General sales conditions
1.0 Scope of application
The following sales conditions apply to all supply contracts concluded between the customer and us. They shall also apply to all future business relations even if not explicitly agreed upon. Differing conditions of the customer shall be non-binding for us, even if they have not explicitly been rejected by us. The following sales conditions shall also apply if we perform deliveries without reservation whilst being aware of alternative terms of the customer .
2.0 Offer and conclusion of contract
2.1 Supply contracts (order and acceptance and call-offs as well as their changes and supplements) have to be made in writing. Call-offs may be performed also by data transfer.
2.2 Our offers are non-binding and non-committal, unless we have expressly described them as binding.
2.3 We are entitled to accept an order of the customer, which is qualified to conclude contract with us, by transmitting the confirmation of order within two weeks or delivering the ordered goods within the same period. If we do not accept the order within two weeks of receipt, the customer shall be entitled to cancel the order. Delivery calls shall become binding at the latest if we do not object within two weeks after receipt.
2.4 We reserve all and any property rights and copyrights in all and any illustrations, estimates of cost, drawings and other documents. The customer may only pass them on to third parties with our express written approval, irrespective of whether or not we labelled them as confidential.
3.0 Terms of payment
3.1 Our prices apply ex works, without packing unless otherwise determined in the order confirmation. The prices do not include the legal VAT. The VAT will be indicated separately on the invoice at the amount legally due on the day of billing.
3.2 Payment shall become due on the 25th of the month following the delivery, provided the customer has received auditable invoices until month-end. In the case of acceptance of early deliveries, the due date shall depend on the agreed delivery date.
3.3 Payment shall be made by bank transfer. In the payment order we are informed about the account balance. The customer will be immediately informed of any discrepancies. A payment by means of a cheque requires our explicit approval.
3.4 In the event of a faulty delivery, the customer shall be entitled to withhold the payment until proper execution.
3.5 A discount deduction is only allowed with special written agreement between us and the customer. A payment is not deemed to have been made until we can dispose of the amount. In the case of payment by cheque, payment is considered to be effected only after the cheque has been cleared.
3.6 If the customer is in default with a payment due, the legal provisions shall apply.
3.7 The customer shall only be entitled to set off, including if claims or counterclaims have been asserted, if the counterclaims have either been legally determined or acknowledged by us, or are indisputable . The customer is only entitled to exercise a right to retention if the counterclaim is based on the same contractual relationship.
4.0 Dates and deadlines, shipment provision
4.1 Agreed dates and deadlines are binding. The delivery time determined by us shall only commence after all technical questions have been resolved and the customer has fulfilled its obligations. The goods will be made available in time taking into consideration the time usually necessary for loading and shipment. For all trade terms the INCOTERMS shall apply.
4.2 Loading and shipping shall take place uninsured at the risk of the customer. We shall make every effort to take into consideration the customer's wishes and interests in regard to the type and method of dispatch; any extra costs incurred thereby - even if freight-free delivery has been agreed - shall be borne by the customer.
4.3 We do not take transport and all other packaging back according to the packaging regulations; with the exception of returnable packaging provided by us.
4.4 If shipment is delayed at the request or by the fault of the customer, we will be ready to warehouse the merchandise at the expense and risk of the customer within the scope of our possibilities. In this case, the ready-to-deliver notice is equivalent to shipping.
4.5 At the request of the customer we shall protect the delivery by a transport insurance.
5.0 Delay in delivery
5.1 If the underlying contract is a s a transaction for delivery by a fixed date according to § 286, paragraph 2, number 4 of the German Civil Code or 376 of the German Commercial Code, then we are liable according to the statutory provisions. The same applies if the customer is entitled to claim that its interest in the further performance of contract has discontinued due to a delay of delivery attributable to us. In this case, our liability will be limited to the predictable, characteristically occurring damage if the delay of delivery is not caused by an intentional breach of contract for which we can be held responsible, whereby a fault on the part of our representatives or vicarious agents is attributable to us.
5.2 We are also liable to the customer when the delivery delay falls under the statutory provisions, if it occurred due to an intentional or grossly negligent breach of contract by us. Our liability will be limited to the predictable, characteristically occurring damage, if the delay of delivery is not caused by an intentional breach of contract for which we can be held responsible.
5.3 In the event that a delivery delay for which we are responsible is based on the culpable breach of a fundamental contractual obligation, we are liable in accordance with the statutory provisions , with the proviso that in such case the compensation liability is limited to the predictable, characteristically occurring damage.
