AGB

General Terms and Conditions of Sale of DEPOS GmbH, Krefeld

1. Scope of application
2. These conditions of sales shall exclusively vis-á-vis companies as well as legal entities under public law and special funds under public law
   Within the meaning of Sec. 310 para. 1 German Civil Code. Terms and conditions of the Customer that are contrary to or deviate of our conditions of sales shall not be recognized, unless we explicitly gave consent in written form.
   2. The following General Terms and Sales conditions apply to all current and future business relationships with the Customer, insofar as it is legal transactions of a related nature (as a precaution, General Terms and Sales conditions should in any case be attached to the order confirmation).
   3. Individual agreements made with the Buyer in individual cases (including ancillary agreements, supplements and amendments) shall in any case take precedence over these Terms and Sales Conditions. Subject to proof to the contrary, a written contract or our written confirmation shall be authoritative for the content of such agreements.
3. Offers and conclusion of contract
   Should an order be regarded as an offer in accordance with section 145 of the German Civil Code (BGB), we may accept it within two weeks.

III. Provided documents
We reserve any and all rights of ownership and copyrights to all provided documents to the Customer, such as calculations, drawings, etc., connected with placing of the order. These documents shall not be made accessible to third parties, unless we explicitly gave consent to Customer in written form. If the offer of the Customer is not accepted within the period of time mentioned in § II, such documents shall be returned to us immediately.

1. Prices and payment
   1. Unless otherwise agreed in written form, prices are quoted ex works of manufacturing plant or warehouse excluding the packaging and respectively applicable statutory VAT. Costs for packaging will be indicated separately in the invoice.
   2. Payment of the purchasing price exclusively has to be effected to bank account mentioned in the invoice. Deduction of discount is only permitted with special written agreement.
   3. Unless agreed otherwise, the purchase price shall be paid by – concrete date – (alternatives: “… payable within 10 days after delivery”, or “… payable within 21 days after invoicing”). We demand default interest in the amount of 8 % and those are calculated by the respective base rate per annum (att. 1). The assertion of a higher damage caused by default remains reserved.
   4. Unless a fixed price agreement has been made we reserve the right to make reasonable changes of prices due to changes of labor, material or distribution costs for deliveries carried out 3 months or later after conclusion of contract.
2. Right of lien
   
   To exercise a lien the Customer is only insofar authorized as the counterclaim is based on the same contractual relationship. In an ongoing business relationship each order is a separate contractual relationship.
3. Delivery period
4. The beginning of the stated delivery period requires timely and proper fulfillment of the obligations of the Customer. The exception of the unfulfilled contract remains reserved.
   2. If the Customer is in default of acceptance or if it culpably violates other cooperation duties, we shall be entitled to request compensation for the damage occurred insofar, including any additional expenses. Any further rights shall remain unaffected. Provided that the case mentioned before occurs, the risk of accidental loss or accidental deterioration of the goods passes to the purchaser at the time, by being in default of acceptance or payment.
   3. We shall be liable in the case of which we are not intentional or grossly negligent induced delay in delivery for each completed week of delay in the context of a lump-sum compensation in the amount of 3% of the contract value, but not more than a maximum of 15% of the contract value.
   4. Further legal claims and rights of the Customer due to a delay in delivery remain unaffected.

VII. Passing of risk at shipment
If the goods are dispatched the Customer requested by him, the risk of accidental loss or accidental deterioration of the goods pass to the Customer at dispatch to him, latest with leaving of the plant/warehouse.  This applies regardless of whether the shipment of the goods is carried out from the place of performance or who bears the freight costs.

