The General Terms and Conditions of Sale were last updated on June 16, 2024
1. Scope
1.1 These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers (“Buyer”). These General Terms and Conditions of Sale only apply if the Buyer is an entrepreneur (§ 14 BGB), a legal entity under public law, or a special fund under public law within the meaning of § 310 paragraph 1 BGB.
1.2 Our General Terms and Conditions of Sale apply exclusively. Deviating, opposing, or supplementary General Terms and Conditions of the Buyer will only become part of the contract if we have expressly agreed to their validity. This requirement of consent applies even if the Buyer refers to his general terms and conditions within the framework of the order and we do not expressly object to them.
1.3 These General Terms and Conditions of Sale apply to contracts for the sale and/or delivery of movable goods (“Goods”). It is irrelevant whether we manufacture the goods ourselves or purchase them from suppliers (§§ 433, 650 BGB). These General Terms and Conditions of Sale also apply as a framework agreement in the version valid at the time of the Buyer’s order or in the version last communicated to him in text form for similar future contracts without us having to refer to them again in each individual case (Note: for precautionary purposes, the General Terms and Conditions of Sale should be enclosed with the order confirmation in any case).
1.4 Individual agreements made with the Buyer (including side agreements, supplements, and amendments) and specifications in our order confirmation take precedence over these General Terms and Conditions of Sale. For the content of such agreements, a written contract or our written confirmation is decisive, subject to proof to the contrary.
1.5 Legally relevant declarations and notifications of the Buyer regarding the contract (e.g., defect notifications, deadlines, withdrawal or reduction) must be submitted in writing, i.e., in written or text form (e.g., letter, email, fax). Further statutory formal requirements and evidence remain unaffected (if there are doubts about the legitimacy of the declarant).
1.6 Insofar as references to the applicability of statutory provisions are made, they are for clarification purposes only. The statutory provisions apply even without such clarification, unless they are directly modified or excluded in these General Terms and Conditions of Sale.
2. Offer and Contract Conclusion
2.1 Our offers are subject to change and non-binding. This also applies if we have provided the Buyer with catalogs, technical documentation (e.g., drawings, plans, calculations, references to DIN standards), and other product descriptions or documents, including in electronic form. We retain ownership and copyright to all documents provided to the Buyer in connection with the order placement. These documents must not be made accessible to third parties unless we give our express written consent.
2.2 The Buyer’s order of the goods constitutes a non-binding contract offer according to § 145 BGB. We are entitled to accept this contract offer within two weeks after its receipt unless otherwise stated in the order.
2.3 The acceptance of the Buyer’s contract offer can be declared either in writing (e.g., through an order confirmation) or by delivering the goods to the Buyer. If we, as the Seller, do not accept the Buyer’s offer within the period specified in clause 2.2, the documents provided to the Buyer must be returned to us immediately.
3. Prices and Payment Terms
3.1 Unless otherwise agreed in individual cases, our current prices at the time of the contract conclusion apply ex warehouse plus statutory VAT. Packaging costs will be charged separately. Unless a fixed price agreement has been made, reasonable price changes due to changes in labor, material, and distribution costs for deliveries made 3 months or later after the contract conclusion remain reserved.
3.2 In the case of a sale by dispatch, the Buyer bears the transport costs ex warehouse and the costs of any transport insurance requested by the Buyer. If we do not charge the actual transport costs incurred in individual cases, we will charge a flat transport fee (excluding transport insurance) of EUR 5.00. Any customs duties, fees, taxes, and other public charges are borne by the Buyer.
3.3 The purchase price is payable exclusively to the account specified on the reverse side. A cash discount deduction is only permissible with a special written agreement.
3.4 Unless otherwise agreed, the purchase price is due and payable within fourteen days from the invoice date and delivery or acceptance of the goods. However, we are entitled to demand advance payment at any time, even within an ongoing business relationship. We will declare such a reservation no later than with the order confirmation.
3.5 The Buyer will be in default upon expiration of the above payment period. During the default, the purchase price is subject to interest at the statutory default interest rate of 8 percentage points above the respective base rate according to § 288 paragraph 2 BGB. We reserve the right to claim further default damages. Our claim for the commercial maturity interest (§ 353 HGB) against merchants remains unaffected.
3.6 If, after the conclusion of the contract, it becomes apparent that our claim to the purchase price is at risk due to the Buyer’s inability to perform (e.g., by filing for insolvency proceedings), we are entitled to refuse performance and, if necessary, withdraw from the contract after setting a deadline (§ 321 BGB). In the case of contracts for the manufacture of non-fungible goods (custom-made items), we can declare our immediate withdrawal. The statutory provisions on the dispensability of setting a deadline remain unaffected.
4. Retention Rights
The Buyer is only entitled to set-off or retention rights to the extent that his claim is legally established or undisputed, and his counterclaim is based on the same contractual relationship. In the event of defects in the delivery, the Buyer’s counter-rights, particularly under clause 8.6 sentence 2 of these General Terms and Conditions of Sale, remain unaffected.
