Nordics / English
§ 1 Scope, Form
(1) These General Terms and Conditions of Sale (“GTCS”) apply to all our business relationships with our customers (“Buyer”). The GTCS apply only if the Buyer is an entrepreneur (§ 14 German Civil Code (BGB)), a legal entity under public law or a special fund under public law.
(2) The GTCS apply in particular to contracts for the sale and/or delivery of movable goods (“Goods”), irrespective of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). Unless otherwise agreed, the GTCS in the version valid at the time of the Buyer’s order or, in any event, in the version most recently communicated to the Buyer in text form shall also apply as a framework agreement to similar future contracts without us having to refer to them again in each individual case.
(3) Our GTCS apply exclusively. Any deviating, 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 applicability. This requirement for consent shall apply in all cases, for example even if we make delivery to the Buyer without reservation despite being aware of the Buyer’s general terms and conditions.
(4) Individual agreements made with the Buyer in a particular case (including ancillary agreements, supplements and amendments) shall in all cases take precedence over these GTCS. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
(5) Legally relevant declarations and notifications by the Buyer relating to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, particularly in cases of doubt regarding the authority of the person making the declaration, remain unaffected.
(6) References to the applicability of statutory provisions are for clarification purposes only. Therefore, even without such clarification, the statutory provisions shall apply unless they are directly amended or expressly excluded in these GTCS.
§ 2 Conclusion of Contract
(1) Our offers are subject to change and non-binding. This shall also apply if we have provided the Buyer with catalogs, technical documentation (e.g. drawings, plans, calculations, cost calculations, references to DIN standards), other product descriptions or documents – including in electronic form – to which we reserve title and copyrights.
(2) The Buyer’s order for the Goods shall be deemed a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 14 days of its receipt by us.
(3) Acceptance may be declared either in writing (e.g. by order confirmation) or by delivery of the Goods to the Buyer.
§ 3 Delivery Period and Delay in Delivery
(1) The delivery period shall be agreed individually or specified by us upon acceptance of the order.
(2) If we are unable to comply with binding delivery periods for reasons for which we are not responsible (unavailability of performance), we will inform the Buyer thereof without undue delay and at the same time notify the Buyer of the expected new delivery period. If performance is also unavailable within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer will be reimbursed without undue delay. In particular, a case of unavailability of performance within this meaning shall include failure by our supplier to supply us in due time if we have concluded a congruent covering transaction, neither we nor our supplier is at fault, or we are not obliged to procure the Goods in the individual case.
(3) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In all cases, however, a reminder by the Buyer is required. If we are in delay with delivery, the Buyer may claim liquidated damages for the damage caused by the delay. The liquidated damages shall amount to 0.5% of the net price (delivery value) for each completed calendar week of delay, but shall not exceed a total of 5% of the delivery value of the Goods delivered late. We reserve the right to prove that the Buyer has suffered no damage at all or substantially less damage than the aforementioned lump sum.
(4) The Buyer’s rights pursuant to § 8 of these GTCS and our statutory rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), remain unaffected.
§ 4 Delivery, Transfer of Risk, Acceptance, Default of Acceptance
(1) Unless otherwise agreed, e.g. pursuant to Incoterms 2020, delivery shall be made ex warehouse, which shall also be the place of performance for delivery and any subsequent performance. At the Buyer’s request and expense, the Goods will be shipped to another destination (sale involving carriage). Unless otherwise agreed, we are entitled to determine the method of shipment ourselves (in particular the transport company, shipping route and packaging). Exclusive or special models are manufactured specifically and individually for the customer.
(2) We are entitled to make partial deliveries insofar as this is reasonable for the Buyer. Even if a delivery time determined by calendar date has been agreed, this shall not constitute a fixed-date commercial transaction within the meaning of § 376(1) German Commercial Code (HGB), unless the parties have expressly agreed otherwise in an individual contract.
(3) Unless otherwise agreed, e.g. pursuant to Incoterms 2020, the risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer no later than upon handover. In the case of a sale involving carriage, however, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall pass upon delivery of the Goods to the forwarding agent, carrier or other person or institution designated to carry out the shipment. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. In all other respects, the statutory provisions of German law on contracts for work and services shall apply accordingly to an agreed acceptance. Handover or acceptance shall be deemed to have occurred if the Buyer is in default of acceptance.
