General Business Terms
I. General information
(1) Our Terms of Sale shall apply exclusively; we do not recognise contradictory terms and conditions of the customer or terms and conditions that deviate from our Terms of Sale, unless we had explicitly agreed to their validity in writing. Our Terms of Sale shall also apply if we carry out the deliveries to the customer without reservation with the knowledge of contradictory terms and conditions of the customer or terms and conditions that deviate from our Terms of Sale.
(2) All agreements, which are reached between us and the customer for the purpose of executing this contract, are recorded in writing in this contract.
(3) Our Terms of Sale shall only apply towards entrepreneurs within the meaning of Section 310 Para. 1 BGB [German Civil Code].
(4) Our Terms of Sale shall also apply to all future business with the customer.
II. Offer/offer documents
(1) Our offer is without obligation, if not otherwise derived from the offer.
(2) We reserve the property rights and copyrights to all diagrams, drawings, calculations and other documents.
This shall also apply to those written documents that have been described as “confidential”. The customer shall require our explicit written consent before these are forwarded to third parties.
III. Prices, terms of payment
(1) If not otherwise derived from the order confirmation our prices shall be deemed “ex works”, including packaging, without pallets.
We reserve the right to change our prices accordingly with contracts with an agreed delivery time of more than 4 months if cost increases occur, in particular owing to collective agreements or material price changes after conclusion of the contract. We are obliged to proceed likewise in case of cost reductions. We will prove both cost reductions as well as cost increases towards the customer upon request as soon and insofar as they have occurred. If the increase amounts to more than 5% of the agreed price the customer shall be entitled to a right to dissolve the contract (right to termination or rescission).
(2) The statutory value added tax is not included in our prices; it will be shown separately in the invoice in the applicable statutory amount on the day of the invoicing.
(3) The deduction of cash discount requires a special written agreement.
(4) If not otherwise derived from the order confirmation the purchase price is due and payable net (without deduction) within 30 days from the invoice date. The statutory regulations relating to the consequences of the default of payment shall apply.
(5) The customer will only be entitled to rights to offset if his counterclaims have been declared final and binding, are undisputed or are recognised by us. In addition, he is authorised to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
(6) Credit concerning bills of exchange and cheques shall be carried out subject to the receipt with valuation on the day, on which we can dispose over the countervalue. Charges and costs will be for the expense of the customer.
IV. Delivery time
(1) The start of the delivery time stated by us presumes the clarification of all technical questions.
(2) The compliance with our delivery obligations further presumes the timely and proper fulfilment of the customer’s obligation. The right is reserved to the plea of the non-fulfilled contract.
(3) If the customer is in default with acceptance or if he culpably breaches other obligations to provide assistance we are entitled to request compensation for the damages suffered by us insofar, including possible additional expenses. Further claims shall remain reserved.
(4) Insofar as the prerequisites of Subclause 3. exist the risk of accidental loss or accidental deterioration of the object of purchase shall pass to the customer at the time, at which he is in default of acceptance or as the debtor.
(5) We will be liable according to the statutory provisions, insofar as the underlying purchase contract is a fixed deal within the meaning of Section 286 Para. 2 No. 4 BGB or of Section 376 HGB. We will also be liable according to the statutory provisions if as a consequence of a delay in delivery for which we are responsible the customer is entitled to assert that his interest in the further fulfilment of the contract has ceased to exist.
(6) We will further be liable according to the statutory provisions if the delay in delivery is due to a wilful or grossly negligent breach of contract for which we are responsible; a fault of our representatives or vicarious agents is to be attributed to us. If the delay in delivery is not due to a wilful breach of contract for which we are responsible, our liability for damages is limited to the foreseeable typically occurring damages.
(7) We will also be liable according to the statutory provisions insofar as the delay in delivery for which we are responsible is due to the culpable breach of an essential contractual obligation (obligation, the breach of which jeopardises the achievement of the contractual purpose) or a breach of cardinal obligations (obligations, the fulfilment of which makes the proper execution of the contract possible at all and on the compliance with which the customer relies as a rule); in this case, however, the liability for damages is limited to the foreseeable, typically occurring damages.
V. Passing of risk
(1) Insofar as not otherwise derived from the order confirmation the delivery “ex works” is agreed.
(2) Special agreements shall apply to the taking back of packaging.
(3) If requested by the customer we will cover the delivery by transport insurance; the costs incurred in this respect will be borne by the customer.
VI. Liability for defects
(1) Claims due to defects of the customer presume that he has properly satisfied his responsibilities for inspection and to report a complaint owed according to Section 377 HGB.
(2) Insofar as a defect exists to the object of purchase, we are at our choice entitled to subsequent fulfilment in the form of a remedy of defects or to deliver a new faultless object. In the event of the remedy of defects we are obliged to bear all expenses that are necessary for the purpose of remedying defects, in particular transport, route, labour and material costs, insofar as these are not increased by the fact that the object of purchase was taken to another location than the place of fulfilment.
(3) If the subsequent fulfilment fails the customer is, at his choice, entitled to request rescission or reduction.
