General Terms and Conditions of Trade
1) The seller’s deliveries, services and offers take place exclusively on the basis of these terms and conditions of trade. These terms and conditions apply, unless deviations are expressly confirmed by us in writing, including for all future business relationships, and even for those not expressly agreed upon again. Any confirmation to the contrary by the buyer under indication of its conditions of business or purchase is hereby countered.
2) Deviations from these terms and conditions of trade are only effective if the seller confirms them in writing. A change in or ineffectiveness of one or individual provisions of these terms and conditions shall not affect the validity and applicability of the remaining provisions.
§2 Offer and conclusion of contract
1) The seller’s offers are without obligation and non-binding. Declarations of acceptance and all orders must be confirmed by the seller in writing or by telex in order to be effective in law. The same applies to additions, alterations or supplementary agreements.
2) Drawings, images, measurements, weights or other service details are only binding if agreed upon expressly in writing. Non-essential deviations from the offer documentation (including samples and models), or alterations of the delivery item based on technical developments shall not give rise to any opposing claims.
3) The seller’s salespeople are not authorised to make verbal supplementary agreements or give verbal assurances which exceed the contents of the written contract.
1) In respect of third-party commercial property rights, acceptance and processing of orders takes place at the sole risk and liability of the buyer. The buyer bears the responsibility, especially with respect to the violation of third-party commercial property rights by use of drawings, samples, descriptions and similar models supplied by the buyer. If such rights are violated, the buyer must compensate the seller for any damages incurred thereby including loss of profit, and release the seller from all losses and damages incurred because of such violations at the time or in the future.
2) The seller retains the property rights and copyright of all cost estimates, drawings and other documents; they may not be made accessible to third parties.
§4 Price and Payment
1) The prices given by the seller apply ex works, exclusive of packaging, unless otherwise indicated. They are applicable only for each respective specific order. Value added tax at the currently-applicable rate is to be added to the prices. Material required for packaging will be calculated separately. Packaging material will not be taken back. If for us, prices and additional costs are given in German and foreign currency, when changes in the currency exchange rate occur, the amount in Euros alone is definitive, even when the invoice amount is indicated only in the domestic and foreign currency.
2) Unless otherwise stated, the seller is bound to the prices contained in its offers for 30 days from the date thereof. The prices indicated in the seller’s order confirmation are definitive, in addition to the currently-applicable rate of value added tax.
3) However, the seller reserves the right to adjust the prices in accordance with any rises in material, labour and other costs, if a longer delivery period than 4 months is given at the time the order is placed, or the delivery can only be made after 4 months from placement of the order have elapsed due to reasons attributable to the buyer.
4) Invoices are payable: within 10 days of the invoice date with 2% discount; within 30 days of the invoice data net. No other claims to discounts, rebates or reductions apply. If special conditions of payment have been agreed upon in writing, the claim to the agreed discount does not apply if payment does not take place in accordance with the agreement.
Payments can only be made to the seller in accordance with its specifications and invoices. The seller’s employees are only entitled to collect payment upon presentation of a special written authorisation to collect payment. Payments with bills of exchange require the express prior written consent of the seller. Cheques and bills of exchange will only be accepted on account of payment. Discount and collection expenses are payable by the buyer. All payments are used to pay the oldest accounts payable or to pay for possible interest on arrears and costs. Offsetting against disputed counter claims of the buyer’s and retention of amounts due are excluded.
5) If the buyer is partially or totally in arrears with payment, with reservation of the right to prove higher damages, it must pay default interest amounting to 4% above the European reference interest rate established by the European Central Bank corresponding to the previous minimum lending rate, but at least 6.5%. The buyer is entitled to prove lower damages.
Moreover the seller is entitled, in the event of delay or if, after conclusion of the contract facts are revealed that, in its opinion, cast doubt on the granting of a loan for the amount resulting from the contract or which result in a substantial deterioration of the buyer’s financial circumstances, to demand immediate settlement of all outstanding invoices – including those not yet due for payment – and to require pre-payment for all deliveries still outstanding. The buyer may avert this demand by providing sufficient security. The seller is not obliged to make any further deliveries before payment or provision of security.
1) For the scope of the deliveries, the seller’s written confirmation of order alone is valid. Supplementary agreements and changes require specific written confirmation. The seller is entitled to make partial deliveries if no other arrangements have been made in the contract for delivery instalments and the buyer has not supplied information in writing within 3 weeks of confirmation by the seller or after being requested to do so in writing by the latter in good time.
2) The delivery term begins with dispatch of the order confirmation, but not before the documents, authorisations, releases to be procured by the buyer have been supplied or before entry of any agreed down payment.
3) The delivery period has been complied with if the good have either left the plant by the time it has lapsed, or if the buyer has been informed that the goods are ready for shipment.
4) The delivery period is extended accordingly in the event of measures within the scope of industrial disputes, in particular strikes and lockouts, and in the event of unforeseen impediments beyond the control of the seller, if such impediments demonstrably have a substantial influence on the completion or delivery of the delivery item. This also applies if the circumstances arise in connection with deliveries made to the seller. The circumstances described above may also not be attributed to the seller if they arise during a pre-existing delay. In important cases, the seller shall inform the buyer as soon as possible of this type of impediment.
5) In the event of such unforeseen occurrences, if they substantially alter the economic significance or operation of the seller, the contract will be adjusted accordingly. If this is not justifiable economically, the seller has the right to partially or fully withdraw from the contract. The buyer shall not be entitled to make claims for damages due to such a withdrawal. If the seller wishes to exercise the right to withdrawal, is must inform the buyer without delay upon learning of the impact of the event, even if an extension of the delivery was first agreed upon with the customer.
