To the extent that no other written agreement is made, sale, delivery, and payment shall be governed exclusively by these General Terms and Conditions. These General Terms and Conditions shall govern the entire business relationship entered into with Buyer, even if no specific reference is made to these Terms and Conditions in subsequent business dealings. They shall apply even if Buyer in its order or in a letter of confirmation makes reference to other terms and conditions, unless we have expressly agreed to such terms and conditions in writing. Deviating terms and conditions of purchase of Buyer are hereby expressly rejected. Conflicting terms and conditions of purchase of Buyer shall not be binding upon us even if we do not expressly reject them once more upon signing the contract. Our General Terms and Conditions are deemed accepted upon acceptance of our goods at the latest. Goods purchased for use within the domestic market (domestic customs territory) may not be exported, and goods purchased for the foreign market may not be used in the domestic market.
2. Offer and order
a) Any weights and dimensions given in offers, sample books, or in other printed matter shall be non-binding. Any offers shall always be subject to change without notice. Any orders will only be deemed accepted after they have been confirmed by us, irrespective of whether they have been placed with us directly by Buyer or by a representative. Order confirmations shall be binding even if submitted unsigned.
b) Calculations shall always be on the basis of our prices, discounts, and conditions as applicable on the date of delivery.
c) We reserve ownership of as well as intellectual property rights in any cost estimates, preliminary designs, drawings, and the like. Such documents may not be made accessible to third parties without our written permission.
3. Obligation to deliver and obligation to accept delivery
a) Delivery times agreed shall always be conditional on the correct and timely availability of supplies and raw materials. Our delivery times are approximate and non-binding. Delivery periods shall commence once all details regarding execution have been clarified. The delivery date shall be the shipment date. If shipment is delayed through no fault of our own, then the date of notification that the goods are ready for shipment is deemed the delivery date.
Even if a fixed delivery date has been agreed, we shall only be in default if a written reminder is submitted to us. Partial deliveries shall be permissible. If the delivery time is exceeded, Buyer shall be entitled to claim damages only after a reasonable grace period granted to us has expired without success. Such claims for damages shall be limited to 0.5 per cent for each full week of the delay, in total, however, to no more than 5 per cent of the value of that part of the overall delivery which cannot be used in a timely manner or in accordance with the contract on account of the delay. Unlimited damages may only be claimed in case of wilful misconduct or gross negligence on our part.
b) If disruptions in operations at our or our sub-suppliers’ premises, or events of force majeure, strikes, or other circumstances for which we are not responsible prevent a timely delivery, the delivery period shall be reasonably extended. If on account of such events or circumstances delivery becomes impossible, our obligation to deliver shall no longer apply, and claims for damages shall be excluded. If Buyer proves that due to the delay a subsequent performance is of no interest to it, Buyer may rescind the contract to the exclusion of further claims. If we are in default of delivery, Buyer may grant a reasonable grace period and rescind the contract once such grace period has expired without success.
For call orders with no specific delivery date we may demand a binding delivery date at the latest within 3 months of receipt of the order confirmation. If Buyer fails to comply with such demand within 3 weeks, we shall have the right to grant a grace period of 2 weeks, and to rescind the contract or deny delivery and claim damages upon expiry of such grace period.
c) If technical acceptance testing under special conditions has been agreed upon, Buyer shall, upon receipt of our notification that the goods are ready for acceptance, perform such acceptance testing at our premises without delay and at its own expense. If acceptance testing is not performed despite a reasonable grace period having been granted, we shall have the right to ship the goods or to store them at Buyer’s cost and risk. The goods will then be deemed accepted.
4. Shipment and passing of risk
In the absence of instructions to the contrary, we shall name the forwarding agent or the carrier. Shipping costs shall be borne by Buyer. Risk, including risk of attachment, passes to Buyer at the time the goods are handed over to the forwarding agent or the carrier, or, at the latest, when the goods leave our premises, even if free delivery has been agreed. If shipment is delayed for reasons for which Buyer is responsible, costs arising from the storage of the goods, at least, however, 0.7 per cent of the invoice amount per month shall be charged, beginning one month from the date of our notification that the goods are ready for shipment. This shall not affect the right to assert further claims arising from delayed acceptance. If for reasons for which Buyer is responsible shipment is delayed, risk shall pass to Buyer on the date on which the goods are placed at the disposal of Buyer. If for reasons for which we are not responsible shipment by the designated route/the designated means or to the designated place within the designated time period is not possible, we shall be entitled to make shipment by a different route/different means or to a different place; any additional costs resulting therefrom shall be borne by Buyer, who will be given the opportunity to comment beforehand. Minimum order value for free delivery: EUR 100.00 net. Transport insurance in the amount of EUR 5.90 per equipment delivery/per delivered item shall be charged.
