General Terms and Conditions of Components at Service GmbH

Components at Service GmbH – Munich
General terms and conditions for Sale and Delivery (as of 22.07.2022)

§ 1 General, scope of application

(1) These General Terms and Conditions (hereinafter: “GTC”) apply to all business relations of Components at Service GmbH, Keltenring 15, 82041 Oberhaching, Germany (hereinafter: “we” or “Seller”; for further data on our company please refer to our imprint at https://www.components-gmbh.de/impressum/) with you as our customer (hereinafter: “you” or “Buyer”).

(2) These GTC apply in particular to all contracts for the sale and/or delivery of movable goods (“Goods”). The GTC apply regardless of whether we manufacture the Goods ourselves or purchase them from suppliers (§§ 433, 650 German Civil Code BGB (hereinafter: “BGB”)).

(3) These GTC apply only to entrepreneurs within the meaning of § 14 BGB, legal entities under public law or special funds under public law within the meaning of § 310 paragraph 1 BGB. The GTC do not apply to consumers within the meaning of § 13 BGB.

(4) Unless otherwise agreed, these General Terms and Conditions shall apply in the version valid at the time of the Buyer’s order or, in any case, in the version last notified to him in text form as a framework agreement also for similar future contracts without our having to refer to them again in each individual case.

(5) References to the applicability of statutory provisions shall only have clarifying significance. Even without such clarification, the statutory provisions shall therefore apply unless they are directly amended or expressly excluded in these GTC.

§ 2 Exclusive validity, deviating conditions, priority of the individual agreement

(1) These GTC shall apply exclusively.

(2) Deviating, conflicting or supplementary terms and conditions of the Buyer shall only become part of the contract if and to the extent that we have expressly consented to their application. This requirement of consent shall apply in any case, for example even if the Buyer refers to his terms and conditions within the scope of the order and we do not expressly object to this.

(3) Individual agreements (e.g. framework supply agreements, quality assurance agreements) and details in our order confirmation shall take precedence over these GTC.

(4) In case of doubt, commercial clauses shall be interpreted in accordance with the Incoterms® issued by the International Chamber of Commerce in Paris (ICC) in the version valid at the time of conclusion of the contract.

§ 3 Conclusion of the contract

(1) Our offers are subject to change and non-binding. This shall not apply if they are expressly marked as binding or contain a specific acceptance period.

(2) Paragraph 1 shall also apply if we have provided the Buyer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – to which we reserve ownership and copyright.

(3) The order of the Goods by the Buyer shall be deemed to be a binding offer of contract within the meaning of § 145 of the German Civil Code (hereinafter referred to as “Offer”).

(4) Unless otherwise stated in the order, we shall be entitled to accept the Buyer’s Offer within fourteen (14) days of its receipt by us.

(5) We shall declare acceptance either in writing (e.g. by way of an order confirmation) or by delivering the Goods to the Buyer.

(6) If the buyer makes a request to us to the effect that the Buyer will place the order on condition that we secure a specific Good for him and confirm this to him, the following shall apply:

(a) We will first notify the Buyer that we will endeavour to secure the Goods for him. In doing so, we will also notify the Buyer of the expected price and the expected time by which we expect to secure the Goods (hereinafter: “Time of Securing”). This notification to the Buyer serves only to inform the Buyer that we have received his request and includes an invitation to the Buyer to make a legally binding Offer to purchase the goods (so-called “invitatio ad offerendum”). At this point in time, no contract is concluded between us and the Buyer – neither by the Buyer’s inquiry nor by our aforementioned notification.

(b) As part of the notification under letter (a), we ask the Buyer for his confirmation of the order. With this confirmation, the Buyer submits his Offer within the meaning of the preceding paragraph 3 concerning the purchase of the Goods to be secured. The Buyer will be informed.

(c) As part of the notification under sub-paragraph (a), we will also inform the Buyer how long it will be bound by its Offer, taking into account the Time of Securing. This period will constitute our acceptance period for the Buyer’s Offer.

(d) Within the scope of the notification according to letter (a), we also point out to the Buyer that in the event of an order by the Buyer, our GTC apply and become part of his Offer.

