I. General Conditions
1. All of our deliveries, services and offers are made exclusively on the basis of these terms of conditions, even if not expressly negotiated. Our general terms and conditions shall apply to all agreements with undertakings, legal persons under public law, and public-law special funds, including all future business relationships, even if not again expressly agreed on. Our general terms and conditions shall be deemed accepted upon acceptance of the goods, if not earlier.
2. The buyer's terms and conditions inconsistent or deviating from our terms and conditions shall be applicable only if we expressly consent to their applicability in writing.
3. We reserve the right to make technical and design changes of the goods to be delivered, provided they are usual in the branch of business, do not unreasonably impair the buyer and do not affect the functioning of the object of sale.
4. The buyer's claims arising from the contractual relationship cannot be assigned to a third party without our consent.
II. Conclusion of Contract / Offer
1. The buyer shall be bound for 6 weeks by its order. The purchase contract is formed if and when we confirm acceptance of the order for this specified object of purchase in writing within these periods, or effect delivery.
2. Our sales staff and all other employees are not authorized to make oral side agreements or any representations going beyond the contents of the written agreement.
3. Delivery times which are indicated are only approximate and non-binding unless we expressly confirm them.
1. Our prices are understood ex works including loading and packaging. In addition to the prices, statutory value added tax on the day of invoicing shall be payable. The costs of any transport or similar insurance agreed on shall, subject to other agreements, be paid by the buyer.
2. If the price basis changes in the time up to a delivery day four months or more after the formation of the agreement (e.g. price increase for raw materials, wage increases), we reserve the right to adjust the price accordingly after informing the buyer.
3. In the case of part deliveries, every delivery can be invoiced separately.
4. Should no prices have been agreed on at the time of the conclusion of the agreement, our prices applicable on the delivery day shall be payable.
IV. Terms of Payment
1. Unless otherwise stated in the confirmation of order, the price shall be payable after delivery ex works and delivery or mailing of the invoice.
2. If the buyer is in default of payment, we have the right to charge default interest in the amount of 8 percent above the base interest rate. We have the right at any time to prove and invoice a higher amount as compensation for lost interest income.
3. Non-compliance with the terms of payment, any default, or circumstances which may impair the buyer’s credit-worthiness shall ensure the immediate maturity of all claims.
4. The buyer shall have set-off rights only if its counter-claims have been awarded by final judgement, are undisputed or have been acknowledged by us.
5. A retention right may be exercised by the buyer insofar as a counter-claim is based on the same contractual relationship.
6. We are not obliged to accept bills of exchange or cheques. Credit entries in this respect shall always be regarded as payment subject to the honouring of the bill or cheque (only conditionally, not in lieu of payment); the value date for such payments is the day on which the amount becomes available to us. Bills of exchange shall be credited in the amount remaining after discounts charged to us, stamp duties and bank fees, or any collection fees.
7. Further contractual or statutory claims in the event of default are reserved.
V. Delivery Period and Delivery Obstacles
1. The delivery period shall begin upon the mailing of the confirmation of order, but not before all documents, permits, licenses to be obtained by the buyer are provided and any agreed downpayment is received and all technical issues are cleared up.
2. Delivery is made within the delivery period if the goods to be delivered depart from the works, or the buyer is notified of readiness for shipment, before the end of the delivery period.
3. In the event of default in delivery, the buyer can cancel the agreement if a reasonable additional period expires to no avail. In the event of impossibility of performance by us, the buyer shall have this right also without an additional period. Default in delivery shall for the purposes of this agreement constitute impossibility if delivery is not made for longer than one month. Damage claims (including any consequential loss) shall be excluded without prejudice to sub clause 4; the same shall apply to the reimbursement of expenses.
