Article list 09/2020 111
The customer undertakes to pay the price for our deliveries and services
immediately after conclusion of the contract, unless otherwise agreed.
Unless, exceptionally, payment in advance is agreed and unless otherwise
agreed by the contractual parties, payments are due without discount
immediately after performance of the service and customer’s receipt of
the invoice and payable within 14 days.
(4) Unless specially agreed otherwise, we only accept non-cash payments,
i.e. transfers to our bank account indicated in the contract documents.
Bills of exchange and cheques shall in principle not be accepted, and if at
all only in lieu of payment. The customer must pay the bill of exchange
and cash discount charges incurred as well as the collection charges.
These are due immediately. We shall not be liable for timely collection
or timely protest if we are only responsible for slight negligence in this
(5) If the customer is in default of payment, it shall be required to pay
interest at the rate of eight percentage points above the relevant applicable
base interest rate. This shall not affect the right to assert for further
damage caused by the delay.
(6) If the customer is in default of payment for longer than 30 calendar
days, bills of exchange or cheques are protested or if insolvency proceedings
or comparable proceedings under other legal systems are filed
against the customer’s assets, we shall be entitled to immediately call all
accounts receivable against the customer due and payable, withhold all
deliveries and services, and assert all reservations of proprietary rights.
(7) The customer shall only be entitled to set off our claims against claims
undisputed by us or recognised by declaratory judgment. Apart from
Section 354 a HGB (German Commercial Code), the customer shall be
entitled to assign rights to a third party only after our prior written confirmation.
The customer shall only have a right of retention or
the defence of non-performance within the respective contractual
(8) Circumstances which occur after conclusion of the contract and
which influence the calculation basis unforeseeably to a significant extent
and are beyond our sphere of control shall entitle us to adjust the agreed
price in an amount exclusively taking into
account these circumstances. This especially applies to legislative amendments,
official measures, price increases of our primary suppliers and
currency fluctuations. The price adjusted on this basis is based on the
same calculation basis as the originally agreed price and may not be used
to increase the profit.
(9) If we receive unfavourable information about the customer’s financial
circumstances or credit standing, unless, exceptionally, payment in advance
must be made anyway - we may make the processing and delivery
dependent on a reasonable down payment by the customer or on the
provision of security through a deposit or a bank guarantee.
§ 7 Retention of Title
(1) Our services remain our property until full payment of all claims
against the customer to which we are entitled from the business
relationship. These claims shall also include drafts and bills of exchange
receivable as well as current account receivables.
(2) The customer is obliged to treat the goods that are subject to retention
of title carefully for the period of retention of title. It is also obliged to
insure the goods sufficiently at the reinstatement value against damage
caused by fire, water and theft at its own expense. The customer hereby
assigns to us already any claims for damages arising from this insurance.
We hereby accept the assignment. If the assignment is not permissible,
the customer shall hereby irrevocably instruct its insurance company to
effect any payments solely to us. This shall not affect any further claims
that we may have. Upon our request, the customer must furnish documentary
proof to us that it has taken out insurance.
(3) The customer is only permitted to sell the goods subject to retention
of title in the regular course of business. The customer is not entitled to
pledge the goods subject to retention of title, transfer them by way of
security or make other arrangements that
prejudice our ownership. In the event of seizures or other infringements
by third parties, the customer is obliged to inform us immediately in writing
and provide all necessary information, inform the third party about
our ownership rights and assist us in our activities to protect the goods
subject to retention of title. The customer shall bear any costs incurred by
it, which may be due in order to cancel access to the goods or replace
the goods, insofar as these costs cannot be recovered from a third party.
(4) The customer hereby assigns to us already all outstanding debts from
resale of the goods and all ancillary rights, regardless of whether the
goods subject to retention of title were resold without or after processing.
We hereby accept this assignment already now. If an assignment is
not admissible, the customer hereby irrevocably instructs the garnishee to
effect any payments solely to us. The customer is revocably authorised
to collect the debts assigned to us in a fiduciary capacity. The amount
collected shall be paid to us immediately. We are entitled to revoke
the customer’s authorisation to collect the amounts due as well as the
customer’s authorisation to resell the goods, if the customer does not
meet its payment obligations towards us in proper form, if it is in
default of payment, if it ceases payment or if insolvency proceedings are
filed regarding the customer’s assets. A resale of claims shall require our
prior consent. The customer’s collection authorisation shall expire upon
notice of the assignment to the garnishee. If the collection authorisation
is withdrawn, we shall be entitled to demand from the customer
to notify the assigned debts and their debtors, provide all information
required, hand out the associated documents and inform the obligors of
(5) In case the customer’s debts from the re-sale are transferred to a
current account, the customer hereby also assigns its claim against its
customer from the current account already to us, and namely in the
amount of the purchase price of the goods resold subject to retention of
title including VAT.
(6) If we assert our claims in accordance with § 6 para. 6, the customer
is immediately obliged to grant us access to the goods subject to
retention of title, send us a detailed list of all the existing goods subject
to retention of title, separate the goods for us and to return them to us
(7) The processing or remodelling of the goods subject to retention of
title by the customer shall be carried out solely for us. The customer’s expectant
right to the goods subject to retention of title shall carry forward
to the processed or remodelled item. If the item is irrevocably processed,
combined or mixed with other items not owned by us, we shall thereby
become co-owner of the new item, reflecting the proportion of the value
of the delivered item relative to the other processed items at the time
of processing. The customer shall keep the new item in safe custody for
us. The item originating from the processing or remodelling is thereby
subject to the same regulations as the goods subject to retention of title.
(8) At the customer’s request, we are obliged to release the securities that
it is legally entitled to, if the realisable value of the securities, taking into
account the valuation haircuts customary in the banking sector, exceeds
our claims resulting from the business relationship with the customer by
more than 10 %. The valuation shall be based on the invoice value of the
goods subject to retention of title and on the nominal value in relation
(9) If any goods are delivered to countries with a different legal system,
in which the regulations regarding retention of title do not guarantee
the same degree of security pursuant to this paragraph as in the Federal
Republic of Germany, the customer hereby acknowledges the corresponding
security interest. If further declarations or actions are necessary, the
customer shall provide these declarations and take action accordingly.
The customer shall participate in all steps necessary for and beneficial to
the efficacy and enforceability of these security interests.
§ 8 Contractual Obligations and Termination of Contract
(1) The customer may only terminate the exchange of services prematurely
in case of a breach of duty on our part, for whatever legal reason
(e.g. in the case of withdrawal, claim for damages in lieu of the service,
termination for cause) in addition to the statutory requirements subject
to the following requirements:
a) The breach of contract shall be specifically notified. The remedy of
the fault shall be requested within a stipulated time period. In addition,
the threat shall be issued that after expiry of this period without results,
no further services concerning the notified fault will be accepted and
therefore the partial or complete exchange of services will
b) The period for remedying the fault must be adequate. A period of less
than two weeks is only appropriate in cases of urgent necessity. In case
of serious and final refusal of performance or subject to the other statutory
requirements (Section 323, para. 2 BGB) the setting of a deadline
may be dispensed with.
c) The termination of the exchange of services (partially or completely)