(e) If we succeed in securing the Goods requested by the Buyer for him, we may accept his Offer. By our acceptance within the acceptance period according to letter (c) the contract is concluded. For the rest, the above paragraph 5 shall apply to the declaration of acceptance.

(f) If it is not possible for us to secure the Goods requested by the Buyer for the Buyer, we may reject the Buyer’s Offer and will inform the Buyer accordingly.

(g) Statutory provisions on claims for reimbursement of expenses incurred for the procurement of the Goods shall remain unaffected.

(7) There is no possibility of concluding a contract via our Internet presence.

(8) Mere requests by the Buyer to purchase Goods constitute an invitation to submit a legally binding Offer by us (so-called “invitatio ad offerendum”).

§ 4 Delivery period and delay in delivery

(1) Deadlines and dates for deliveries and services promised by us are always only approximate, unless a fixed deadline or date has been expressly promised or agreed.

(2) If a shipment has been agreed, delivery periods and delivery dates refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport, unless expressly stated otherwise by us.

(3) If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of the service), we shall inform the Buyer of this without delay and at the same time notify the Buyer of the expected new delivery deadline. If the service is also not available within the new delivery period, we shall be entitled to withdraw from the contract in whole or in part; we shall immediately refund any consideration already paid by the Buyer. Non-availability of the performance shall be deemed to exist, for example, in the event of late delivery by our supplier, if we have concluded a congruent hedging transaction, in the event of other disruptions in the supply chain, for example due to force majeure, or if we are not obliged to procure in the individual case.

(4) The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the Buyer is required.

(5) The rights of the buyer according to § 12 of these GTC and our legal rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance and/or subsequent performance), shall remain unaffected.

§ 5 Place of performance of the delivery, partial deliveries

(1) Delivery shall be ex warehouse, which is also the place of performance for the delivery.

(2) At the Buyer’s request and expense, the Goods shall be shipped to another destination (hereinafter: ” Shipment purchase “). Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves.

(3) Unless otherwise agreed, the above provisions shall also apply to the place of performance for subsequent performance.

(4) We are entitled to make partial deliveries unless this is unreasonable for the Buyer or the Buyer has explicitly rejected partial deliveries.

§ 6 Transfer of risk

(1) The risk of accidental loss and accidental deterioration of the Goods shall pass to the Buyer at the latest upon handover.

(2) However, in the case of Shipment purchase, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay shall already pass upon delivery of the Goods to the forwarding agent, the carrier or any other person or institution designated to carry out the shipment.

(3) Insofar as an acceptance 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 shall also apply mutatis mutandis to an agreed acceptance.

(4) Handover or acceptance shall be deemed equivalent if the Buyer is in default of acceptance.

§ 7 Default of acceptance, Compensation

If the Buyer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the Buyer is responsible, we shall be entitled to demand compensation for the resulting damage, including additional expenses (e.g. storage costs). For this purpose, we shall charge a lump-sum compensation in the amount of one percent (1%) of the agreed purchase price per calendar week, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification that the Goods are ready for shipment. The proof of a higher damage and our legal claims (in particular compensation of additional expenses, reasonable compensation, termination) remain unaffected; however, the lump sum is to be credited against further monetary claims. The Buyer shall be entitled to prove that we have not incurred any damage at all or only significantly less damage than the aforementioned lump sum

§ 8 Prices and terms of payment

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

(2) In the event of Shipment purchase, the Buyer shall bear the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. Unless we invoice the transport costs actually incurred in the individual case, the following flat rates for transport costs (excluding transport insurance) shall be deemed agreed:

(a) Waybills within Germany: EUR 18,87

(b) Waybills outside Germany within the European Union: 48,21 Euro

(c) Waybills outside the European Union: 280,45 euro

Any customs duties, fees, taxes and other public charges shall be borne by the Buyer.

(3) The purchase price is due and payable within fourteen (14) days from the date of invoice and delivery or acceptance of the Goods. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We shall declare a corresponding reservation at the latest with the order confirmation.

(4) Upon expiry of the aforementioned payment deadline, the Buyer shall be in default. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. We reserve the right to assert further damage caused by default. With respect to merchants, our claim to the commercial due date interest rate (§ 353 HGB) shall remain unaffected.

