The following / overleaf terms and conditions of delivery and payment form the basis of the delivery and service contracts of Wilhelm Modersohn GmbH & Co KG, Spenge - hereinafter referred to as Modersohn for short - in deviation from and as a supplement to the legally applicable law. Deviating provisions of the customer are only binding for Modersohn if they have been expressly confirmed by us in writing.
§ 1 General, scope of application
(1) Our General Terms and Conditions of Sale ("Terms and Conditions of Sale") shall apply to all contracts concluded from 12.03.2019 onwards which predominantly concern the delivery of movable goods ("Goods"). Any additional obligations assumed shall not affect the validity of these Terms and Conditions of Sale.
(2) Our terms and conditions of sale shall apply exclusively; we shall not recognise any terms and conditions of the Buyer which conflict with or deviate from our terms and conditions of sale or from statutory provisions unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale shall also apply if we accept the performance of the Buyer without reservation or render our services without reservation in the knowledge of terms and conditions of the Buyer which are contrary to or deviate from our Terms and Conditions of Sale.
(3) Our Terms and Conditions of Sale shall only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law or a special fund under public law.
(4) References to the validity of statutory provisions shall only have a clarifying meaning. Even without such clarification, the statutory provisions shall therefore apply, unless they are directly amended or expressly excluded in these Terms of Sale.
§ 2 Offer, conclusion of contract and content of the contract
(1) Our offers are subject to change and non-binding. Non-binding and subject to change in this sense means that the conclusion of the contract still requires our order confirmation.
(2) The order of the goods by the buyer is a binding offer of contract. We can accept this contractual offer - unless otherwise stated in the order - within fourteen (14) days of receipt of the order.
(3) The conclusion of the contract always requires our written order confirmation.
(4) The Buyer shall be obliged to inform us in writing prior to the conclusion of a contract if (a) the goods to be delivered are not intended to be exclusively suitable for normal use or if the Buyer assumes that they are suitable for a particular purpose, (b) the goods are used under unusual conditions or are exposed to particular stresses, (c) the goods are used under conditions that entail a particular health or safety risk, or (d) the goods are to be used outside Germany or are to be delivered to the Buyer's customers resident outside Germany.
(5) Our information on the goods (e.g. weights, dimensions, utility values, load-bearing capacity, tolerances and technical data) as well as our representations of the same (e.g. drawings and illustrations) are only approximately authoritative, unless the usability for the contractually intended purpose requires exact conformity. They do not constitute guarantees of quality or durability 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 as a "guarantee".
(6) Deviations that are customary in the trade and deviations that are based on legal regulations or represent technical improvements, as well as the replacement of components by equivalent parts, are permissible, provided they do not impair the usability for the contractually intended purpose.
(7) The Vergabe- und Vertragsordnung für Bauleistungen (VOB) [German Construction Contract Procedures], in particular the VOB/B [German Construction Contract Procedures], shall not apply to the contract concluded between us and the Buyer.
(8) With the exception of the acceptance of the goods in accordance with § 433 Para. 2 BGB, no acceptance of the goods has been agreed.
(9) With the conclusion of the contract, we do not assume any procurement risk within the meaning of § 276 BGB. Furthermore, we do not assume any guarantee for the goods.
(10) All agreements made between us and the buyer for the purpose of executing this contract at the time of conclusion of the contract are set out in writing in the contract and these terms and conditions of sale.
(11) We reserve all property rights and copyrights to illustrations, drawings, calculations and other documents. This also applies to such written documents which are designated as "confidential". Before passing them on to third parties, the buyer requires our express written consent.
§ 3 Delivery, delivery time, withdrawal in case of delay, compensation in case of delay
(1) Unless another delivery modality has been agreed, delivery shall be EXW Incoterms 2010 at the delivery address specified in our order confirmation, or, if no delivery address is specified in our order confirmation, EXW Industriestrasse 23, 32139 Spenge Incoterms 2010.
(2) The transfer of risk shall take place upon delivery.
