I. Scope of Validity
1. The following Conditions of Sale and Payment shall apply for all contracts concluded between the customer and ourselves concerning the delivery of goods. They will also apply for all future business relations, even if they have not been agreed upon once more explicitly. Conditions of the customer which differ and which we do not accept explicitly will be not binding to us – even if we do not contradict them explicitly. The following Conditions of Sale and Payment will even be valid if we execute the customer’s order unconditionally although we know that his conditions differ or oppose these conditions.
2. All agreements between customer and us made in the contracts and concerning their execution will be in written form. If contracts will be in German and as well in a foreign language, the German version will be decisive in case of a dispute.
II. Offer/Conclusion of Contract/Advice
1. An order which has to be qualified as an offer to conclude a contract can be accepted by us within two weeks by sending a confirmation of order or by sending the ordered products within the same time.
2. Our offers are subject to change and non-binding. Samples and specimen as well are non-binding information within a frame. All oral and written information concerning application and suitability of our goods are made to the best of our knowledge. However, this information is only based on empirical value and does not count as assured. It does not justify any claims against ourselves. In particular, the customer will not be relieved from having to convince himself by testing that the goods will be suitable for the application he had in mind.
III. Conditions of Payment
1. Our prices are to be understood ex factory without packing if not mentioned otherwise in the Order Confirmation. The legal value added tax is not included in our prices. This will be stated separately in the legal amount on the day the invoice is made out.
2. If prices have to be increased due to cost factors (in particular prices for production material, factory material, wages and freights) we will be entitled to increase the price agreed upon originally accordingly.
3. The amount of the invoice is net (without deduction) and payable at once at receipt of the invoice by the seller if no other payment period is mentioned in the Order Confirmation. We grant a cash discount of two percent on payments within ten days after the date of the invoice if good business relations have been established. Otherwise a cash discount will only be permissible if there is a special written agreement between ourselves and the customer. Payment will only be recognized as executed if we have the money at our disposal. In case of payment by bill of exchange or cheque payment will only be recognized when the bill of exchange or the cheque has been honoured. Discount charges as well as all other occurring charges in connection with the bill of exchange or the cheque have to be borne by the customer.
4. Should the customer be in arrears with a payment, we reserve the right to charge yearly interest amounting to eight percent points above the prevailing base interest rate of the European Central Bank (ECB), however, this is under reservation of further rights.
5. The customer will only be entitled to a set-off – even if a notice of a defect or counter claims are asserted – if these counter claims have been ascertained as legally valid, have been accepted by us or are indisputable. The customer will only be entitled to execute the right of detention if his counter claims are based on the same contractual terms. In case the customer is a businessman, the enforcement of the right of a refusal of performance or the right of detention requires our preliminary written agreement.
6. We reserve the right to demand a payment security or an advance payment.
7. In case the customer is in arrears or should there be justified doubts concerning his solvency we will be entitled to ask for payment before due date and/or to keep back pending deliveries in full or partly, or to withdraw in full from the existing contracts.
IV. Period of Delivery and Performance
1. Delivery dates or periods which have not been explicitly agreed upon as binding are not binding particulars exclusively – we will try to adhere to them. The period of delivery mentioned by us will only start when the technical details have been sorted out, i.e. in particular all necessary documents needed for the execution of the order as well as any advance payments have reached us. As well, the customer has to carry out all his duties in accordance with the rules and in time.
2. In case of non-compliance with an over and above that promised delivery deadline in writing the customer will be entitled to grant us an adequate deadline. If delivery has not been executed until this deadline the customer will be entitled to withdraw from the contract. Delivery will be regarded as executed in time as soon as the goods have left our factory or warehouse before the deadline or if they have left those of our own suppliers.
3. We will not be responsible for delays in delivery and performance which are due to force majeure, this regards as well occurrences which not only temporarily severely complicate delivery or make it impossible; for example strikes, lockouts, orders of the authorities, lack of energy or raw materials etc.; - even if these occur at our pre-suppliers, and even if we have bindingly confirmed these delivery dates and periods. We will be entitled to postpone delivery respectively performance for the length of delay plus an adequate extension of time or to resign from the contract, i.e. either partly or completely concerning the not yet executed part. The customer will not be able to claim damages in this case. If delivery or performance respectively will be delayed by more than two months, the customer will be entitled to withdraw from the contract either in full or in parts, i.e. excluding all further claims and with regard to the not yet executed parts due to the delay.
4. If the customer refuses to accept delivery even after passing of an adequately extended deadline we will be entitled – disregarding other claims – to demand a comprehensive fee amounting to up to one quarter of the total price agreed upon in the contract, i.e. in consideration of being entitled to assert a claim for damages, however, without delivering proof of this. The customer will be entitled to establish proof that the damage did not occur at all or that it was considerably lower than the amount of the comprehensive fee mentioned above.
