General Terms and Conditions of Sale (AVB)

Section 1 General, Scope

(1) Unless expressly agreed otherwise, these present “General Terms and Conditions of Sale” (AVB) apply to all contracts, deliveries, and other services provided by Backblechkönig GmbH in commercial transactions with non-consumers within the meaning of Section 310 (1) of the German Civil Code (BGB) (hereinafter: “Buyer”).

(2) These AVB apply in particular to contracts concerning the sale and/or delivery of movable goods (hereinafter also: “Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (Sections 433, 650 BGB). In their respective current version, the AVB shall also apply as a framework agreement for future contracts for the sale and/or delivery of movable goods with the same Buyer, without us having to refer to them again in each individual case.

(3) Our AVB apply exclusively. Differing, conflicting, or supplementary General Terms and Conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly agreed to their application. This requirement of consent applies in every case, for example even if we make delivery to the Buyer without reservation while being aware of the Buyer’s terms and conditions.

(4) In the context of an ongoing business relationship between merchants (Kaufleute), these terms shall become part of the contract even if we have not expressly referred to their inclusion in each individual case.

(5) Individual agreements made with the Buyer in individual cases (including ancillary agreements, supplements, and amendments) shall in all cases take precedence over these AVB. For the content of such agreements, a written contract or our confirmation in text form shall be decisive.

(6) Legally relevant declarations and notices to be given to us by the Buyer after conclusion of the contract (e.g., setting of deadlines, notices of defects, declaration of withdrawal or price reduction) must be in text form (e.g., email or letter) to be effective.

(7) References to the application of statutory provisions are for clarification purposes only. Even without such clarification, statutory provisions shall therefore apply unless directly modified or expressly excluded in these AVB.

Section 2 Conclusion of Contract

(1) Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogues, technical documentation (e.g., drawings, plans, calculations, costings, references to DIN standards), other product descriptions, or documents – including in electronic form – to which we reserve property rights and copyrights.

(2) The order of the Goods by the Buyer shall be deemed a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 7 days of its receipt by us.

(3) Acceptance may be declared either in text form (e.g., by order confirmation) or by delivery of the Goods to the Buyer.

(4) Requests by the customer for subsequent reduction or cancellation of a legally effective purchase offer can only be considered on the basis of special agreements and – insofar as it does not concern stock goods – only to the extent that the upstream supplier is willing to take back the Goods. In any case, we are entitled to deduct an appropriate percentage of the net invoice amount from the credit note for processing costs, inspection, and repackaging for Goods returned properly and with our consent. Damaged goods will not be credited. In cases of rescission due to mistake (Section 122 BGB), we shall be entitled to compensation for the damage incurred by us.

Section 3 Delivery Period and Default in Delivery

(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order. Unless this is the case, the delivery period is approximately 4 weeks from conclusion of the contract.

(2) Insofar as we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of performance), we shall inform the Buyer thereof without undue delay and at the same time communicate the prospective new delivery deadline. If performance is also not available within the new delivery deadline, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already rendered by the Buyer. A case of non-availability of performance in this sense shall in particular be deemed to be the failure of our supplier to deliver to us on time if we have concluded a congruent hedging transaction. Our statutory rights of withdrawal and termination as well as statutory provisions regarding the processing of the contract in the event of an exclusion of the obligation to perform (e.g., impossibility or unreasonableness of performance and/or supplementary performance) remain unaffected. The Buyer’s rights of withdrawal and termination pursuant to Section 8 of these AVB also remain unaffected.

(3) The occurrence of our delay in delivery shall be determined in accordance with statutory provisions. In any case, however, a reminder notice by the Buyer is required. If we fall into delay in delivery, the Buyer may demand liquidated damages for the delay. The liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but not exceeding a maximum of 5% of the delivery value of the late delivered Goods. We reserve the right to prove that the Buyer has suffered no damage or only substantially less damage than the aforementioned flat rate.

Section 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance

(1) Delivery is ex warehouse (ab Lager), which is also the place of performance. At the request and expense of the Buyer, the Goods shall be shipped to another destination (sale by dispatch / Versendungskauf). Unless agreed otherwise, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

(2) The risk of accidental loss and accidental deterioration of the Goods passes to the Buyer at the latest upon handover. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay already passes upon delivery of the Goods to the forwarding agent, the carrier, or the person or institution otherwise designated to carry out the dispatch. Insofar as an acceptance procedure has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of the law on contracts for work and services (Werkvertragsrecht) shall apply accordingly to any agreed acceptance. Handover or acceptance shall be deemed to have taken place if the Buyer is in default of acceptance.