(4) If the Buyer is in default of acceptance, fails to perform an act of cooperation or if our delivery is delayed for other reasons attributable to the Buyer, we shall be entitled to claim compensation for the resulting damage, including additional expenses (e.g. storage costs). For this purpose, we shall charge liquidated damages amounting to 0.5% of the total net price of the respective order (delivery value) per calendar day, but not exceeding a total of 5% of the total delivery value of the respective order, commencing with the delivery period or – in the absence of a delivery period – upon notification that the Goods are ready for shipment.
Proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum shall be offset against further monetary claims. The Buyer shall be entitled to prove that we have suffered no damage at all or substantially less damage than the aforementioned lump sum.
§ 5 Prices and Terms of Payment
(1) Unless otherwise agreed in the individual case, our current prices at the time of conclusion of the contract shall apply, ex warehouse, plus statutory VAT. In the event of a substantial increase in material, labor or energy costs, we shall be entitled to request an appropriate adjustment of the price, taking these factors into account.
(2) In the case of a sale involving carriage (§ 4(1)), the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. The transport costs actually incurred in the individual case will be invoiced. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.
(3) Unless otherwise negotiated, the purchase price shall be due and payable within 14 days of invoicing and delivery or acceptance of the Goods. However, even within the framework of an ongoing business relationship, we shall be entitled at any time to make delivery in whole or in part only against advance payment. We shall declare a corresponding reservation no later than with the order confirmation.
(4) Upon expiry of the aforementioned payment period, the Buyer shall be in default. During the period of default, interest shall accrue on the purchase price at the applicable statutory default interest rate. We reserve the right to claim further damages caused by default. With respect to merchants, our claim to commercial maturity interest (§ 353 HGB) remains unaffected.
(5) The Buyer shall only be entitled to rights of set-off or retention insofar as its claim has been finally adjudicated or is undisputed. In the event of defects in the delivery, the Buyer’s counter-rights, in particular pursuant to § 7(6) sentence 2 of these GTCS, remain unaffected.
(6) If, after conclusion of the contract, it becomes apparent (e.g. through an application for the opening of insolvency proceedings) that our claim to the purchase price is jeopardized by the Buyer’s inability to perform, we shall be entitled, in accordance with the statutory provisions, to refuse performance and – where applicable, after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made products), we may declare withdrawal immediately; the statutory provisions concerning cases in which setting a deadline is dispensable remain unaffected.
§ 6 Retention of Title
(1) Until full payment of all our present and future claims arising from the purchase agreement and an ongoing business relationship (secured claims), we retain title to the Goods sold.
(2) The Goods subject to retention of title may neither be pledged to third parties nor transferred by way of security before full payment of the secured claims. The Buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties seize or otherwise access the Goods belonging to us.
(3) In the event of conduct by the Buyer in breach of contract, in particular non-payment of the purchase price when due, we shall be entitled, in accordance with the statutory provisions, to withdraw from the contract and/or demand return of the Goods on the basis of the retention of title. A demand for return shall not simultaneously constitute a declaration of withdrawal; rather, we shall be entitled merely to demand return of the Goods and reserve the right to withdraw. If the Buyer fails to pay the purchase price when due, we may exercise these rights only if we have previously set the Buyer a reasonable deadline for payment without success or if setting such a deadline is dispensable under the statutory provisions.
(4) Until revoked in accordance with (c) below, the Buyer is entitled 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 additionally apply.
(a) The retention of title shall extend to the products resulting from processing, mixing or combining our Goods at their full value, whereby we shall be deemed the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their ownership rights remain in force, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the Goods delivered subject to retention of title.
(b) The Buyer hereby assigns to us as security the claims against third parties arising from the resale of the Goods or the resulting product in their entirety or in the amount of our possible co-ownership share pursuant to the preceding paragraph. We accept the assignment. The Buyer’s obligations specified in paragraph 2 shall also apply with regard to the assigned claims.
(c) The Buyer shall remain authorized, alongside us, to collect the claim. We undertake not to collect the claim as long as the Buyer meets its payment obligations towards us, there is no deficiency in its ability to perform and we do not enforce the retention of title by exercising a right pursuant to paragraph 3. If this is not the case, however, we may demand that the Buyer disclose to us the assigned claims and the respective debtors, provide all information necessary for collection, hand over the relevant documents and notify the debtors (third parties) of the assignment. Furthermore, in this case, we shall be entitled to revoke the Buyer’s authority to further resell and process the Goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall, at the Buyer’s request, release securities of our choice.