5. Delivery Period and Delivery Delay
5.1 All delivery agreements require written form. Delivery periods begin with the date of the order confirmation by Multimedia Axess GmbH and presuppose the clarification of all technical questions. All delivery obligations are subject to timely and correct self-delivery by Multimedia Axess GmbH. Corresponding dispositions must be demonstrated by Multimedia Axess GmbH.
5.2 If we cannot meet binding delivery deadlines for reasons beyond our control, we will inform the Buyer immediately and simultaneously notify the expected new delivery deadline. If the service is not available within the new delivery deadline, we are entitled to withdraw from the contract in whole or in part; any consideration already provided by the Buyer will be refunded immediately. Non-availability of the service can be due to, for example, non-timely self-delivery by our supplier, if we have concluded a congruent hedging transaction, other disruptions in the supply chain (e.g., due to force majeure), or if we are not obligated to procure in individual cases.
5.3 Whether a delivery delay on our part as the Seller exists is determined by statutory provisions. A reminder from the Buyer is required for a delay on our part. If there is a delivery delay, the Buyer can claim compensation for his delay damage. The compensation is 0.5% of the net price (delivery value) per completed calendar week of delay, but no more than 5% of the delivery value of the delayed goods. We reserve the right to prove that the Buyer has not suffered any damage or only a significantly lower damage than the aforementioned lump sum.
5.4 The Buyer’s rights under clause 9 of these General Terms and Conditions of Sale and our statutory rights, especially in the event of an exclusion of the performance obligation (e.g., due to impossibility or unreasonableness of the performance and/or subsequent performance), remain unaffected.
6. Delivery, Transfer of Risk, Acceptance, Delay in Acceptance
6.1 Delivery is ex warehouse. The warehouse is also the place of performance for the delivery and any subsequent performance. If the Buyer wishes the goods to be sent to another destination (sale by dispatch), he bears the transport costs. Unless otherwise agreed, we may determine the type of shipment (packaging, shipping route, carrier).
6.2 The risk of accidental loss and accidental deterioration of the goods passes to the Buyer upon delivery to the Buyer. In the case of a sale by dispatch, the risk passes to the Buyer upon delivery of the goods to the carrier or freight forwarder. If an acceptance of the goods has been agreed, it is decisive for the transfer of risk. Otherwise, the statutory provisions of the law on contracts for work and services apply. Delivery or acceptance of the goods is equivalent if the Buyer is in default of acceptance.
6.3 If the Buyer is in default of acceptance or if our delivery is delayed for reasons attributable to the Buyer, we are entitled to claim compensation for the resulting damage, including additional expenses (e.g., storage costs). In such a case, we charge a lump-sum compensation of EUR 15.00 per calendar day (starting from the delivery date or, if no delivery date is specified, from the notification of readiness for shipment of the goods). Our statutory claims (compensation for additional expenses, reasonable compensation, termination) and the proof of a higher damage remain unaffected.
6.4 The proof of a higher damage and our statutory claims (especially compensation for additional expenses, reasonable compensation, termination) remain unaffected; the lump sum is to be credited against further monetary claims. The Buyer is entitled to prove that no damage or only significantly lower damage than the aforementioned lump sum has occurred to us.
7. Retention of Title
7.1 We retain ownership of the delivered goods until full payment of all our present and future claims arising from the purchase contract and an ongoing business relationship (secured claims).
7.2 Until full payment of the secured claims, the goods subject to retention of title may neither be pledged to third parties nor transferred as security. The Buyer must notify us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties have access to the goods belonging to us (e.g., by seizure).
7.3 In the event of a breach of contract by the Buyer, especially non-payment of the due purchase price, we are entitled to withdraw from the contract in accordance with statutory provisions and/or to demand the return of the goods based on retention of title. The demand for return does not simultaneously include the declaration of withdrawal; we are entitled to demand 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 such a deadline is dispensable under statutory provisions.
7.4 Until revoked in accordance with (c) below, the Buyer is authorized to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions additionally apply:
a) The retention of title extends to the full value of the products resulting from the processing, mixing, or combining of our goods, whereby we are considered the manufacturer. If, in the case of processing, mixing, or combining with third-party goods, the property rights of the third parties remain, we acquire co-ownership in proportion to the invoice values of the processed, mixed, or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.
b) The Buyer hereby assigns to us by way of security any claims against third parties arising from the resale of the goods or the product, in total or to the amount of our co-ownership share according to the preceding paragraph. We accept the assignment. The Buyer’s obligations mentioned in paragraph 2 also apply concerning the assigned claims.
c) The Buyer remains authorized to collect the claim in addition to us. We undertake not to collect the claim as long as the Buyer meets his payment obligations to us, there is no defect in his performance ability, and we do not assert the retention of title by exercising a right according to paragraph 3. However, if this is the case, we can demand that the Buyer informs us of the assigned claims and their debtors, provides all necessary information for collection, hands over the relevant documents, and informs the debtors (third parties) of the assignment. We are also entitled, in this case, to revoke the Buyer’s authorization to further sell 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 will release securities of our choice at the Buyer’s request.