(3) The start of the delivery period stated by us is subject to the clarification of all technical questions. Compliance with our delivery obligation further presupposes the timely and proper fulfilment of all obligations of the purchaser. We reserve the right to raise the defence of non-performance of the contract.
(4) Agreed delivery periods shall not constitute a transaction for delivery by a fixed date.
(5) We shall be entitled to make partial deliveries and render partial services within the agreed delivery periods or by the agreed delivery date, provided this is reasonable for the buyer.
(6) If the Buyer wishes to make changes to the goods after conclusion of the contract, this shall lead to an extension of the delivery period - provided we agree to these changes, which we are not obliged to do. Depending on the order situation, the period of extension may be longer than would be necessary for the mere implementation of the change requests.
(7) If we are unable to meet binding delivery periods or delivery dates for reasons for which we are not responsible (non-availability of the service), we shall inform the purchaser of this immediately and at the same time inform him of the expected new delivery period or date. If the service is also not available within the new delivery period or on the new delivery date for reasons for which we are not responsible, we are entitled to withdraw from the contract in whole or in part; we will reimburse any consideration already provided by the buyer without delay. A case of non-availability of performance in this sense is in particular the non-timely delivery by our supplier, if we have concluded a congruent hedging transaction or if neither we nor our supplier are at fault.
(8) If the buyer is in default of acceptance or if he culpably violates other obligations to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to make further claims.
(9) The buyer shall only be entitled to withdraw from the contract due to delayed delivery and/or non-delivery if we are in default with the fulfilment of the main obligations incumbent on us or have substantially breached obligations justified by the contract in another way and the default or breach of obligation is attributable to us. In order to bring about the delay, a written request to us to perform our services within a reasonable period of time is always required, even if the time of performance is determined by calendar. Otherwise, the statutory provisions shall apply to the occurrence of default.
(10) Should we be in default of delivery in accordance with the statutory requirements, taking into account the provisions set out in these Terms and Conditions of Sale, and should the Buyer have claims for damages against us on account of default, our liability in the event of default of delivery shall be limited to 0.5% of the agreed net price of the goods not delivered or delivered late for each completed week of the default, but to a maximum of 5% of the net price of the goods not delivered or delivered late. This shall not affect claims for fraudulent, wilful and grossly negligent breach of contract, claims for injury to life, body and health and in the case of liability under the Product Liability Act.
(11) Insofar as we bear the risk of transport, notwithstanding § 3 para. 1 of these Terms and Conditions of Sale, the Buyer shall be obliged to notify the carrier of any externally recognisable loss or damage to the freight, at the latest upon delivery by the carrier, and to mark the loss or damage sufficiently clearly. If the loss or damage is not externally recognisable, the loss or damage must be notified to the carrier within seven (7) days of delivery at the latest and the loss or damage must be marked sufficiently clearly. The notification must be made in text form. Notwithstanding the provisions of § 5 para. (4) to para. (6) of these Terms and Conditions of Sale, the buyer is obliged to send us a copy of this notification without delay.
§ 4 Prices, terms of payment and default in payment
(1) Unless otherwise stated in our order confirmation, our prices are EXW Incoterms 2010, excluding packaging. Packaging will be invoiced separately.
(2) The Buyer shall be obliged to pay the full purchase price (as well as transport and packaging costs, if applicable) without deduction of discount on the date specified in our order confirmation or, if no such date is specified, when the invoice is issued, to the account designated by us free of charge and expenses. The receipt of payment on our account is decisive for the timeliness of payment. The statutory turnover tax is shown separately and is to be paid additionally by the buyer.
(3) The statutory provisions shall apply to default in payment. During the period of default, interest shall be charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damages caused by default. With respect to merchants, our claim to the commercial due date interest in accordance with § 353 HGB (German Commercial Code) remains unaffected.
(4) The buyer shall only be entitled to set-off and retention rights if his counterclaims have been legally established, are undisputed or acknowledged by us or are based on the same contractual relationship.