6) If damages accrue to the buyer due to a delay arising as a result of a fault of the seller, they buyer is entitled, under exclusion of further claims, to demand compensation for delay. For each full week of delay, such compensation amounts to 0.5% in all, but 5% at the most of the value of the part of the total delivery which could not be used in good time or in accordance with the contract as a consequence of the delay.
7) If the shipment is delayed at the request of the buyer, the buyer will be charged for the costs arising from storage in the plant, but at least half a percent of the invoice amount for every month, as from one month after notification of readiness to dispatch. The seller is however entitled to dispose of the delivery item otherwise after a suitable period is set and has passed without result, and to make delivery to the customer with a suitably extended period.
1) Deliveries are made ex works, and the shipment costs are payable by the buyer. If the latter has not issued any written indication regarding the form of shipment, the seller shall bring about the shipment at its discretion, without assuming liability in the event of negligence. However, at the request of the buyer, the seller shall insure the shipment against theft, breakage, transportation, fire and water damage as well as other insurable risks, at the expense of the buyer. The buyer is responsible for the establishment and enforcement of claims in the event of damage during transportation.
2) Risk is transferred to the buyer at the latest with the dispatch of the delivery components, even if partial deliveries are made or the seller has accepted other services, e.g. shipment costs or carriage and installation. Goods reported as being ready for shipment must be retrieved immediately by the buyer. Otherwise the seller is entitled to store the goods at the its expense and risk and to invoice them as delivered ex works. If retrieval does not take place within 30 days from dispatch of the declaration of readiness for shipment, the rights under § 5 (7) are available to the buyer.
3) Delivered objects must be accepted by the buyer, even if they present insignificant defects or slight deviations from the usual tolerances, notwithstanding the rights under §7.
1) Complaints by the buyer due to incompleteness of the delivery or defects in the delivery item, including the absence of promised features, must be sent to the seller within an exclusion period of 8 days from arrival of the delivery item at the designated destination. For hidden defects this term applies as from the time when the defects were detected or would have been able to be detected; in this case the burden of proof lies with the buyer.
2) Any complaint is excluded after work or processing, installation or usage of the delivered goods by the customer has commenced; the same applies for customary or slight or technically unavoidable deviations in quality, measurements, equipment or weight.
3) In cases of justified complaints the seller has the right to undertake improvement in its plant or to make delivery of defect-free replacement goods within an appropriate time after receipt of return delivery of the goods. The seller may also opt to undertake the improvement in situ within 4 weeks of receipt of notification of the defect. Only if the seller fails to perform the improvement or make the replacement delivery, or does not do so completely or within the proper term, may the buyer, at its discretion, demand a reduction in the fee or cancellation of the contract. Any further rights due to defective deliveries are excluded; this applies in particular to any claims on the part of the buyer for compensation based on indirect and direct damages, unless the damages are based on a grossly negligent breach of contract or a deliberate or grossly negligent breach of contract by a legal representative or vicarious agents of the seller.
This limitation of liability does not apply for claims based on data protection.
§8 Retention of title
Until all receivables (including the settlement of all outstanding current account balances) the seller is entitled to claim from the buyer, for any present or future legal reasons, are settled, the seller is granted the following securities, which it will release upon request at its discretion, provided their value exceeds the claims by more than 20%:
1) Until complete payment is made, the goods continue to be the property of the seller. Processing or transformation shall always be carried out for the seller as the manufacturer, but without resulting in any obligations for the seller. Upon expiry of the (co)ownership of the seller by agreement, it is agreed that the (co)ownership of the buyer of the unit is transferred to the seller in proportion (to the invoice value). The buyer shall store the (co)ownership of the seller free of charge. Goods in which the seller has a (co)ownership share shall hereinafter be described as goods subject to retention of title.
2) The buyer is entitled to process and dispose of the goods subject to retention of title in the course of ordinary business transactions, provided it is not in arrears. Pledges or assignments as security are not permitted. The buyer hereby assigns all claims arising from the resale or another legal basis (insurance, unlawful act) with regard to the goods subject to retention of title (including all current account balance claims) to the full extent to the seller by way of security. The seller grants the buyer revocable authorisation to collect the receivables assigned to it on its behalf and for its invoice. This collection authorisation can only be revoked if the buyer does not properly fulfil its payment obligations. Amounts collected by the buyer resulting from the assigned claims must be recorded in a separate account until they are transferred to the seller. The seller will not collect the assigned claim as long as the buyer fulfils its payment obligations. However, the buyer is obliged to notify the buyer on request of the third-party debtors and advise them of the assignment.
3) Pledges or assignments as security of the goods subject to retention of title or the assigned claims are not permitted.
4) In the event of access by third parties to the goods subject to retention of title, the buyer shall point out the ownership of the seller and inform the latter immediately. It behoves the buyer to take action which provisionally guarantees the rights of the seller. The buyer is obliged to send the seller without delay a list of the goods subject to retention of title that still exist, and if they have been processed, a record of the assigned claim to the third-party debtor as well as copies of invoices.
5) In the event of action by the buyer that is in breach of contract – and in particular delay in payment – the seller is entitled to take back the goods subject to retention of title or if necessary to demand assignment of the claims to surrender of the buyer against third parties. The acceptance of the return or pledging of the goods subject to retention of title by the customer does not represent a withdrawal from the contract, unless the German instalment purchase law / consumer credit law applies.
§9 Place of fulfilment
The place of fulfilment for all services of both parties and the place of jurisdiction for all claims on both sides (including for procedures involving exchange or cheques) is the registered address of the seller. German law applies exclusively.