8. Buyer’s Claims for Defects
8.1 Unless otherwise specified below, statutory provisions apply to the Buyer’s rights in case of material defects and defects of title (including incorrect and short deliveries, improper assembly, or defective assembly instructions). Special statutory provisions on the final delivery of the goods to a consumer remain unaffected (supplier recourse according to §§ 478, 479 BGB).
8.2 The basis of our liability for defects is primarily the agreement made about the quality of the goods. All product descriptions and manufacturer specifications that are the subject of the individual contract or were publicly announced by us (especially in catalogs or on our website) at the time of the contract conclusion are considered an agreement on the quality of the goods.
8.3 Insofar as the quality was not agreed upon, it is to be judged according to statutory regulations whether there is a defect or not (§ 434 paragraph 1 sentences 2 and 3 BGB). However, we are not liable for public statements of the manufacturer or other third parties (e.g., advertising statements) that the Buyer has not indicated to us as decisive for his purchase.
8.4 The Buyer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations (§§ 377, 381 HGB). If a defect becomes apparent during the delivery, inspection, or at any later time, we must be notified of this immediately in writing. In any case, obvious defects must be reported in writing within five working days from delivery, and defects not recognizable during the inspection within the same period from discovery. If the Buyer fails to properly inspect and/or notify defects, our liability for the non-reported defect is excluded.
8.5 If the delivered item is defective, we can first choose whether we provide supplementary performance by remedying the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse supplementary performance under statutory conditions remains unaffected.
8.6 We are entitled to make the owed supplementary performance dependent on the Buyer paying the due purchase price. However, the Buyer is entitled to retain a part of the purchase price proportional to the defect.
8.7 The Buyer must give us the time and opportunity required for the owed supplementary performance, especially to hand over the goods complained about for inspection purposes. In the case of a replacement delivery, the Buyer must return the defective item to us according to statutory provisions. Supplementary performance does not include the removal of the defective item or the reinstallation if we were not originally obliged to install.
8.8 We bear or reimburse the expenses necessary for the purpose of inspection and supplementary performance, especially transport, travel, labor, and material costs, according to statutory regulations, if there is actually a defect. Otherwise, we can demand reimbursement from the Buyer for the costs incurred due to the unjustified defect removal request (especially inspection and transport costs), unless the lack of defectiveness was not recognizable to the Buyer.
8.9 If the supplementary performance fails or a reasonable deadline set by the Buyer for the supplementary performance expires unsuccessfully or is dispensable according to statutory provisions, the Buyer can withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
8.10 Claims of the Buyer for damages or compensation for futile expenses exist only according to clause 9 and are otherwise excluded.
9. Other Liability
9.1 Unless otherwise specified in these General Terms and Conditions of Sale, including the following provisions, we are liable in case of a breach of contractual and non-contractual obligations according to statutory provisions.
9.2 We are liable for damages – regardless of the legal grounds – in the context of fault liability for intent and gross negligence. In case of simple negligence, we are liable subject to a milder standard of liability according to statutory provisions (e.g., for care in our own affairs) only
a) for damages resulting from injury to life, body, or health,
b) for damages resulting from a significant breach of an essential contractual obligation (obligation, the fulfillment of which enables the proper execution of the contract in the first place and on the compliance with which the contractual partner regularly relies and may rely); in this case, our liability is limited to the replacement of the foreseeable, typically occurring damage.
9.3 The limitations of liability resulting from paragraph 2 also apply to breaches of duty by or in favor of persons for whose fault we are responsible according to statutory provisions. They do not apply if we have maliciously concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the Buyer under the Product Liability Act.
9.4 Due to a breach of duty that does not consist of a defect, the Buyer can only withdraw or terminate if we are responsible for the breach of duty. An unrestricted right of termination for the Buyer (especially according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences apply.
10. Limitation Period
10.1 Notwithstanding § 438 paragraph 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title is one year from delivery. Insofar as an acceptance has been agreed, the limitation period begins with the acceptance.
10.2 If the goods are a building or an item that has been used for a building according to its usual use and has caused its defectiveness (building material), the limitation period according to statutory provisions is 5 years from delivery (§ 438 paragraph 1 no. 2 BGB). Other special statutory regulations on limitation periods remain unaffected (especially § 438 paragraph 3 BGB, § 444 BGB, § 445b BGB).
10.3 The aforementioned limitation periods of the purchase right also apply to contractual and non-contractual claims for damages of the Buyer 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 individual cases. Claims for damages of the Buyer according to clause 9 paragraph 2 sentence 1 and sentence 2(a) as well as according to the Product Liability Act become statute-barred exclusively according to the statutory limitation periods.
11. Choice of Law and Jurisdiction
11.1 For these General Terms and Conditions of Sale and all legal relationships between us and the Buyer, the law of the Federal Republic of Germany applies, excluding international uniform law, especially the UN Sales Convention. The conditions and effects of the retention of title according to clause 7 are subject to the law of the respective storage location of the item, insofar as the choice of law made in favor of German law is inadmissible or ineffective.
11.2 If the Buyer is a merchant within the meaning of the 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 place of business in Essen. However, we are also entitled to bring an action at the Buyer’s general place of jurisdiction. Overriding statutory provisions, especially on exclusive jurisdictions, remain unaffected.