General Terms and Conditions of Sale of a2tec GmbH Hamburg
Version 5 – January 2023
A. Validity
(1) These General Terms and Conditions of Sale shall apply to all – including future – contracts with entrepreneurs, legal entities under public law and special funds under public law concerning deliveries and other services. We shall not be bound by the Buyer’s terms and conditions of purchase even if we do not expressly object to them again after receipt by us.
(2) Further agreements, in particular verbal collateral agreements, promises, guarantees and other assurances on our part before, at or after conclusion of the contract shall only become binding upon our confirmation in text form.
Our previous General Terms and Conditions of Sale shall cease to apply to new contracts upon publication of this version.
B. Offers
1. our offers are valid for 14 calendar days unless otherwise stated. Errors and prior sale are always reserved.
2. the interpretation of trade terms such as EXW, FCA, DAP and CIF shall be governed by the INCOTERMS® as amended from time to time.
3. special packaging, special marking, acceptance test certificates, works certificates, initial sample test reports, test protocols, data sheets, further technical documents (e.g. drawings), IMDS entries as well as further work processes are not included in the offer price, unless listed separately.
C. Prices, shipping and packaging
Unless otherwise agreed, our prices are quoted ex our premises (FCA Hamburg) including customary packaging, plus the statutory value-added tax applicable at the time of delivery.
2. our minimum item value for stock goods is EUR 10,-. Our offers in this regard shall apply to made-to-order goods.
As a rule, we deliver free of charge within Germany, excluding islands, from a delivery value of EUR 250, including customary packaging. For delivery values below this we charge EUR 15,- for handling, packing and shipping. For deliveries of partial quantities initiated by the customer with a value of goods of < EUR 250,- we charge the packaging and shipping costs incurred by us.
The shipping method is chosen by us. The cost of express and special shipping is borne by the buyer. Express collections by third parties (e.g. parcel service and courier) arranged by the buyer must be clarified by 12 noon on the respective day and will otherwise not be carried out. Remuneration for self-collection is not granted.
(4) Within the scope of the statutory provisions, we shall take back customary packaging delivered by us if it is returned to us by the Buyer within a reasonable period of time, carriage paid. Special packaging is excluded from return.
D. Payment and settlement
Unless otherwise agreed, our invoices are due 30 calendar days from the date of invoice. The invoice date is decisive for the payment deadline, not the invoice or goods receipt date. Payments shall be made in such a way that we can dispose of the amount on the due date. The purchaser shall be in default at the latest 10 calendar days after the due date of our claim, without the need for a reminder.
2. discount periods granted shall commence from the date of invoice. An agreed cash discount requires the complete settlement of all due liabilities of the Buyer at the time of the cash discount.
Invoices for net amounts of less than EUR 50.00 as well as for assembly, repairs, molds and tooling costs are due immediately and payable net, unless otherwise stated.
4. counterclaims disputed by us or not legally established entitle the buyer neither to retention nor to set-off. This shall not apply insofar as the Buyer’s counterclaims result from the same contractual relationship and/or they would entitle the Buyer to refuse performance pursuant to § 320 BGB.
5. if the payment deadline is exceeded, at the latest from the time of default, we shall be entitled to charge interest at the respective bank rates for overdraft facilities, but at least the statutory default interest. In addition, we are entitled to charge a flat rate for delay in the amount of 40,- EUR. We reserve the right to claim further damage caused by delay.
(6) If, after the conclusion of the contract, it becomes apparent that our payment claim is jeopardized by the Buyer’s inability to pay or if other circumstances arise which indicate a significant deterioration in the Buyer’s ability to pay, we shall be entitled to refuse agreed advance performance and to exercise the rights under § 321 of the German Civil Code (BGB). This shall also apply insofar as our obligation to perform is not yet due. In such cases, we may also declare due all claims arising from the current business relationship with the purchaser. A lack of ability to pay on the part of the Buyer shall also be deemed to exist if the Buyer is at least three weeks in arrears with a substantial amount (from 10% of the receivables due), furthermore a substantial downgrading of the limit existing for him with our trade credit insurance.
7. we shall not pay interest on advance payments or payments on account.
E. Delivery times / execution of deliveries
(1) Delivery periods and dates shall be deemed to have been complied with if the delivery item has left our premises by the time they expire or, if collection has been agreed, has been made available and notified by us.
Our delivery obligation is subject to correct and timely delivery by our suppliers, unless we are responsible for the incorrect or delayed delivery.
