Section 1 Scope of application
(1) These General Terms and Conditions of Sale and Delivery (GTCSD) apply to all our deliveries and other services, provided the Purchaser is an entrepreneur, a public law entity or a special fund under public law (Section 310 (1) BGB [Bürgerliches Gesetzbuch (German Civil Code)]).
(2) Our GTCSD apply exclusively, even if - despite being aware of conflicting or deviating terms and conditions of the Purchaser - we accept the orders of the latter or carry out the delivery, without reservation. Such conflicting or deviating terms and conditions will be binding for us only if we have expressly agreed in writing to their applicability. A written contract or our confirmation in writing or e-mail is decisive for the content of side agreements and additions to our GTCSD.
(3) These GTCSD apply in their respective current version as master agreements for all future deliveries and other services to the same Purchaser, without the need for us to refer to them in every individual case. We will inform the Purchaser immediately about any changes to our GTCSD.
Section 2 Conclusion of contract, Written form
(1) Our offers are free of charge and non-binding, provided they do not contain a deadline for acceptance or are expressly designated as binding. The Purchaser’s purchase order for the goods will be considered a binding contractual offer. Unless otherwise stipulated in the purchase order, we are entitled to accept it as a contractual offer within five working days after receipt. Acceptance can be declared either in writing, in text form, by e-mail (order confirmation), or by delivery of the goods to the Purchaser.
(2) If an order is confirmed by us, the contract will be deemed to be concluded with the confirmed scope of services and at the confirmed terms and conditions unless the Purchaser objects to it in writing immediately after receipt of the order confirmation. Verbal deviating agreements are only valid if they are confirmed by us in writing or by email.
(3) Information that we provide on quantities is only approximately significant unless the quantities must be totally accurate to enable usability for the contractually agreed purpose. We reserve the right to deviations from the agreed performance which are reasonable in their extent and nature. In addition, the Purchaser will agree to further change proposals on our part insofar as they are within the customary framework in the trade and are reasonable for the Purchaser. Such deviations will reduce or increase the agreed purchase price accordingly.
Section 3 Prices
(1) Unless otherwise agreed, our prices are net (Euro) “ex works” without packaging and shipping plus the statutory value added tax in the statutory amount.
(2) If more than four months pass between the conclusion of contract and delivery, without us being responsible for a delay in delivery, we are entitled to pass on the price to the Purchaser, taking into consideration the cost for materials and wages and other ancillary costs that we have to bear through a proportional price surcharge that corresponds to these increases. If the purchase price increases by more than 40%, the Purchaser is entitled to withdraw from the contract.
Section 4 Payment
(1) Unless otherwise agreed in writing, the purchase price is payable within seven days of receipt of the goods at the Purchaser’s premises, but at the latest within 15 days of receipt of the invoice without deduction. The invoice will be deemed to have been received within three working days after we have dispatched the goods. The Purchaser reserves the right to prove later receipt.
(2) Any payment deadlines expressly specified on the order confirmation or invoice, in particular those needed for the calculation of discount deductions, will begin from the invoice date. Discount deductions are only permitted by written agreement and only on condition that there are no outstanding invoices from other existing contracts. If payment periods are exceeded, the Purchaser will be in default even without warning.
(3) The presentation of bills of exchange or cheques requires our express written consent. Bills of exchange and cheques are only accepted subject to being honoured, whereby any discount charges and other exchange fees are at the Purchaser’s expense. We are not liable for timely presentation and having a bill protested.
(4) From the due date, we can charge default interest in the amount of 9 percentage points above the base rate. During the delay, interest on the purchase price is to be charged at the respectively applicable statutory default interest rate. In the event of a delay, we are also entitled to the statutory lump sum default fee in accordance with Section 288 (5) sentence 1 BGB. We are always free to prove further default or other damages whilst the Purchaser is free to provide proof that damage has not been incurred at all or is significantly less.
(5) If there are justified doubts regarding the solvency or creditworthiness of the Purchaser, we can refuse performance until the purchase price is paid or security has been provided. If the Purchaser is not prepared to pay in advance or to provide security despite being requested to do so, we are entitled to withdraw from the contract if we have not yet performed ourselves. We are also entitled to make all our claims from the business relationship due immediately.