(3) If the Buyer is in default of acceptance, fails to perform an act of cooperation, or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for the resulting damage, including additional expenses (e.g., storage costs). For this purpose, we charge a flat-rate compensation of 0.5% of the net price (delivery value) per calendar week, beginning with the delivery deadline or – in the absence of a delivery deadline – with notification that the Goods are ready for dispatch; up to a maximum total of 5% of the delivery value of the Goods.

The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the flat rate is to be offset against further monetary claims. The Buyer shall be permitted to prove that we have suffered no damage at all or only substantially less damage than the aforementioned flat rate.

Section 5 Prices and Terms of Payment

(1) Unless agreed otherwise in individual cases, our current prices at the time of contract conclusion shall apply, namely ex warehouse, plus statutory value-added tax (VAT).

(2) In the case of sale by dispatch (Section 4 (1)), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Any customs duties, fees, taxes, and other public charges shall be borne by the Buyer. We do not take back transport packaging or any other packaging in accordance with the German Packaging Act (VerpackG); it becomes the property of the Buyer; pallets are excluded.

(3) Unless expressly agreed otherwise in individual cases, delivery shall be made exclusively against advance payment (Vorkasse). The purchase price is due and payable immediately without deduction upon receipt of the invoice or order confirmation and shall be transferred to the specified business bank account.

(4) If the Buyer defaults on payment, the purchase price shall bear interest during the default period at the applicable statutory default interest rate. We reserve the right to assert further claims for damages caused by default. With respect to merchants (Kaufleute), our claim to commercial maturity interest (Section 353 HGB) remains unaffected. The dispatch of the Goods – and, in the case of custom-made products, the commencement of production – will only take place after receipt of full payment.

(5) The Buyer shall only be entitled to rights of set-off or retention to the extent that its claim has been legally established or is undisputed. In the event of defects in the delivery, Section 7 (7) remains unaffected.

(6) If it becomes apparent after the conclusion of the contract that our claim to the purchase price is jeopardized by the Buyer’s lack of solvency (e.g., through an application for opening of insolvency proceedings), we shall be entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the contract in accordance with statutory provisions (Section 321 BGB). In the case of contracts for the manufacture of non-fungible items (custom-made / individual products), we may declare withdrawal immediately; statutory provisions regarding the dispensability of setting a deadline remain unaffected.

Section 6 Retention of Title

(1) Until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims), we retain ownership of the sold Goods.

(2) The Goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must notify us immediately in text form if and to the extent that third parties access the Goods belonging to us.

(3) In the event of breach of contract by the Buyer, in particular non-payment of the due purchase price, we shall be entitled to withdraw from the contract in accordance with statutory provisions and/or to demand the return of the Goods on the basis of the retention of title. The demand for surrender does not at the same time contain a declaration of withdrawal; rather, we are entitled merely to demand the return of the Goods and reserve the right of withdrawal. If the Buyer does not pay the due purchase price, we may only assert these rights if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable under statutory provisions.

(4) The Buyer is authorized to resell and/or process the Goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:

(a) The retention of title extends to the full value of the products resulting from the processing, mixing, or combining of our Goods, whereby we shall be deemed the manufacturer. If, during processing, mixing, or combining with goods of third parties, their ownership right remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. In all other respects, the same applies to the resulting product as to the Goods delivered under retention of title.
(b) The Buyer hereby assigns to us as security all claims against third parties arising from the resale of the Goods or product in total or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer set out in paragraph 2 shall also apply with respect to the assigned claims.
(c) The Buyer remains authorized to collect the claim alongside us. We undertake not to collect the claim as long as the Buyer meets its payment obligations towards us, does not fall into default of payment, no application for the opening of insolvency proceedings has been filed, and there is no other deficiency in its solvency. If this is the case, however, we can demand that the Buyer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents, and notifies the debtors (third parties) of the assignment.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the Buyer’s request.

Section 7 Warranty Claims of the Buyer (Defects)

(1) The statutory provisions shall apply to the rights of the Buyer in the event of material defects and defects of title (including wrong and short deliveries as well as improper assembly or defective assembly instructions), unless provided otherwise below. In all cases, the statutory special provisions on supplier recourse pursuant to Sections 445a, 445b, 478 BGB remain unaffected.

(2) The basis of our liability for defects is above all the agreement reached on the quality of the Goods. All product descriptions that are the subject of the individual contract shall be deemed an agreement on the quality of the Goods; it makes no difference whether the product description originates from the Buyer, the manufacturer, or from us.

(3) In particular, a defect does not exist if the delivered Goods are damaged due to improper handling and/or improper cleaning.

(4) Insofar as the quality was not agreed, it shall be assessed in accordance with statutory provisions whether a defect exists or not (Section 434 BGB). However, we assume no liability for public statements of the manufacturer or other third parties (e.g., advertising statements).