(5) If the buyer does not pay due invoices, exceeds granted payment terms or his financial circumstances deteriorate after conclusion of the contract or if we receive information after conclusion of the contract that calls into question the buyer's solvency or creditworthiness, we shall be entitled (a) to call due the entire remaining debt of the buyer and to demand advance payment or security, amending the agreements made, (b) to demand immediate payment of all our claims based on the same legal relationship after delivery has taken place and (c) to raise the defence of uncertainty in accordance with § 321 BGB.
§ 5 Rights of the buyer in case of defects
(1) The legal regulations apply to the rights of the buyer in the case of material defects and defects of title (including wrong and short delivery as well as improper assembly and/or faulty assembly instructions), unless otherwise specified below. In all cases - even if this is not specifically mentioned below - the legal regulations according to § 439 para. 2 and para. 3 BGB (reimbursement of expenses required for the purpose of subsequent performance) shall remain unaffected if the goods sold by us are a newly manufactured item, according to § 445a BGB (recourse of the buyer against us in the event that he incurs expenses in relation to his customer within the scope of subsequent performance according to § 439 para. 2 and/or para. 3 BGB and/or § 475 para. 4 and/or para. 6 BGB) and according to § 478 BGB (special provisions for the entrepreneur recourse in case of a purchase of consumer goods).
(2) The goods are materially defective if, at the time of transfer of risk, they deviate noticeably from the specifications stated in our order confirmation. If no specifications are stated in the order confirmation, the goods are materially defective if they deviate from the quality customary in Germany.
(3) The goods shall only have defects of title if they are not free of rights enforceable in Germany at the time of the transfer of risk. If, however, the goods are not free of rights enforceable in Germany at the time of the transfer of risk and if this is based on instructions of the Buyer, then, in deviation from § 5 para. (3) sentence 1, no defect of title exists.
(4) Claims for defects on the part of the buyer presuppose that the buyer has properly fulfilled his obligations to give notice of defects in accordance with § 377 HGB (German Commercial Code), taking into account the provisions contained in these terms of sale.
(5) The buyer is obliged to notify us in writing of obvious material defects immediately after delivery of the goods. The buyer is further obliged to examine the goods immediately after delivery. The Buyer shall notify us in writing of any material defects that can be identified by a proper inspection or that are obvious without delay, but at the latest within seven (7) calendar days after delivery of the goods. Hidden material defects must be reported immediately after their discovery.
(6) The notification shall be made in writing and directly to us. It must be drafted so precisely that we can initiate remedial measures without further enquiry with the buyer and secure recourse claims against our suppliers. In all other respects, the notice of defects must comply with the statutory provisions. Our employees are not entitled to accept notifications of defects outside our business premises or to make warranty declarations.
(7) Insofar as there is a material defect in the goods notified in good time, we shall be obliged, at our discretion, to provide subsequent performance in the form of rectification of the defect or delivery of a new defect-free item. The subsequent performance can be carried out at our registered office or at the place of use of the goods at our discretion. We shall not be obliged to bear any expenses incurred by the goods being taken to a place other than the buyer's branch, unless the buyer has informed us in writing in his order prior to conclusion of the contract that the goods will be taken to a place other than his branch and we have expressly agreed to this.
(8) Insofar as the goods sold by us are newly manufactured goods, we shall not be obliged to accept delivery - without waiving the statutory provisions and those contained in these Terms and Conditions of Sale, in particular without waiving the objection of disproportionality pursuant to § 439 para. 4 of the German Civil Code (BGB) - within the scope of subsequent performance, we shall be obliged to reimburse the buyer for the necessary expenses for the removal of the defective goods and the installation or attachment of the repaired or delivered goods free of defects, provided that the buyer has installed the defective goods into another object or attached them to another object in accordance with their type and intended use.
(9) If the supplementary performance fails, the buyer is entitled to demand withdrawal or reduction of the purchase price after setting a deadline with threat of refusal and additionally in compliance with the statutory provisions. A rectification of defects shall be deemed to have failed - in each case with reference to the specific individual defect - after the third unsuccessful attempt, unless something else arises in particular from the type of defect or other circumstances.
