Terms of sale, delivery and payment
I. General- Scope of Validity
The Business Terms shall apply to all current and future business relations between us and the customer.
Any deviating, contrary or supplementary General Business Terms will not become part of the contract even where we are aware of them unless their validity is confirmed in writing.
Unless expressly stipulated, the standard terms are always valid in addition to the written form.
The contracting partners will confirm any verbal agreements immediately in writing in every individual case
Orders will become binding upon confirmation of our orders.
II. Conclusion of the Contract/Long Term and On –Call Order Contacts /Price Adjustment
Unless otherwise agreed, our offers are subject to change. Where reasonable, we reserve the right to make technical changes.
The data and illustrations specified in the prospectuses and catalogues are to be regarded as approximate values customary in the line of business unless they are explicitly specified by us as binding.
Upon ordering a good, the customer bindingly declares that he intends to purchase the good ordered. The customer will bear the sole responsibility for correct selection and quantity of the goods.
Where a contract was concluded without simultaneous written declarations (order and order confirmation) by both parties to the contract, our written confirmation will be authoritative first and where there is no written confirmation, the customer’s order.
The data in the prospectuses or similar documents or data specified with an offer such as illustrations, drawings, specifications, measurements, weight, efficiency and consumption data, data related to usability of devices for new technologies, are only approximate unless explicitly agreed as binding.
Where several customers are parties to the contract, they will authorise each other to receive our legally binding declarations in all matters pertaining to the purchase. We will provide the good to each of the customers effective for and against all other customers.
We have the right to declare acceptance of the contractual offer of the order within two weeks after its receipt by us. Acceptance will be by written confirmation or by delivery of the goods to the customer.
Any changes or additions to an order will require our written confirmation in every case.
Conclusion of the contract will be subject to the proviso of correct and timely supply by our own suppliers in every case. This will only apply where we are not liable for non-supply, in particular in the case of a congruent covering transaction with our supplier. The customer will be immediately informed of the non-availability of the good. Any payment will be immediately reimbursed.
§ 312e I Nr. 1-3 BGB will not apply.
Where the customer orders the good electronically, the text will be saved by us and sent to the customer per e-mail upon request in addition to the present Business Terms.
Unlimited contracts may be terminated observing a notice period of 3 months.
Where there are fundamental changes to wage-, materials- or energy costs in a long-term contract (contracts with a term exceeding 2 years as well as unlimited contracts), each contract partner will have the right to request an adequate adjustment of the price, taking these factors into account.
Where a binding order quantity has not been agreed on we will make the unofficial order quantity anticipated for a specific period by the partner the basis for our calculation (target amount). Where the partner accepts less than the target amount we will have the right to adequately increase the unit price. Where he accepts more than the target amount we will adequately reduce the unit price to the extent that the partner has declared additional requirements at least 2 months prior to delivery.
In the case of on-call order delivery contracts we must be informed of binding quantities at least 2 months before the delivery date unless otherwise agreed. Additional costs caused by a delayed placement of an on-call order or by subsequent changes of the on-call order with regard to time or quantity by our partners will be borne by the latter; our calculation shall be authoritative in this case.
Each party to the contract will use all documents (including samples, models and data) and facts obtained from the business relationship only for the joint purposes and will observe the same secrecy toward third parties as with his own documents and facts where the contracting partner has specified them as confidential or is expressly interested in keeping them secret. This duty will commence as from the initial receipt of the documents or facts and will terminate 36 months after the end of the business relationship
The duty will not apply to documents and facts which are generally known or which were already known to the party to the contract upon receipt without being regarded as classified information or which were imparted after receipt by an authorised third party or which are developed by the party to the contract receiving them without recourse to confidential documents or facts of the other contracting party.
Where a party to the contract provides the other party with drawings or technical documents on the goods to be supplied or on the manufacture thereof they will remain the property of the contracting party providing them.
Manufacturing costs for samples and manufacturing instruments (tools, moulds, templates, etc.) will be invoiced separate from the goods to be delivered unless otherwise agreed. This will also apply to manufacturing instruments which must be replaced as a consequence of wear and tear.
The costs for maintenance and proper storage of the manufacturing instruments as well as the risks of damage or destruction thereof shall be borne by us.
Where the partner suspends or terminates cooperation during the period of elaboration of the samples or manufacturing instruments, all manufacturing costs incurred up to that time will be borne by him.
The manufacturing instruments will remain in our possession at least until the supply contract has been performed, even where the partner has paid for them. Thereafter, the partner will have the right to demand the return of the manufacturing instruments where there was a consensual agreement regarding the time of return and the partner has fully complied with his contractual duties.
