GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
Art. 1: Scope, written form
Our General Terms and Conditions shall apply exclusively. They shall apply to entrepreneurs (Sect. 14 German Civil Code), legal entities under public law and special funds under public law. Any deviating general terms and conditions of the contracting party will not be accepted by us unless we have agreed to the same in writing. Our General Terms and Conditions shall also apply if we render performance and deliver unconditionally despite being aware of the contracting party’s differing general terms and conditions.
All agreements made between us and the contracting party for performance of this contract shall be laid down in writing in this contract. It shall particularly apply to the assumption of guarantees.
These Terms and Conditions shall also apply to all future business relationships with the contracting party even if not repeatedly expressly mentioned in agreements.
Pursuant to Sect. 312 i para. 2, sent. 2 German Civil Code it shall be agreed that the customer waives the performance of the duties to inform in e-commerce as per Sect. 312 i para. 1 Nos. 1 to 3 German Civil Code.
Art. 2: Quotations, concluding contracts, contract documents, contract content
Our offers are subject to confirmation. Contract offers can be accepted by us within a period of one week.
Figures and data in advertising material and other illustrations shall be non-binding.
We reserve the title and copyright in illustrations, drawings, calculations and other files or documents. The same shall not be made available to any third party. It shall particularly apply to files or documents marked as "confidential"; any disclosure to third parties requires our express written consent.
In absence of any other agreement technical contractual documents shall be the agreed drawings, samples, descriptions and other documents whereas the commercial material standards, designations and DIN tolerances being relevant for raw materials. Weights shall be considered non-binding.
Art. 3: Prices, terms of payment, prepayment, right to withdraw, default, take back, right of retention, offsetting, counterclaims
Unless following otherwise from the order confirmation all prices ex warehouse (for in-stock products) or ex works are given in Euro, excluding packing, freight, insurance, customs or other ancillary costs plus the applicable rate of value added tax. If delivery has been agreed, it shall be rendered free kerbside at the unloading point agreed. In such case the customer shall ensure smooth unloading, provide at its expense and in time the personnel and equipment necessary for unloading. It is assumed that the vehicle can directly approach the place of unloading and be unloaded expeditiously. If such conditions cannot be met any extra costs will be charged separately.
The price-list applicable on the day of order placement shall apply to orders. If material prices or wages increase between requisitioning and delivery, we reserve the right to adjust prices.
Unless agreed otherwise, payment shall be made in advance by cheque/prepayment or credit card. If delivery against invoice has been agreed, payment shall be made within a period of 30 days from the date of invoicing without deduction.
We shall not be obliged to accept cheques or bills of exchange. If accepted, it will be done so on account of performance only.
If the contracting party defaults with minimum two instalments in case of part payment, we shall be entitled to demand immediate payment all further claims also from other invoices, even if cheques or bills of exchange had been accepted. In such case the instruments shall be returned against immediate cash payment.
If after contract conclusion the contracting party’s financial circumstances change or deteriorate considerably, through which our claim for consideration gets jeopardized, or if such a situation of the contracting party existed at the time of contract conclusion already but became known ex post, we shall be entitled to withhold performance until completion of counter-performance. This shall apply in particular to events of fruitless enforcement measures, cheque or bill protesting, a personal application for insolvency, debt deferral endeavours, liquidation or similar actions.
In such cases we can grant the contracting party a deadline to make counter-performance or provide security. If under the aforementioned conditions the contracting party fails to make counter-performance or provide security despite the grace period, we shall be entitled to withdraw from the contract.
If the contracting party defaults in payment, we shall be entitled, unless the setting of a grace period is dispensable, to take back the goods upon expiry of a grace period granted by us, enter the contracting party’s premises where appropriate and take away the goods. We can also prohibit the removal of the goods delivered.
If goods delivered by us are taken back, the value of the same shall be credited to the contracting party with a reasonable deduction without prejudice to the assertion of any further compensation claims and offset against our outstanding claims. The contracting party shall have the right to furnish evidence of a lower reduction in value in the case concerned.
