Terms of Sale

General Terms of Sale Prätorius GmbH

§ 1 General information, scope

(1) These General Terms of Sale (AVB) shall apply to all of our business relationships with our customers ("Buyer"). The AVB shall only apply if the Buyer is an entrepreneur (Section 14 BGB [German Civil Code]), a legal entity under public law or a special fund under public law.

(2) The AVB shall in particular apply to contracts concerning the sale and/or the delivery of movable objects ("goods") irrespective whether we produce the goods ourselves or purchase these from component suppliers (Sections 433, 651 BGB {German Civil Code]). If not otherwise agreed the AVB shall apply in the version that is valid at the time when the buyer places the order or in any case version last communicated to him in a text form as a framework agreement, also for future contracts of the same kind, without us having to refer hereto once again in each individual case.

(3) Our AVB shall apply exclusively. Deviating, contradictory or supplementary General Business Terms and Conditions of the buyer will only become a part of the contract to the extent that we have explicitly agreed to their validity. This approval requirement shall apply in all cases, for example also if we carry out the delivery to the buyer without reservation in the knowledge of the buyer’s General Business Terms and Conditions.

(4) Individual agreements reached with the buyer in an individual case (including collateral agreements, supplementations and amendments) shall in any case have precedence over these AVB. A written contract respectively our written confirmation shall be decisive for the contents of such agreements, subject to proof to the contrary.

(5) Legally relevant declarations and reports, which are to be submitted by the buyer towards us after conclusion of the contract (e.g. setting of deadlines, reports of defects, declaration of rescission or reduction), shall require a written form in order to be valid.

(6) References to the validity of statutory regulations shall only be of clarifying significance. Therefore, even without such a clarification the statutory regulations shall apply insofar as they are not directly changed or are explicitly excluded in these AVB.

§ 2 Conclusion of contract

(1) Our offers are without obligation and are non-binding. This shall also apply if we have handed over catalogues, other product descriptions or documents – also in an electronic form – to the buyer.

(2) The order of the goods by the buyer shall be deemed as a binding contractual offer. If not otherwise derived from the order we are entitled to accept this contractual offer within fourteen days after it is received by us.

(3) The acceptance can either be declared in writing (e.g. by an order confirmation) or by the delivery of the goods to the buyer.

§ 3 Delivery deadline and delay in delivery

(1) The delivery deadline shall be agreed individually or stated by us with the acceptance of the order.

(2) If we cannot adhere to binding delivery deadlines for reasons, for which we are not responsible (non-availability of the service), we will inform the buyer hereof without delay and, at the same time inform him of the expected, new delivery deadline. If the service is not available within the new delivery deadline either, we are entitled to rescind the contract in full or in part: deemed as an already provided service within this meaning is in particular the late self-delivery by our component suppliers if we have concluded a congruent cover transaction, neither we, nor our component suppliers are at fault or we are not obligated to procurement in an individual case.

(3) The occurrence of our default with the delivery shall be determined according to the statutory regulations. In any case. However, a reminder by the buyer is necessary. If we are in default with the delivery the buyer can request flat rate compensation for his damages due to default. The flat rate for damages for each full calendar week of the default is 0.5% of the net price (delivery value), in total however a maximum of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the buyer has not suffered any damages at all or only suffered substantially less damages than the aforementioned flat rate.

(4) The rights of the buyer pursuant to § 8 of these AVB and our statutory rights, in particular with an exclusion of the service obligation (e.g. owing to impossibility or if the service is deemed unreasonable and/or subsequent fulfilment), shall remain unaffected.

§ 4 Delivery, passing of risk, acceptance, delay in acceptance

(1) The delivery shall be carried out ex warehouse, which is also the place of performance for the delivery and a possible subsequent fulfilment. Upon request and at the costs of the buyer the goods will be sent to another destination (sale by dispatch). Insofar as not otherwise agreed we are entitled to determine the type of shipment (in particular transport company, dispatch route, packaging) ourselves.