We will store the manufacturing instruments free of charge for three years after the last delivery to our partner. Thereafter, we will request our partner in writing to make a statement within 6 weeks regarding further use. Our storage duty will terminate where no statement is made within these 6 weeks or where no new order is placed; the manufacturing instruments will then become our property.
Manufacturing instruments related to the recipient may only be used by us for supplies to third parties with the prior written consent of our partner.
IV. Retention of Title
All goods supplied shall remain our property (goods subject to retention of title) until satisfaction of all obligations, in particular of the respective balance obligations we are entitled to within the framework of our business relations.
Processing and refinement of the goods subject to retention of title will be performed for us as manufacturers as defined by § 950 BGB, without implying any obligation.
The processed and refined goods will be regarded as goods subject to the retention of title as defined by Item IV. 1.
In the case of refinement, combination or blending by the purchaser of the goods subject to the retention of title with other goods we will be entitled to a share in the ownership of the new items on the basis of the ratio of the invoice value of the goods subject to the retention of title to the invoice value of the other goods being used. Where our ownership expires by combination, blending or refinement, the purchaser is already assigning the ownership and vested rights to the new compound or item to the extent of the invoice value of the goods subject to retention of title, in the case of refinement, on the basis of the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods being used, and will store them free of charge for us. Our rights to a share in ownership will be regarded as goods subject to the retention of title as defined in Item IV. 1.
The purchaser may only resell the goods subject to the retention of title within the scope of regular business transactions at normal business terms and only where he is not in arrears with payment, provided that he reserves the ownership and the claims from the resale are assigned to us in accordance with Item IV. 5. and 6. He will not have the right to any further disposals of the goods subject to the retention of title. Resale as defined by the present paragraph also applies to use of the goods subject to retention of title for performance of work contracts.
Claims by the purchaser from the resale of the goods subject to the retention of title are already being assigned to us. They will serve as security to the same extent as the goods subject to the retention of title as defined by Item IV. 1.
Where the goods subject to retention of title are resold by the purchaser together with other goods, the claim from the resale will be assigned to us on the basis of the ratio of the invoice value of the goods subject to the retention of title to the invoice value of the other goods. In the case of resale of goods in which we have co-ownership shares pursuant to Item IV. 3., a part of the claim equivalent to our co-ownership share will be assigned to us.
The purchaser has the right to collect all obligations from the resale unless we revoke the direct debit authorisation in the cases specified in paras V.13. and IV. 8. Upon our request he will be obligated to inform his customers immediately regarding the assignment to us-provided that we do not inform him ourselves- and to provide us with the information and documents necessary for collection of the obligations. Under no circumstances will the purchaser be authorised to assign the obligations.
Where the purchaser is in arrears with payment and this implies that the realization of a considerable portion of our claim is being jeopardised, we shall have the right to prohibit the processing of the supplied good, to recollect the good and to enter the purchaser’s business premises for this purpose if necessary. Recollection does not constitute a rescission of the contract.
The purchaser must inform us immediately of any pledging or other impairments by third parties.
Where the value of the existing securities exceeds the secured obligations by a total of more than ten per cent we will be obliged to release the securities according to our choice upon request by the purchaser.
All prices offered are binding but will only apply in the quantity stated, excluding packaging and shipping and apply ex works plus value added tax at the statutory rate.
Where our cost e.g. for manufacturing material, energy, operating supplies, shipping and/or wages/salaries increases or decreases from the time of conclusion of the contract until delivery we will have the right to adjust the sales price or shipping costs accordingly without regard to the offer and order confirmation.
We reserve the right to impose a surcharge for all charges imposed by federal or state law which increase the price of the good; the customer shall not have a right to rescission of the contract in such a case.
Invoices are payable to the full amount in Euros after receipt of the goods within 30 days as from date of the invoice. After expiry of this deadline, the customer will be regarded as being in arrears with payment. For payment effected within 10 days as from the date of the invoice, 2 per cent discount will be conceded, provided that the partner is not in arrears with payment of obligations. Other terms of payment, in particular the acceptance of bills of exchange and cheques must be agreed on in writing.
During the period of delayed payment, the customer will be obliged to pay interest of 8 per cent above the basic interest rate of the European Central Bank on the monetary obligation. We reserve the right to prove and claim greater damage caused by the delayed payment.
Incoming payments will be set off against the longest-standing obligation. Cheques and bills of exchange will only be accepted in the case of special agreement and subject to cashing thereof and on account of performance only; there is no obligation to accept bills of exchange. We have the right to set off claims with claims by the customer against our parent company, subsidiary, affiliated or associated company.