4. The exclusion of liability dealt with in sub clause 3 shall not apply to the extent that an exclusion or limitation of liability for damage arising from death, bodily injury or health impairment is agreed on where such damage is based on intentional or negligent breach of duty by us or intentional or negligent breach of duty by our legal representatives or persons employed by us in the performance of our contractual obligations; it shall also not apply to the extent that an exclusion or limitation of liability is agreed on for other damage based on intentional or grossly negligent breach of duty by the user or intentional or grossly negligent breach of duty by a legal representative or person employed by the user in the performance of its contractual obligations. If we culpably violate an essential contractual obligation or cardinal obligation, liability shall not be excluded but instead limited to the loss typically foreseeable with this kind of contract. The above shall apply analogously to the reimbursement of expenses.
5. The limitations of liability in sub clauses 3 and 4 shall not apply if a commercial fixed transaction was agreed on; the same applies if the buyer can argue that it is no longer interested in performance of the contract because of default, provided we are responsible for default.
6. If unforeseeable obstacles arise, undesired by us, which we could not avert in spite of having exercised the degree of care reasonable under the circumstances, and regardless of whether they affect us or a sub-supplier, e.g. force major (for example war or national disasters, delay in obtaining important raw materials, etc.), we shall have the right to entirely or partly cancel the supply agreement or to extend the delivery period by the duration of the obstacle. We shall have the same rights in the event of strike or lock-out affecting us or our suppliers. We shall inform our customers promptly of such circumstances.
VI. Passing of the Risk
1. The risk shall pass over to the buyer in the case of an obligation to be discharged at the debtor’s domicile. The same shall apply at the time of delivery to the transport person in the case of an obligation involving the dispatch of what is owed. In the case of an obligation to be performed at the creditor’s domicile, the risk shall pass over when the goods leave the works premises.
2. Goods delivered must be accepted by the buyer, also if they have minor defects, without prejudice to its rights. Part deliveries shall be admissible to the extent that the buyer can reasonably be expected to accept them.
VII. Retention of Title
1. We retain title to all goods delivered until the buyer has paid all currently existing claims or claims arising in the future from the business relationship. Retention of title shall also cover spare parts or parts exchanged, even if they are built in, as they will thereby not become essential parts within the meaning of sec. 93 BGB (German Civil Code).
2. In the event of conduct by the buyer in breach of contract, especially payment in default, we shall have the right to take back the goods; the buyer hereby already consents in such case to the return of the goods. If we take back the goods, this shall constitute a cancellation of the agreement only if this is expressly declared by us. The costs caused by taking back the goods (especially transport costs) shall be paid by the buyer. We shall also have the right to forbid the buyer from reselling or processing the goods delivered subject to retention of title, and to revoke authority to collect claims (if granted). The buyer can only demand that goods taken back without an express cancellation of the agreement be delivered once the purchase price and all costs have been totally paid.
3. The buyer shall be obliged to carefully treat the goods.
4. The buyer must not pledge the goods delivered or the claims taking their place, nor transfer or assign ownership by way of security. In the event of a seizure or other thirdparty action, the buyer must inform us promptly in writing to enable us to bring an action pursuant to sec .771 ZPO (German Code of Civil Procedure). Any costs remaining for the action even if the legal dispute according to sec. 771 ZPO is won shall be borne by the buyer.
5. The buyer has the right to resell, process or mix the purchased goods in the ordinary course of business. However, the buyer hereby already assigns to us all claims arising from the resale, such processing, mixing or other legal reasons (especially from insurance contracts or on the basis of tort) in the amount of the final invoice amount agreed on with us (including value added tax). The buyer shall remain entitled to collect these claims also after the assignment, our right to collect the claim ourselves remaining unaffected.
We undertake, however, not to collect the claim as long as the buyer discharges its payment obligation arising from proceeds and is not in default of payment, and no application is filed for insolvency proceedings, and there is no discontinuation of payment.
If that is the case, the buyer must if so requested disclose the assigned claims and the debtors’ identities, provide all information necessary to collect the claims, deliver the related documents, and inform the debtor (third party) of the assignment. In this case the authority to collect the claims can be revoked by us.
