General Sales and Delivery Terms
§ 1
1.
All services and deliveries will be subject exclusively to these Sales and Delivery Terms, provided the ordering party is en entrepreneur for the purposes of § 310(1) of the German Civil Code (BGB). Our terms of sale will apply even if we perform the delivery to the ordering party without reservations while knowing that the ordering party’s terms of sale differ or deviate from these. These General Sales and Delivery Terms will also apply to all future transactions with the ordering party even if they are not specifically referred to each time.
2.
All agreements, especially ancillary agreements, guarantees of quality and subsequent contract amendments, must be set forth in writing.
§ 2
1.
Unless otherwise agreed, any documents contained in the offer – such as information about weight and dimensions, drawings and illustrations – will be deemed only approximately authoritative.
We reserve ownership and copyright to illustrations, cost estimates, drawings, calculations and other documents. This also applies to written documents designated “confidential”. The ordering party shall not forward them to third parties without obtaining our express written consent in advance.
2.
Unless otherwise agreed, the offers we issue remain subject to change. The contract is formed on written order confirmation or conclusive acceptance through performance or invoicing.
3.
If the ordering party defaults in acceptance and a grace period set for that party to provide performance or supplementary performance expires without payment, we may withdraw from the contract and demand compensation for damages. Further claims or rights remain reserved. In this case, or if the ordering party withdraws from the contract without cause, we shall demand 20% of the agreed price, without evidence, as compensation for damages. The ordering party remains at liberty to provide evidence that damages were not suffered in the amount specified or at all. We reserve the right to assert higher verified damages.
§ 3
1.
Unless otherwise set forth in the order confirmation, our prices are deemed “ex works” and do not include packaging, customs fees, freight, insurance or other ancillary costs.
2.
Our prices do not include statutory VAT; that will be shown separately on the invoice, in the amount that is statutory on the day of invoicing. However, VAT will not be charged for export deliveries, and will be charged for deliveries within the EU only if the ordering party identification number is available.
3.
We reserve the right to adjust prices if any or all of the material and wage costs, customs, tax burdens, or foreign currency costs at the time the offer is made increase between contract conclusion and delivery or service, .
§ 4
1.
Our indicated delivery times are not fixed deadlines (§ 323(2)(1) BGB [German Civil Code], § 376 of the German Commercial Code (HGB)) unless they are expressly identified as such.
2.
Unforeseen events over which we have no influence, especially those attributable to Force Majeure, such as operational disturbances, labour dispute actions (strikes and lockouts, weather-related influences) will prolong our delivery periods and deadlines accordingly. Any responsibility on our part will be excluded even during an existing delay. The ordering party shall notify us of such delays.
3
If we are not promptly supplied with the correct goods we have ordered to fulfil the contract due to circumstances beyond our control, the agreed delivery period will be prolonged by the period until we receive those goods.
4.
Partial deliveries are permitted to the extent agreed by the ordering party. We may issue a partial invoice for each partial delivery.
§ 5
1.
Our invoices are due for payment within 30 days net after the invoice date, or with a 2% discount if paid within 10 days. The ordering party will be deemed in default, even if we send no reminder, if that party fails to pay the purchase price within 30 days after it becomes due and the invoice or an equivalent bill is received. From this time forward, the purchase price will accrue interest in the statutory amount although we will remain at liberty to prove greater damages.
2.
We will accept cheques only on a provisional basis and on the express condition of a credit note. We will not accept bills of exchange. The ordering party shall bear the costs associated with a cheque.
3.
The ordering party may set off only against counter-claims that are uncontested, that we have acknowledged, or that have become established by final judgement. The ordering party may exercise a right of retention only if its counter-claim is based on the same contractual relationship.
4.
If the ordering party’s financial situation worsens significantly after contract conclusion, or if such worsening has already occurred but we do not become aware of it until after contract conclusion, we may demand provision of a security or revoke any granted payment targets or both. If the ordering party cannot provide the demanded security within a reasonable period, we may withdraw from the contract. Any existing claims from rendered services or due to default will remain unaffected.
§ 6
1.
When the goods are handed over to the ordering party or to a person specified to execute the delivery, or when the goods leave our factory at the latest, the risk of accidental loss or deterioration of the goods will be transferred to the ordering party. This also applies if we make a delivery, if partial deliveries are made, or if other services are assumed. If transport is delayed for reasons that are not our fault, or due to conduct of the ordering party, risk will be transferred as soon as the ordering party is notified that the goods are ready for transport or shipment.
2.
Shipping will always be at the ordering party’s expense. Unless special provisions exist or have been agreed, we ship without guaranteeing the most cost-effective way, at our reasonable discretion, while considering the ordering party’s interests. When receiving the goods, the ordering party shall report to the railway, post, conveyor or carrier any transport damage with written confirmation.
Insurance against transport damage can be taken out on express request and at the ordering party’s expense.
§ 7
1.
The ordering party shall inspect the received goods for completeness, transport damage, obvious defects, condition and their properties. Any defects must be reported to us without undue delay: obvious defects within 14 days after the goods are received, and subsequently discovered defects within 14 days of such discovery. Otherwise, the assertion of defect claims will be excluded.
2.
Defect claims lapse 12 months after we have delivered the goods to the ordering party. This will not apply if the law prescribes longer periods in accordance with § 438(1)(2) BGB (buildings and items used for a building), § 475(b)(1) BGB (right of recourse), § 634(a)(1)(2) BGB (construction defects), § 438(3) BGB and § 634(a)(3) BGB (malice) and under the Product Liability Act. For damage compensation claims due to gross negligence or wilful misconduct, or on injury to life, limb and health based on an intentional or negligent breach of duty by the user, the statutory limitation period will apply.