5. Material defects
With regard to material defects, we shall be liable as follows:
a) All components or services where a material defect becomes apparent within the statutory period of limitation shall be repaired, replaced, or provided again free of charge, as we see fit, irrespective of the duration of operation, provided that the reason for the defect was already present at the time of the passing of risk.
b) Claims for material defects shall become time-barred after a period of two years. This provision shall not apply to the extent that the law pursuant to Sections 438 para. 1 No. 2 (“Bauwerke und Sachen für Bauwerke” (Buildings And Items For Buildings)), 479 para 1 (“Rückgriffsanspruch” (Right to Recourse)) and 634a para. 1 No. 2 (“Baumängel” (construction defects)) of the (German) “BGB” (Civil Code) stipulates longer time periods, as well as in cases of death, injury to body or health, or in case of intentional or grossly negligent breach of duty, and whenever a defect is fraudulently concealed. The statutory provisions governing the suspension of the expiration, tolling, and recommencement of the statute of limitations shall remain unaffected.
c) Buyer shall notify us of any defects in writing without delay.
d) If a notification of defect is submitted, payments may be withheld in an amount reasonably proportionate to the material defect found. Buyer may only withhold payments if the notification of defect is submitted to us in writing in good time and is justified beyond doubt. In the event of an unjustified notification of defect, we shall be entitled to demand reimbursement from Buyer of any expenses incurred by us.
e) We shall first be granted the opportunity of subsequent performance within an adequate period of time with staff from our own customer service organisation.
f) If subsequent performance fails, Buyer may, without prejudice to any claims for damages as stipulated under Item 7, rescind the contract or reduce the consideration.
g) No defect claims shall exist where only an immaterial deviation from the agreed quality is present, where the impairment of use is immaterial, where there is normal wear and tear, or for defects which have occurred after the passing of risk as a consequence of faulty or negligent handling, excessive use, unsuitable operating materials, or defective construction work, or for defects which are the result of special external factors not accounted for in the contract, as well as in the event of non-reproducible software faults. If Buyer or a third party makes inexpert changes or repairs, no defect claims shall exist for such changes or repairs or for the consequences thereof.
h) Claims for compensation on the part of Buyer for expenses incurred for the purpose of subsequent performance, including without limitation costs for transportation, travel, work, or materials, shall be excluded to the extent that such expenses increase because the delivered equipment has subsequently been moved to a place other than Buyer’s premises, unless moving the equipment was in keeping with its intended use.
i) Buyer’s right of recourse against us pursuant to Sec. 478 of the (German) Civil Code (Recourse of the Company) shall only exist to the extent that Buyer has not entered into an agreement with its customer which goes beyond the statutory defect claims. With regard to the scope of Buyer’s right to recourse against us under Sec. 478 para. 2 of the (German) Civil Code, Item 7 hereinbelow shall also apply accordingly.
j) In other respects, Item 7 (Other claims for damages) shall apply to claims for compensation. Further claims or claims other than those dealt with in this Item, made against us or our “Erfüllungsgehilfen” (i.e., persons employed by us to perform our obligations) by Buyer on the basis of a material defect, shall be excluded.
6. Industrial property rights, copyrights; Defects in title
a) Unless agreed otherwise, our obligation to effect delivery free from third-party industrial property rights and copyrights (hereinafter Intellectual Property Rights, IPRs) shall be limited to the country of the designated place of delivery. Should a third party raise justified claims against Buyer for infringement of IPRs through deliveries made by us and used in accordance with the contract, we shall be liable vis-à-vis Buyer within the period defined in Item 5 as follows: aa) We shall, at our option and at our cost, either obtain a right of use for the deliveries in question, amend such deliveries so as not to infringe the IPR, or replace them. Where this is not reasonably possible, Buyer may avail itself of its statutory right to rescind the contract or reduce the consideration.
ab) Our obligation to pay damages shall be governed by the provisions of Item 7.