Taking back and exchange: Items will be taken back within a period of six weeks without handling fee. For items returned within 12 months a 10% handling fee will be charged. Items delivered more than 12 months ago cannot be taken back. Any taking back requires the item to be in its original packing, complete packaging units and fit for resale.
Offsetting counter-claims against our claims is only possible if these counter-claims have been established with lawful finality.
A counterclaim shall be excluded. The contracting party shall only be authorized to assert a retention of title if its counterclaims is based on the same contractual relationship.
Art. 4: Release from duty, delivery time, part delivery, right of withdrawal, damage caused by default
Timely and correct self-delivery shall be reserved.
The delivery time shall commence on the date of order confirmation. Part deliveries shall be admissible to the extent reasonable.
Delays in delivery due to events of force majeure or other circumstances not caused by us, such as traffic disruptions and operational disruptions beyond our control, strikes, lockouts, lack of raw material, war, shall not be our responsibility unless agreed otherwise. Should we be unable to deliver within the period agreed upon, the delivery time shall be extended by a reasonable period. If there is an obstacle to deliver in this case over and beyond the reasonably extended delivery period, we shall be entitled to withdraw from the contract.
If the delivery periods agreed cannot be met by us, the customer shall state at our request within a reasonable period of time whether he still insists on the delivery. If he fails to do so, we shall be entitled to withdraw from or cancel the contract upon expiry of a reasonable deadline.
If we have come into default, the following shall apply:
If a transaction for a delivery by a fixed date has been agreed or the other contracting party can assert that his interest in contract performance has ceased or the delay has been caused by us, our representatives or vicarious agents by deliberate breach of contract, we shall be liable for damages caused by delay as defined by the statutory provisions.
In case of a coarsely negligent breach of contract on our side our liability for damages shall be limited to the foreseeable losses that typically occur.
If we, our representatives or vicarious agents have violated a material contractual obligation and there is no liability case according to the statutory provisions within the meaning of item 4.5.1, our liability for delay damages shall be limited to the foreseeable losses that typically occur.
In other respect, our liability for default shall be limited to max. 5% of the delivery value.
The other statutory claims of the contracting party shall not be excluded by it.
Art. 5: Transfer of risk
Unless otherwise provided for in the order confirmation, delivery "ex works" and for in-stock goods, "ex warehouse" shall be deemed agreed. Even if delivered from a place other than the place of performance including free consignment and/or consignment by own people or vehicles dispatch shall always be at purchaser’s risk.
Art. 6: Claims for defect
The purchaser shall inspect the commodities without delay after delivery to the extent is feasible in the orderly course of business. If a defect is found, we shall be notified forthwith. If the customer fails to notify, the goods shall be considered accepted, unless it concerns a defect that was not detectable upon inspection. If such defect becomes obvious any time later, it shall be notified immediately after discovery. Otherwise the goods shall be deemed approved notwithstanding the defect. Sect. 377 German Commercial Code shall remain unaffected. The customer shall not be released from his duty to inspect also in case of the entrepreneur’s recourse pursuant to Sect. 478 German Civil Code. If he fails to notify without delay the defect claimed by his purchaser, the goods shall be deemed approved notwithstanding such defect.
If a defect has occurred, we shall be entitled, after having considered its nature and the justified interests of the customer, to determine the kind of supplementary performance. For these contracts a subsequent performance shall be considered failed after the third unsuccessful attempt. This item shall not apply in case of a recourse as per Sect. 478 German Civil Code.
In the event of subsequent performance for defects we shall only be obliged to bear the necessary expenses such as material, transport and travel costs provided the same do not increase due the fact that the goods have been removed to a location other than the customer’s seat or commercial place of business delivery was made to. This item shall not apply in case of a recourse as per Sect. 478 German Civil Code.
Customer’s claims for defect including claims for damages shall be statute-barred after one year. It shall not apply to a recourse as per Sect. 478 German Civil Code. It shall also not apply to cases of Sect. §§ 438 para. 1 No. 2 German Civil Code and Sect. 634a para. 1 No. 2 German Civil Code. It shall equally not apply to claims for damages arising from injury to life, limb or health or grossly negligent or intentional breach of duties by us or our vicarious agents. In the case of Sect. 438 I No. 2b German Civil Code (items used for buildings) the contracting party’s claims for defects shall come under the statute of limitations after two years. Used goods shall be sold to the exclusion of any liability for defects.
