General terms and conditions of business
Here you will find our latest General Terms and Conditions of Sales & Purchasing (as at 12/2016).
§ 1 Scope of validity, General
1. All goods, services and offers from our suppliers shall be rendered solely on the basis of these general purchasing terms (T&Cs). These constitute an integral part of all contracts which we enter into with our suppliers for the goods or services offered by them. The T&Cs shall only apply if the Supplier is an entrepreneur (Section 14 of the German Civil Code [BGB]), a legal entity established under public law or a public law special fund.
2. The T&Cs shall apply in particular for contracts governing the sale and/or supply of movables regardless of whether the Supplier manufactures the goods himself or buys them in from sub-suppliers. Unless an agreement has been made otherwise, the T&Cs shall apply as a master agreement for future contracts governing the sale and/or the supply of movables with the same supplier in future as well, without us having to draw attention to them again in each individual case.
3. The terms and conditions of business of our business partners and suppliers (hereinafter also known as Seller) or third parties shall not apply, even if we have not specifically objected to their application in an individual case. Even if we refer to a letter containing or making reference to the terms and conditions of business of the Seller or of a third party, this shall not constitute a concession that those terms and conditions of business shall apply.
4. Agreements made with the Seller in an individual case (including side agreements, supplements and amendments) shall in all cases prevail over these T&Cs (Section 305b of the German Civil Code BGB). A written contract or our written confirmation shall determine the content of such agreements.
5. References to the application of statutory regulations shall only be for the purposes of clarification. Even without such a clarification, the statutory regulations shall therefore apply, provided that they have not been directly amended in these T&Cs or expressly precluded.
6. Notifications and legally relevant declarations which are to be submitted to us by our Sellers after the contract has been signed must be made in writing to be legally valid.
§ 2 Orders, Delivery contract, Call-off
1. Insofar as our offers (e.g. enquiries) do not expressly include a binding period, we shall abide by our offer to enter into a contract for two weeks after the date of the offer. It shall be the date on which the Seller’s declaration of acceptance is received by us which shall determine whether our offer has been accepted on time. An offer by the Seller to enter into a contract received late by us shall be regarded as a new offer and it shall be subject to acceptance by us.
2. Our order shall be regarded as being binding when it is submitted in writing at the earliest. The Seller shall have to draw to our attention manifest errors, such as spelling mistakes and arithmetical errors as well as to missing information in the order including the order documents to allow us an opportunity to correct mistakes and/or fill gaps prior to acceptance of our order. Otherwise the order shall not be regarded as having been entered into.
3. The Seller is urged to confirm our order within a period of two weeks or in particular carry out the order without reservation by dispatching the goods (Acceptance).
4. Delivery call-offs from call-off supply contracts shall become binding at the latest if the Seller does not raise an objection within one week from the receipt of a delivery call-off from us. Delivery call-off orders shall be based upon a call-off period of approximately 12 months. Deliveries may be called off in writing (Section 126b of the German Civil Code [BGB]), e.g. by e-mail, fax message or by data transmission.
5. We shall be entitled to terminate the contract at any time by means of a written declaration to that effect stating the reason for termination, if we are no longer able to use the ordered products in our business as a result of circumstances arising after the contract is signed. In such circumstances we shall remunerate the Seller for the part-performance he has already rendered.
6. We are entitled to amend the time and place of the delivery as well as the type of packing at any time by means of written notification (written form shall suffice) giving at least 7 days’ notice prior to the agreed delivery date. The same shall apply for amendments of product specifications provided that they can be implemented in the course of the Seller’s normal production process without considerable additional expenditure, whereby in these cases the notification period in the above sentence shall be at least 2 weeks. We shall reimburse our Supplier the proven and reasonable additional costs incurred by the amendment in each case. If such amendments result in delays in delivery which cannot be avoided in our Supplier’s normal production and business operations by applying reasonable efforts, the originally agreed delivery date shall be postponed accordingly. The Seller shall notify us in writing of the additional costs expected by him given a careful estimate and / or of delivery delays in good time prior to the delivery date, within at least 7 working days from receipt of our notification in accordance with Sentence 1 above.
§ 3 Prices, Terms of Payment etc.
1. The prices stated in the order are binding. The value added tax is not included in the price and shall be invoiced at the rate in force at that time.
2. Provided that nothing has been agreed otherwise in an individual instance, the price shall include all the Seller’s performances and ancillary performances (e.g. assembly, installation etc.) as well as all ancillary costs (Transport, packing, insurance). The Seller shall have to take back packing materials at our request. Insofar as the price does not include packing in the agreement made, and the remuneration for the packing – only provided on a loan basis – is not expressly specified, this is to be invoiced at proven cost. At our request the Seller shall have to take back the packing at his expense.