VIII. Retention of title
1. We reserve the title to the delivered goods until full payment of all outstanding debits from the contract of delivery.  This also applies to all future deliveries, even if we do not always refer to this explicitly. We are entitled to take back the goods if the Buyer acts contrary to the contract.
2. The Customer shall be obliged to treat all delivery items which are subject to retention of title with due care, as long as ownership has not been passed to him. In particular, the Customer shall be obliged to insure such delivery items at its own cost against theft, loss, fire and water damage in the amount of their purchase price (Note: only permissible for the sale of high-value goods). Should maintenance and inspection work be required, the Customer shall carry this out in good time at its own expense. As long as ownership has not been passed, the Customer has to inform immediately if a third party arranges for the pledge of any delivery items subject of retention of title or otherwise impairs the title held by us. Where the third party is unable to refund the court cost and other costs relating a legal action to us, the Customer shall be liable towards us for any loss occurred and not paid by the third party according sec. 771 of the German Code of Civil Procedure (Zivilprozessordnung, ZPO).
3. The Customer shall be entitled to resell delivery items which are subject to retention of title in the ordinary course of business. The Customer hereby assigns all receivables from reselling the products in height of the overall amount of the respective invoice (inclusive VAT) to us. The assignment is valid, regardless of whether the goods were sold without or after further processing. The Customer shall remain authorized to collect these receivables even after the assignment. Our authority to collect the receivables itself shall remain unaffected hereby. We shall be obliged to waive collection of the receivables as long as the Customer meets its payment obligations arising from the received proceeds, is not in arrears with payments and, in particular, has not applied for the opening of insolvency proceedings regarding its assets or has ceased payment. (Note: This clause does not apply if no extended retention of title is intended).
4. The processing and installation of the goods as well as products created by any way of processing of the purchased items by the purchaser are always affected in our name or on our behalf.  In this case, the expectant right of the purchaser continues to the goods at the reshaped item.  If the purchased item is processed with other items not belonging to us, we acquire joint ownership of the new item in proportion of the objective value of our goods to the other processed items at the time of processing. The same applies in case of mixing. If the mixing is done in a way that the purchaser’s item is to be regarded as the main item, is deemed agreed that the Customer transfers proportional joint ownership and keep the sole ownership or co-ownership for us. To secure our outstanding debits against the purchaser, the purchaser also accedes such outstanding debits to us resulted by the connection of the reserved property goods with a plot against a third party; we accept this assignment already now. 5. We shall be obliged to release all securities it is entitled to regarding delivery items and claims upon request of the Customer, provided that the realizable value of the securities exceeds the claims to be secured by more than 20 %.

1. Liability and notification of defects as well as recourse/manufacturer recourse
   1. The Customer’s warranty rights are subject to the condition that the same has duly complied with its duty of examination and its duty to give notice of defects pursuant to Sec. 377 of the German Commercial Code (Handelsgesetzbuch, HGB).
   2. The limitation period for claims resulting from defects expires after twelve (12) months after delivery of the goods, supplied from us, to our Customer. Claims for damage for intent and gross negligence as well as injury of life, body and health, which are based on an intentional or negligent breach of duty of the user, the statutory limitation period applies. (Note: in the case of the sale of used goods, the warranty period may be excluded altogether with the exception of the claims for damages mentioned in sentence 2). The limitation period for § 438 Para. 1 no. 2 BGB (Buildings and objects for buildings), § 445 b BGB (recourse) and § 634a Para. 1 BGB (construction defects) prescribes longer limitation period, those periods remain unaffected. Before returning any goods our consent has to be obtained.
   3. Should, despite all due care the delivered goods should contain a defect which already existed at time of transfer of risk, we either are going to rework or replace goods according to our choice, subject to proper notice of defect. The opportunity to remedy within a reasonable period must always been given. Recourse claims remain unaffected of the above regulation without limitation.
   4. Should the subsequent performance fails, the Customer – regardless of any compensation claims – shall be entitled at his option to withdraw from contract or request a price reduction.
   5. Warranty claims are excluded in cases of insignificant deviations from the agreed quality, only if minor impairment of usability, natural wear and tear as well damage, which is result of faulty or negligent handling, excessive strain, unsuitable equipment, defective construction work, unsuitable building or due to particular external influences, after transfer of risk, which are not intended in contract. Should the Customer or third parties makes improperly repairs or modifications, no warranty claims exist for these and the resulting consequences.
   6. Claims of the Customer arising out of the expenses required for the purpose of subsequent performance, in particular, costs of transport, travel, work and material, shall not exist insofar as expenses increase by taking the goods to a place other than the place of use indicated to us at the time the contract was concluded unless the transfer corresponds the intended use.
   7. Rights of recourse of the Customer against us only exist insofar as the purchaser has not made agreements exceeding the mandatory statutory warranty claim agreements. Furthermore the paragraph 6 shall apply about the extent of the right of recourse against the supplier.
2. Miscellaneous
   1. This contract and the entire legal relations of the parties subject to the law of the federal Republic of Germany under exclusion of the UN Salsas Convention (CISG).
   2. The place of performance is exclusively jurisdiction for all disputes arising from this contract are our place of business, unless it is clearly stated otherwise from order confirmation. (Note: The use of the clause is inadmissible if at least one of the parties is a company not registered in the commercial register, i.e. is not a businessman/woman).
   3. All agreements made between the Parties for the purpose of executing this Agreement are set out in writing in this Agreement.

