GENERAL TERMS AND CONDITIONS (GTC)

Status: 06.2025

Foreword

During the course of its business activities, the entrepreneur concludes a variety of contracts. To provide guidance, the Hessian Chambers of Industry and Commerce (IHKs) provide sample contracts. These GTC are based on these templates. In individual contractual matters, however, expert advice, either from the competent IHK or lawyers, should always be sought.

Note on the use of the template

This template has been prepared with the utmost care, but makes no claim to completeness or correctness. It is to be understood as a checklist with wording aids and is only intended to provide a suggestion on how the typical interests between the parties can be appropriately balanced. However, this does not release the user from careful self-responsible examination. For reasons of linguistic simplification, the naming of the three genders has been omitted where gender-neutral wording was not possible. In these cases, the masculine terms used also include the feminine and diverse forms. The sample contract is only a suggestion for a possible regulation. Many provisions are freely negotiable. The user can also choose other formulations. Before adopting the unchanged content, it must therefore be carefully considered, in one’s own interest, whether and in which parts an adaptation to the specific situation to be regulated and to legal developments may be necessary. Therefore, no liability can be assumed for the effects on the legal position of the parties. Liability for slight negligence is also generally excluded. If you require a tailor-made contract, you should consult a lawyer you trust.

General TERMS and CONDITIONS

Please note the user information on the previous page and the remarks in Annex 1!

§ 1 Scope

These terms of sale apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 Paragraph 1 BGB (German Civil Code). We only recognize terms and conditions of the customer that conflict with or deviate from our terms of sale if we expressly agree to their validity in writing. These terms of sale also apply to all future transactions with the customer, insofar as these are legal transactions of a related nature (as a precautionary measure, the terms of sale should in any case be enclosed with the order confirmation). Individual agreements made with the buyer in individual cases (including collateral agreements, additions and changes) shall in any case take precedence over these terms of sale. Subject to proof to the contrary, a written contract or our written confirmation shall be decisive for the content of such agreements.

§ 2 Offer and Conclusion of Contract

If an order is to be regarded as an offer within the meaning of § 145 BGB, we can accept it within two weeks.

§ 3 Documents Provided

We reserve ownership and copyrights to all documents provided to the customer in connection with the placement of the order – also in electronic form –, such as calculations, drawings, etc. These documents may not be made accessible to third parties unless we give the customer our express written consent to do so. If we do not accept the customer’s offer within the period specified in § 2, these documents must be returned to us immediately.

§ 4 Prices and Payment

Unless otherwise agreed in writing, our prices apply ex works, excluding packaging and plus value-added tax at the respective valid rate. Costs of packaging will be charged separately. Payment of the purchase price must be made exclusively to the account specified on the reverse side. A discount is only permissible with a special written agreement. Unless otherwise agreed, the purchase price is payable within 10 days of delivery (Alternatives: “… the purchase price is payable within 21 days of invoicing” or “… the purchase price is payable by - specific date -”). [cite: 27] Default interest will be charged at a rate of 8% above the respective base interest rate p.a.(see Annex 1). The right to assert higher default damages is reserved. Unless a fixed price agreement has been made, reasonable price changes due to altered wage, material and sales costs for deliveries made 3 months or later after conclusion of the contract remain reserved.

§ 5 Rights of Retention

The customer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.

§ 6 Delivery Time

The start of the delivery time specified by us presupposes the timely and proper fulfillment of the customer’s obligations. The defense of non-performance of the contract remains reserved. If the customer defaults on acceptance or culpably violates other duties to cooperate, we are entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. Further claims remain reserved. If the above conditions are met, the risk of accidental loss or accidental deterioration of the purchased item passes to the customer at the time he defaults on acceptance or debtor’s default. In the event of delivery delays not caused by our willful intent or gross negligence, we shall be liable for each full week of delay within the framework of a lump-sum compensation for delay amounting to 3% of the delivery value, but not more than 15% of the delivery value. Further statutory claims and rights of the customer due to a delay in delivery remain unaffected.

§ 7 Transfer of Risk upon Shipment

If the goods are shipped to the customer at his request, the risk of accidental loss or accidental deterioration of the goods passes to the customer upon dispatch to the customer, at the latest upon leaving the factory/warehouse. This applies regardless of whether the goods are shipped from the place of performance or who bears the freight costs.