ac) Our aforementioned obligations apply subject to Buyer informing us of any claims raised by third parties in writing without delay; an act of infringement shall not have been conceded, and any measures of defence and settlement negotiations shall be left to us. If Buyer ceases to use our delivery for reasons of mitigation of damages or for other important reasons, Buyer shall be obligated to point out to the third party that this does not constitute a concession of an IPR infringement.
b) Claims on the part of Buyer shall be excluded to the extent that it is itself responsible for the IPR infringement.
c) Claims on the part of Buyer are also excluded to the extent that the IPR infringement is caused by Buyer’s own specific requirements, or by a use not foreseeable to us, or by Buyer making changes to the delivery or using it in combination with products not supplied by us.
d) In other respects, Buyer’s claims provided for in Sub-item aa) shall be governed accordingly by the provisions of Item 5 in the event of an IPR infringement.
e) Where other defects in title are present, the provisions of Item 5 shall apply accordingly.
f) Further claims or claims other than those dealt with in this Item, made against us or our “Erfüllungsgehilfen” by Buyer on the basis of a defect in title, shall be excluded.
7. Impossibility and other claims for damages
a) To the extent that delivery is impossible, Buyer shall be entitled to claim damages, except where we are not responsible for the impossibility. However, damages shall be limited to 10 per cent of the value of that part of the delivery which cannot be put to its intended use on account of the impossibility. Such limitation of liability shall not apply where it is prohibited by law in cases of wilful intent or gross negligence or in cases of death or injury to body or health; this shall not entail a change in the burden of proof to the detriment of Buyer. Buyer’s right to rescind the contract remains unaffected.
b) Damage claims and claims for compensation of expenses (hereinafter Claims for Compensation) on the part of Buyer, including but not limited to claims on account of breach of obligations under the contract or tort, shall be excluded, regardless of the legal basis on which they are raised.
c) This shall not apply where a statutory liability exists, e.g., under product liability law, in cases of wilful intent or gross negligence or in cases of death, injury to body or health, or in cases of breach of material obligations under the contract. Claims for Compensation for breach of material obligations under the contract shall, however, be limited to foreseeable damage typical of the type of contract, except in cases of wilful intent or gross negligence, or in cases of death or injury to body or health, where a limitation of liability is prohibited by law. The above provisions shall not entail a change in the burden of proof to the detriment of Buyer.
d) Any Claims for Compensation Buyer may have under this provision shall become time-barred upon expiry of the period of limitation applicable to claims for material defects as per Item 5. With regard to Claims for Compensation under product liability law, the statutory periods of limitation shall apply.
8. Terms of payment
a) Our invoices shall be payable in cash, without any deductions, within 30 days of the date on which they were issued.
b) The discount rate for early payment in cash can be seen from the offer and/or from the invoice.
c) The acceptance of accepted bills of exchange (drafts) shall be subject to our specific agreement. If payment is made by means of drafts, or if partial payments have been agreed, no discount will be granted. Bills of exchange, cheques, and agreements for partial payment will be accepted, but Buyer’s debt will not be cleared until actual receipt of the funds. Drafts must be domiciled at a Landeszentralbank. In all of the above cases, discount charges, bill charges, and costs shall be borne by Buyer.
d) If Buyer is in default of payment, we shall charge default interest in an amount of 8 per cent above the base rate of the European Central Bank. We reserve the right to assert further claims for damages.
e) If we receive information to the effect that Buyer’s financial situation is unsatisfactory, or if Buyer is in default of payment, we shall have the right to amend our conditions of payment for orders yet to be executed, or to rescind the purchase contract.
f) The contractor reserves the right to send invoices by mail or electronically by e-mail.
9. Retention of title
The supplied goods shall remain our property until payment is received in full.
a) All supplied goods remain our property (Goods Subject to Retention of Title) until all claims have been satisfied, including without limitation any balance claims we may still have under the business relationship. This applies also to claims which may arise in the future as well as to conditional claims, e.g., under accepted bills of exchange, and also when payment is made for specifically designated claims.
b) Our claims shall be incorporated into current accounts. Payments will always be offset against the oldest liabilities, even the debtor issues instructions to the contrary.
c) Goods Subject to Retention of Title may not be pledged or assigned by way of security. Buyer shall inform us without delay if the goods supplied by us become the subject of a compulsory enforcement procedure.
d) Buyer shall, at its own cost, obtain sufficient insurance cover for the supplied goods, in our favour, and in a way that will entitle us to collect the amount owed directly from the insurance carrier any time, or Buyer shall, at our request, assign the insurance claim to us.