(5) The Buyer’s claims for defects presuppose that it has complied with its statutory duties of inspection and notification of defects (Sections 377, 381 HGB). If a defect appears during the inspection or later, we must be notified thereof in text form without undue delay. Notice shall be deemed without undue delay if given within two weeks, whereby timely dispatch of the notice shall suffice to meet the deadline. Irrespective of this duty of inspection and notification of defects, the Buyer must notify us in text form of obvious defects (including wrong and short deliveries) within two weeks of delivery, whereby timely dispatch of the notice shall also suffice to meet the deadline. If the Buyer fails to carry out the proper inspection and/or notification of defects, our liability for the unnotified defect is excluded.

(6) If the delivered item is defective, we may initially choose whether to provide supplementary performance (Nacherfüllung) by rectifying the defect (Nachbesserung) or by delivering a defect-free item (Ersatzlieferung). Our right to refuse the chosen type of supplementary performance under statutory conditions remains unaffected.

(7) We are entitled to make the owed supplementary performance dependent on the Buyer paying the due purchase price. However, the Buyer is entitled to retain a reasonable part of the purchase price in proportion to the defect.

(8) The Buyer must give us the time and opportunity required for the owed supplementary performance, in particular to hand over the rejected Goods for inspection purposes. In the event of a replacement delivery, the Buyer must return the defective item to us in accordance with statutory provisions.

(9) The expenses necessary for the purpose of inspection and supplementary performance, in particular transport, travel, labor, and material costs, shall be borne by us if a defect actually exists. However, if a request for remedy of a defect by the Buyer turns out to be unjustified, we may demand reimbursement from the Buyer for the costs incurred thereby.

(10) In urgent cases, e.g., if operational safety is endangered or to prevent disproportionate damage, the Buyer has the right to remedy the defect itself and to demand compensation from us for the objectively necessary expenses. We must be notified of such self-remedy without undue delay, if possible beforehand. The right of self-remedy does not exist if we would be entitled to refuse corresponding supplementary performance in accordance with statutory provisions.

(11) If the supplementary performance has failed or a reasonable deadline to be set by the Buyer for supplementary performance has expired unsuccessfully or is dispensable under statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price. However, there is no right of withdrawal in the case of an insignificant defect.

(12) Claims of the Buyer for damages or reimbursement of wasted expenses shall exist only in accordance with Section 8 and are otherwise excluded.

Section 8 Other Liability

(1) Unless arising otherwise from these AVB including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual duties in accordance with the relevant statutory provisions.

(2) We shall be liable for damages – on whatever legal grounds – in cases of intent and gross negligence. In cases of simple negligence, we shall be liable only:
a) for damages resulting from injury to life, body, or health,
b) for damages resulting from the breach of an essential contractual duty (obligation whose fulfillment makes the proper execution of the contract possible in the first place and on whose observance the contractual partner regularly relies and may rely); in this case, however, our liability is limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 shall not apply insofar as we have fraudulently concealed a defect or have assumed a guarantee for the quality of the Goods. The same applies to claims of the Buyer under the German Product Liability Act (Produkthaftungsgesetz).

(4) Due to a breach of duty that does not consist of a defect, the Buyer may only withdraw or terminate if we are responsible for the breach of duty. A free right of termination of the Buyer (in particular pursuant to Sections 650, 648 BGB) is excluded. In all other respects, statutory requirements and legal consequences shall apply.

Section 9 Limitation Period

(1) Deviating from Section 438 (1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery.

(2) The above limitation periods of sales law shall also apply to contractual and non-contractual claims for damages of the Buyer based on a defect in the Goods, unless the application of the regular statutory limitation period (Sections 195, 199 BGB) would lead to a shorter limitation period in individual cases. The limitation periods of the German Product Liability Act remain unaffected in any case. Otherwise, the statutory limitation periods shall apply exclusively to claims for damages of the Buyer pursuant to Section 8.

Section 10 Choice of Law and Place of Jurisdiction

(1) For these AVB and all legal relationships between us and the Buyer, the law of the Federal Republic of Germany shall apply, excluding all international and supranational (contractual) legal systems, in particular the UN Convention on Contracts for the International Sale of Goods (CISG). The conditions and effects of the retention of title pursuant to Section 6, on the other hand, are subject to the law at the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective thereafter.

(2) If the Buyer is a merchant (Kaufmann) within the meaning of the German Commercial Code (HGB), a legal entity under public law, or a special fund under public law, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Hamburg, Germany. However, we are also entitled to bring an action at the general place of jurisdiction of the Buyer.