5.4 Any further liability for a delivery delay for which we are responsible, shall be excluded. Other legal rights and claims of the customer to which he is entitled in addition to the compensation claim due to a delivery default attributable to us, remain unaffected.
5.5 We are at any time entitled to partial deliveries and services, if this is reasonable for the customer.
5.6 If the customer delays acceptance, we are entitled to demand compensation for any loss thereby incurred, including any additional expenditure. The same shall apply where the customer culpably violates obligations to cooperate. Upon the occurrence of default of acceptance or default of payment, the risk of accidental loss and accidental deterioration of the goods shall pass to the customer.
6.0 Notice of defect
The customer must notify us immediately , but not later than 10 days after receipt of the goods, in writing, about any deficiencies of a delivery, wrong delivery and quantity deviations as soon as these have been detected in the circumstances of normal business. To this extent we waive the objection to delayed notification of defects.
7.0 Liability for defects
7.1 Warranty claims of the customer exist only, if it has duly fulfilled its examination and complaint duties according to § 377 of the German Commercial Code .
7.2 As far as defect in goods, represented from us, is present, we are under exclusion of the rights of the customer to revocation from the contract or lower the purchase price (decrease) , obligated to the supplementary performance, unless we are entitled due to the legal regulations, to refuse the supplementary performance. The customer must grant us an adequate period of time for correcting the defect or supplying new items. In particular, prior to the start of production (processing or installation) the customer must give us the opportunity to sort out, unless this cannot reasonably be expected from him. For rectification of the goods the customer has either the choice for a subsequent repair of the goods or for a new delivery. In case of eliminating the defect, we shall pay the required expenses, as far as these are not increased, because the object of the contract is located on another place than the place of performance.
7.3 If subsequent performance has failed, the customer, at his option, may require the reduction of the purchase price (decrease) or state that he is withdrawing from the contract. With the third vain trial, the subsequent improvement is regarded as failed, as far as further trials for the object of the contract are not adequate and reasonable for the customer.
7.4 The customer shall only be entitled to make compensation claims for defects subject to the following conditions if the subsequent fulfilment has failed. The customer's right to claim further damages in accordance with the following conditions will remain unaffected.
7.5 Any claims with regard to liability for defects shall become statute-barred one year after the goods were handed over to the customer, except where the defect was fraudulently concealed by us; in this case the provisions of law shall apply.
7.6 We are obligated in accordance with the provisions of law to take back the goods, or, if appropriate, to reduce the purchase price, also without the fixing of a time limit that would otherwise be required if the customer's buyer, as consumer of the sold new chattel (purchase of consumable goods), due to the defective nature of the product was able to demand that the customer takes back the product or reduces the purchase price or the customer is faced with a similar claim under a resultant right of recourse. Furthermore, we shall be obliged to compensate expenditures of the customer, especially costs for transportation, travelling, works and material, which the Customer had to pay in relation to the end user as part of the subsequent performance due to any defect in the product which was present at the time of the passing of risk from us to the Customer. This claim shall be excluded if the customer did not properly fulfil its duties to inspect and complain according to § 377 German Commercial Code.
7.7 The obligation pursuant to paragraph 6 shall be excluded if the defect is due to advertising claims or other contractual agreements that do not originate from us, or if the customer has given a special guarantee to the end user. The obligation shall also be excluded if the customer himself, according to legal regulations, was not obliged to execute a warranty claim towards the consumer or has not made a written complaint against a claim asserted against him. This shall also apply, if the customer gave a warranty to the end-user which extended beyond that required by the law.
7.8 We are liable without reservation, pursuant to the relevant legal provisions, for physical injury or injury to life or health, arising from negligent or willful breach of duty on the part of ourselves, our legal representatives or our vicarious agents, and for damages for which we are liable under the Product Liability Act. For damages that are not included in sentence 1 and which are based on intentional or grossly negligent breaches of duty or malice on our part, we shall be liable in accordance with the provisions of law. In this case, however, our liability for damages shall be limited to the foreseeable, typically arising damage, unless we acted willfully. Within the extent that we have provided a guarantee of the composition and/or durability of goods or components, we shall also be liable within the scope of this guarantee. For damages which are based on the absence of the guaranteed quality or durability, but do not directly affect the product, we shall only be liable if the risk of such a damage is clearly covered by the quality and durability warranty.
