General Terms and Conditions of Sale and Payment
I. Area of Application/General
1. The subsequent conditions of sale shall apply to all agreements entered into between us and the buyer in respect of the delivery of goods.They shall also be valid for all future business relations, even if they are not explicitly agreed upon once again. Dissenting conditions of the buyer not explicitly accepted by us shall not be binding for us even if we are not expressly disagree. The subsequent conditions of sale shall also apply if we execute the buyer’s order being aware of opposing or dissenting conditions of the buyer without any reservation.
2. All agreements within the contracts between us and the buyer entered into in order to execute the sale contracts are put into writing.
3. Specifications regarding the subject of delivery or performance as well as its description (e.g. drawings and illustrations) shall not represent a guarantee of quality, but descriptions or identifications of the delivery or performance. Customary and such discrepancies taking place due to legal provisions or representing technical improvements shall be tolerable insofar as they do not impair the usability of the contractually provided purpose.
II. Offer and Conclusion of Contract
1. An order of the buyer which is characterized as offer to enter into a contract of sale may be accepted by us within two weeks by transmission of an order confirmation or by delivery of the ordered goods within the same term.
2. Our offers are subject to confirmation and without obligation unless we have expressly identified them as binding.
3. We reserve us our rights of title, copyrights and other property rights with regard to all illustrations, calculations, drawings and other documents. The buyer may only refer them to third parties with our written consent irrespective of the fact that we have identified them as confidential.
III. Terms of Payment
1. Our prices are quoted ex works without packing unless nothing else is determined in the order confirmation. Our prices do not include the statutory VAT which will be separately displayed by us in the statutory amount in the invoice on the day of the issuing of the invoice.
2. The purchase price shall be payable net (free of any deduction) immediately upon receipt of the invoice by the buyer unless the order confirmation does not contain other payment terms. A payment shall not be regarded as being made until we are able to dispose of the amount. In case of payments by cheque the payment shall not be regarded as being made until the cheque is paid in.
3. In case the buyer defaults with the payment the statutory provisions shall apply.
4. The buyer shall only be entitled to offset if the counterclaims are established as final and absolute or recognised by us or are undisputed even though notices of defect or counterclaims are asserted. The buyer may only execute a right of retention if the buyer’s counterclaim is based on the same contractual relationship.
IV. Time of Delivery and Performance
1. Delivery dates and terms which are not expressly agreed upon as binding shall be exclusively non-binding. The delivery time stated by us shall not start until any technical queries are being clarified. Similarly the buyer has to duly and timely comply with the obligations resting on him.
2. If the underlying sale contract shall be settled on a fixed date in the sense of § 286 para. 2 No. 4 German Civil Code (Bürgerliches Gesetzbuch) or § 376 German Commercial Code (Handelsgesetzbuch) the Company shall be liable according to statutory law. The same shall apply if the buyer is entitled to claim the discontinuance of its interest in respect of the further performance of the contract due to a default in delivery for which we are responsible. Our liability shall be limited in this case to the foreseeable, typically occurring damage unless the default in delivery is not caused by a wilful breach of contract for which we are responsible. A default of our representatives or auxiliary persons shall thereby be imputed to us.
We are also liable to the buyer in case of default in delivery according to statutory law provided that it is caused by a wilful or grossly negligent breach of contract for which we are responsible. A default of our representatives or auxiliary persons shall thereby be imputed to us. Our liability shall be limited to the foreseeable, typically occurring damage unless the default in delivery is not caused by a wilful breach of contract for which we are responsible.
3. In case that a default in delivery for which we are responsible is caused by a culpable breach of a substantial contractual obligation – a default of our representatives or auxiliary persons shall thereby be imputed to us – we shall be liable according to statutory law provided that in this case the liability for compensation for damages is limited to the foreseeable, typically occurring damage.
4. We shall be entitled to partial delivery and partial performance at any time insofar as this is reasonable to the customer.
5. Provided that the buyer is in default of acceptance we may claim compensation for the arising damage and any possible additional expenditures. The same shall apply if the buyer culpably violates duties of participation. With the default of acceptance respectively the default of the debtor the risk of the accidental deterioration and the accidental perishing passes on to the buyer.
V. Passing of risk – Transportation/Packaging
1. Loading and transportation shall be carried out uninsured at the risk of the buyer. The risk shall pass on to the recipient, also if a delivery free of charge is agreed upon, with the delivery of the goods to the forwarder or carrier, at the latest, however, with the point of time the goods leave our firm or stock. We will make efforts to consider the buyer’s wishes and interests with regard to the way of transportation and the dispatch route; any possible additional costs caused thereby – even if a delivery free of charge is agreed upon – shall be at the buyer’s expense.