3. Unless agreed otherwise, we shall pay the agreed price within 14 days from the delivery of all goods and supply of all services including acceptance of the goods as agreed or laid down by law, if applicable, and receipt of a properly made out invoice to qualify for a prompt payment discount of 3% or within 30 days net. The receipt of our payment instruction by our bank shall determine whether the payment owed by us has been made on time. We cannot be held responsible for delays caused by the payment procedures of the banks involved.
4. We shall be entitled to offsetting rights and rights of retention as well as the objection that the contract has not been fulfilled as provided for by law. In particular, we shall be entitled to withhold payments due for as long as we are still entitled to claims against the Seller from incomplete or defective goods or services.
5. The statutory regulations shall apply if we are in default subject to the proviso that in all cases the Seller shall have to send us a written payment reminder.
6. Only after he has obtained our written consent shall the Seller be entitled to assign his claim against us. Should the Seller have an extended reservation of title, this consent shall be regarded as having been given.
7. The Seller shall only have a right to offset or of retention against counter-claims which have been adjudicated or which are not contested.
8. In the event that we are in default with payment we shall owe default interest amounting to 5% points above the base rate in accordance with Section 247 of the German Civil Code [BGB].
9. Our order numbers, the item numbers, quantity delivered and delivery address are to be stated on all order confirmations, shipping documentation and invoices. Should delays arise as a result of the lack of such information, the length of time we are allowed for payment shall be extended by the length of the delay.
§ 4 Delivery period
1. The delivery period stated by us shall be binding. If the delivery period is not stated in the order, and an agreement has not been made otherwise, it shall be two weeks from the contract being entered into. The Seller shall be obliged to inform us straight away in writing if he will probably be unable to comply with the agreed delivery times regardless of whatever reasons. Early delivery is not allowed unless we have expressly agreed to it.
2. If the Supplier fails to render his performance or if he fails to do so within the agreed delivery period or if he is in default, our rights, in particular to withdraw from the contract and to demand compensation for damages, shall be determined by the statutory regulations. The regulations of Paragraph 3 below shall not be affected.
3. If the Seller is in default, we may demand a contractual penalty amounting to 0.5 % of the net price for each full calendar week of delay, not, however, exceeding a total of more than 5% of the net price of the goods delivered late. We shall be entitled to demand the contractual penalty in addition to fulfilment as a minimum amount compensation for damages owed in accordance with the statutory regulations. Our right to assert a claim for damages over and above this amount shall not be affected by the above. We shall not be obliged to reserve the right to claim a contractual penalty when taking delivery of a consignment.
4. If the day on which the goods/services have to be delivered/rendered is laid down in the contract, the Seller shall consequently be in default when this day expires and he has not fulfilled his contractual obligations without him having to be sent a separate reminder by us.
5. The Seller shall be obliged to inform us in writing straight away if circumstances as a result of which the delivery time cannot be observed arise or become known.
§ 5 Performance, Delivery, Passing of risk, Delay in taking delivery
1. Without our prior written consent the Seller shall not be entitled to have the performance owed by him carried out by a third party (e.g. sub-contractors). The Seller shall bear the procurement risk for his performances, unless an agreement has been made otherwise in a specific instance (e.g. purchase of reserved goods).
2. The Seller shall not be entitled to deliver the goods in part-deliveries without our prior consent. We may reject such deliveries.
3. Our Seller’s goods/services must be supplied franco domicile to the address stated in our order. If no such address is stated in our order and nothing has been agreed otherwise, goods/services are to be supplied to our principal place of business. The place to which the goods/services have to be supplied shall also be the place of fulfilment. The respective destination shall also be the place of fulfilment for any cure which may be rendered.
4. It shall be the receipt of the goods at the place of fulfilment which shall determine whether the goods have been supplied on time.
5. A delivery note stating the date and content of the consignment as well as our order identification (number and date) is to be attached to the consignment. If the delivery note is missing or is incomplete, we cannot be held responsible for the resulting delays in processing invoices and payment.
6. The risk of accidental loss or deterioration of the goods shall pass over to us at the place of fulfilment, even if it has been agreed that we are to be responsible for carriage. Insofar as it has been agreed that there is to be an acceptance test, risk shall pass over after the acceptance test has been passed. The statutory regulations of the German contract for services law shall moreover apply accordingly upon acceptance. If we are in default with taking delivery of a consignment, this shall constitute hand-over or delivery.
7. The statutory regulations shall apply if we are in default with taking delivery of goods or services. The Seller must also expressly offer us his services in those cases in which a specific or defined calendar period of time has been agreed for an act or co-operation on our part (e.g. furnishing materials). If we are in arrears with taking delivery of goods or services, the Seller may consequently demand compensation for his additional expenditure incurred in accordance with the statutory regulations in Section 304 of the German Civil Code [BGB]. If the contract concerns a non-fungible thing manufactured by the Seller, the Seller shall only be entitled to additional rights, if we have to undertake to provide assistance and we are responsible for failing to provide it.