5. If the underlying contract concerns a fix-date purchase (in the meaning of § 286, para. 2 No. 4 of German Civil Code (BGB), or in the sense of § 376, German Commercial Code (HGB), we will be liable according to the lawful regulations. The same will apply if the customer – due to a delay in delivery we are responsible for – will be entitled to claim that he is no longer interested in the further fulfilment of the contract. In this case our liability will be limited to the foreseeable, typically occurring damage if the delay in delivery is not based on an intentional violation of the contract we would be responsible for, where we are liable for the negligence of our representatives or our agents.
In case of a delay in delivery we will also be liable to the customer in the same way, i.e. according to the lawful regulations and if the delay is based on an intentional or grossly negligent violation of the contract, where we are liable for the negligence of our representatives or our agents. Our liability will be limited to the foreseeable, typically occurring damage if the delay in delivery is not due to an intentional violence of the contract we are liable for.
6. In case a delay in delivery we are to be blamed for is due to a culpable violation of a contractual duty, the realization of which can only make possible the fulfilment of the contract in accordance with the regulations and the adhering to which the customer relies on regularly and may rely on and where we are to be blamed for the negligence of our representatives or our agents we will be liable according to the lawful regulations, however on condition to the proviso that in this case the liability for the damage will be restricted to the foreseeable, typically occurring damage.
7. Otherwise – in case of a delay in delivery we are to be blamed for – the customer can assert a claim for each completed week of the delay at a lump sum amounting to 3 percent of the value of the delivery, however, the maximum sum cannot be more than 15 percent of the value of the delivery.
8. A further liability for a delay in delivery we are to be blamed for is excluded. Further lawful demands and rights of the customer to which he is entitled - apart from his demand for compensatory damage because of a delay in delivery we are to be blamed for - remain unaffected.
9. We will be entitled to part deliveries and part performances, i.e. as far as that is reasonable for the customer.
10. If the customer is in default of acceptance we will be entitled to assert a claim for the occurred damages as well as for any additional expenditure. The same applies if the customer culpably violates his duties to cooperate. With the begin of the default of acceptance or the default of the debtor the risk of coincidental deterioration and coincidental destruction will pass to the customer.
V. Passing of a Risk/Despatch/Packing
1. Loading and despatch will take place at customer’s risk and cost and not insured. The choice of the way of forwarding will be left to us, however under exclusion of any liability. As regards kind and way of forwarding we will try to consider the customer’s wishes and interest. Additional costs due to this – even if freight free of charges had been agreed upon - will have to be charged to the customer. Goods ready for despatch have to be collected by the customer.
2. After handing over of the goods to the forwarding agent, or after leaving our factory or works at the latest, - in the case of section orders from the works or factories of our pre-suppliers - the danger will move over to the customer; this applies too to prepaid-, fob- and cif- transactions according to the international regulations for the interpretation of the contractual regulations usual in trading and published by the Chamber of Commerce (ICC), the so-called INCOTERMS 2010. The customer is obliged to check the goods immediately after their delivery concerning their completeness and discernible damages, and he has to inform us about losses or damages without culpable hesitation.
3. According to packaging regulations we do not take back transport packagings or any other packaging. Pallets, barred boxes or any other returnable packagings can be returned to us. The customer has to look after the waste disposal of the packagings himself.
4. If despatch or recovery of goods ready for despatch is delayed – either due to the customer’s wishes or due to his fault – we will store these goods at customer’s cost and risk. In this case the notification advising about the readiness for despatch is equivalent to sending the goods.
5. At customer’s request and cost we will insure the goods through a transport insurance.
VI. Rights in case of a Defect/Guarantee/Liability
1. We have to be informed at once, fourteen days after delivery of the goods at the latest, about claims arising from a defect because of discernible faults, wrong deliveries or substantial divergences in quantity, information has to be in written form. Concealed faults have to be reprimanded immediately after they have been detected in written form.
2. We will only be liable concerning advice about possibilities of processing and/or application of our products if this has been explicitly assured in written form.
3. In case of justified notices of a defect we will be obliged to a follow-up performance, i.e. under foreclosure of the customer’s rights to withdraw from the contract or to reduce the price (reduction) – however unless we are, due to legal requirements, – entitled to refuse a follow-up performance. The customer has to grant an adequate time limit to us for the follow-up performance. The follow-up performance can either take place – according to the customer’s wishes – by removal of the defect (remedy of a defect) or by delivery of new goods. In the case of the removal of the defect we will bear the necessary cost only insofar as this will not increase because the subject of the contract is at another place than the place of performance. Should the follow-up performance fail it is left up to the customer: he may demand a reduction of the price (decrease) or he may declare the withdrawal from the contract. The follow-up performance will be counted as failed after the second futile attempt, however only insofar if - owing to the subject of the contract - further attempts to a follow-up performance would not be adequate and reasonable to the customer. Claims for a compensation because of a defect at the terms mentioned below can be claimed by the customer if the follow-up performance has failed. The customer’s right to assert further compensatory damages concerning the following conditions remains unaffected by this.