3. events of force majeure entitle us to postpone deliveries for the duration of the hindrance plus a reasonable start-up period. This shall also apply if such events occur during an existing delay. Force majeure shall be deemed to include currency, trade policy and other sovereign measures, strikes, lockouts, operational disruptions for which we are not responsible, obstruction of traffic routes, delays in import and customs clearance, pandemics declared by the WHO and all other circumstances which, through no fault of our own, make deliveries and services significantly more difficult or impossible. In this context, it is irrelevant whether the circumstances occur at our premises, at the supplier’s works or at another sub-supplier’s premises. If, as a result of the aforementioned events, performance becomes unreasonable for one of the contracting parties, it may withdraw from the contract by means of an immediate written declaration.
(4) With the handing over of the goods to a forwarding agent or carrier, at the latest, however, when the goods leave the warehouse or – in the case of drop shipments – the supplying plant, the risk shall pass to the Buyer for all transactions, including carriage paid and free domicile deliveries. The duty and cost of unloading shall be borne by the buyer. We are not obliged to insure the goods.
We are entitled to make partial deliveries to a reasonable extent. In the case of manufactured goods, excess and short deliveries of up to 10% of the concluded quantity are customary and permissible.
(6) In the case of blanket orders, we shall be entitled to manufacture or have manufactured the entire order quantity as a single unit. Any change requests cannot be considered after the order has been placed, unless this has been expressly agreed. Unless fixed agreements have been made, call-off dates and quantities can only be met within the scope of our delivery or manufacturing possibilities. If the goods are not called off in accordance with the contract, we shall be entitled to invoice them as delivered after a reasonable period of grace has elapsed.
7. no later than 15 calendar days after placing a blanket order, the Buyer must schedule the first delivery lot. Acceptance of at least 40% of the total quantity must be made by half of the term. Unless fixed agreements have been made, call-off dates and quantities can only be met within the scope of our delivery or manufacturing possibilities. If the goods are not called off in accordance with the contract, we shall be entitled to invoice them as delivered after a reasonable period of grace has elapsed.
8. in the case of contracts with continuous deliveries, call-offs and grade classifications for approximately equal monthly quantities are to be submitted to us. If the goods are not called off or scheduled in time, we shall be entitled, after setting a grace period to no avail, to schedule the goods ourselves and deliver them or to withdraw from the part of the contract that is still in arrears and to claim damages in lieu of performance.
The return of goods delivered free of defects is generally excluded.
F. Retention of title
1. all goods delivered shall remain our property (reserved goods) until all claims arising from the business relationship have been satisfied, irrespective of the legal grounds, including claims arising in the future or conditional claims (balance reservation). However, the balance reservation does not apply to advance payment or cash transactions that are processed step-by-step. In this case, the delivered goods remain our property until the purchase price for these goods has been paid in full.
2. treatment and processing of the reserved goods shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating us. The processed goods shall be deemed to be goods subject to retention of title within the meaning of Paragraph F / Clause. 1. in the event of processing, combination and mixing of the reserved goods with other goods by the purchaser, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires due to combination or mixing, the purchaser shall already now transfer to us the ownership rights to which he is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in safe custody for us free of charge. The co-ownership rights arising hereunder shall be deemed to be goods subject to retention of title within the meaning of Paragraph F / Clause. 1.
3. the buyer may only sell the goods subject to retention of title in the ordinary course of business under his normal terms and conditions and as long as he is not in default, provided that the claims from the resale in accordance with paragraph F / item. 4 to 6 pass to us. He shall not be entitled to dispose of the reserved goods in any other way.
4. the buyer’s claims from the resale of the goods subject to retention of title are already now assigned to us. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of the resale value of the reserved goods sold in each case. In the event of the sale of goods in which we have co-ownership shares pursuant to Paragraph F / Item. 2, the assignment of the claim shall apply in the amount of these co-ownership shares.
5. the buyer is entitled to collect claims from the resale until our revocation, which is permissible at any time. In the event of default in payment by the Buyer, we shall also be entitled to demand the return of the goods after the expiry of a reasonable grace period and to prohibit the resale and further processing of delivered goods. The redemption is not a withdrawal from the contract. At our request, the purchaser is obliged to inform his customers immediately of the assignment to us – unless we do this ourselves – and to provide us with the information and documents required for collection.
The buyer must inform us immediately of any seizure or other impairment by third parties.
7. if the value of existing securities exceeds the secured claims by more than 50 % in total, we shall be obliged to release securities of our choice to this extent at the Buyer’s request.