§ 6 Ownership protection
1. We shall retain the title or copyright for all orders and instructions submitted by us as well as drawings, diagrams, calculations, descriptions and other documents we have provided to the Seller. The Seller must not allow third parties access to them without our express consent, or use them himself or through third parties or reproduce them. Such documents are only to be used for rendering the contractual performance laid down in contracts entered into with us. He shall have to return these documents to us in full at our request, if they are no longer required by him in his proper course of business or if negotiations do not result in a contract being signed. In such circumstances copies made by the Seller are to be destroyed. By way of exception, this shall not apply to safekeeping in line with statutory safe-keeping periods as well as the saving of data for back-up purposes as part of normal data back-up.
2. Tools, devices and models which we provide the Seller or which are made for the purposes of the contract and which are invoiced separately to us by the Seller, shall remain our property. They are to be marked clearly as our property by the Seller, kept in safe-keeping with care by him and protected from damage of all types and are only used for the purposes of the contract with us.
3. The Seller’s reservation of title shall only apply insofar as it refers to our payment obligations for the respective goods, to which the Seller reserves title.
4. The processing, mixing, or joining (Finishing) by the Seller of items furnished by us shall be carried out on our behalf. The same shall apply if the goods supplied by us are finished, so that we are regarded as the manufacturer and acquire title of the product in accordance with statutory regulations when the goods are finished at the latest.
5. It is imperative that the goods are assigned to us, regardless of whether the purchase price has been paid or not. If, however, in a given instance, we accept an offer to have the goods assigned to us by the Seller conditional upon the payment of the purchase price, the Seller’s reservation of title shall expire when the purchase price for the goods delivered is paid at the latest. We shall still be authorised to sell on the goods in a proper commercial transaction even before we have paid the purchase price subject to assigning the account materialising as a result of the resale to the Seller in advance of the resale. Apart from the simple reservation of title, all other forms of reservation of title, in particular the expanded, forwarded and prolonged reservation of title shall in any case be precluded.
§ 7 Defects, Notification of defects, Warranty
1. Unless specified otherwise below, the statutory regulations shall apply for our rights in the event of quality defects and legal defects of the goods (including incorrect and short deliveries as well as improper assembly, incorrect instructions for assembly or operation or owner’s handbook) and in the event of other breaches of duty by the Seller.
2. The statutory regulations shall apply for the commercial obligations to inspect goods and notify the Seller of defects subject to the following proviso:
Our obligation to inspect incoming goods shall be limited to defects which become apparent during our goods inward inspection and external appraisal including shipping documentation as well as by means of our quality control department conducting random checks (e.g. transport damage, incorrect deliveries and short deliveries). Insofar as acceptance has been agreed, there shall be no obligation on our part to inspect incoming goods. Moreover, what matters is the extent to which an inspection is expedient taking the circumstances of the individual case into consideration in the proper course of business.
Our obligation to notify the Seller of discovered defects shall not be affected by the above. In all cases our notification (notification of defects) shall be regarded as having been submitted straight away and on time, if it is received by the Supplier within eight working days.
3. The Seller shall have to bear all the expenditure necessary for the purposes of effecting a cure, in particular, transport costs, travelling expenses, labour and the cost of materials. In the event that defective parts have already been installed because we were unaware of the defect, the Seller shall also have to bear the costs of removal and installation of incorrect parts.
4. The costs incurred by the Seller for the purposes of inspection and repair (including any costs incurred for removal and installation which may be incurred), shall also be borne by him even if it should turn out that there was in fact no defect. Our liability to pay compensation for defects for unjustified requests to have defects rectified shall not be affected by the above. Given this, we shall only be liable if we were aware that there was no defect or the fact that we did not know that there was a defect was attributable to gross negligence on our part.
5. If the Seller fails to fulfil his obligation to render a cure – either by rectifying a defect (repair) or by supplying a new fault-free thing (replacement) as we so choose – within a reasonable period of time set by us, we may consequently rectify the defect ourselves and demand compensation for the expenditure necessary for this or a corresponding sum in advance. If the cure is unsuccessful or unreasonable for us (e.g. on account of it being particularly urgent, a hazard to safety at work or on account of the impending threat of disproportionate damage), we shall not have to set a time limit. We shall inform the Seller of such circumstances beforehand if possible.
6. Moreover, in the event that there are quality defects or legal defects we shall, in accordance with the statutory regulations, be entitled to reduce the purchase price or to withdraw from the contract. Besides which, under the statutory regulations we shall be entitled to claim compensation for damages and expenses incurred.