(5) If, after conclusion of the contract, it becomes apparent (e.g. by filing for insolvency proceedings) that our claim to the purchase price is jeopardised by the Buyer’s inability to pay, we shall be entitled to refuse performance in accordance with the statutory provisions and – if necessary after setting a deadline – to withdraw from the contract (§ 321 BGB). In the case of contracts for the manufacture of unjustifiable items (custom-made products), we may declare withdrawal immediately; the statutory provisions on the dispensability of setting a deadline remain unaffected.

§ 9 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 title to the Goods sold.

(2) The Goods subject to retention of proprietary rights may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Buyer must inform us immediately in writing if an application is made to open insolvency proceedings or if third parties (e.g. seizures) have access to the Goods belonging to us.

(3) In the event of breach of contract by the Buyer, in particular in the event of non-payment of the purchase price due, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand surrender of the Goods on the basis of the retention of proprietary rights. The demand for return does not at the same time include the declaration of withdrawal; we are rather entitled to demand only the return of the Goods and to 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 according to the statutory provisions.

(4) Until revoked in accordance with letter (c) below, the Buyer shall be entitled to resell and/or process the Goods subject to retention of proprietary rights in the ordinary course of business. In this case, the following provisions shall apply in addition.

(a) The retention of proprietary rights extends to the products resulting from the processing, mixing or combination of our Goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership 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 shall apply to the resulting product as to the Goods delivered under retention of proprietary rights.

(b) The Buyer hereby assigns to us by way of security all claims against third parties arising from the resale of the Goods or the product in total or in the amount of our co-ownership share, if any, in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer stated in paragraph 2 shall also apply in respect of the assigned claims.

(c) The Buyer remains authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations towards us, there is no deficiency in his ability to pay and we do not assert the retention of proprietary rights by exercising a right in accordance with paragraph 3 above. If this is the case, however, we may demand that the buyer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtors (third parties) of the assignment. Furthermore, in this case we are entitled to revoke the Buyer’s authority to further sell and process the Goods subject to retention of proprietary rights.

(d) If the realisable value of the securities exceeds our claims by more than ten percent (10%), we shall release securities of our choice at the Buyer’s request.

§ 10 Warranty

(1) The statutory provisions shall apply to the Buyer’s rights in the event of material defects and defects of title (including wrong and short delivery or defective instructions), unless otherwise stipulated below. In all cases, the special statutory provisions on the reimbursement of expenses in the case of final delivery of the newly manufactured Goods to a consumer (supplier’s recourse pursuant to §§ 478, 445a, 445b or §§ 445c, 327 para. 5, 327u BGB) shall remain unaffected, unless an equivalent compensation has been agreed, e.g. within the scope of a quality assurance agreement.

(2) The basis of our liability for defects is above all the agreement reached on the quality and the presumed use of the Goods (including accessories and instructions). All product descriptions and manufacturer’s specifications which are the subject of the individual contract or which were publicly announced by us (in particular in catalogues or on our Internet homepage) at the time of the conclusion of the contract shall be deemed to be an agreement on quality in this sense. Insofar as the quality has not been agreed upon, it is to be judged according to the legal regulation whether a defect exists or not (§ 434 para. 3 BGB). Public statements made by the manufacturer or on its behalf, in particular in advertising or on the label of the Goods, shall take precedence over statements made by other third parties.

(3) In the case of Goods with digital elements or other digital content, we only owe provision and, if applicable, updating of the digital content insofar as this expressly results from a quality agreement within the meaning of the above paragraph 2. In this respect, we shall not assume any liability for public statements made by the manufacturer and other third parties.

(4) As a matter of principle, we shall not be liable for defects of which the Buyer is aware at the time of conclusion of the contract or is not aware due to gross negligence (§ 442 BGB).