Art. 7: Liability for compensation and reimbursement of expenses
The following shall apply to our contractual liability for compensation:
If the claims are due to an intentional or grossly negligent breach of an obligation by us, our representatives or our vicarious agents, we shall be liable for compensation in accordance with the statutory provisions. If such claims arise from a coarsely negligent breach of duty by us, our representatives and vicarious agents, such liability shall be limited to the foreseeable losses that typically occur.
If we, our representatives or vicarious agents have culpably breach a duty, the fulfilment of which makes the proper performance of the contract possible in the first place, the breach of which jeopardizes the achievement of the purpose of the contract and the observance of which the customer regularly relies on – and there is no case of liability according to statutory provisions within the meaning of item 7.1.1 – the liability shall be limited to the foreseeable losses that typically occur.
Unless agreed otherwise in items 7.1.1. and 7.1.2., our liability for damage compensation shall be excluded. The same shall apply if claims of recourse are asserted against us as supplier pursuant to Sect. 478 German Civil Code.
The exclusions and limitations of liability according to item 7.1 shall also apply to other claims, in particular claims in tort or claims for compensation of wasted efforts.
The exclusions and limitations of liability as per item 7.1 shall not apply to any existing claims pursuant to Sect. 1, 4 Product Liability Act or to culpable injury of life, limb or health. They shall also not apply to the extent that we have given a guarantee for the quality of our goods or undertaken a performance-related success or assumed a risk of procurement and an event of guarantee has occurred or the risk of procurement materialized.
A liability resulting from the assumption of a procurement risk shall only apply to us if we have expressly assumed the same in written form.
Unless the limitation of liability as per item 7.1 applies to claims arising from producer’s liability pursuant to Sect. 823 German Civil Code our liability shall be limited to the amount that will be paid by the insurer. If the insurance does not cover or not fully cover, we will be obligated to accept liability up to the amount insured. This item shall only apply to culpable injury of life, limb or health.
As far as our liability is excluded or limited, the same shall also apply to the personal liability of our employees, staff members, representatives and vicarious agents.
A special regulation of Art. 4, item 4.5 applies to default damages.
A reversal of the burden of proof shall not be connected with the above regulations.
Art. 8: Supplementary and different regulations for international contracts
If the customer has its branch outside the Federal Republic of Germany, the following regulations shall apply:
We accept no liability for the permissibility of the contractual use of the supplied goods according to the regulations in the recipient country. We shall also not be liable for taxes that accrue there.
We shall not be liable for any hindrances of delivery caused by government measures, in particular import or export restrictions.
If the customer has its branch outside the Federal Republic of Germany and United Nations Convention on Contracts for the International Sale of Goods (CISG Vienna UN Convention on Contracts) as amended applies, the following regulation shall apply in addition:
Amendments and cancellations of contracts require the written form.
Instead of Articles 6 and 7 the following shall apply:
We shall only be liable for damages based on the statutory provisions if we, one of our representatives or vicarious agents breached the contract intentionally or in a coarsely negligent manner. We shall also be liable according to the statutory provisions provided a material contractual duty is breached by us.
The aforementioned limitation of liability shall not apply to any claims as per Sect. 1,4 German Product Liability Act or in case of claims for injury to life or limb of person caused by the goods.
If purchased goods delivered are not in conformity with the contract, customer shall have only the right to cancel the contract or demand replacement if claims for damages against us are excluded or it cannot be reasonable expected from the customer to use the non-conforming goods and claim compensation of remaining damage. In such case we shall be initially entitled to remedy the defect. If such remedy fails and/or leads to an excessive delay, the customer shall be entitled at its option to declare cancellation of the contract or demand replacement. Customer shall also be entitled to do so if the remedy of defects causes an inacceptable inconvenience or uncertainty as to the refund of any expenses of the customer.