6. Retention of title also extends to the products arising from processing, mixing or combining with our goods at the full value, such events taking place for us in such a way that we are deemed to be the producer. If third parties retain a right of ownership in the event of processing, mixing or combining with thirdparty goods, we shall acquire co-ownership in the proportion of the objective values of these goods.
7. Security for us shall not be covered insofar as the value of our security exceeds the nominal value of the claims to be secured by 30%.
VIII. Warranty for Defective Delivery
In the event of defective delivery, we shall be liable as follows, provided the buyer properly discharges its obligations to examine the goods and to notify us of defects pursuant to sec. 377 HGB (German Commercial Code):
1. If the object of purchase is defective, we shall have the right at our option to remedy the defect or to deliver a defect-free thing (subsequent performance).
A precondition for this shall be that the defect is not insignificant.
Should one of the two or both kinds of subsequent performance be impossible or disproportionately expensive, we shall have the right to refuse to make subsequent performance as long as the buyer does not perform its payment obligations to us to an extent reflecting the defect-free part of our performance.
2. Should the subsequent performance referred to in sub clause 1 be impossible or fail, the buyer shall have the right to choose either to reduce the purchase price accordingly or to cancel the contract in accordance with the statutory provisions; this shall apply in particular in the event of intentional or negligent delay of subsequent performance or of refusal to make subsequent performance, likewise if it fails a second time.
Unless otherwise stated below (sub clause 4), any further claims of the buyer’s on whatever legal basis (in particular claims arising from the violation of contractual main and ancillary duties, compensation for expenses except for those under sec. 439 Para. 2 BGB, unlawful act as well as other torts) shall be excluded; this shall apply especially to claims arising from damage outside the object of purchase as well as claims to compensation for lost profits; also covered are claims not resulting from a defect of the object of purchase.
3. The above provisions shall apply also in the event of the delivery of a different thing or of a smaller quantity.
4. The exclusion of liability dealt with in sub clause 2 shall not apply to the extent that an exclusion or limitation of liability for damage arising from death or bodily injury or impairment of health is agreed on, where such liability is based on an intentional or negligent breach of duty by us or intentional or negligent breach of duty by our legal representatives or persons employed by us in the performance of our contractual obligations; it shall also not apply if an exclusion or limitation of liability is agreed for other damage based on an intentional or grossly negligent breach of duty by the user or on an intentional or grossly negligent breach of duty by our legal
representatives or persons employed by us in the performance of our contractual obligations.
If we culpably violate an essential contractual obligation or a cardinal obligation, liability shall not be excluded but be limited to the damage typically foreseeable for this kind of contract. Other than that, it shall be excluded pursuant to sub clause 2.
The exclusion of liability shall further not apply in the cases where there is liability for personal injury or damage to privately used property under the Product Liability Act in the event of a defect of the goods delivered.
It shall also not apply if a guarantee is given or a particular quality is warranted, provided a defect covered specifically by this triggers our liability. In the event of reimbursement of expenses, the above shall apply analogously.
5. No warranty is given for damage caused by the following reasons: Unsuitable or improper use, defective assembly by the buyer or a third party, natural wear and tear, improper or negligent use, unsuitable operating means, chemical or electrochemical or electrical influences (to the extent that we are not responsible therefore), improper changes or repair work, or such changes or work without our prior consent by the buyer or by a third party.
6. The claims to subsequent performance, damages, and reimbursement of expenses shall be timebarred one year after the object of purchase is delivered.
Claims to have the purchase price reduced as well as the right of retention shall be excluded to the extent that the claim to subsequent performance is time-barred; however, the buyer can refuse to pay the purchase price to the extent that the buyer would be entitled to do so on the basis of cancellation or reduction; if the right to cancel the agreement is excluded and payment is subsequently refused, we may cancel the agreement.