4. The warranty claims of the customer will become statute-barred two years after the passing of a risk. In case the customer does not inform about defects the goods will be regarded as approved without defects.
5. According to the legal regulations we are obliged to take back the new goods or to reduce the purchase price, (reduction) – even without the otherwise necessary fixing of a time limit – if the customer’s buyer in his function as a consumer of the sold new movable goods (purchase of consumer goods) could demand from the customer to take back the goods or to reduce the price (reduction of the purchase price) because they are defective, i.e. or if towards the customer such a right of recourse resulting from this would be expressed. Moreover, we are obliged to replace the buyer’s expenses, in particular cost of transport, of ways, of work and of material, i.e. expenses the buyer had to bear in his relation to the end user within the frame of a succeeding claim of performance because of the passing of a risk from us to the customer when the goods were faulty. This claim is excluded if the buyer has not fulfilled his duties to examine and to reprimand in accordance to the regulations of § 377 of HGB - (German Commercial Code) -.
6. The above duty according to section VI number 5 is excluded insofar this regards a defect due to information in advertisements or other contractual agreements not issued by us – or if the customer guaranteed towards the end-user a special warranty. This duty is also excluded if the customer himself was not committed to the end-user – due to the legal regulations – to exercise the rights of guarantee or if he did not exercise this claim regarding a demand. This will also apply if the customer accepted guarantees towards the end-user which go beyond the legal measures.
7. We will be liable – disregarding the above mentioned as well as the hereafter following limitations of liability - according to the legal regulations concerning damages to the life, body or health which are based on a negligent or a deliberate neglect of duty caused by us, our legal representatives or our vicarious agents, as well; we will be liable for damages including those covering the liability according to the law concerning liabilities for products. We will be liable for damages that do not refer to sentence one and which are due to deliberate or gravely negligent breaches of the contract as well as malevolence by us, our legal representatives or our vicarious agents; the liability will be according to the legal regulations.
However, in this case the liability for damages will be limited to the foreseeable typically occurring damage, i.e. insofar we, our legal representatives or our vicarious agents did not act deliberately. On the scale we submitted a guarantee referring to the goods or parts of them and concerning their quality and shelf life we will also be liable within the frame of this guarantee. However, we will only be liable for damages based on the missing of the guaranteed quality of shelf life; we will not be liable for damages directly to the goods – and we will only be liable if the risk of such a damage is evidently concerned with the guarantee on quality and on shelf life.
8. Likewise, we will be liable for damages we have caused due to plain negligent violation of such contractual duties, the fulfilment of which only will make possible the adequate execution of the contract and on to which adherence the customer regularly relies and may rely on. However, we will only be responsible insofar as damages are typically joined to the contract and are foreseeable.
9. A further liability is excluded, i.e. without consideration of the legal status of the asserted claim, this will be valid insofar for liability in fort or claims for the replacement of futile expenditure instead of the performance; however, our liability according to section IV., numbers 3 to 6 of this contract remains unaffected from this. As far as our liability is ruled out or limited, this will also be valid regarding the personal liability of our staff, employees, members, representatives and vicarious agents.
10. If a customer claims for compensation concerning a defect, this will become statute-barred two years after the passing of a risk. If we, our legal representatives or our vicarious agents have caused damages to the life, the body or health; or, if we, or our legal representatives have acted negligently, either grossly or with intent, or if our ordinary vicarious agents have acted deliberately, the customer’s legal claims for compensation will be according to the legal period of limitation.
VII. Commercial Protective Rights and Copyrights
1. We will reserve for ourselves the rights to ownership, to copyright and as well to all other property rights concerning all illlustrations/diagrams, all calculations, drawings as well as all other documents. The customer may pass these on to third parties with our written agreement only – irrespective of whether we marked them as confidential or not.
2. If we have to deliver according to drawings, models, or samples or if we have to use parts the customer supplied, the customer will be responsible that protective rights of third parties will not be violated. The customer will release us from demands of third parties and will have to reimburse us for the replacement of a caused damage. If one of the parties to the contract is forbidden by a third party to produce or to supply – and this is done with reference to a property right belonging to this party – we will be entitled, without examination of the situation, to suspend the work until the legal position has been cleared by the customer and the third party. In case the continuation of the order is no longer reasonable for us because of the delay we will be entitled to declare our withdrawal from the contract. The regulations of section IV. number 3 will be valid in this case accordingly.