(4) We will be liable according to the statutory provisions, if the customer asserts claims for damages, which are due to wilful intent or gross negligence, including the wilful intent or gross negligence of our representatives or vicarious agents. Insofar as we are not accused of any wilful breach of contract the liability for damages is limited to the foreseeable, typically occurring damages.
(5) We shall be liable according to the statutory provisions if we culpably breach an essential contractual obligation (obligation, the breach of which jeopardises the achievement of the contractual purpose) or cardinal obligations (obligations, the fulfilment of which enables the proper execution of the contract at all and on the compliance with which the customer relies as a rule); in this case however the liability for damages is limited to the foreseeable, typically occurring damages.
(6) Insofar as the customer is entitled to a claim for compensation of the damages instead of the performance, our liability is also limited within the scope of Section 3. to compensation of the foreseeable, typically occurring damages.
(7) The liability owing to culpable injury to life, the body or the health shall remain unaffected; this shall also apply to the mandatory liability according to the German Product Liability Act.
(8) Insofar as not otherwise regulated above, the liability is excluded.
(9) The statute-of-limitations for claims due to defects is 12 months beginning from the passing of risk.
(10) The statute-of-limitations in the event of a delivery recourse according to Sections 478, 479 BGB shall remain unaffected hereby; it is 5 years beginning from the delivery of the faulty object.
VII. Joint liability
(1) Further liability for damages than envisaged in § 6, is – irrespective of the legal nature of the asserted claim – excluded. This shall in particular apply to the claims for damages from fault upon conclusion of the contract,
owing to other breaches of obligations or owing to claims in tort for compensation of property damages pursuant to Section 823 BGB.
(2) The limitation according to Subclause 1. shall also apply insofar as the customer requests the reimbursement of useless expenses instead of the service, and instead of a claim for compensation of the damage.
(3) Insofar as the liability for damages is excluded or limited against us, this shall also apply with regard to the personal liability for damages of our employees, workers, assistants, representatives and vicarious agents.
VIII. Protection of reservation of title
(1) We reserve the property to the object of purchase until the receipt of all payments from the supply contract. In case of conduct of the customer in breach of the contract, in particular with default of payment, we are entitled to take the object of purchase back. The taking back of the object of purchase by us shall constitute a rescission of the contract. After taking the object of purchase back we are authorised to sell it, the sales proceeds are to be offset against the liabilities of the customer – minus reasonable sales costs.
(2) The customer is obliged to treat the object of purchase with due care and attention; he is in particular obliged to sufficiently insure it at the value as new at his own costs against damages caused by fire, water and theft. Insofar as maintenance and inspection work is necessary the customer must carry this out in time at his own costs.
(3) In case of attachments or other interventions of third parties the customer has to notify us in writing without delay so that we can file an action pursuant to Section 771 ZPO [German Code of Civil Procedure]. Insofar as the third party is not in the position to reimburse us the court and out-of-court costs of an action pursuant to Section 771 ZPO the customer will be liable for the loss suffered by us.
(4) The customer is entitled to resell the object of purchase in the ordinary course of business; however he hereby now already assigns all claims to us in the amount of the final invoice amount (including value added tax) of our claim, to which he is entitled from the resale against his buyer or third parties, irrespective of whether the object of purchase was resold without or after processing. The customer shall also remain authorised to collect this claim after the assignment. Our authorisation to collect the claim ourselves shall remain unaffected hereby. However, we undertake not to collect the claim as long as the customer satisfies his payment obligations from the collected proceeds, is not in default of payment and, in particular, no application has been filed for the opening of composition or insolvency proceedings or payments have not been suspended. If this is, however, the case we can request that the customer announces the assigned claims and their debtors to us, provides us all details that are necessary for the collection, hands over the associated documents and informs the debtor (third party) of the assignment.
(5) The processing or conversion of the object of purchase by the customer shall always be carried out on our behalf. If the object of purchase is processed with other objects that do not belong to us we shall acquire the co-ownership to the new object in the ratio of the value of the object of purchase (final invoice amount including value added tax) to the other processed objects at the time of the processing.
Incidentally, the same shall apply to the object produced by processing as for the object of purchase subject to a reservation.
(6) If the object of purchase is inseparably mixed with other objects that do not belong to us we shall acquire the co-ownership to the new object in the ratio of the value of the object of purchase (final invoice amount including value added tax) to the other mixed objects at the time of the mixing. If the mixing is carried out in the manner that the object of the customer is to be seen as the main object then it shall be deemed as agreed that the customer assigns us pro rata co-ownership. The customer shall hold the thus produced sole ownership or co-ownership in safekeeping on our behalf.
(7) The customer shall also assign us the claims for securing our claims against him, which are accrued against a third party by the connection of the object of purchase with a property.
(8) We undertake to release the collateral to which we are entitled, at the request of the customer, to the extent that the realisable value of our collateral items exceeds the claims to be secured by more than 10%; we are responsible for the selection of the collateral items that are to be released.
IX. Place of jurisdiction – place of performance –
(1) If the customer is a merchant, our registered seat is the place of jurisdiction; we are however entitled to also file action against the customer at the court of his place of residence.
(2) The law of the Federal Republic of Germany shall apply – the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.
(3) Insofar as not otherwise derived from the order confirmation our registered seat is the place of performance.