(2) The risk of accidental loss and the accidental deterioration of the goods shall pass to the buyer no later than with the hand-over to the buyer. With the sale by dispatch, however, the risk if accidental loss and the accidental deterioration of the goods as well as the risk of delay shall pass with the delivery of the goods to the carrier, the freight forwarder or the other person or institution determined for carrying out the shipment. Incidentally, the statutory regulations of the law governing contracts for work and services shall also apply accordingly to an agreed acceptance. It is deemed equivalent to the hand-over if the buyer is in default with the acceptance.

(3) If the buyer is in default with the acceptance, if he fails to provide an act of assistance or if our delivery is delayed for other reasons for which the buyer is responsible, we are entitled to request compensation for the thus suffered damages including additional expenses (e.g. storage costs). We shall charge a flat rate compensation for this in the amount of two hundred and fifty Euro per calendar day, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification of that the goods are ready for shipment.
The proof of higher damages and our statutory claims (in particular reimbursement of additional expenses, reasonable compensation, termination) shall remain unaffected; the flat rate is however to be offset against further monetary claims. The buyer reserves the right to prove that we have not suffered any damages at all or only suffered substantially less damages than the aforementioned flat rate.

§ 5 Prices and terms of payment

(1) If not otherwise agreed in an individual case, our respective current prices at the time when the contract is concluded, shall apply ex warehouse Neumünster, plus the applicable rate of value added tax.

(2) With the sale by dispatch (§ 4 Par. 1) the buyer will bear the transport costs ex warehouse and the costs of transport insurance, if applicable requested by the buyer. If we do not invoice the transport costs actually incurred in an individual case, a transport costs flat rate shall be deemed as agreed (excluding transport insurance) in the amount of three per cent of the net goods value. Possible customs duties, fees, taxes and other public duties shall be borne by the buyer.

(3) The purchase price is due and payable within seven days from the invoicing and delivery or acceptance of the goods; insofar as advance payment has not been agreed. We will declare a corresponding reservation no later than with the order confirmation.

(4) With the expiry of the aforementioned payment deadline the buyer will be in default. Interest is to be paid on the purchase price during the default at the respective applicable statutory rate of interest on default. We reserve the right to assert a further damage due to default. Our claim for the commercial maturity interest (Section 353 HGB [German Commercial Code]) shall remain unaffected against merchants.

(5) The buyer is only entitled to rights to offset or of retention to the extent that his claim has been declared final and binding or is undisputed. In case of defects to the delivery the counter-rights of the buyer, in particular pursuant to § 7 Par. 2 of these AVB shall remain unaffected.

(6) If it becomes recognisable after conclusion of the contract (e.g. by an application for the opening of insolvency proceedings) that our claim for the purchase price is jeopardised by an insufficient solvency of the buyer, then we are entitled, according to the statutory regulations, to refuse the service and – if applicable after setting a deadline – to rescind the contract (Section 321 BGB); the statutory regulations concerning the lack of necessity to set a deadline shall remain unaffected.

§ 6 Reservation of title

(1) Until the full payment of all of our current and future claims from the purchase contract and an ongoing business relationship (secured claims) we reserve the property to the sold goods.

(2) The goods subject to a reservation of title may neither be pledged to third parties, nor assigned as collateral before the full payment of the secured claims. The buyer has to inform us in writing without delay if an application is filed for the opening of insolvency proceedings or in case of accesses of third parties (e.g. attachments) to the goods that belong to us.

(3) In case of a conduct of the buyer that is in breach of the contract, in particular in case of non-payment of the due purchase price, we are entitled, according to the statutory regulations, to rescind the contract and to request that the goods are handed over owing to our reservation of title and the rescission. If the buyer does not pay the due purchase price, we may only assert these rights if we has previously unsuccessfully set the buyer a deadline of three calendar days for payment or the setting of such a deadline is dispensable according to the statutory regulations.