(10) Insofar as the buyer has suffered damage or incurred expenses in vain due to a defect in goods delivered by us, the provisions of § 6 of these terms of sale shall apply in addition.
(11) With the exception of the cases regulated in § 5 para. 12 of these Terms and Conditions of Sale, all claims of the Buyer for delivery of defective goods shall become statute-barred one (1) year after the statutory commencement of the limitation period.
(12) Notwithstanding § 5 (11) of these Terms and Conditions of Sale, the statutory warranty periods shall apply - if the goods are a newly manufactured item which is a building and/or an item which has been used for a building in accordance with its usual purpose 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;
- if we have fraudulently concealed the defect;
- for claims for injury to life, body and/or health;
- for claims in accordance with § 445a BGB (recourse of the buyer against us in the event that he has incurred expenses in relation to his customer within the scope of subsequent performance in accordance with § 439 Para. 2 and/or
- Para. 3 BGB and/or § 475 para. 4 and/or para. 6 BGB);
- for claims pursuant to § 439 para. 2 and para. 3 BGB (reimbursement of expenses incurred for the purpose of subsequent performance), provided that the goods sold by us are a newly manufactured item, whereby such a claim presupposes that the claim for subsequent performance pursuant to § 439 para. 1 BGB is not time-barred in accordance with these Terms and Conditions of Sale; and
- for claims which fall within the scope of application of § 478 BGB (special provisions for the entrepreneur recourse in the case of a purchase of consumer goods)
(13) Replacement delivery or rectification of defects shall not lead to newly commencing limitation periods.
(14) Irrespective of further-reaching statutory regulations, the suspension of the statute of limitations shall also end if the negotiations that are being suspended are not continued for four (4) weeks. A new start of a suspension of the statute of limitations for claims of the Buyer shall in any case require our express written confirmation.
§ 6 Liability for damages and expenses
(1) Our liability for damages and expenses shall be governed by the following provisions in addition to the above provisions in § 5 of these Terms of Sale. Subject to a statute of limitations according to § 5 para. 11 in conjunction with § 5 para. 12 of these Terms and Conditions of Sale, the statutory provisions shall remain unaffected in all cases - even if this is not specifically mentioned below
- in accordance with § 445a BGB (recourse of the buyer against us in the event that he has to bear expenses in relation to his customer within the scope of subsequent performance in accordance with § 439 para. 2 and/or para. 3 BGB and/or § 475 para. 4 and/or para. 6 BGB),
- according to § 478 BGB (special provisions for the entrepreneur recourse in case of a consumer goods purchase), as well as
- our obligation to bear the expenses necessary for the purpose of subsequent performance in accordance with § 439 para. 2 and/or para. 3 BGB (German Civil Code), provided that the goods sold by us are a newly manufactured item, whereby such a claim presupposes that the claim for subsequent performance in accordance with § 439 para. 1 BGB is not time-barred in accordance with these Terms and Conditions of Sale.
(2) Our liability for damages or futile expenses of the buyer shall only arise if the damage or the futile expenses a) were caused by culpable breach of an obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on the observance of which the buyer may regularly rely (essential contractual obligation), or b) are attributable to a grossly negligent or intentional breach of duty.
(3) If we are liable in accordance with § 6 paragraph 2 a) of these Terms and Conditions of Sale for the breach of an essential contractual obligation, our liability for damages shall be limited to the typically occurring damage foreseeable at the time of conclusion of the contract. For damages caused by delay § 3 para. 10 of these terms of sale shall apply.
(4) The above limitations of liability set out in § 6, paragraphs 2 to 3 of these Terms and Conditions of Sale shall not apply to liability (a) under the German Product Liability Act, (b) for assumption of a guarantee for the quality of the goods, (c) for 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.
(5) The buyer's obligation to mitigate damages according to § 254 BGB remains unaffected. Any agreement between the Buyer and his customers which aggravates the Buyer's statutory liability to his disadvantage shall constitute a breach of this duty to mitigate damages and - insofar as the Buyer's statutory liability has been aggravated to his disadvantage - shall lead to the exclusion of any claim for compensation against us.
