Vertragsverletzungen) according to section 280 of the BGB, or tort claims (deliktische Ansprüche) according to section 823 of the BGB, is excluded. Where our liability for damages is excluded or limited, this shall apply in the same way also to the personal liability of our executive bodies, employees, legal representatives or agents (Erfüllungsgehilfen).
(8) Subject to:
- the provisions of section 445a of the BGB (buyer’s recourse against us in the event that the buyer has to bear expenses in relation to buyer’s customer within the scope of remedial actions under section 439 para. 2 and/or 3, and/or section 475 para. 4 and/or 6 of the BGB); and
- the provisions of section 478 of the BGB (special provisions for entrepreneurial recourse in the case of a purchase of consumer goods); and subject to
- the expenses for the purpose of remedial actions in accordance with section 439 para. 2 and/or 3 of the BGB to be borne by us if the Goods sold by us are a newly manufactured item,
the foregoing provisions of Section 6 of these Terms of Sale shall also apply to the buyer’s claims for reimbursement of expenses.
Section 7 – Retention of Title
(1) We retain title to the Goods sold until all our current and future claims from the contractual relationship (secured claims) are paid for in full. Unless the buyer has paid in advance, we retain title to the Goods sold also for all our current and future claims (secured claims) from the ongoing business relationship.
(2) Goods that are subject to reservation of title may neither be pledged (verpfändet) nor transferred as a security until full payment of the secured claims. The buyer shall inform us without delay in writing if an application for the opening of insolvency proceedings is filed or Goods belonging to us become subject to any third-party claims or encumbrances.
(3) In case the buyer is in breach of the contract – including without limitation if he fails to pay the purchase price when due – we shall be entitled, according to the legal provisions, to revoke the contract and to demand, on the grounds of the retention of title and our revocation, that the Goods be returned to us.
(4) If the Goods subject to retention of title are further processed by the buyer in the ordinary course of business, the retention of title shall extend to the full value of the products resulting from the processing, mixing, or combining of our Goods, and we shall be deemed to be the manufacturer of such products. If a third party retains ownership rights on items that are processed, mixed, or combined with the Goods, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined items. Save as provided herein, the resulting product is subject to the same provisions as the Goods delivered subject to retention of title.
(5) To the extent the buyer resells the Goods subject to retention of title (Eigentumsvorbehalt) in the ordinary course of business, the buyer hereby assigns to us, as security, the claims against the purchaser resulting therefrom (if the seller is a co-owner [Miteigentümer] of the retained Goods, such assignment is made in proportion to the co-ownership share). The same applies for any other claims that take the place of the retained Goods or otherwise arise with regard to the retained Goods, such as insurance claims or tort claims in case of loss or destruction. We accept the assignment. We revocably authorise the buyer to collect the claims assigned to us in buyer’s own name. We are entitled to revoke this direct debit authorization if the buyer is in delay with the payment (Zahlungsverzug) or does not meet its payment obligations, or if we have exercised our right under Section 7(3) of these Terms of Sale.
(6) If the realisable value of the securities granted exceeds our claims by more than 10%, we shall release, at the request of the buyer, securities to be selected at our discretion.
Section 8 – Software
(1) In case the Goods include software, with the delivery of the Goods the buyer is hereby granted a non-exclusive licence to use the software (including the documentation related thereto). The software is made available for being used on the Goods designated for this purpose. Use of the software on more than one system is prohibited.
(2) The buyer is entitled to copy, adapt, translate, or convert the software from the object code to the source code only to the extent permitted by law (sections 69(a) et seq. of the German Copyright Act [Urheberrechtsgesetz, abbreviated as “UrhG”]). The buyer shall neither remove nor amend any inscriptions of manufacturer (including without limitation any copyright notices) without our explicit prior consent.
(3) All other rights to the software and the related documentation, including any copies thereof, shall remain with us and/or the software supplier. The granting of sublicences is not permitted.
Section 9 – Place of Performance; Choice of Law and Place of Jurisdiction
(1) The place of performance for delivery follows from the Incoterm clause agreed under Section 3(1) of these Terms of Sale. The place of payment and the place of performance for all other obligations arising from the contract with the buyer is Südstrasse 2 in 32457 Porta-Westfalica/Germany, including for the restitution of the contractual obligations in case of revocation of the contract. However, we reserve the right to carry out any remedial actions at the place where the Goods are located.
(2) These Terms of Sale, as well as all contractual relations between us and the buyer, shall be governed by the laws of the Federal Republic of Germany, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”).
(3) If the buyer is a merchant (Kaufmann) in terms of the HGB, a legal entity under public law or a a special fund under public law, the exclusive place of jurisdiction for any disputes arising directly or indirectly arising out of the contractual relationship shall be our place of business in 32457 Porta-Westfalica/Germany. Notwithstanding the above, we are entitled in any event to take legal action against the buyer also at the buyer’s general legal venue. Any overriding statutory provisions, including without limitation on exclusive competences, remain unaffected.
Section 10. Miscellaneous
(1) Subject to section 354a of the HGB, the buyer is not entitled to assign his rights against us arising from the contract and these Terms of Sale to a third party without our prior written consent.
(2) Neither a personal signature nor an electronic signature is required to comply with the written form (Schriftform). Notices by means of fax or e-mail, as well as other text forms pursuant to section 126b of the BGB (Textform), fulfil the requirement of the written form within the meaning of these Terms of Sale.
(3) The personal data necessary for the business transactions will be stored and treated confidentially in accordance with the applicable data protection regulations.
(4) The contract text will be stored by us and can be viewed by the buyer. In addition, after receipt of the order, the order information and the contract text are sent to the buyer together with the acknowledgement of the receipt of the order via e-mail so that they can be saved and printed out by the buyer himself. Furthermore, the order information and the contract text are also included in our order confirmation. The buyer can also request the Terms of Sale from us or download them from our online shop.
(5) Although our Terms of Sale do not address consumers, merely for reasons of precaution we point out that we are neither willing nor obliged to participate in a dispute resolution procedure before a Consumer Conciliation Body (Verbraucherschlichtungsstelle).
(6) Considering these Terms of Sale are drafted in the English language but are subject to German law without recourse to the CISG, if an English word is followed by a German term in brackets, the meaning of this German term as it has according to the German law (without recourse to the CISG) shall be decisive to interpret the respective English word throughout the whole Terms of Sale.
Revised: October 2020