General Terms and Conditions of Sale
§ 1 Scope
(1) These general terms and conditions of sale apply to the exclusion of all others to companies, legal persons under public law and special funds under public law as defined in § 310 (1) of the German Civil Code (Bürgerliches Gesetzbuch - BGB). Conditions set by the customer which are contrary to or divergent from our terms and conditions of sale will be recognised by us only with our express written consent.
(2) These terms and conditions of sale also apply to all future transactions with the customer provided that the transactions concerned are legitimate and similar in kind (as a precautionary measure the terms and conditions of sale should in all cases be included with the order confirmation).
§ 2 Offer and conclusion of contract
If an order is to be deemed an offer as defined in § 145 BGB, we can accept it within two weeks.
§ 3 Documents provided
We reserve the proprietary rights and copyrights to all documents passed on to the customer in association with the placing of an order, such as, for example, calculations and drawings etc. These documents must not be made accessible to third parties unless we have given the customer our express written permission to that effect. If we do not accept the customer’s order within the period of grace stated in § 2, these documents must be sent back to us immediately.
§ 4 Prices and payment
(1) Unless otherwise agreed in writing, our prices are ex works excluding packing and Value Added Tax at the applicable statutory rate. The customer will be invoiced separately for packing costs.
(2) Payment of the purchase price must be made exclusively into the account stated on the reverse. The deduction of discounts is permissible only by special written agreement.
(3) Unless otherwise agreed, the purchase price becomes due for payment immediately after delivery. Default interest will be charged in the amount of 8 % above the annual base rate in force at the time. We reserve the right to enforce a higher claim for damages brought about by payment default.
(4) In the absence of a price-setting agreement we reserve the right in the event of changes to payroll, material and selling costs to implement reasonable price changes in respect of orders placed 3 months or more after the conclusion of this agreement.
§ 5 Set-off and retention rights
The customer is entitled to set-off only if its counter-claims have the force of res judicata or are uncontested. The customer is authorised to exercise its right of retention only if its counter-claim is based on the same contractual relationship.
§ 6 Delivery period
(1) The delivery period stated by us will not start until the customer has duly and promptly fulfilled its obligations. We reserve the right to lodge an objection on the basis of non-fulfilment of contract.
(2) If the customer is in default of acceptance or culpably acts in breach of other duties of cooperation, we will be entitled to demand compensation for any damages incurred by us as a result, including any additional expense. We reserve the right to assert further claims. If the circumstances set forth above should arise, the risk of accidental loss or deterioration of the purchased merchandise will pass over to the customer at the point at which it defaults on acceptance or payment.
(3) We are liable to pay flat-rate compensation for any delay in delivery not brought about by premeditation or gross negligence on our part, amounting to 3 % of the value of the delivery for every complete week of the delay; this will not, however, exceed 15 % of the value of the delivery.
(4) Further statutory claims and rights of the customer arising out of a delay in delivery are unaffected.
§ 7 Transfer of risk in the event of despatch
If, at the request of the customer, the merchandise is to be sent to it, the risk of accidental loss or deterioration of the merchandise will be transferred to the customer at the point of despatch, no later than the point at which the merchandise leaves the factory/warehouse. This applies irrespective of whether or not the merchandise is despatched from the place of fulfilment and of which party bears the carriage charge.
§ 8 Retention of title
(1) We retain the title to the merchandise delivered until such time as complete payment has been received of all outstanding amounts stated in the supply contract. This provision applies to all future deliveries even if not expressly invoked in each individual case. We are entitled to take back the purchased merchandise if the customer acts in breach of the agreement.
(2) The customer undertakes to treat with all due care any purchased merchandise whose ownership has not yet been transferred to it. It undertakes in particular at its own expense to arrange adequate insurance of the purchased merchandise on a new-for-old basis against theft and damage by fire and water. Until the ownership has been transferred, the customer must inform us in writing without delay if the merchandise delivered is distrained or subjected to other interventions by third parties. If the third party is not capable of reimbursing us for the judicial and extrajudicial costs of a suit pursuant to § 771 of the German Code of Civil Procedure (Zivilprozessordnung - ZPO), the customer will be liable for any loss incurred by us.