(6) We shall be obliged to pay damages for the breach of contractual and/or pre-contractual obligations towards the buyer exclusively in accordance with the provisions of these terms of sale. Any recourse to competing bases for claims, e.g. culpa in contrahendo according to § 311 para. 3 BGB, positive breach of contract according to § 280 BGB or due to tortious claims according to § 823 BGB is excluded.
Similarly, any personal claims against our executive bodies, employees, representatives and/or vicarious agents for breach of contractual obligations incumbent on us are also excluded.
(7) The above provisions in § 6 of these terms of sale shall apply subject to
- § 445a BGB (recourse of the buyer against us in the event that he has to bear expenses in relation to his customer in the course of subsequent performance in accordance with § 439 para. 2 and/or para. 3 BGB and/or § 475 para. 4 and/or para. 6 BGB);
- § 478 BGB (special provisions for the entrepreneur recourse in the case of a purchase of consumer goods); and subject to
- of the expenses to be borne by us for the purpose of subsequent performance in accordance with § 439 Para. 2 and/or Para. 3 BGB (German Civil Code), insofar as the goods sold by us are a newly produced item, also for claims of the buyer for reimbursement of expenses
§ 7 Reservation of title
(1) We reserve title to the goods sold until full payment of all our present and future claims arising from the contract (secured claims). If the buyer has not paid in advance, we also reserve the title to the sold goods for all our present and future claims (secured claims) from the current business relationship.
(2) The goods subject to retention of title may neither be pledged to third parties nor assigned as security before the secured claims have been paid in full. The buyer must inform us immediately in writing if an application is made for the opening of insolvency proceedings or if third parties seize the goods belonging to us.
(3) If the buyer acts in breach of the contract, in particular if he fails to pay the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions
and then to demand the goods back on the basis of the reservation of title.
(4) If the buyer processes the goods subject to retention of title 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 combination of our goods, whereby we shall be deemed the manufacturer. If a third party's right of ownership remains in existence after processing, mixing or combining with goods, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under reservation of title.
(5) Insofar as the buyer resells the goods subject to retention of title in the ordinary course of business, the buyer hereby assigns to us by way of security the resulting claim against the purchaser - in the case of the seller's co-ownership of the goods subject to retention of title in proportion to the co-ownership share. The same applies to other claims that take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction.
We accept the assignment. We revocably authorise the buyer to collect the claims assigned to us in his own name. We are entitled to revoke this direct debit authorization if the buyer is in default of payment, if the buyer has not fulfilled his payment obligations or if the buyer is in default of payment.
obligations to us or we have exercised our right under § 7 para. 3 of these terms of sale.
(6) If the realisable value of the securities exceeds our claims by more than 10%, we shall release securities of our choice at the request of the buyer.
§ 8 Place of performance, choice of law and jurisdiction
(1) The place of delivery follows from § 3 para. 1 of these terms of sale. The place of payment and performance for all other obligations under the contract with the Buyer is Industriestrasse 23, 32139 Spenge, Germany. These provisions shall also apply if services rendered are to be reversed. However, we reserve the right to carry out subsequent performance at the place where the goods are located.
(2) These terms and conditions of sale and the contractual relationship between us and the buyer shall be governed by the law of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods.
(3) If the Buyer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in 32139 Spenge. In all cases, however, we are also entitled to bring an action at the buyer's general place of jurisdiction. Priority statutory provisions on exclusive jurisdiction remain unaffected.
§ 9 Miscellaneous
(1) If provisions of these terms and conditions of sale are or become invalid in whole or in part, the remaining provisions shall remain valid.
(2) Neither a personal signature nor an electronic signature is required to comply with the written form. Notifications by fax or e-mail shall satisfy the written form requirement.
(3) The personal data necessary for the transaction shall be stored and treated confidentially in compliance with the applicable data protection regulations.
(4) Even if our terms and conditions of sale are not directed at consumers, as a precautionary measure we inform you that we are neither willing nor obliged to participate in dispute settlement proceedings before a consumer arbitration board.
Status: 11 March 2019