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General Terms and Conditions of Sale and Delivery
I Conclusion
1. Our offers are without engagement. Orders and verbal agreements are binding for us only if and as far as confirmed by us in writing.
2. Terms and conditions of the buyer, in particular terms of purchase, differing from our General Terms and Conditions of Sale shall only apply if confirmed by us in writing.
II Price, payment, security
1. Unless otherwise agreed prices shall be ex works. Should cost factors relevant to pricing (such as costs of manufacturing and running material, wages and freight) increase, we shall be entitled to increase the agreed price accordingly. Unless otherwise agreed the invoice amount is payable in cash without deduction within 30 days from date of invoice. For payments within 10 days from date of invoice we grant a 2 % discount.
2. The buyer may not offset payment with counter-claims unless the offsetting is ascertained on the basis of undisputed claims or legally valid judgements of a court of law.
3. In case that we accept bills of exchange or cheques debt is payed off only by redemption. Fees and all charges resulting from bills of exchange or cheques shall be at the cost of the buyer.
4. We are entitled to demand security for our claims at any time.
III Shipment
1. To the exclusion of any liability the choice of shipping method and route shall be at our discretion. Goods notified to be ready for shipment must be called-off immediately, otherwise we shall be entitled to store them at our own discretion and at the cost and risk of the buyer and to invoice them as delivered ex works.
2. The buyer cannot refuse partial deliveries.
IV Obstructions to the contract
Interruption of operations, untimely supply or failures from suppliers, shortage of energy or raw material, transportation difficulties as far as such obstacles are unforeseeable, as well as strikes, lock-outs, official decrees and force majeure shall release the party concerned from its liability to deliver or accept the goods for the duration of the obstacle and to the extent of its effect. Should delivery or acceptance be delayed for more than 2 months each party shall be entitled to the exclusion of any other claims to withdraw from the contract with regard to that quantity which is affected by the disturbed delivery or acceptance.
V Delay
If delivery period should be delayed, the buyer must fix a reasonable period of grace. After
expiry of this additional respite he may withdraw from the contract as far as goods have not
yet been delivered.
VI Notice of defect, liability, withdrawal
1. The buyer may only set up claims for defects if he has properly fulfilled his obligations to inspect goods and notify defects according to § 377 HGB (German Commercial Code).
2. In case that we are liable for defects of goods, we are committed to subsequent performance, to the exclusion of the rights of the buyer, however, to withdraw from the contract or to reduce the purchase price (abatement) unless on the basis of statutory regulations we are entitled to refuse subsequent performance. The buyer shall grant a reasonable time limit for the subsequent performance, either and at the buyer’s choice for the removal of the defect (subsequent repair) or for the delivery of new goods. In case that defects are removed, the necessary expenditure shall be at our charge as far as costs do not rise due to the fact that subject matter of the contract is in a place different from the place of performance.
Should the defect not be successfully removed, the buyer shall have the right at his choice to either demand reduction of the purchase price (abatement) or declare withdrawal from the contract. After a second fruitless attempt subsequent repair shall be deemed to have failed unless on the basis of the subject matter of the contract the buyer can reasonably be expected to accept further repair attempts.
Only in case that subsequent repair failed the buyer shall be entitled to claim damages on the following conditions. The right of the buyer to claim further damages on the following conditions shall remain unaffected by this.
3. The warranty period for claims of the buyer shall be 2 years after delivery of the goods at the buyer’s premises unless defects have maliciously been conceiled by us; in this case statutory regulations shall apply.
4. Liability resulting from the previous figure is excluded if the defect is based on advertising statements or other contractual agreements which do not originate from us or if the buyer has given special warranty vis-à-vis the end user. Liability is also excluded if on the basis of statutory regulations the buyer himself was not committed to exercise warranty rights vis-à-vis the end user or did not give notice of defect in view of a claim asserted against him. This is also applicable in the event the buyer has given warranty vis-à-vis the end user which exceeds statutory obligation.
5. According to statutory regulations we shall accept unrestricted liability for damages due to injury to life, limb or health resulting from negligent or intentional breach of duty caused by us, our legal representatives or contractual agents as well as for damages included in the liability according to the Product Liability Law. For damages which are not included in sentence 1 resulting from violations of contract due to intention, gross negligence or malice caused by us, our legal representatives or contractual agents we shall accept liability according to statutory regulations. In this case liability for damages is, however, limited to the foreseeable typical damage unless intentionally caused by us, our legal representatives or contractual agents. To the extent of a quality and/or durability warranty submitted by us for the goods or part of them we shall also be liable within the scope of this warranty.
For damages resulting from lack of quality or durability guaranteed by us but which do not directly affect the goods themselves we shall only be liable if the risk of such damage is apparently included in the quality and durability warranty.