(3) The customer is entitled to sell on the merchandise subject to retention of title in the course of normal business transactions. The customer hereby assigns to us in the amount of the final invoice value agreed with us (including Value Added Tax) all claims of the party purchasing from it merchandise subject to retention of title which arise out of such a sale. This assignment applies irrespective of whether the purchased merchandise has been sold on without or after processing. The customer remains authorised to collect any receivables due even after said assignment. Our authority to collect receivables on our own behalf is unaffected. We will however refrain from doing so as long as the customer meets its payment obligations out of the revenues earned, is not in default of payment and, in particular, no petition has been filed for the institution of bankruptcy proceedings and payments have not been suspended.
(4) Any processing, reworking or transformation of the purchased merchandise by the customer is always to be carried out in our name and on our behalf. In this case, the expectant right of the client to the purchased merchandise or transformed article will be continued. If the purchased merchandise is processed along with other items which do not belong to us, we will acquire co-ownership of the new item at the ratio of the objective value of the merchandise purchased from us to that of the other processed items at the time of processing. The same applies in the event of mixing. If the mixing is done in such a manner that the merchandise provided by the customer can be regarded as the main article, it is agreed that the customer will transfer co-ownership pro rata to us and retain the sole or co-ownership acquired in this way on our behalf. To secure our claims against the customer, the customer hereby also assigns to us any receivables from third parties to which it becomes entitled as a result of the incorporation of the merchandise subject to retention in real property; we hereby accept this assignment.
(5) At the request of the customer, we undertake to release the securities to which we are entitled if the realisable value of our securities exceeds the claims to be secured by more than 20%.
§ 9 Warranty and notification of defects, and recourse/manufacturer recourse
(1) Any exercise by the customer of warranty rights requires that the customer has duly fulfilled its obligations of inspection and notification of defects in accordance with § 377 of the German Commercial Code (Handelsgesetzbuch, HGB).
(2) Claims for defects expire 12 months after the successful delivery by us of the merchandise to the customer. Our consent is to be obtained prior to a return to us of the goods.
(3) If, notwithstanding all due care, the delivered merchandise should contain a defect which was already present at the time of transfer of the risk and provided that the notification of defect is submitted in good time, we can at our discretion choose either to repair or to replace the goods. We must always be given an adequate period of grace for subsequent performance. Recourse claims are unaffected without restriction by the preceding regulation.
(4) If the subsequent performance should fail, the customer can without prejudice to any claims for compensation for damages withdraw from the agreement or reduce payment to us.
(5) Claims for defects do not apply in the event of minor deviation from the agreed properties or minor impairments to usability, natural wear-and-tear and damage that arises after the transfer of risk as a result of incorrect or negligent treatment, excessive load, unsuitable input products or particular external influences not envisaged by the agreement. In the event that the customer or a third party should carry out improper repairs or undertake improper alterations of the goods, no claim for defects may be asserted for this or for any consequences arising from it.
(6) Claims of the customer arising out of expenditure for subsequent performance, with particular reference to transport and travel, work and material costs, are excluded if the expenditure increases because the merchandise delivered by us was taken subsequently to a place other than the customer’s place of business, unless such transport is consistent with the designated use of the goods.
(7) Claims for redress against us on the part of the customer only apply if the latter has made no agreements with its own customer which go beyond the statutory claims for defects. Section 6 applies mutatis mutandis to the scope of the right of recourse of the customer in respect of the supplier.
§ 10 Miscellaneous
(1) This agreement and the entire legal relationship between the parties are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Merchandise (CISG).
(2) Unless otherwise stated in the order confirmation, the place of fulfilment and exclusive place of jurisdiction for all disputes arising out of this agreement is our registered office.
(3) All agreements made between the parties for the purpose of implementation of this agreement are laid down in writing in this agreement.
(4) If individal provisions of this agreement should be or become invalid or contain a loophole, the remaining provisions will be unaffected. The parties undertake to replace the invalid provision with that legally permissible provision whose economic purpose most closely approximates to that of the invalid provision or which fills the loophole in questions.