(4) Until revocation according to (a) below the buyer is authorised to resell the goods subject to a reservation of title in the proper course of business. In this case the following provisions will additionally apply.

a) the buyer remains authorised besides us to collect the claim. We undertake not to collect the claim as long as the buyer satisfies his payment obligations towards us, there is no deficiency to his ability to pay and we do not assert the reservation of title by exercising a right pursuant to Par. 3. If this is, however, the case we can request that the buyer informs us of the assigned claims and their debtors, provides us all details that are necessary for the collection, hands over the associated documents and informs the debtors (third parties) of the assignment. In addition we are entitled, in this case, to revoke the buyer’s authorisation to resale and to processing of the goods subject to reservation of title.

b) If the realisable value of the collateral items exceeds our claims by more than 10%, we will, at the buyer’s request, release collateral items at our choice.

§ 7 Claims of the buyer due to defects

(1) The statutory regulations shall apply to the rights of the buyer in case of material defects and defects of title (including false and shortfall in delivery), insofar as not otherwise determined below. In all cases the statutory special regulations in case of final delivery of the goods to a consumer shall remain unaffected (supplier recourse pursuant to Sections 478, 479 BGB).

(2) The basis of our liability for defects is above all the agreement reached regarding the condition of the goods. Deemed as agreement about the condition of the goods is the as such described product descriptions (also of the manufacturer), which were handed over to the buyer before his order or were included in the contract in the same manner as these AVB.

(3) Insofar as the condition was not agreed, according to the statutory regulation it is to be assessed whether there is a defect or not (Section 434 Par. 1 S. 2 and 3 BGB). However, we do not assume any liability for public statements of the manufacturer or other third parties (e.g. advertising statements).

(4) The claims due to defects of the buyer presume that he has satisfied his statutory inspection and report of complaint obligations (Sections 377, 381 HGB). If a defect is determined during the inspection or later this is to be reported to us without delay in writing. The report is deemed as without delay if it is submitted within two weeks, whereby the timely sending of the report is sufficient to adhere to the deadline. Irrespective of this inspection and report of complaint obligation the buyer has to report obvious defects (including false and shortfall in delivery) within two weeks from delivery in writing, whereby the timely sending of the report is also sufficient here in order to adhere to the deadline. If the buyer fails to carry out the proper inspection and/or report of defects, our liability is excluded for the defect that is not reported.

(5) If the delivered object is faulty, the buyer can initially at his choice request as subsequent fulfilment remedy of the defect (subsequent improvement) or delivery of a faultless object (substitute delivery). If the buyer does not declare which of the two rights he chooses, we can set him a reasonable deadline for this purpose. If the buyer does not make the choice within the deadline the right to choose shall pass to us with the expiry of the deadline.

(6) We are entitled to render the owed subsequent fulfilment dependent on the fact that the buyer pays the due purchase price. The buyer is, however, entitled to withhold a part of the purchase price that is reasonable in relation to the defect.

(7) The buyer has to give us the time and opportunity that are necessary for the owed subsequent fulfilment, in particular to hand over the goods for which a complaint was made for test purposes. In the event of the substitute delivery the buyer has to return the faulty object to us according to the statutory regulations. The subsequent fulfilment neither includes the dismantling of the faulty object, nor the renewed installation if we were not originally obliged to carry out the installation.

(8) "We will bear the expenses necessary for the purpose of testing and subsequent fulfilment, in particular transport, route, labour and material costs (not dismantling and installation costs), if a defect actually exists. Otherwise, we can request reimbursement from the buyer of the costs incurred from the unjustified request for remedy of defects (in particular testing and transport costs), unless the lack of faulty condition was not recognisable for the buyer.

(9) If the subsequent fulfilment has failed or a reasonable deadline to be set by the buyer for the subsequent fulfilment has expired unsuccessfully or is dispensable according to the statutory regulations, the buyer can rescind the purchase contract or reduce the purchase price. However, not right of rescission exists with an insignificant defect.

(10) Claims of the buyer for damages or reimbursement of fruitless expenses shall also only exist in case of defects according to § 8 and are otherwise excluded.