Art. 9: Securing the reservation of title
The delivered goods shall remain our property until all contractual payments have been received, in case of an ongoing business relationship up until the receipt of all payments arising from it. It shall also apply if our receivables have been included in a running account and the account balance has been drawn and acknowledged and to any future receivables.
The customer shall treat the delivered goods with care, in particular store them in a proper manner. It shall also take out at its own expense insurances against fire, water and theft with the insured sum being adequate to cover the replacement value.
In the event of attachments or any other action by third parties, the customer shall notify us immediately in writing so that we can safeguard our rights (e.g. legal action acc. to Sect. 771 German Code of Civil Procedure). If the third party is unable to refund the legal or out-of-court expenses of a legal action purs. to Sect, 771 German Code of Civil Procedure, the customer shall be liable for any loss incurred by us.
The customer shall be entitled to resell and use the delivered goods in the ordinary course of business. The customer shall immediately assign to us all receivables resulting from the resale of goods against its purchasers or third parties at the amount of the value of the retained goods irrespective of whether the delivered goods have been resold without or after processing. The value of the retained goods shall be the final amount of invoice (incl. VAT) agreed with us. If the resold retained goods are co-owned by us the assignment of claims shall cover the sum that corresponds to our share of co-ownership. The customer shall not be entitled to dispose of the goods in any other way, in particular to pledge them or transfer them by way of security.
The customer shall remain authorized to collect receivables from resale even after assignment. Our entitlement to collect the receivables ourselves shall remain unaffected by it. We undertake, however, not to collect the outstanding amount as long as the customer meets its payment obligations from the collected proceeds, is not in default and no application has been filed for the opening of insolvency proceedings or payment has been suspended. In such case we can demand, however, that the customer reveals towards us the receivables assigned and their debtors, gives the information necessary for collection, hands over the relevant documents and informs its debtor on the assignment.
The processing or conversion of the delivered goods by the customer shall always be done for us. The customer’s expectant right to the delivered goods continues to the converted object. If the delivered goods are processed with other items not belonging to us we shall acquire co-ownership in the new item in proportion of the objective value of the delivered goods to the other processed items at the time of processing. For the item produced through processing, the same shall apply as to the delivery item under retention of title.
If the goods delivered are inseparably mixed, combined or connected with other items not belonging to us, we shall acquire the co-ownership in the new item in the proportion of the objective value of the delivered goods to other items at the time of mixing, combination or connection. If the process is carried out in such a way that the customer's article can be regarded as the main product, it is hereby agreed that the customer confers proportional joint property to us and gratuitously holds in custody the sole or joint property.
The customer shall also assign to us any claims securing our claims against customer at the amount of the retained goods including all ancillary rights and ranking before the rest that accrue to him by connecting the retained goods as major component with a real property, ship, ship under construction or aircraft of another party against a third party. Art. 9 item 4 sent. 2 and 3 shall apply accordingly.
In order to safeguard our claims against the customer, the latter shall also assign to us any claims amounting to the value of the retained goods including all ancillary rights and ranking before the rest that accrue to him upon the sale to a third party of own real property, ship, ship under construction or aircraft connected with the retained goods as a major component. Art. 9 item 4 sent. 2 and 3 shall apply accordingly.
We undertake to release any security we are entitled to at customer’s request in so far as the realizable value of our securities exceeds the secured claims by more than 10% or the nominal amount by more than 50%. We shall decide on which securities to be released.
Art. 10: Applicable law, place of performance, place of jurisdiction
The law of the Federal Republic of Germany shall apply to this contract.
Place of performance for all contractual services shall be the seller’s seat
Im Camisch 3, 07768 Kahla.
For contracts with merchants, legal entities under public law, special property under public law and with foreign nationals having no German place of jurisdiction, the place of jurisdiction shall be 07768 Kahla. We reserve the right, however, to also take legal action at the seat of the customer.
Art. 11: Miscellaneous
Should a provision of this contract be or become invalid, the validity of the other provisions shall not be affected by it.