7.9 Any further liability is excluded irrespective of the legal nature of the asserted claim. This also applies especially to claims in tort or claims to the restitution of failed efforts instead of the performance; unaffected hereby is our liability according to section V (Delay in delivery).
7.10 Claims for damages of the customer because of a defect become statute-barred twelve months after delivery of the goods. This shall not apply in the event of injury to life, body or health caused by us, or if we acted intentionally or grossly negligent.
8.0 Reservation of title
8.1 We retain the ownership of the goods delivered until all our claims arising from the business relationship have been paid in full (reserved goods).
8.2 Prior to this any pledging or assignment as security is prohibited. A resale is only permitted for resellers in the usual course of business on the condition, that the reseller receives cash payment from his customers or makes the reservation, that the property is not transferred to the customer
until he has fulfilled his payment obligations in full.
8.3 In the case of resale the customer assigns to us already now, for security purposes, all his future claims against his purchasers with all ancillary rights arising from the resale, without special declarations being required at a later date. If the goods subject to reservation of title are resold together with other goods without declaring a unit price for the goods subject to reservation of title, then the customer assigns - with priority to the rest of the claim - to us that part of the total price claim that is up to the value of the goods subject to reservation of title charged by us, plus an additional charge of 10 % on this amount. The customer is authorized to collect assigned claims arising from the resale until such authorization is revoked. At our request, the customer must notify his customer about this assignment, provide the supplier with the necessary information to assert his rights against the customer and supply the necessary documents. All costs of collection and of any interventions needed shall be borne by the customer
8.4 The customer is permitted to further process, restructure or combine with other objects the goods subject to retention of title. The processing or restructuring shall be done for us. We become the direct owner of the new items created by this. If this is not possible for legal reasons, the customer agrees that we shall become the owner of the new product at all times during the processing or restructuring. The customer shall store the resultant new item for us with due professional care. The processed or restructured items shall be regarded as reserved goods.
8.5 In case such goods are processed, restructured or combined with other goods belonging to us, we shall obtain co-ownership of the newly created object in proportion of the value of the processed, restructured or combined reserved goods to the value of the new object. In the event that the new object is sold, then the customer hereby assigns to us by way of security his claim against the purchaser arising from its resale together with all ancillary rights, without requiring further declarations. The assignment shall, however, be limited to an amount corresponding to the value of the processed, restructured or combined reserved goods invoiced by us, plus a surcharge of 10% on this value. The proportion of the demand assigned to us shall have priority over the remaining receivables. If the reserved goods are combined with other movable items, the customer will assign to us by way of security his claims to which he is entitled as compensation for the connection together with all ancillary obligations.
8.6 We are entitled to take ownership of the reserved goods if the customer is in in arrears with fulfilling the obligations arising from the business relationship. The taking over of goods does not constitute a cancellation of the contract. We are then entitled to use the reserved goods and pay them off to settle the open claims from their proceeds.
8.7 If the value of security exceeds our claims against the customer from our current business relation by more than 25% we shall be obligated, on the request of the customer, to release securities due to him at his discretion.
8.8 Once, all of our claims out of the business relations are totally satisfied, the ownership of the reserved goods , the co-ownership in the processed, restructured or connected items and the assigned claims shall pass to the customer.
9.0 Quality and documentation
The current valid version of the Quality assurance agreement is part of the terms and conditions and regulates the requirements in terms of quality and documentation.
The customer undertakes to keep confidential and treat as trade secrets all business or technical information not commonly known and of which he becomes aware through the business relationship. Drawings, models, templates, samples and similar objects must not be given to unauthorized third parties or made accessible in any other way. The reproduction of such documents is only permitted within the framework of operational requirements and copyright regulations.
11.0 Force majeure
11.1 Force majeure, labour disputes, riots, official measures and other unforeseeable, unavoidable and grave events, will release us from our duty to perform for the duration of the disturbance and to the extent of their effect.
11.2 This shall also apply where the events occur at a time when we are in default. We are obligated to give the necessary information and to adjust our obligations in good faith to the changed conditions.
12. Place of performance, place of jurisdiction, applicable law
12.1 Place of performance and jurisdiction for deliveries and payments as well as for all disputes arising from the contracts concluded between us and the customer shall be our place of business. However, we are entitled to sue the customer also at his residence or place of business.
12.2 The relationship of the contracting parties is governed exclusively by the law applicable in the Federal Republic of Germany. The application of the uniform law governing the international purchase of movable objects and the law governing the conclusion of international purchase contracts for movable objects is excluded.