6. We shall also be liable for damages caused by simple negligence as far as negligence affects violation of those contractual obligations the observance of which is of particular importance to meet the purpose of the contract (cardinal obligations). We shall, however, only be liable as far as damages are foreseeable damages typically connected with the contract.
7. Further liability regardless of the legal character of the asserted claim is excluded, in particular in case of unlawful claims or claims for the replacement of futile expenditure in lieu of performance. As far as our liability is excluded or limited, this is also applicable to the personal liability of our personnel, employees, staff members, representatives and contractual agents.
8. The period of limitation for damage claims of the buyer is two years after delivery or handover of the goods. This is not applicable in the event that we, our legal representatives or contractual agents are at fault for the injury to life, limb or health or that claims against us or our legal representatives are based on intention or gross negligence or on intention of our simple contractual agents.
9. Our liability shall be limited to an amount of 5 million Euro covered by our company liability insurance.
VII Information, advice and standards
Information about processing and application possibilities of our products, technical advice
and other particulars are given to the best of our knowledge but to the exclusion of any
liability. Reference to standards is only made in order to describe products, but in no case
to guarantee properties.
VIII Retention of title
1. All delivered goods shall remain our property (conditional commodity) until full payment has been received, included all claims from current account receivables to which we are entitled against the buyer now or in the future. In case of violation of the contract by the buyer, in particular default of payment, and after previously setting an adequate time limit, we shall be entitled to take back the goods. Repossession of the goods under retention of title shall be construed a withdrawal from the contract. Taking in pledge the goods under retention of title shall be deemed a withdrawal from the contract as well. In this case we are entitled to otherwise dispose of the goods under retention of title. After deduction of an adequate amount for utilization cost proceeds gained from this use shall be set against the amounts to which we are entitled vis-à-vis the buyer.
2. In the ordinary course of his business the buyer shall be committed to take good care of the conditional commodity and to sufficiently insure it at his own expense against damages caused by fire, water and theft at a value as new.
3. The buyer shall be entitled to sell and/or use goods to which title has been retained in the course of his regular business unless he is in default of payment. Pledging or chattels mortgage are inadmissible. For reasons of security claims the buyer may have from resale or on any other legal basis (insurance, unlawful act) regarding the conditional commodity (included all claims from current account receivables) shall be fully transferred to us by assignment already now; we herewith accept assignment. We revocably authorize the buyer to pursue the claims assigned to us in his own name and his own account. This direct debit authorization may be revoked at any time in the event the buyer does not properly fulfil his obligations to pay. The buyer is neither authorized to assign this claim in order to collect accounts receivable by means of factoring unless commitment of the factor is at the same time substantiated to settle directly with us quid pro quo in the amount of existing claims that we still have against the buyer.
4. In any case processing or transformation of the conditional commodity by the buyer shall be made on our behalf. If the conditional commodity is processed with other items not belonging to us, we are deemed to acquire co-title to the new item at a ratio corresponding to the value of the conditional commodity (final invoice value included VAT) to the processed items at the time of processing. New items which arise from processing are treated as conditional commodity as well. If the conditional commodity is inseparably mixed up with other items not belonging to us, we are deemed to acquire co-title to the item at a ratio corresponding to the value of the conditional commodity (final invoice value included VAT) to the other mixed items at the time of mixture. In case that due to the mixture the product of the buyer is treated as the main product, then it is deemed to have been agreed between the buyer and us that the buyer transfers to us pro rata co-title to the item; we herewith accept transfer. The buyer is considered to be the depositary for us for the sole or co-title resulting there from.
5. In the event that attachment is made to the conditional commodity, in particular in case of pledging, the buyer shall point out our property and provide us immediately with all information required for the pursuance of our property rights. If the third party is not in a position to refund all legal or out-of-court charges arising in this connection, the buyer shall be liable.
6. We shall be committed to release securities to which we are entitled if the realisable value of our securities exceeds the claims to be secured by more than 10 %; the securities to be released shall be at our discretion.
IX Incoterms
In addition to these conditions the latest version at the time of the execution of the order of the ‘Incoterms’ published by the International Chamber of Commerce in Paris shall apply.
X Application of German law, partial invalidity
1. Any legal relationship between us and the buyer is exclusively subject to the adjective and substantive law prevailing at our domicile for the legal relationship between domestic parties with the exclusion of foreign law.
2. In the event that provisions of the offer or the order confirmation, of particular agreements or of these General Terms and Conditions of Sale should be or become invalid in whole or in part, validity of the remaining provisions shall not be affected in case of doubt. Invalid provisions shall be replaced by valid ones approaching as near as possible the economic objection.
XI Place of performance and jurisdiction for deliveries and payments (included claims concerning bills of exchange and cheques) as well as all disputes arising from sales contracts between us and the buyer shall be our registered office. We are, however, also entitled to sue the buyer at his place of residence or business.
Fittings