In the case of a down payment or partial delivery, the down payment may only be set off with the last instalment.
Credit notes on bills of exchange and cheques will be made subject to the proviso of the receipt of the latter minus our costs and expenses incurred in this case.
Rights of the customer to set off as well as the right of retention to the payment will only apply where his counterclaims are res judicata or recognised by us.
A right of retention may only be exercised where the customer’s counterclaim is based on the same contractual relationship.
Special payment terms will apply to overseas deliveries.
Payments to our employees may only be effected where they can prove a respective authority to collect.
In the case of significant changes in the customer’s financial situation, in particular in the case of (impending) insolvency we will have the right to either rescind the contract or to demand complete or partial payment of the purchase price. Where the customer refuses to furnish such security we will likewise have the right to rescind the contract after lapse of a reasonable payment deadline. Where the customer is in arrears with payments or instalments due to (impending) insolvency we have the right to withhold any additional deliveries until payment of the outstanding obligation. The customer’s acceptance duty will continue to apply.
We are entitled to securities of the usual kind and to the usual extent for our claims, including for restricted or temporary claims-without detriment to our legal and contractual laws.
VII. Shipping/Delivery/Passing of Risk/Packaging
Delivery of the goods will take place upon collection at the plant or otherwise at the agreed place. In the case of a change of the place of delivery at the customer’s request the latter will also bear any additional charges thereby incurred.
The risk of accidental destruction and accidental deterioration of the goods will pass to the customer upon hand over of the goods in the case of collection of the goods at the plant, upon delivery of the item to the shipping agent or carrier or other person or institution responsible for shipping in the case of mail order delivery. Transport insurance policies will be concluded exclusively by the customer unless otherwise agreed on.
Partial deliveries are admissible.
Where the customer is in arrears regarding his provision- and co-participation duty, we will have the have the right to rescind the contract and demand damages after stipulation of a written period of grace of 14 calendar days.
The customer must place on-call orders for goods ready for dispatch immediately, but by the latest after 10 calendar days after announcement of readiness for dispatch. Where no on-call order is placed, we will have the right to store the goods at our discretion at the expense and risk of the customer and to charge them ex works. The storage fee will be 1% of the invoice value for each new month and is limited to 5% of the invoice value; we have the right to prove greater storage costs.
The persons signing the delivery note will be regarded as authorised to accept the goods and to confirm receipt; the signing of the delivery note will be regarded by us as acknowledgement of our delivery list.
Goods will still be regarded as having been handed over when the customer delays acceptance.
Without specific instructions, shipping will be carried out as deemed best but without any obligation for cheapest shipping. Costs incurred by partial delivery will be borne by the client.
In the case of on-call orders we will guarantee a delivery period of 3 months as from the date of the order, unless otherwise agreed. Where the acceptance deadline has passed we will have the right to either charge the goods or to cancel the order with regard to the non-performed part of the contract.
Delivery deadlines are not-binding in every case, unless otherwise explicitly agreed. Delays with delivery will entitle the customer to rescission of the contract only after lapse of an adequate period of grace. In the case of a down payment and partial deliveries, the down payment may not be set off before the last instalment.
Cases of force majeure at our company or at our supplier’s company such as operational breakdown of any kind in particular machine defects, strikes, cessation of work, lock outs, defects not attributable to fault of the raw materials necessary for manufacture, transport impairments, transport delays and all other circumstances not attributable to fault not specified here which prevent proper performance by us or by our suppliers will entitle us to either wholly or partially terminate or suspend our delivery obligation. Where delivery periods are exceeded, the customer will remain obligated to accept the goods.
VIII. Rights in the Case of Defects
The compliance of the features of our goods with the contract and their faultless condition will be based exclusively on the agreements on quality and quantity of the goods ordered at the time of the passing of the risk with the proviso that minor deviations due to production will not constitute material defects within the framework of tolerance usual in the line of business and in accordance with usual standards. Liability for a specific purpose of use will only be assumed where this has been expressly agreed upon; in other respects, the risk of suitability and use will be borne exclusively by the purchaser. We will not be liable for deterioration, destruction or improper handling of the goods after the passing of risk.
The contents of the agreed specifications and any explicitly agreed purpose of use will not constitute the basis for a guarantee; assumption of a guarantee will require a written agreement. The purchaser must immediately inspect the goods upon receipt. There will only be rights in the case of defects where a written complaint is made immediately. A complaint regarding hidden defects must be made immediately after detection. After performance of an agreed inspection, a complaint regarding defects which could have been detected by this inspection will not be possible.