G. Liability for defects
(1) The properties of the goods, in particular their quality, grade and dimensions, shall be determined in accordance with the agreed standards or, in the absence of an agreement, in accordance with the DIN, EN and ISO standards applicable at the time of conclusion of the contract, or, in the absence of such standards, in accordance with practice and custom. References to standards and similar regulations as well as information on quality, grades, dimensions, weights and usability of the goods, information in drawings and illustrations as well as statements in advertising material shall not constitute warranties or guarantees unless they are expressly designated as such in text form. The same applies to declarations of conformity and corresponding marks such as CE and GS. Suitability and use risks are the responsibility of the buyer.
(2) The provisions of the German Commercial Code (HGB) shall apply to the inspection of the goods and the notification of defects with the following proviso:
– The purchaser has the obligation to inspect the properties of the goods relevant for the respective use immediately after delivery and to notify us in writing of any defects in the goods without delay. In the event of intended installation or attachment of the goods, the properties relevant for installation or attachment shall also include the internal properties of the goods. The obligation to inspect exists even if a test certificate or other material certificate has been supplied. Defects that cannot be discovered immediately after delivery, even with the most careful inspection, must be reported in text form immediately after discovery.
– If, in the event of installation or attachment of the goods, the Buyer fails to examine the properties of the goods relevant for the intended use at least on a random basis prior to installation or attachment (e.g. by means of functional tests or a trial installation), this shall constitute, in relation to us, a particularly serious disregard of the due care required in the course of trade (gross negligence). In this case, the purchaser’s rights in respect of defects with regard to these properties shall only come into consideration if the defect in question was fraudulently concealed or a guarantee for the quality of the item was assumed.
3. if the buyer discovers defects upon inspection of the goods or subsequently, he shall be obliged to make the rejected goods or samples thereof available to us for the purpose of examining the complaint and to permit an inspection of the rejected goods within a reasonable period of time. Otherwise, the buyer may not invoke defects in the goods.
(4) If the goods are defective, the Buyer shall be entitled to the defect rights in accordance with the statutory provisions of the German Civil Code (BGB) – with the restrictions that we shall be entitled to choose between subsequent improvement and subsequent performance and that minor (insignificant) defects shall only entitle the Buyer to a reduction of the purchase price.
(5) If the Buyer has installed the defective goods in another item or attached them to another item in accordance with their nature and intended use, the Buyer may claim compensation for the necessary expenses for removing the defective goods and installing or attaching the repaired or delivered non-defective goods (“removal and installation costs”) only in accordance with the following provisions.
– Only such removal and installation costs are required which directly concern the removal or dismantling of the defective goods and the installation or fitting of identical goods, have been incurred on the basis of standard market conditions and are proven to us in writing by the Buyer by submitting suitable receipts.
– Any additional costs incurred by the Buyer for consequential damages caused by the defect, such as loss of profit, operating downtime costs or additional costs for replacement procurements, shall not be considered direct removal and installation costs and shall therefore not be reimbursed as expenses in accordance with the German Product Liability Act (Produkthaftungsgesetz). § 439 para. 3 BGB eligible for compensation. The same applies to sorting costs and additional expenses arising from the fact that the goods sold and delivered are located at a place other than the agreed place of performance.
– The Buyer shall not be entitled to demand advance payment for dismantling and installation costs and other costs of subsequent performance.
(6) Insofar as the expenses claimed by the Buyer for subsequent performance are disproportionate in the individual case, in particular in relation to the purchase price of the goods in a defect-free condition and taking into account the significance of the lack of conformity, we shall be entitled to refuse to reimburse such expenses. Disproportionality shall be deemed to exist in particular if the expenses claimed, in particular for removal and installation costs, exceed 150% of the invoiced value of the goods or 200% of the reduced value of the goods due to the defect.
7. further claims are excluded in accordance with paragraph H (General limitation of liability and statute of limitations). This applies in particular to claims for compensation for
– Damage that has not occurred to the goods themselves (consequential damage).
– Costs for the self-remedy of a defect without the legal requirements for this being met.
– Removal and installation costs, insofar as the goods delivered by us no longer existed in their original material quality at the time of installation or addition, or a new product was manufactured from the delivered goods prior to installation.
– transport, travel, labor and material costs incurred because the goods delivered by us have been taken to a place other than the agreed place of performance after the transfer of risk.
8. an unjustified request to remedy a defect shall entitle us to compensation if the purchaser could have recognized that there was no material defect upon careful inspection.
H. General limitation of liability and statute of limitations
(1) We shall be liable for breach of contractual and non-contractual obligations, in particular for impossibility, delay, culpa in contrahendo, culpa in contrahendo and tort – including for our executive employees and other vicarious agents – only in cases of intent and gross negligence, in the latter case limited to the typical contractual damage foreseeable at the time of conclusion of the contract.