(5) Claims for defects on the part of the Buyer presuppose that he has fulfilled his statutory duties of examination and notification (§§ 377, 381 HGB). Within the scope of his notification, the Buyer shall document the defect for us to the extent reasonable and describe it to us as precisely and in as much detail as possible. In the case of Goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. If a defect becomes apparent upon delivery, inspection or at any later time, we must be notified thereof in writing without delay. In any case, obvious defects shall be notified to us in writing within forty-eight (48) hours of delivery and defects not apparent upon inspection shall be notified to us within the same period of time after discovery. If the Buyer fails to duly inspect the Goods and/or give notice of defects, our liability for the defect not notified or not notified in time or not notified properly shall be excluded in accordance with the statutory provisions. In the case of Goods intended for incorporation, attachment or installation, this shall also apply if the defect only became apparent after the corresponding processing as a result of the breach of one of these obligations; in this case, the Buyer shall in particular have no claims for reimbursement of corresponding costs (“removal and incorporation costs”).

(6) If the delivered item is defective, we may initially choose whether to provide subsequent performance by remedying the defect (subsequent improvement) or by delivering an item free of defects (replacement delivery). If the type of subsequent performance chosen by us is unreasonable for the Buyer in the individual case, he may reject it. Our right to refuse subsequent performance under the statutory conditions remains unaffected.

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

(8) The Buyer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the Goods complained about for inspection purposes. In the event of a replacement delivery, the Buyer shall return the defective item to us at our request in accordance with the statutory provisions; however, the Buyer shall not have a claim for return. Subsequent performance shall not include the dismantling, removal or disassembly of the defective item or the installation, fitting or assembly of a defect-free item if we were not originally obliged to perform these services; claims by the Buyer for reimbursement of corresponding costs (“dismantling and assembly costs”) shall remain unaffected.

(9) We shall bear or reimburse the expenses required for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs and, if applicable, removal and installation costs, in accordance with the statutory provisions and these GTC if a defect is actually present. Otherwise, we may demand reimbursement from the Buyer of the costs incurred as a result of the unjustified request to remedy the defect if the Buyer knew or was negligent in not knowing that there was actually no defect.

(10) If a reasonable period to be set by the Buyer for subsequent performance has expired unsuccessfully or is dispensable according to the statutory provisions, the Buyer may withdraw from the purchase contract or reduce the purchase price according to the statutory provisions. In the case of an insignificant defect, however, there is no right of withdrawal.

(11) Claims of the Buyer for damages or reimbursement of futile expenses shall also exist in the case of defects only in accordance with § 12 and are otherwise excluded.

§ 11 Industrial property rights

(1) Each contracting party shall notify the other contracting party in writing without delay if claims are asserted against it on account of the infringement of industrial property rights or copyrights by the Goods.

(2) In the event that the Goods infringe an industrial property right or copyright of a third party, the Seller shall, at its discretion and at its expense, modify or replace the Goods in such a way that the rights of third parties are no longer infringed but the Goods continue to fulfil the contractually agreed functions, or procure the right of use for the Buyer by concluding a licence agreement with the third party. If the Seller does not succeed in doing so within a reasonable period of time, the Buyer shall be entitled to withdraw from the contract or to reduce the purchase price appropriately. Any claims for damages of the Buyer shall be subject to the limitations of § 12 of these GTC.

(3) In the event of infringements of rights by Goods of other manufacturers delivered by the Seller, the Seller shall, at its discretion, assert its claims against the manufacturers and upstream suppliers for the account of the Buyer or assign them to the Buyer. Claims against the Seller shall only exist in these cases in accordance with this § 11 if the judicial enforcement of the aforementioned claims against the manufacturers and upstream suppliers was unsuccessful or is futile, e.g. due to insolvency.

§ 12 Other liability

(1) Insofar as nothing to the contrary arises from these GTC 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 grounds – within the scope of fault liability in the event of intent and gross negligence. In the event of simple negligence, we shall only be liable, subject to statutory limitations of liability (e.g. care in own affairs; insignificant breach of duty), for

(a) for damages resulting from injury to life, body or health,

(b) for damages arising from the breach of an essential contractual obligation, i.e. an obligation the fulfilment of which is a prerequisite for the proper performance of the contract and on the observance of which the contractual partner regularly relies and may rely (so-called “cardinal obligation”); in this case, however, our liability shall be limited to compensation for the foreseeable, typically occurring damage.