§ 8 Retention of Title

We reserve title to the delivered item until full payment of all claims arising from the delivery contract. This also applies to all future deliveries, even if we do not always expressly refer to this. We are entitled to take back the purchased item if the customer acts in breach of contract. As long as title has not yet passed to him, the customer is obliged to treat the purchased item with care. In particular, he is obliged to insure it sufficiently at new value against theft, fire and water damage at his own expense (Note: only permissible when selling high-value goods). If maintenance and inspection work has to be carried out, the customer must carry it out in good time at his own expense. As long as title has not yet passed, the customer must notify us immediately in writing if the delivered item is seized or exposed to other interventions by third parties. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure), the customer shall be liable for the loss incurred by us. The customer is entitled to resell the reserved goods in the ordinary course of business. The customer hereby assigns to us the claims against the buyer arising from the resale of the reserved goods in the amount of the final invoice amount agreed with us (including value-added tax). This assignment applies regardless of whether the purchased item has been resold without or after processing. The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim ourselves remains unaffected.However, we will not collect the claim as long as the customer fulfills his payment obligations from the collected proceeds, is not in default of payment, and in particular no application for the opening of insolvency proceedings has been filed or payment has ceased.

Note: This clause is omitted if no extended retention of title is desired.

The processing or transformation of the purchased item by the customer is always carried out in our name and on our behalf. In this case, the customer’s expectant right to the purchased item continues in the transformed item. If the purchased item is processed with other items not belonging to us, we acquire co-ownership of the new item in proportion to the objective value of our purchased item to the other processed items at the time of processing. The same applies in the case of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it is agreed that the customer transfers pro rata co-ownership to us and stores the sole ownership or co-ownership thus created for us. To secure our claims against the customer, the customer also assigns to us such claims that accrue to him against a third party through the connection of the reserved goods with real estate; we accept this assignment now.

We undertake to release the securities due to us at the customer’s request, insofar as their value exceeds the claims to be secured by more than 20%.

§ 9 Warranty and Notification of Defects as well as Recourse/Manufacturer’s Recourse

Warranty rights of the customer presuppose that he has duly complied with his obligations to inspect and give notice of defects owed under § 377 HGB (German Commercial Code). Claims for defects expire 12 months after delivery of the goods supplied by us to our customer. [cite: 58] For claims for damages in case of intent and gross negligence as well as in case of injury to life, limb and health, which are based on an intentional or negligent breach of duty by the user, the statutory limitation period applies. [cite: 59] (Note: in the case of the sale of used goods, the warranty period can be completely excluded with the exception of the claims for damages mentioned in sentence 2). Insofar as the law mandatorily prescribes longer periods according to § 438 para. 1 no. 2 BGB (buildings and items for buildings), § 445 b BGB (right of recourse) and § 634a paragraph 1 BGB (building defects), these periods apply. Our consent must be obtained before any return of the goods. Should the delivered goods nevertheless have a defect that was already present at the time of the transfer of risk, despite all due care, we will, subject to timely notification of defects, either repair the goods or deliver replacement goods, at our discretion. We must always be given the opportunity to perform supplementary performance within a reasonable period. [cite_start]Recourse claims remain unaffected by the foregoing regulation without restriction. If the supplementary performance fails, the customer can – without prejudice to any claims for damages – withdraw from the contract or reduce the remuneration.

Claims for defects do not exist in the case of only insignificant deviation from the agreed quality, in the case of only insignificant impairment of usability, in the case of natural wear and tear or deterioration, as well as in the case of damage that occurs after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable ground, or due to special external influences that are not assumed under the contract.

If improper repair work or changes are carried out by the customer or third parties, no claims for defects shall exist for these and the resulting consequences.

Claims of the customer for the expenses necessary for the purpose of supplementary performance, in particular transport, travel, labor and material costs, are excluded insofar as the expenses increase because the goods supplied by us have been subsequently brought to a location other than the customer’s branch, unless the relocation corresponds to their intended use.

Recourse claims of the customer against us only exist insofar as the customer has not made any agreements with his customer that go beyond the legally mandatory claims for defects. For the scope of the customer’s recourse claim against the supplier, paragraph 6 also applies accordingly.