§ 7 Buyer’s Claims for Defects
(1) Unless otherwise provided below, the statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions). In all cases, the special statutory provisions applicable to the final delivery of unprocessed Goods to a consumer shall remain unaffected, even if the consumer has further processed them (supplier recourse pursuant to §§ 478 BGB). Claims based on supplier recourse are excluded if the defective Goods have been further processed by the Buyer or another entrepreneur, e.g. by installation in another product.
(2) We shall not be liable for material defects caused by unsuitable or improper use, incorrect assembly or commissioning by third parties, normal wear and tear, incorrect or negligent handling and/or resulting from improper modifications or repair work carried out by third parties without our consent. The Buyer may not withdraw from the contract if the material defect is insignificant.
(3) The basis of our liability for defects is primarily the agreement made regarding the quality of the Goods. All product descriptions and manufacturer specifications that are the subject matter of the individual contract or that were publicly announced by us (in particular in catalogs or on our website) at the time the contract was concluded shall be deemed agreements regarding the quality of the Goods.
(4) Insofar as the quality has not been agreed, whether or not a defect exists shall be assessed in accordance with the statutory provisions (§ 434(1) sentences 2 and 3 BGB). However, we assume no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements) which the Buyer has not brought to our attention as being decisive for its purchase decision.
(5) The Buyer’s claims for defects require that it has complied with its statutory inspection and notification obligations (§§ 377, 381 HGB). In the case of building materials and other Goods intended for installation or other further processing, an inspection must in all cases be carried out immediately prior to processing. If a defect becomes apparent upon delivery, during inspection or at any later time, we must be notified thereof immediately in writing and the defect must also be certified on the consignment note. In all cases, obvious defects must be reported in writing no later than within 2 working days after delivery and defects not detectable during inspection within the same period after discovery. If the Buyer fails to properly inspect and/or notify us of defects, our liability for the defect that was not reported, not reported in due time or not properly reported shall be excluded in accordance with the statutory provisions.
(6) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory requirements remains unaffected.
(7) We shall be entitled to make the subsequent performance owed conditional upon the Buyer paying the purchase price due. However, the Buyer shall be entitled to retain a portion of the purchase price that is reasonable in relation to the defect.
(8) The Buyer must give us the time and opportunity necessary for the subsequent performance owed, in particular by making the Goods complained of available for inspection. In the event of a replacement delivery, the Buyer must return the defective item to us in accordance with the statutory provisions. Subsequent performance shall include neither the removal of the defective item nor its reinstallation if we were not originally obliged to install it.
(9) The expenses necessary for inspection and subsequent performance, in particular transport, travel, labor and material costs and, where applicable, removal and installation costs, shall be borne or reimbursed by us in accordance with the statutory provisions if a defect actually exists. Otherwise, we may demand reimbursement from the Buyer of the costs incurred as a result of an unjustified request to remedy a defect (in particular inspection and transport costs), unless the absence of a defect was not apparent to the Buyer. Reimbursement of the necessary expenses shall be excluded insofar as the expenses increase because the Goods were moved to a location other than the place to which we delivered them, unless this corresponds to the intended use of the Goods.
(10) In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Buyer shall have the right to remedy the defect itself and demand reimbursement from us of the expenses objectively necessary for this purpose. We must be notified of such self-remedy without undue delay and, where possible, in advance. The right of self-remedy shall not apply if we would be entitled to refuse corresponding subsequent performance under the statutory provisions.
(11) If subsequent performance has failed or a reasonable deadline to be set by the Buyer for subsequent performance has expired without success or is dispensable under the statutory provisions, the Buyer may withdraw from the purchase agreement or reduce the purchase price. However, there shall be no right of withdrawal in the event of an insignificant defect.
(12) The Buyer’s claims for damages or reimbursement of futile expenses, including in the event of defects, shall exist only in accordance with § 8 and are otherwise excluded.
§ 8 Other Liability
(1) Unless otherwise provided in these GTCS, including the following provisions, we shall be liable in accordance with the statutory provisions in the event of a breach of contractual and non-contractual obligations.