In the case of complaints, the purchaser must immediately give us the chance of inspecting the goods; upon request, the goods or a sample thereof are to be submitted to us at our costs. In the case of unjustified complaints, we reserve the right to impose shipping and turnover costs on the purchaser as well as inspection charges at prices usual in the business.
In the case of a material defect, we will either make up performance by providing a replacement or by rectification, taking the purchaser’s interests into account. Where make-up performance is not rendered by us successfully within an adequate period of time, the purchaser may stipulate an adequate make-up performance period and upon the fruitless lapse thereof may reduce the purchase price or rescind the contract. Further-reaching claims, e.g. to damages or reimbursement of fruitless expenses will only apply on the basis of the terms in Item IX.
In the case of a legal defect we will have the right to make-up performance by rectification of the legal defect within an adequate period, normally 2 weeks as from receipt of the complaint. In other respects, Item VIII. 4. Clauses 2 and 3 will apply accordingly.
The expiry deadline in the case of a defective delivery of movable items which were used for construction in accordance with their normal purpose of use and caused the latter’s defects will end three years after delivery, notwithstanding §§ 478, 479 BGB (German Civil Code).
The expiry deadline due to the defective delivery of other movable items will end one year after delivery, notwithstanding §§ 478, 479 BGB (German Civil Code).
Rectification or a replacement delivery will not cause the expiry deadline to commence anew.
In the case of personal damage or damage to privately used items or in the case of wilfulness the statutory expiry periods will apply, departing from Items
VIII. 6. - 8.
Recourse claims by the purchaser against us pursuant to § 478 BGB are limited to the statutory extent of guarantee claims by third parties asserted against the purchaser, and require that the purchaser has complied with his inspection duty and duty to report complaints toward us. To the extent that it is feasible, the purchaser must avert such claims.
IX. General Limitation of Liability
1.Our liability to damage and expense compensation on any legal ground is excluded or restricted according to the provisions of the present paragraph.
2.We will only be liable in the case of wilfulness or gross negligence of our legal representatives or vicarious agents in the case of culpable breach of cardinal contractual duties.
3.In the case of culpable breach of cardinal contractual duties we will be liable for foreseeable damage typical of the contract –except in cases of wilfulness or gross negligence of our legal representatives or vicarious agents.
4.Liability for production shortfall and lost profit is excluded in every case.
5.Our liability on any legal ground is limited to the total value of the order-in the case of on-call orders from framework agreements to the on-call order value, unless there is greater insurance coverage or greater compensation claims against company group outsiders.
6.The exclusions and limitations of liability in the present delivery and payment terms will not apply to personal damage, damage to privately used items and in
7.other cases of statutory liability.
X. Taxes, Customs Duty, Charges
For sales in the Federal Republic of Germany we additionally charge value added tax at the respective statutory rate on the purchase price. Transboundary deliveries will be free of taxes and customs duties. Where customs duty, taxes and other charges are levied, they shall be borne by the purchaser. Where a purchaser domiciled outside of the Federal Republic of Germany or his representative collects goods and transports or ships them abroad the purchaser must inform us of this by presentation of proof records which comply with the requirements of turnover tax law of the Federal Republic of Germany. Where such proof is not provided within thirty days after the handover of the goods, the purchaser must pay value added tax at the turnover tax rate applicable for goods in the Federal Republic of Germany from the invoice amount.
XI. Data Protection Declaration
We save and process personal data which become known to us only for the purpose of performance of the respective contract and only to the extent necessary for safeguarding our legitimate interests and after thorough consideration that there is no reason to suppose that the customer’s interest must prevail. To this extent, the customer consents to the storage, conveyance and use of his data.
XII. Final Terms
The place of performance of both parties to the contract is our business headquarters.
The laws of the Federal Republic of Germany will apply to all legal relations between the contracting parties, excluding the “United Nations Sales Convention on the International Purchase of Goods of 11 April 1980”.
Where the customer is a businessman, legal entity in public law or estate in public law, the exclusive place of jurisdiction for all disputes arising from the present contract is our business domicile. The same applies to all present and future claims from the business relationship unless the party being sued moves his residence or habitual place of abode out of the scope of validity of German law or never was domiciled there or unless it is not known at the time of the lawsuit. The same will apply to the case where claims are asserted in cheque-, bill of exchange- and dunning proceedings.
We also have the right to choose the purchaser’s general place of jurisdiction.
Should individual terms of the present contract with the customer including the present General Business Terms be or become wholly or partially ineffective this will not affect the validity of the remaining terms. The term which is wholly or partially invalid is to be replaced by a term which comes as close as possible to the economic achievement of the invalid one.