3.
We will be released from our obligation to fulfil warranty claims as long as the ordering party is in arrears with its payment obligations in an amount exceeding the defect-related reduced value of the delivered goods.
4.
If the ordering party has made repair more difficult or impossible through an ineffectual attempt at subsequent improvement, the ordering party’s defect and damage compensation claims will be excluded.
If the goods have been affected by natural wear and tear, or if defects and damage arise through improper care, use, faulty start-up or assembly by the ordering party or a third party after risk has been transferred, the ordering party’s claims against us in this regard will be excluded.
5.
The ordering party may assert damage compensation claims only in accordance with § 8 of the General Sales and Delivery Terms.
§ 8
1.
Liability for damage compensation and replacement of futile expenses for the purposes of § 284 BGB due to defective delivery or service, breach of contractual or non contractual obligation, or tort, will apply only in cases of gross negligence or wilful misconduct. The preceding restriction of liability will not apply to injury to life, limb or health, assumption of a guarantee or procurement risk, breach of essential contractual obligations, or liability under the Product Liability Act.
2
If an essential contractual obligation is breached, liability for damages will be limited to foreseeable damages that are typical of this type of contract. This will not apply in instances of gross negligence or wilful misconduct, or to a culpable injury to life, limb or health, to the assumption of a guarantee or a procurement risk, or to compulsory liability under the Product Liability Act.
3
The aforementioned limitations of liability also apply to our representatives, assistants and vicarious agents. Liability for those parties is also limited to foreseeable damages that are typical of this type of contract, with corresponding application of the requirements under § 8(2) of these conditions.
4.
The preceding regulation is not connected with any change of the burden of proof to the detriment of the ordering party.
§ 9
1.
We reserve the title to the delivered goods until all claims arising from the business relationship between the owner and us have been completely fulfilled. This also applies if the purchase price for certain deliveries specified by the ordering party has been paid.
2.
The ordering party may process, connect or mix with other goods the goods whose ownership we have reserved, within the ordinary course of business, unless payment has been delayed or discontinued. If the delivered goods are processed, or connected or mixed with other goods, this will be deemed performed for us as the manufacturer without this giving rise to any obligations for us. If the processing, connecting or mixing leads to a loss of our (co)ownership, it is hereby agreed that the (co)ownership of the new item will be transferred to us on a pro rata basis, in accordance with the ratio of the invoiced amounts of the processed, connected or mixed works. The ordering party declares that the objects we own are kept for us at no charge.
The ordering party may sell goods whose title we have retained or whose co-ownership is due to us, in the ordinary course of business, unless that party is in default with payment or payment has been discontinued. The ordering party may not pledge the goods subject to retention of title nor transfer them by way of security. The ordering party may sell them abroad only after obtaining our written consent. In the event that the ordering party sells the retained goods, that party hereby assigns to us the rights it would have against the buyer due to the sale, with all ancillary rights, securities and reservations of title, until all our claims are fulfilled. The ordering party shall at our request (1) disclose all information needed to collect, (2) hand over the associated documents, and (3) notify the (third-party) debtors of the assignment.
3.
Even after the claim is assigned, the ordering party remains entitled to collect, whereby this will not affect our authorisation to collect the claim ourselves. The ordering party may not collect the assigned claim if that party has failed to comply with its payment obligations, particularly if the ordering party has defaulted on payment, a motion has been made to initiate composition or insolvency proceedings, or payment has been discontinued. In the event that claims of the ordering party from the resale of our retained goods are deposited in a current account, the ordering party hereby assigns its payment claim from the respective or acknowledged account balance, in the amount of the claims from the resale of our retained goods. If we are merely the co-owners of the sold goods, the assignment will be made in the amount of the co-ownership value. If the retained goods are sold along with other goods for a total price, the aforementioned assignment will apply only in the amount of the invoice value for the retained goods or the value of the co-ownership to which we are entitled. If the ordering party receives a bill of exchange or cheque for the retained goods, that party hereby transfers such a bill of exchange or cheque to us until all our claims have been fulfilled. The ordering party shall carefully keep the bill of exchange or cheque safe. Otherwise, the preceding regulation under item 2 will apply mutatis mutandis.
4.
We shall release the securities due to us, on the ordering party’s request, if the realisable value of our securities is over 20% greater than the value of the claims to be secured. We shall select the securities to be released.
5.
If a third party seizes the reserved goods, or if concerns exist that those goods or other items or claims to which we have rights will be otherwise impaired, the ordering party shall object and notify us thereof without undue delay. The ordering party shall disclose comprehensive information and in particular shall attach the necessary documents. The ordering party shall bear and refund to us the costs incurred in connection with such incidents.
6.
If goods are delivered abroad and we must take certain actions for the retention of title or other rights to which we are entitled to take effect in the importing country, the ordering party shall inform us thereof and take those actions at its expense. If the law of the importing country does not permit a retention of title, regardless of grounds, but permits the seller to retain other rights to the delivered goods, we will be at liberty to exercise all such rights. If our claims against the ordering party cannot be adequately secured in this way, the ordering party shall at its expense procure other security for the delivered goods or other collateral.
§ 10
1.
Unless otherwise set forth in the order confirmation, our registered office will be the place of performance.
2.
If the ordering party is a merchant, our registered office will be the venue, but we may also sue the ordering party at the court of its domicile.
3.
The laws of the Federal Republic of Germany will apply.