(6) In the case of a default in payment, we can make the execution of ongoing contracts and other contracts dependent on the simultaneous payment of the purchase price or the provision of an appropriate security. After sending a warning letter and the expiry of a reasonable grace period without results, we can withdraw from individual contracts or all contracts concluded with the Purchaser insofar as we have not yet or only partially fulfilled them; alternatively we can demand damages for non-performance without the need for further notice. Furthermore, we can make all claims against the Purchaser due and liquidate our securities.
Section 5 Offset, Right of retention
The Purchaser is not entitled to offset any of his own claims against our payment claims unless the requirements of the Purchaser are undisputed or final and absolute. Furthermore, the Purchaser is not entitled to counter our payment claims with rights of retention unless these claims of the Purchaser are undisputed or absolute and final, based on the same contractual relationship.
Section 6 Delivery
(1) We will generally transfer the goods to our registered office which is also the place of fulfilment for delivery and any supplementary performance. At the request and expense of the Purchaser, the goods will be sent to another destination (mail order purchase). Unless otherwise agreed in writing, we are entitled to determine the method of shipment (in particular transport companies, shipping route, packaging) ourselves.
(2) If our goods are sent to the Purchaser upon request, the risk of accidental loss or accidental deterioration will be transferred to the Purchaser upon receipt by the latter of the ready-to-send notification, but at the latest when the goods are handed over to the carrier; this also applies if they are not handed over to the carrier by us (direct dispatch by our suppliers) or if we have them transported by our own employees. The Purchaser also bears the risk if he is in default of acceptance, and also for all return deliveries.
(3) Transport insurance will only be taken out at the express instruction of the Purchaser, in his name and at his expense; it is up to the Purchaser to process an insurance claim.
(4) If the Purchaser picks up the goods at our registered office, he is responsible for loading the vehicle. At the beginning of the loading process, he bears the risk of accidental loss or accidental deterioration. To the extent our employees help with the loading operations, they will act exclusively for the Purchaser and not as our vicarious agents. This does not apply if they operate our own equipment.
(5) We will strive at all times to deliver as quickly as possible. The lead times and delivery deadlines scheduled by us are always indicative only unless a set time limit or date has been expressly promised or agreed on in writing. In the latter case, the delivery time will begin with the dispatch of the order confirmation; in the case of delivery against advance payment, this will only
begin when payment has been received. Compliance with the delivery time requires the timely and proper fulfilment of necessary or agreed acts of collaboration on the part of the Purchaser. Otherwise, the delivery time is extended to an appropriate extent.
(6) The event of a delay on our part will be determined in accordance with the statutory provisions. In any case, a reminder from the Purchaser is required. If a written, fixed delivery date is exceeded by more than four weeks, the Purchaser is entitled to set a grace period of one month. If the delivery is not carried out by the expiry of the grace period, the Purchaser will continue to have the right to withdraw from the contract. Withdrawal must be declared in writing and immediately after expiry of the set grace period, but at the latest within two weeks after expiry of this period. There is no right of withdrawal if we cannot comply with the grace period without fault. In this case, the Purchaser can withdraw from the contract three months after the original delivery period has been exceeded.
(7) If the Purchaser refuses to accept the ordered delivery, we are entitled to withdraw from the contract after a reasonable grace period and/or demand compensation. In the latter case, we can demand from the Purchaser - at our discretion - either a flat-rate compensation, without proof, in the amount of 10% of the agreed net invoice amount, or reimbursement of the actual damages incurred.
(8) Partial deliveries are permitted, provided they are reasonable for the Purchaser. Insofar it has been agreed with the Purchaser that within a certain period of time he can retrieve a specified delivery quantity through several partial deliveries, every partial delivery is to be called up from us no later than three months before the desired delivery date. After the end of the specific period, we are entitled to deliver and invoice the delivery quantity that has not yet been called up.
(9) The delivery period shall be extended to an appropriate extent in the case of unforeseen events beyond our control (e.g. force majeure, disturbance to the traffic routes, work stoppages, or orders from authorities). The failure of timely delivery by our own sub-suppliers will also count as such an event if we have concluded a delivery contract under which the Purchaser could have been supplied without interruption (congruent supply transaction), and if we are not responsible for the non-delivery. In such events, we will inform the Purchaser immediately. If such events should fundamentally complicate the delivery or make it impossible, and the hindrance should not be merely temporary, we can withdraw completely or in part from the agreement. In this case, any considerations already paid by the Purchaser will be immediately reimbursed. Other legal rights of withdrawal and cancellation that we may have, as well as those of the Purchaser, shall otherwise remain unchanged.