(3) The limitations of liability resulting from paragraph 2 shall also apply to third parties as well as to breaches of duty by persons (also in their favour) whose fault we are responsible for according to statutory provisions. They shall not apply insofar as a defect was fraudulently concealed or a guarantee for the quality of the Goods was assumed and for claims of the Buyer under the German Product Liability Act (“Produkthaftungsgesetz”).

§ 13 Withdrawal and termination

(1) Due to a breach of duty which does not consist of a defect, the Buyer may only withdraw from or terminate the contract if we are responsible for the breach of duty.

(2) Any existing free right of termination of the Buyer (in particular in the case of a contract for work and materials in accordance with §§ 650, 648 BGB) is excluded.

(3) In all other respects, the statutory requirements and legal consequences shall apply.

§ 14 Limitation

(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery. Insofar as acceptance has been agreed, the limitation period shall commence upon acceptance.

(2) The limitation period according to paragraph 1 does not apply to cases of § 438 para. 1 no. 2 BGB. Other special statutory provisions on limitation (in particular § 438 para. 1 no. 1, para. 3, 444, 445b BGB) shall also remain unaffected.

(3) The above limitation periods of the law on sales shall also apply to contractual and non-contractual claims for damages of the Buyer which are based on a defect of the Goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in the individual case.

(4) Claims for damages of the Buyer according to § 12 paragraph 2 sentence 1 and sentence 2 letter (a) as well as according to the Product Liability Act shall become time-barred exclusively according to the statutory limitation periods.

§ 15 Offsetting and rights of retention

The Buyer shall only be entitled to rights of set-off or retention to the extent that his claim has been legally established or is undisputed. In the event of defects in the delivery, the Buyer’s counter rights shall remain unaffected, in particular in accordance with § 10 Paragraph 7 Sentence 2 of these GTC.

§ 16 Formal requirements

(1) Legally relevant declarations and notifications by the Buyer with regard to the contract (e.g. setting of deadlines, notification of defects, withdrawal or reduction) must be made in writing.

(2) Written form within the meaning of these GTC includes written and text form (e.g. letter, e-mail, fax).

(3) Legal formal requirements and further proof, in particular in the case of doubts about the legitimacy of the declarant, shall remain unaffected.

§ 17 Contractual language

(1) Only the German or English language is available for the conclusion of the contract, unless the parties expressly agree on a deviating regulation.

§ 18 Export and import restrictions

The parties are aware that the Goods sold by the Seller may be subject to export and import restrictions. In particular, there may be licensing requirements or the use of the Goods or related technologies may be subject to restrictions abroad. The Buyer shall comply with the applicable export and import control regulations of the Federal Republic of Germany, the European Union and the United States of America, as well as all other relevant regulations.

§ 19 Applicable law

These GTC and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods of 11.4.1980 (UN Sales Convention).

§ 20 Place of jurisdiction

(1) 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 within the meaning of Section 310 (1) of the German Civil Code, the exclusive – including international – place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered office in Oberhaching, Germany.

(2) However, we shall also be entitled in all cases to bring an action at the place of performance of the delivery obligation in accordance with these GTC or a prior individual agreement or at the general place of jurisdiction of the Buyer.

(3) Overriding statutory provisions, in particular on exclusive jurisdiction, shall remain unaffected in all the above cases.

§ 21 Severability clause

The invalidity of individual provisions of these GTC shall not affect the validity of the remaining provisions (“Preservation”). In place of the invalid provision, the valid provision shall be deemed to have been agreed with retroactive effect which comes closest legally and economically to what the parties intended or would have intended according to the meaning and purpose of the contract if they had considered this point when concluding the contract or including the provision; if the invalidity of a provision is based on a measure of performance or time (deadline or date) specified therein, the provision shall be deemed to have been agreed with a legally permissible measure which comes closest to the original measure (“replacement fiction”). If the replacement fiction is not possible, the parties shall make a provision in place of the invalid provision in accordance with the content of the preceding sentence (“replacement obligation”). If the invalidity relates to a provision requiring notarization, the provision or the provision shall be agreed in notarized form. The above provisions shall apply accordingly in the event of a loophole.

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