2. We do not take back transport and any other packaging according to the regulation on packaging exempt from pallets. The buyer shall have to provide for the disposal of the packaging at its own expense.
3. In case that the transportation is delayed due to the buyer’s request or default we shall store the goods at the buyer’s costs and risk. In this case the notice of readiness of transportation shall be considered equally like the transportation.
4. An insurance of the sending against damages of transport and other risks shall be made only upon the express wish and at the expense of the buyer.
1. Warranty claims of the buyer shall only be allowed if the buyer has orderly complied with the examination and notification duties owed by him according to § 377 German Commercial Code (Handelsgesetzbuch).
2. In case of justified and orderly notifications of defects we shall be obliged to a supplementary performance – under exclusion of the buyer’s rights to rescind the contract or to abate the purchase price – unless we are entitled to a refusal of the supplementary performance due to statutory law. The buyer shall grant to us a reasonable period of time for a supplementary performance. The supplementary performance may at our option be executed by remediation of the defect (remedy) or delivery of new goods. In the event of the remediation of defects we shall bear the necessary expenses insofar as they do not increase due to the fact that the subject of agreement is at another place than the place of performance. Provided that the supplementary performance has failed, the buyer may at his option claim the reduction of the purchase price (reduction) or rescind the contract. With the third attempt in vain the remedy shall be regarded as having failed unless due to the subject of agreement further remedy attempts seem to be appropriate and reasonable to the buyer. The buyer may not be entitled to claims for damages because of the defect according to the subsequent conditions until the supplementary performance is in vain. The right of the buyer to further claims for damages according to the following conditions shall remain unaffected hereof.
3. The warranty claims of the buyer become time-barred one year after delivery of the goods to the buyer’s premises, unless we have concealed the defect fraudulently; in this case statutory law shall apply. Our duties arising from section VI no. 4 and section VI no. 5 shall remain unaffected hereof.
4. We shall be obliged to take back the new goods respectively to reduce the purchase price (reduction) according to statutory law also without the otherwise required fixing of a period of time if the recipient of the buyer as consumer of the sold new movable object (sale of consumer goods) may due to the defect of the goods claim the redemption of the goods by the buyer or the reduction of the purchase price (reduction) or if the buyer is confronted with a likewise recourse action based hereon. We shall, moreover, be obliged to indemnify the buyer for its expenses, in particular transportation, road, labour and material costs, borne by the buyer in the course of the supplementary performance in relation to the end consumer which are due to a defect of the goods at the time of the passing of risk from us to the buyer. The claim shall be excluded if the buyer has not orderly complied with its examination and notification duties owed according to § 377 German Commercial Code (Handelsgesetzbuch).
5. The obligation according to section VI no. 4 shall be excluded insofar as a defect is given due to advertising messages or other contractual agreements which are not made by us or if the buyer has given a particular guarantee to the end consumer. The obligation is also excluded if the buyer has not been obliged on his part pursuant to statutory law to execute warranty rights in respect of the end consumer or has not exercised this objection in respect of a claim asserted against him. The foregoing shall also apply if the buyer has taken over warranties in respect of the end consumer which exceed the legal extent.
6. Irrespective of the subsequent limitations of liability we shall be liable according to statutory law for injuries of life, body and health relying on a negligent or wilful breach of duty caused by us, our legal representatives or our auxiliary persons, as well as for damages covered by the laws of product liability. We shall be liable according to statutory law for damages which are not covered by sentence 1 and which are due to wilful or grossly negligent breaches of the contract as well as fraudulence from our side. In this case the liability for damages shall be limited to the foreseeable, typically occurring damage insofar as we, our legal representatives or our auxiliary persons have not wilfully acted. To the extent to which we have given a guarantee of quality and/or durability regarding the goods or parts thereof we shall be liable in the scope of this guarantee. Damages based on the deficiency of a guaranteed quality or durability, but not directly affecting the goods we shall, however, only be liable if the risk of such a damage is apparently covered by the guarantee of quality and durability.
7. We shall also be liable for damages caused by us as a result of a simple negligent violation of such contractual duties which performance in the first place enables the proper execution of the contract and on the compliance of which the customer regularly relies and may rely. We shall, however, only be liable insofar as the damages are typically connected with the contract and are foreseeable.