Section 7 Warranty
(1) In the case of material defects and legal defects, the statutory provisions will apply, unless otherwise specified in these GTCSD.
(2) Unless otherwise expressly agreed, our goods only have to comply with the legal requirements applicable in the Federal Republic of Germany and the Purchaser is solely responsible for the compatibility of our goods with the technical and structural circumstances that apply to him. Any spoken and written technical advice provided by us does not release the Purchaser from the obligation to check the products for suitability. This also applies if the goods are generally recommended for a specific purpose. Information in our catalogues, printed matter or advertisements and other generic product information do not constitute a guarantee, unless otherwise expressly agreed in writing.
(3) The goods must be inspected by the Purchaser immediately after they have been handed over. When inspecting the goods, unless otherwise agreed, the Purchaser must put at least representative random samples through a quality control. Complaints about defects or other deviations from the agreed quality must be made immediately, but at the latest within seven working days after delivery of the goods, in writing or by e-mail. In the case of a defect that was not detectable during inspection, the complaint must be made within three working days after discovery of the defect, but no later than three days after the time in which the defect would have been recognisable with normal use of the goods. The date on which we receive the complaint of defects is decisive. If the complaint of defects is not made in time, we will be exempt from liability, provided we have not fraudulently concealed the defect.
(4) If the actual delivery quantity (quantity, weight) deviates from the quantity stated in the shipping documents, the Purchaser must point this out when accepting the goods, and if the goods are dispatched must do so to the last carrier; otherwise, an additional quantity will be deemed to be approved, or respectively, the claim for subsequent delivery of a missing quantity will be excluded.
(5) In the event of externally identifiable damage to the packaging, the Purchaser must check and log the contents immediately in the presence of the carrier in order to maintain any insurance protection.
(6) At our request, the Purchaser is obliged, at his expense, to send us the goods forming the subject of the complaint for review. In the case of timely and justified complaints of defects, we will reimburse usual shipping costs.
(7) We will provide supplementary performance in cases of timely and well-founded defect claims: At our discretion, we will either take back the defective goods and deliver goods that are free of defects (replacement delivery), or repair the defect (remedy of defect). If the replacement delivery is unsuccessful, the Purchaser can opt to reduce the purchase price or withdraw from the contract. In the case of a defect that only slightly reduces the value or suitability of the goods, however, he has no right of withdrawal. Subject to the provisions of Section 8 below, any further claims of the Purchaser are excluded, regardless of the legal reason.
(8) Claims due to defective performance will become time-barred one year after delivery of the goods, unless a longer period of limitation is prescribed by law.
Section 8 Liability
(1) We are liable for the violation of contractual and non-contractual obligations under the statutory provisions, unless otherwise specified in these GTCSD.
(2) We are liable – for whatever legal reason – without restriction for intent and gross negligence. In the case of simple and slight negligence, we are liable if it concerns
- damages arising from death, bodily injury and damage to health, also without restriction.
- damages from the violation of a fundamental contractual obligation. Fundamental contractual duties are obligations that must be fulfilled to make orderly performance of the contract possible in the first place, on the fulfilment of which the Purchaser normally relies and may rely; in such a case, however, our liability is limited to the compensation of foreseeable, typically occurring damages.
(3) Exceptions to the liability limitation pursuant to the aforementioned Section 8 (2) are cases in which we have fraudulently concealed a defect, or in which we have provided a guarantee for the quality of the goods or a procurement risk. In addition, any mandatory statutory liability – for example under the Product Liability Act – remains unaffected.
(4) Claims for damages of the Purchaser, based on a defect, will become time-barred one year after delivery of the goods, unless a longer period of limitation is prescribed by law. Claims for damages under the Product Liability Act, due to an intentional or grossly negligent breach of duty, due to malicious concealment of a defect as well as damages due to injury to life, body and health will become time-barred exclusively according to statutory regulations.
(5) Insofar as our liability is excluded or limited according to the aforementioned Section 8 (2) to (4), this applies accordingly to the liability of our company organs, employees and vicarious agents.
Section 9 Retention of title
(1) Our deliveries will take place without exception under retention of title, unless the goods have been paid in advance. Goods not paid in advance (reserved goods) only become the property of the Purchaser if the latter has settled all his current and future obligations arising from the business relationship with us, including ancillary claims, claims for damages and redemption of cheques and bills of exchange. The retention of title will also remain if we incorporate individual receivables into an open invoice and the balance is drawn and acknowledged.