§ 10 Miscellaneous

This contract and the entire legal relations of the parties are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). Place of performance and exclusive place of jurisdiction for all disputes arising from this contract is our registered office, unless otherwise stated in the order confirmation (Note: The use of this clause is inadmissible if at least one of the parties is a company not registered in the commercial register). All agreements made between the parties for the purpose of executing this contract are laid down in writing in this contract.

Appendix

Notes

Although the clause prohibitions of the catalogue provisions of §§ 308, 309 BGB according to § 310 Abs. 1 BGB do not apply to GTC that are used vis-à-vis entrepreneurs within the meaning of § 14 BGB, it cannot automatically be assumed in reverse that the use of clauses such as those mentioned in §§ 308, 309 BGB vis-à-vis entrepreneurs will generally withstand the content control of §§ 305 ff. BGB. According to § 307 Abs.1, 2 No. 1 BGB, which also applies to the use of GTC vis-à-vis entrepreneurs, an unreasonable disadvantage to the contracting party is to be assumed in doubt if the clause is not compatible with essential basic ideas of the statutory regulation from which it deviates. According to case law, this leads to the clause prohibition catalogues of §§ 308, 309 BGB also gaining indirect significance in commercial transactions through the interpretation of § 307 BGB. The clause prohibitions of § 308 BGB are generally transferable to sales between entrepreneurs, because their scope of discretion takes commercial peculiarities into account. In contrast, a blanket solution is not possible for the prohibitions of § 309 BGB, but the violation of § 309 is also an indication of the invalidity of the clause in sales between entrepreneurs. In this case, it is advisable to have the GTC checked by a legal expert on a case-by-case basis before use.

Transparency Requirement

This requirement means that a clause in GTC is deemed to be unreasonably disadvantageous, even if it is not clear and understandable. This requirement means that non-transparent clauses are to be considered ineffective per se, without the addition of an unreasonable disadvantage to the contracting party in terms of content. Furthermore, this also means that the transparency requirement also applies to price provisions and performance-describing clauses, which are generally exempt from content control.

Warranty Periods

For sales contracts and contracts for work, the warranty period is 2 years. The warranty period can be shortened as follows by GTC:

MOVABLE ITEMS EXCEPT BUILDING MATERIALS

new - Buyer is consumer: 2 years
new - Buyer is entrepreneur: 1 year
used - Buyer is consumer: 1 year
used - Buyer is entrepreneur: none

BUILDING MATERIALS (IF INSTALLED)

new: 5 years
used - Buyer is consumer: 1 year
used - Buyer is entrepreneur: none

UNDEVELOPED LAND

none

BUILDINGS

New construction: 5 years
Old building: none

Obligation to Notify Defects

For non-obvious defects, the defect notification period in the GTC may not be shorter than one year. The period begins with the statutory commencement of limitation.

Reimbursement of Expenses for Supplementary Performance

According to § 439 Abs. 2 BGB, the seller must bear the expenses necessary for the purpose of supplementary performance (e.g., transport, travel, labor and material costs). This obligation may not be excluded by GTC.

Limitation to Supplementary Performance

In the case of a defective item, the buyer can, at his discretion, demand either the removal of the defect or the delivery of a defect-free item, or, if the conditions are met, also compensation for damages, as supplementary performance. Only if the supplementary performance fails, is impossible or unreasonable, can the buyer – as a secondary option – assert warranty rights: withdrawal or reduction. Limitations solely to supplementary performance are ineffective if the other contracting party is denied the right to reduction in the event of failure of supplementary performance.

Limitations of Liability

Any exclusion or limitation of liability for damages resulting from injury to life, body or health, which are based on an intentional or negligent breach of duty by the user or an intentional or negligent breach of duty by a legal representative or vicarious agent of the user, is invalid.

Amount of Default Interest

From the beginning of the default, the buyer owes the seller default interest in addition to the purchase price. If a consumer is involved in the purchase contract, either as buyer or seller, the interest rate is 5% above the base interest rate. In purchase contracts between entrepreneurs, the interest rate is increased to 8% above the base interest rate by the Schuldrechtsreform (reform of the law of obligations).