(2) We shall be liable for damages – irrespective of the legal basis – within the framework of fault-based liability in cases of intent and gross negligence. In the event of simple negligence, we shall be liable, subject to statutory limitations of liability (e.g. diligence in one’s own affairs; insignificant breach of duty), only
a) for damage resulting from injury to life, limb or health,
b) for damage resulting from the breach of a material contractual obligation (an obligation whose fulfillment is essential for the proper performance of the contract and on compliance with which the contractual partner regularly relies and may rely); in this case, however, our liability shall be limited to compensation for foreseeable damage typically occurring.
(3) The limitations of liability resulting from paragraph 2 shall also apply to breaches of duty by or for the benefit of persons whose fault we are responsible for under statutory provisions. They shall not apply insofar as we have fraudulently concealed a defect or assumed a guarantee for the quality of the Goods, or to claims by the Buyer under the German Product Liability Act.
(4) Due to a breach of duty that does not consist of a defect, the Buyer may withdraw from or terminate the contract only if we are responsible for the breach of duty. A free right of termination by the Buyer (in particular pursuant to §§ 650, 648 BGB) is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
§ 9 Limitation Period
(1) By way of derogation from § 438(1) No. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be 12 months from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.
(2) However, if the Goods are a building or an item that has been used for a building in accordance with its customary manner of use and has caused the building to be defective (building material), the limitation period shall be 5 years from delivery in accordance with the statutory provisions (§ 438(1) No. 2 BGB). Further special statutory provisions on limitation periods (in particular § 438(1) No. 1, (3), §§ 444, 445b BGB) also remain unaffected.
(3) The aforementioned limitation periods under sales law shall also apply to contractual and non-contractual claims for damages by the Buyer based on a defect in the Goods, unless application of the regular statutory limitation period (§§ 195, 199 BGB) would result in a shorter limitation period in the individual case. However, the Buyer’s claims for damages pursuant to § 8(2) sentence 1 and sentence 2(a), as well as under the German Product Liability Act, shall be subject exclusively to the statutory limitation periods.
§ 10 Force Majeure
(1) Delays or failure of performance under the contract as a result of a force majeure event, without fault or negligence on the part of the affected contractual party, shall be excused for as long as the event continues. This requires the affected contractual party to notify the other contractual party without undue delay after the occurrence of the force majeure event, but no later than 3 days thereafter, at least in text form, of the nature and extent of the force majeure event and its effects, including its expected duration.
(2) Force majeure events are unforeseeable, unavoidable and extraordinary events such as natural disasters including floods, earthquakes, hurricanes or other extreme natural events, shortages of raw materials, energy and labor, industrial disputes, operational disruptions that are not attributable to fault or are unforeseeable, fires, civil unrest, wars, sabotage, terrorist attacks or the outbreak of an epidemic or pandemic.
(3) If the affected contractual party cannot credibly assure that a delay caused by force majeure will not exceed 60 days, or if a delay caused by force majeure exceeds 60 days, the other party may terminate the contract without liability.
(4) Without limiting the general applicability of paragraphs (1)–(3) above: If, due to the current pandemic (coronavirus), the Russia/Ukraine war or difficulties in the supply of components or raw materials, performance of the contract is delayed or becomes impossible in whole or in part (in particular due to shortages of raw materials or components, entry bans, business closures), neither party shall be responsible for this and liability of the parties shall be excluded (including contractual penalties, default interest and damages caused by delay). If either party is affected by a delay/impossibility, it shall inform the other party, specifying the relevant event and its expected duration. Any delivery or performance periods – including during a period of delay – shall be extended by the duration of the disruption to performance caused by these circumstances; this shall also apply if such circumstances occur at subcontractors. If the aforementioned circumstances directly or indirectly lead to an increase in the supplier’s costs for the contractual performance, the parties shall mutually agree on an appropriate adjustment of the contract price. In the event that performance is prevented for a period of more than 4 months or is repeatedly materially prevented, the parties shall negotiate an adjustment to the contract following a written request by either party.
§ 11 Governing Law and Place of Jurisdiction
(1) These GTCS and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods (CISG).
(2) 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 – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Eschborn. The same shall apply if the Buyer is an entrepreneur within the meaning of § 14 BGB. However, in all cases, we shall also be entitled to bring an action at the place of performance of the delivery obligation pursuant to these GTCS or a prevailing individual agreement, or at the Buyer’s general place of jurisdiction. Overriding statutory provisions, in particular concerning exclusive jurisdiction, remain unaffected.
Midea Europe GmbH