(2) The Purchaser is obligated to keep the goods subject to the retention of title safe for us and to maintain them at his own expense. The Purchaser may combine or mix reserved goods with other things, process and sell them, in the customary course of business. In particular, he may not pledge goods or assign them as security. The Purchaser must immediately notify us of pledges or other access to goods subject to reservation of title, if necessary by sending us a copy of the attachment record.
(3) We are entitled, without setting a grace period and without withdrawing from the contract, to demand the reserved goods from the Purchaser if he is in arrears with the fulfilment of his obligation towards us. In the return of the reserved goods, withdrawal from the contract is only possible if we expressly agree to this in writing. If we withdraw from the contract, we can demand an appropriate compensation for as long as use of the goods is permitted.
(4) Any processing or modification of the reserved goods by the Purchaser will always be carried out for us as a manufacturer within the meaning of Section 950 BGB, without leading to any obligations for us. Should goods subject to reservation of title be mixed or blended with other things, or combined with another object (primary object) in such a way that they become essential parts of it, it is agreed that co-ownership of the entire quantity, or of the primary object, passes to us in the ratio of the invoiced value of the goods subject to reservation of title to the value of the other things or the primary object at the time of mixture or blending. The main item will be stored for us by the Purchaser, free of charge, with the normal due diligence. If reserved goods are also processed by other suppliers at the same time, clauses 1 and 2 apply mutatis mutandis.
(5) The Purchaser hereby assigns all claims resulting from a resale of the reserved goods with all ancillary and security rights including bills of exchange and cheques in advance to secure all claims that arise against the Purchaser from the business relationship. We henceforth accept this assignment. If the reserved goods are sold together with other items for a total price, the assignment is limited to the proportionate amount of our invoice for the reserved goods that are sold together with the rest. If goods are sold in which we have a co-ownership share in accordance with the above regulation, the assignment is limited to the part of the claim that corresponds to our co-ownership share. The Purchaser may not agree with his contractual partner on a prohibition of assignment, and for his part may deliver only under reservation of ownership; upon request, the Purchaser must name the contractual partner to us and deliver or distribute the information and documents required in pursuance of our rights. The Purchaser is authorised to collect the assigned receivable, without prejudice to our entitlement to collect the receivable ourselves; we will only collect the receivable if the Purchaser falls into default of payments or financial collapse (application for the opening of insolvency proceedings).
(6) If the value of the securities to which we are entitled exceeds our own claim to be secured against the Purchaser by more than 10%, we are obligated to release securities at the request of the Purchaser in this regard, at our discretion.
Section 10 Reservation of rights, Confidentiality, Data protection
(1) We retain all property and protection rights and copyrights to all images, drawings, calculations, price lists, plans, drawings and other documents that are transferred by us to the Purchaser. The Purchaser may only use these for the contractual purpose. Before passing them on to third parties, the Purchaser requires our express written consent, unless a mandatory law stands in the way of this. At our request, the Purchaser must return them to us immediately.
(2) We and the Purchaser will treat the information exchanged as confidential in each case to the extent required for processing the contract, also after the end of the contract, unless the information of the respective other party is already known at the time of conclusion of the contract or becomes known subsequently, without obligation to maintain confidentiality, or the respective other party is obligated to disclose it based on a statutory obligation.
(3) We will store the Purchaser’s personal data in compliance with the statutory provisions and process these in connection with our deliveries and services until the expiry of the respective warranty period. The Purchaser hereby agrees to this.
Section 11 Place of jurisdiction, Miscellaneous
(1) The place of jurisdiction for disputes arising from the business relationship is our registered office (Malsch). However, we can also sue the Purchaser in the courts of his general place of jurisdiction.
(2) The law of the Federal Republic of Germany applies to the exclusion of the UN Convention on the International Sale of Goods in the respectively valid version dated 11 April 1980 – CISG).
(3) The Purchaser gives assurance that he will comply with the applicable export control and sanctions regulations and laws of the Federal Republic of Germany, the European Union, the United States of America and other legal systems. The Purchaser will give us all information in advance that we require to comply with the export control and sanctions regulations and laws.
General Terms of Sale and Delivery of VOLTA GmbH as of 31-1-2019