7. Claims arising from recourse against the producer shall remain unaffected by this section.
IX. Liability for Ancillary Duties
If the delivered goods cannot be used by the buyer in accordance with the contractually intended purpose, or if damage arises, in consequence of our intentional or negligent failure to make proposals and provide advice or to perform other contractual ancillary obligations (in particular instructions for maintenance of the objects delivered), in consequence of inadequate proposals or advice or performance of other contractual ancillary obligations, the provisions in sections XIII and X shall apply analogously, the buyer’s further claims being excluded.
X. Cancellation by the Buyer and other Liability on our Part
1. The following provisions shall apply to breaches of duty outside liability for defects, and are intended neither to exclude nor to limit the statutory cancellation right.
Likewise, any statutory or contractual rights and claims which we may have shall be neither excluded nor limited.
2. The buyer can cancel the agreement if the entire performance definitely becomes impossible; the same shall apply in the event of our subjective inability to perform. The buyer can also cancel the entire contract if, in the case of an order for similar things, the execution of a part of the order in terms of the volumes or numbers delivered becomes impossible due to our fault, and the buyer is no longer interested in part performance; if that is not the case, the buyer can reduce its consideration accordingly; the cancellation right shall not exist in the case of insignificant breaches of duty.
3. In the event of late performance, the buyer shall have the right to cancel the contract provided a reasonable additional period for performance was granted after the beginning of default and we did not perform within this additional period. If the buyer demands a different version of the goods to be delivered at any point in time prior to delivery, the course of the delivery period shall be interrupted until the day on which an agreement on the new version to be delivered is reached, if appropriate by the time necessary to provide the other version.
4. Cancellation shall be excluded if the creditor is responsible alone or largely for the circumstances giving it the right to cancel the agreement, or if the circumstances that we are responsible for arise during the time of default in taking delivery on the creditor’s part. In the event of impossibility, we reserve in the abovementioned cases our claim to valuable consideration pursuant to sec. 326 Para. 2 BGB.
5. urther claims which the buyer may have on any legally basis whatsoever (including claims arising from culpa in contrahendo, the violation of contractual main and ancillary duties, reimbursement of expenses, unlawful acts and other torts, shall be excluded; this applies in particular to claims arising from damage outside the objects of purchase as well as claims for compensation for loss profits; also claims not arising from a defect of the object of purchase are covered hereby.
This shall not apply to the extent that the cause of the loss is based on wilful intent or gross negligence on our part, on the part of our legal representatives, or persons employed by us in the performance of our contractual obligations.
This shall also not apply to the extent that damage is involved other than a culpable cause of death, bodily injury or health impairment. Likewise, liability in case a guarantee is given shall be excluded; to the extent that a breach of duty specifically covered by this triggers our liability.
If we culpably violate essential contractual obligation or a cardinal obligation, liability shall not be excluded but limited instead to the damage typically foreseeable for this kind of contract.
XI. Place of Performance, Jurisdiction, Governing Law
1. The place of performance is the place of dispatch (works or warehouse).
2. For all current or future claims arising from the business relationship with merchants, including billbased or check-based claims, the exclusive place of jurisdiction shall be the seller’s domicile.
3. The same court shall have jurisdiction if the buyer has no general place of jurisdiction in Germany, moves his residence or usual place of abode outside Germany after the conclusion of the agreement, or has no known residence or usual place of abode at the time at which the action is brought. Other than that, the courts at the buyer’s residence shall have jurisdiction if claims are made by the seller against the buyer.
4. All claims and rights under this agreement shall be governed by the non-uniform law of the Federal Republic of Germany (BGB, HGB). The applicability of UN sales law (CISG) is expressly excluded.
XII. Other Provisions
1. Amendments of this agreement can become effective only if we agree.
2. Should any provisions in these terms of conditions be or become entirely or partly ineffective or invalid, the remaining provisions shall not be affected thereby. The contracting parties instead undertake to agree on a provision which most effectively serves the economic purpose and intent of the invalid or ineffective provision.