e) Any treatment and processing of the Goods Subject to Retention of Title is deemed made for us as the manufacturer within the meaning of Sec. 950 of the (German) Civil Code and shall not entail liability on our part. The goods thus treated and processed are deemed Goods Subject to Retention of Title within the meaning of Item 10 a). Where Goods Subject to Retention of Title are processed or connected to or merged with other goods by Buyer, we shall obtain co-ownership in the new item proportionately to the invoice value of the Goods Subject to Retention of Title in relation to the invoice value of the other goods used. If our ownership ceases on account of the Goods Subject to Retention of Title being connected or merged, Buyer herewith assigns to us, with immediate effect, its ownership rights in the new product or item in an amount equivalent to the invoice value of the Goods Subject to Retention of Title and agrees to hold them for us free of charge. Our co-ownership rights are deemed Goods Subject to Retention of Title within the meaning of Item 10 f). Buyer shall have the right to re-sell the goods supplied within the scope of its normal business dealings; however, where a credit has been granted, Buyer shall retain title to the goods for our benefit and enter into a written agreement to that effect.
f) If Buyer re-sells the goods supplied by us – irrespective of their condition – then Buyer shall, upon entering into the contract, assign to us all claims to payment and return of the goods sold subject to retention of title to which it is entitled under the re-sale along with any ancillary rights, until our own claims arising from the supply of the goods have been satisfied in full. Buyer shall, at our request, submit to us at the end of each month a detailed inventory of the assigned claims, and hold for us in trust, separate from its other revenues, any monies received including bills of exchange and cheques from assigned claims, and make payment thereof to a special account for our free disposal. Expenses in connection with the collection of assigned claims shall be charged to Buyer.
g) If Buyer uses our goods to perform a work contract or a work performance contract, Buyer herewith assigns to us, with immediate effect, any claims under such contract in a scope equal to the scope of the claims arising from a re-sale.
h) If Buyer is in default of payment, we shall have the right to recover the goods. This shall not affect the right to claim performance of the purchase contract.
i) If the value of the collateral provided to us exceeds the value of the claims to be secured by more than 10 per cent, we shall be obligated to release the aforementioned collateral to that extent upon Buyer’s request, as we see fit.
10. Moulds and tools
a) To the extent that Buyer provides such items, they shall be submitted free of charge. They are deemed stored at Buyer’s risk, and we are under no obligation to obtain insurance cover for them. We are entitled to adapt moulds and tools which have been submitted to us to the extent that this seems necessary for technical reasons or in order to minimize risks, without prejudice to Buyer’s liability to submit only tools which are properly designed and manufactured for their intended use. Buyer shall bear any costs for maintenance, amendments, and replacements. We shall have the right to return to Buyer any time any moulds and tools which are not required. If we are unable to return such items and if Buyer fails to comply with our request to collect them, or if more than 3 years have elapsed since such items were last used, we shall have the right to destroy such moulds and tools. Any and all costs arising in connection with such items shall be borne by Buyer.
b) Moulds and tools made or acquired by us for the purpose of executing Buyer’s orders shall remain our property even if proportionate costs are charged to Buyer. Buyer may assert its copyright claims or industrial property right in such items vis-à-vis us only to the extent that it has pointed out to us that such claims exist and insofar as such rights have been expressly reserved. To the extent that Buyer provides drawings or other information for the moulds and tools to be manufactured or acquired by us, it shall be responsible for providing only documentation which is adequate for its intended use.
If any provision of these Terms and Conditions is found invalid or unenforceable this will not affect the validity of these Terms and Conditions as a whole. In that event, the parties hereto undertake to make every effort to replace the invalid provision by a valid, enforceable provision that will accomplish the purpose for which the parties intended it.
12. Place of performance, place of jurisdiction
The place of performance for deliveries shall be our factory, the place of performance for payments shall be Haiger. Any and all legal relations between ourselves and Buyer shall be governed by German law along with the United Nations Convention on Contracts for the International Sale of Goods (CISG) to the extent that it applies to our business relationship with Buyer. Any and all disputes, including but not limited to summary proceedings on bills of exchange or cheques, shall be settled by the competent court in Haiger having subject- matter jurisdiction, provided that Buyer is a “Vollkaufmann”,
i.e. a merchant subject to registration as defined in the German Commercial Code, a legal entity under public law, or a public special funds entity. We shall, however, also have the right to bring legal action at the competent court at Buyer’s principal place of business.
Status as of 01/2018