3. All rights to the property, the copyright as well as other protective rights to the models, the moulds, the tools, the devices, the drafts and the drawings which were made by us or by third parties will remain with us; except for the case that something else has been explicitly agreed upon in writing. The same applies if the customer refunds according parts of the portions of the cost.
VIII. Reservation of Ownership
1. Until all demands towards the customer we will be entitled to, either
now or in future, and including all claims to the balance from account
current, have been fulfilled, the supplied goods (conditional goods) will
remain our property. In case of a behaviour of the customer which is
contrary to the terms of the contract, for example a delay of payment,
we will be entitled, after conceding an adequate period of time, to take
back the conditional goods. If we take back the conditional goods, this
will be a resignation from the contract. If we seize the conditional goods,
this will also be a resignation from the contract. We will be entitled to
make use of the conditional goods after having taken them back. After
deduction of an adequate sum for the cost of making use of them, the
proceeds from the making use will be set off against the sums the
customer had been owing.
2. The customer has to treat the conditional goods with care, he has to
insure them and to bear the costs for damages from fire, water and
theft, i.e. adequately at the original value of the goods. Costs for
maintenance and inspection works which might be necessary have to
be borne by the customer at own cost in due time.
3. As long as he is not in delay of payment, the customer will be entitled to
sell and/or to use the conditional goods appropriately in the business
dealings. However, pawning or collateral assignments are inadmissible.
The claims (including all claims to the balance from the account current) resulting from the resale or any other legal basis (insurance, unauthorized act) in reference to the conditional goods will already now be signed over to us, i.e. on a full scale and as an assignment for security. We herewith accept the signing over. We empower the customer revocably to collect the claims signed over to us for his account and in his name. the direct debit authorization can be withdrawn at any time if the customer does not fulfil his financial commitments in accordance with the regulations. The customer will not
be entitled to cede this claim, not even to serve the purpose of a debt collection in the way of factoring, unless the commitment of the factor is justified at the same time, i.e. to achieve the service in return, amounting to the hight of the claim, i.e. immediately and as long as we still have claims to the customer.
4. A processing or reshuffle of the conditional goods by the customer will
be done in any case for us. Provided that the conditional goods will be
processed with other things which do not belong to us we will acquire
the joint ownership to the new article in relation to the value of the conditional goods (total amount of invoice including value added tax) – compared to the other things at the time of processing (total amount of invoice including value added tax). For the new article, resulting from the processing the same applies like that for the conditional goods. In
the case of an inseparable mixing of the conditional goods with other
things which do not belong to us we will acquire a co-ownership to the new article in a ratio of the value of the conditional goods (total amount of invoice including value added tax) compared to the other mixed things at the time of the mixing. If the customer’s things – because of a result of the mixing – have to be regarded as the main thing, the customer and we will agree that the customer will transfer a proportional ownership to this article to us; we herewith accept the transfer. Our sole property or co-ownership to a thing produced in this way will be looked after by the customer for us.
5. In case third parties have access to the conditional goods, in particular
in case of a seizure, the customer will point out that this is our property,
and he will inform us immediately so that we can impose our rights of
ownership. Should the third party not be able to reimburse the cost
occured in this context by the judicial costs or those out of court, the
customer will be liable.
6. We are committed to release the securities we are entitled to insofar as
the feasible value of our securities exceeds the claims to be safeguarded by more than 10 percent; in doing this we are responsible for the choice of securities that are to be released.
IX. Place of Performance/ Law to be applied/Supplementary Clause
1. Place of performance and place of jurisdiction for deliveries and
payments (including lawsuits concerning documents, cheques and bills
of exchange) as well as all arising disputes between us and the
customer from contracts concluded between him and us will be our
company headquarter. However, we are entitled to take proceedings
against the customer at his permanent abode and/or his company
2. The relationships between the parties to this contract will be settled
exclusively according to the law valid in the Federal Republic of
Germany, excluding the international private right (EGBGB). The
application of the UN Sales Law is excluded.
3. Should one regulation of these Terms of Delivery and Payment
become invalid, be it either totally or in part or be or become ineffective
or unfeasible, this will not affect the effectiveness of all other regulations
and agreements. The partners to this contract will be obliged to insert an effective or feasible regulation or agreement instead of the ineffective or unfeasible one which is in accordance with the commercial regulations as far as possible.
4. The headlines to the individual regulations of these Terms of
Delivery and Payment serve only for better orientation and do not
have any regulation of their own and are of no legal importance.
5. The customer’s data, in connection with the business transactions with
him, will be processed according to the sense of the Federal Office for
dated 14th February, 2012