Attachment 1:

Comments
Although the prohibition of clauses in the catalogue of clauses in sections 308 and 309 Of the German Civil Code (BGB) does not apply to General Terms and Conditions in relation to entrepreneurs within the meaning of section 14 of the German Civil Code (BGB) pursuant to section 310(1) of the German Civil Code (BGB), it cannot be automatically assumed that the use of clauses such as those mentioned in paragraphs 308 and 309 of the German Civil Code (BGB) vis-à-vis entrepreneurs is generally subject to the content review pursuant to sections 305 et seq. of the German Civil Code (BGB). Pursuant to section 307, paragraph 1, 2, no. 1 of the German Civil Code (BGB), which also applies to the use of GTCs in relation to entrepreneurs, an unreasonable disadvantage of the contractual partner is to be assumed in case of doubt if the clause is not compatible with essential basic ideas of the statutory regulation from which it deviates. In accordance with case law, this leads to the fact that the catalogue of prohibited clauses in sections 308, 309 of the German Civil Code (BGB) also acquires indirect significance in commercial transactions through the interpretation of section 307 of the BGB. The prohibitions of clauses in section 308 of the German Civil Code (BGB) are generally transferable to sales between entrepreneurs because their scope for interpretation takes into account the special features of commercial transactions. By contrast, such a blanket solution is not possible in the case of the prohibitions of section 309 of the German Civil Code, but the violation of section 309 is also an indication of the invalidity of the clause in the case of sales between entrepreneurs. Before using the GTCs, it is advisable to have a case-by-case examination carried out by a legal expert.

Transparency requirement
This precept means that, in case of doubt, a clause in GTCs is also unreasonably disadvantageous if it is not clear and understandable. This precept means that non-transparent clauses per se are to be regarded as ineffective without the addition of a substantive unreasonable disadvantage to the contractual partner. Furthermore, it also means that the transparency requirement also applies to price provisions and clauses describing services, which are generally exempt from content control.

Warranty periods
In the case of a contract of sale and a contract for work and services, the warranty period is two years. The warranty period may be shortened by means of GTCs as follows:

Movable property other than building materials:

Building materials (if fitted):

Undeveloped plots of land:

Reimbursement of expenses for supplementary performance
Pursuant to § 439 para. 2 BGB (German Civil Code), the Seller shall bear the expenses necessary for the purpose of subsequent performance (e.g. transport, travel, labour and material costs). This obligation may not be excluded by the GTC.

Liability for defects – Seller must assume removal and installation costs

The new law on supplementary performance pursuant to § 439 para. 3 p. 1 of the German Civil Code (BGB) specifies that within the scope of subsequent performance, the Seller is obliged to reimburse the Buyer for the necessary expenses for the removal and installation or the attachment of the defect-free item if the Buyer has installed the defective item in another item or attached it to another item in accordance with its type and intended use. According to section 445a of the German Civil Code (BGB), the Seller can also take recourse against his supplier. Nevertheless, the Seller is only liable if the Buyer was acting in good faith. The Buyer’s rights are therefore excluded if the Buyer was aware of the defect at the time of installation or was unaware of it due to gross negligence.

Limitation to subsequent performance
Should an item be defective, the Buyer may, at his discretion, demand the rectification of the defect or the delivery of a defect-free item as subsequent performance or, if the prerequisites are met, also compensation for damages. Only when subsequent performance is unsuccessful, impossible or unreasonable can the Buyer – secondarily – assert warranty rights: Withdrawal or Price reduction. Restrictions on supplementary performance alone are ineffective if the other Party to the contract is deprived of the right to reduce the purchase price if supplementary performance fails.

Liability limitations
Any exclusion or limitation of liability for damages arising 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 shall be ineffective.

Interest on arrears
As of the beginning of the delay, the Buyer shall owe the Seller interest on arrears in addition to the purchase price. If the contract of sale involves a consumer, whether as Buyer or Seller, the interest rate is 5% above the base rate. For sales contracts between entrepreneurs, the interest rate is increased to 8% above the base rate by the reform of the law of obligations.
At https://www.bundesbank.de/de/bundesbank/organisation/agb-undregelungen/basiszinssatz-607820 you can find the current base rates.

State of the GTC: April 2021