§ 8 Other liability

(1) Insofar as not otherwise derived from these AVB including the following provisions we shall be liable with a breach of contractual and non-contractual obligations according to the statutory regulations.

(2) We shall be liable for damages – no matter for what legal reasons – within the scope of the liability for fault in case of wilful intent and gross negligence. With simple negligence we shall be liable subject to a milder liability benchmark according to statutory regulations (e.g. for care and attention in own matters) only

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

b) for damages from the significant breach of an essential contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible at all and the compliance with which the contractual partner can as a rule rely and depend on); in this case our liability is however limited to the compensation of the foreseeable, typically occurring damages.

(3) The liability restrictions arising from Par. 2 shall also apply with breaches of obligations by or for the benefit of persons, for whose fault we are responsible according to statutory regulations. They shall not apply, insofar as we maliciously failed to disclose a defect or we assumed a guarantee for the condition of the goods and for claims of the buyer according to the German Product Liability Act.

(4) Owing to a breach of obligation, which does not consist of a defect, the buyer can only rescind or termination the contract if we are responsible for the breach of obligation. A free right of termination of the buyer (in particular pursuant to Sections 651, 649 BGB) is excluded. Incidentally, the statutory prerequisites and legal consequences shall apply.

§ 9 Embargos, sanctions and force majeure

Irrespective of other rights we are entitled to rescind contracts if the execution of the contracts opposes state/ or international regulations of ‘foreign trade law embargos and sanctions.

We are also entitled to rescind the contract if we are not capable of making deliveries for reasons of force majeure.

§ 10 Data protection

Owing to the obligations according to the Federal Data Protection Act we would like to point out that data about customers and business transactions within the company are processed at a central location and in a computer center for own purposes. This takes place in line with the Federal Data Protection Act as well as the Telemedia Act.

§ 11 Partial nullity

(1) Should one provision in these Terms of Sale or one provision within the scope of any other agreement be or become invalid this shall have no effect on the validity of all other provisions or agreements.

(2) In the event of a contradiction between the German and any other language version of these AVB the German version will have precedence.

§ 12 Statute-of-limitations

(1) Notwithstanding Section 438 Para. 1 No. 3 BGB the general statute-of-limitations for claims from material defects and defects of title is one year from the delivery. Insofar as an acceptance has been agreed, the statute-of-limitations shall begin with the acceptance.

(2) If, however, the goods concern a building or an object, which has been used for a building according to its customary manner of use and caused its faulty condition (building material), the statute-of-limitations according to the statutory regulation is 5 years from delivery (Section 438 Para. 1 No. 2 BGB). Further statutory special regulations relating to the statute-of-limitations shall also remain unaffected (in particular Section 438 Para. 1 No. 1, Para. 3, Sections 444, 479 BGB).

(3) The aforementioned statutes-of-limitations of the law governing purchases shall also apply to contractual and non-contractual claims for damages of the buyer, which are due to a defect to the goods, unless the appl8ication of the regular legal statute-of-limitations (Sections 195, 199 BGB) would in an individual case lead to a shorter statute-of-limitations. Claims for damages of the buyer pursuant to § 8 Par. 2 Sentence 1 and Sentence 2 a) as well as according to the German Product Liability Act shall however exclusively become statute-barred according to the legal statutes-of-limitations.

§ 13 Choice of law and place of jurisdiction

(1) The law of the Federal Republic of Germany shall apply to these AVB and the contractual relationship between us and the buyer under the exclusion of international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

(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 – also international place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered seat in Neumünster. The same shall apply if the buyer is an entrepreneur within the meaning of Section 14 BGB. We are however also entitled in all cases to file an action at the place of performance of the delivery obligation pursuant to these AVB or a prior individual agreement or at the general place of jurisdiction of the buyer. Prior statutory regulations, in particular relating to exclusive jurisdictions, shall remain unaffected.


Status 20.05.2016, Prätorius GmbH, Oderstr. 75, 24539 Neumünster

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