2. the restrictions from paragraph H / sec. 1 shall not apply in the event of culpable breach of material contractual obligations. Material contractual obligations are the obligation to deliver on time and to ensure that the goods are free from defects that impair their functionality or usability more than insignificantly and, furthermore, advisory, protective and custodial obligations that are intended to protect the Buyer or its personnel from significant damage. Furthermore, the limitations shall not apply in cases of mandatory liability under the Product Liability Act, in the event of injury to life, limb or health and also not if and to the extent that we have fraudulently concealed defects in the item or guaranteed their absence. The rules on the burden of proof shall remain unaffected.
If we have been duly put in default with a delivery or other service in accordance with the provisions of the German Commercial Code (HGB), the Buyer may, within the framework of the provisions of the HGB, demand compensation for the damage caused by default in addition to the service; in the event of slight negligence, however, this shall be limited to a maximum of 10% of the agreed price for the service in default. The Buyer’s right to claim damages instead of performance in accordance with paragraph H / sec. 1 and 2. remains unaffected.
(4) Unless otherwise agreed, contractual claims which the Buyer has against us on the grounds of or in connection with the delivery of the goods shall become statute-barred one year after delivery of the goods. 1 No. 2 BGB, §§ 478, 479 BGB or § 634 a para. 1 No. 2 BGB (German Civil Code), as well as in cases of injury to life, body or health, in the event of an intentional or grossly negligent breach of duty by us or in the event of fraudulent concealment of a defect. In cases of defective subsequent performance, the limitation period shall not start again.
I. Copyrights / Data protection
We reserve the right of ownership and copyright to cost estimates, drafts, drawings and other documents; they may only be made accessible to third parties in agreement with us. Drawings and other documents pertaining to offers shall be returned upon request.
(2) If we have delivered items in accordance with drawings, models, samples or other documents provided by the Buyer, the Buyer shall warrant that the industrial property rights of third parties are not infringed. If third parties prohibit us from manufacturing and supplying such items in particular by invoking property rights, we shall be entitled – without being obliged to examine the legal situation – to cease any further activity in this respect and to demand compensation in the event that the purchaser is at fault. The purchaser also undertakes to indemnify us immediately against all claims of third parties in connection therewith.
3. to ensure a functioning business relationship, the data necessary for this are stored and processed. These are the generally publicly known address and contact details, websites, tax / commercial register numbers, and bank details for processing payments. Furthermore, also names of contact persons with the corresponding personal contact data (phone, e-mail, etc.). All data is treated confidentially and is not passed on to third parties, with the exception of our tax advisors, auditors and the associated IT service provider DATEV for carrying out bookkeeping and accounting. The data is subject to a high data protection standard at the aforementioned partners and is secured in accordance with the statutory retention obligations. Our contractual partners undertake to comply with the statutory provisions on data protection and to store only the data that are absolutely necessary for the business transaction.
J. Accessories, molds and tools
1. if the buyer has to provide parts for the execution of the order, these are to be delivered, with a reasonable excess quantity for any rejects, free to the production site named by us, in good time, free of charge and free of defects. If this does not happen, any costs and other consequences caused by this shall be borne by him.
2. the production of test parts and samples including the costs for molds (e.g. vulcanization molds), auxiliary materials and tools shall be borne by the purchaser. Tooling cost shares charged by us are the pure or, if applicable, pro rata material and manufacturing costs for the tooling and do not include our costs for the constructive performance, start-up costs, and costs for maintenance and storage of the tools. We bear these costs and thus remain the owner and co-owner of the tools in any case. The Buyer may not demand relocation or surrender of tools. If, however, a surrender of tools is agreed upon, we shall be entitled to charge the provision and freight costs from the storage location of the tool to Hamburg. The re-acceptance of tools once issued is expressly excluded.
Tools cannot be ordered at the conditions stated in the offer without ordering series parts. Our obligation to store and maintain expires two years after the last parts delivery.
3. our liability for tools, molds and other production equipment provided by the buyer shall be limited to the same care as in our own business. Costs for maintenance and care are borne by the buyer. Our obligation to retain the goods shall expire – irrespective of the purchaser’s ownership rights – at the latest two years after the last production from the mold or tool.
4. paragraph A / clause A shall apply to agreements to the contrary. 2.
K. Place of performance, jurisdiction and applicable law
1. place of performance for our deliveries, for a subsequent performance as well as for payments of the buyer is our company. The place of jurisdiction is Hamburg. We can also sue the buyer at his place of jurisdiction.
All legal relations between us and the Buyer shall be governed by German law to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980.
L. Authoritative version
In cases of doubt, the German version of these General Terms and Conditions of Sale shall prevail.
Revision status (publication date) 01.01.2023