8. A further liability shall be excluded irrespective of the legal nature of the asserted claim, this shall in particular be valid also for tortious claims or claims for indemnity of futile expenses instead of performance; our liability pursuant to section IV no. 2 to section IV no. 5 of this agreement shall remain unaffected hereof. Insofar as our liability is excluded or limited this shall also be valid for the personal liability of our employees, assistants, representatives and auxiliary persons.
9. Except in case of own wilful misconduct and gross negligence there shall be no liability from our side provided that third parties‘ rights, particularly but not limited to application patents, are violated by the buyer or another third party in the course of the application/use of the goods. Our liability, moreover, excludes contractually atypical and unforeseeable damages insofar as we, our legal representatives or our auxiliary persons have not acted wilfully.
10. Claims for damages of the buyer because of a defect become time-barred one year after delivery of the goods. This shall not apply in case of injuries of life, body or health caused by us, our legal representatives or our auxiliary persons or in cases in which we or our legal representatives have acted wilfully or grossly negligently or in which our ordinary auxiliary persons have acted wilfully.
VII. Retention of Title
1. We shall retain full title of the goods (conditional goods) that have been delivered until the buyer has fufilled all claims, including any account balance we are entitled to against the buyer now or in the future. In case of a conduct of the buyer contrary to contract, e.g. default in payment, we shall have the right after setting an appropriate time limit to take back the conditional goods. Provided that we withdraw the conditional goods this shall be regarded as a rescission of the contract. If we distrain the conditional goods this shall be a rescission of the contract. We shall be entitled to make use of the conditional goods after the withdrawal. After deduction of a reasonable amount for the costs of utilisation the proceeds of utilisation shall be offset against the amounts owed to us by the buyer.
2. The buyer shall have to treat the conditional goods carefully and to adequately insure them against fire, water and theft damages to the reinstatement value at its own expense. Maintenance and inspection works which become necessary shall be timely carried out by the buyer at its own expense.
3. The buyer shall have the right to orderly dispose of and/or make use of the conditional goods within the course of business as long as the buyer is not in payment default. Pledges or transfers by way of security shall not be allowed. The buyer hereby assigns to us by way of security in its entirety all claims in respect of the conditional goods (including any account balances) arising from the resale or another legal ground (insurance, tort); we hereby accept the assignment. We hereby authorise the buyer revocably to collect the claims assigned to us for its account in its own name. We may withdraw the authority to collect at any time if the buyer does not orderly comply with its payment obligations. The buyer shall also have no right to assign the claims for the purpose of the collection of claims by way of factoring unless the duty of the factor is established at the same time to reciprocate in the amount of the claims so long and directly to us as there still remain claims of us against the buyer.
4. A processing or transformation of the conditional goods by the buyer shall in any case be carried out for us. Insofar as the conditional goods are processed with other goods in respect of which we have no title we shall acquire co-title in the new goods. The proportion of title shall follow from the proportion of the value of the conditional goods (final invoice amount inclusive VAT) and the value of the other processed goods at the point of time of the processing. The new goods which have arisen from the processing shall be subject to the same rules as the conditional goods. In case of an inseparably mixing of the conditional goods with other goods that are third party property we shall acquire co-title in the new goods. The proportion of title shall follow from the proportion of the value of the conditional goods (final invoice amount inclusive VAT) and the value of the other mixed goods at the point of time of the mixing. Provided that the goods of the buyer are to be regarded as main thing as a result of the mixing then it is hereby agreed between us and the buyer that the buyer assigns co-title in the new goods to us on a pro-rata basis; we hereby accept the assignment. The buyer shall remain custodian of the goods in respect of which we have obtained sole- or co-title.
5. In case of access of third parties to the conditional goods, in particular pledges, the buyer shall refer to our title and inform us without delay to enable us to enforce our rights of title. Insofar as the third party is not able to reimburse us for the costs in and out of court arising in this context the buyer shall be liable for the costs.
6. We shall be obliged to release the securities due to us insofar as the realisable value of our securities exceeds the receivables to be secured by more than 10%, the choice of the securities to be released shall be for us.
7. Upon our demand the buyer shall be obliged to provide us at any time with information about the existence of the conditional goods and the receivables which have arisen from the resale.
VIII. Place of Fulfilment/Place of Jurisdiction/Governing Law
1. Place of performance and place of jurisdiction for deliveries and payments (including actions on a cheque and a bill) as well as for any disputes arising from the sale contracts entered into between us and the buyer shall be our head office. We shall, however, be entitled to sue the buyer also at his place of residence and/or place of business.
2. The relationship between the contracting parties shall be exclusively governed by the laws of Germany. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.