7. We shall not waive our warranty claims with acceptance or approving submitted specimens or samples.
§ 8 Property rights
1. The Seller vouches that if the items supplied are used in accordance with the contract, this shall not give rise to a breach of any property rights and applications filed for property rights, in particular third party compensation claims for damages against us. Provided that such applications for property rights have been filed or registered with the German or European patent office. The Supplier also vouches that no third party property rights in those countries in which the products are manufactured or in which the Supplier has them manufactured the products will be breached by the products supplied by him.
2. The Supplier’s obligation to pay compensation for damages and/or obligation Supplier to exempt us from damages shall also cover that expenditure we necessarily incur as a result of, and in connection with, claims asserted against us by third parties.
3. The above regulations shall not apply, if the Seller has manufactured items for us in accordance with our specifications, in particular drawings, models and other descriptions and he is unaware or had no reason to be aware that third party property rights would be breached as a result.
4. The Seller is obliged to inform us immediately of any risks that property rights might be breached he becomes aware of and in particular alleged instances of breach.
5. Our additional statutory rights on account of legal defects to the products supplied against the Supplier shall not be affected by the above.
§ 9 Product liability, Insurance
1.If the Seller is responsible for product damage, given this he shall have to exempt us from third party claims, to the extent that the cause is in his sphere of control and organisation and he is personally liable to other parties. If we are obliged to mount a recall campaign with other parties as a result of a defect in a product supplied by the Seller, the Seller shall bear all the costs associated with the recall campaign.
2.As part of his obligation to exempt us, the Seller shall have to reimburse us for the expenditure incurred by us in accordance with Sections 683 and 670 of the German Civil Code [BGB], arising from or in connection with a claim asserted by a third party including recall campaigns mounted by us. We shall – insofar that this is possible and reasonable – inform the Seller of the content and scope of recall campaigns and allow him the opportunity to respond. Our additional legal rights shall not be affected by the above.
3. The Seller shall have to take out a product liability insurance policy with lump-sum cover of at least 5 million € per personal injury / property damage claim and maintain the policy continuously. The Seller shall have to send us a copy of the liability insurance policy upon request and upon further request submit the original to us for our inspection. We shall also be entitled to demand to see the original copy during the contractual relationship.
§ 10 Recourse asserted against a Seller
1. We are entitled to our rights of recourse laid down by law statutory within the supply chain (Recourse of the entrepreneur in accordance with Sections 478 and 479 of the German Civil Code [BGB]) plus warranty claims in full. We shall, in particular, be entitled to demand the specific type of cure (Repair or replacement) we owe our buyer in a given case. Our statutory right of choice (Section 439 Para 1 of the German Civil Code [BGB]) shall not be restricted by this.
2. Before we recognise of fulfil a claim under warranty asserted by our buyer (including compensating him for his expenses in accordance with Section 478 Para 3, Section 439 Para 2 of the German Civil Code [BGB]), we shall inform the Seller and by giving a brief description of the facts and circumstances, request a written response. If we do not receive a response within a reasonable period of time, and if a solution is not reached by mutual consent either, the cure actually rendered by us shall consequently be owed to us as we have rendered it to our buyer. In this case the production of evidence to the contrary shall be incumbent upon the Seller.
3. Our claims recourse of the entrepreneur shall also apply in those cases in which the goods have been finished by us or one of our buyers, e.g. installation into another product, prior to being sold to a consumer.
§ 11 Spare parts
1.The Seller shall be obliged to keep a stock of spare parts available for the products supplied to us for a period of at least 10 years after delivery.
2.If the Seller intends to stop production of spare parts for the products supplied to us, he must inform us of this straight away after making the decision to stop making them. Subject to Paragraph 1 above, this decision must be made at least 6 months prior to closing down production.
§ 12 Non-disclosure
1.The Seller shall be obliged to keep secret the terms of our order as well as all information and documents provided to him for this purpose (with the exception of information in the public domain) for a period of 60 months after disclosure, but at least however, for the duration of the actual supplier-customer relationship with us and only use it for carrying out our order. He shall return it to us straight away after queries have been dealt with or after handling orders upon request.
2. The Seller shall, moreover, be obliged to handle all commercial and technical information not in the public domain and which he becomes aware of as a result of our business relationship as business secrets. In particular, models, templates, specimens, tools and similar items must not be handed over to third parties or made accessible for them by other means. The reproduction of such items other than in line with operational requirements shall be subject to regulations otherwise.
3. The Seller shall ensure by taking suitable measures that his salaried staff employees, freelance staff and sub-contractors called in to work on the contracts entered into with us maintain the above confidentiality. The Seller shall only disclose information as described above in Paragraph 1 and Paragraph 2 to those of his salaried staff, freelance staff, consultants, etc. who have to be involved with the development, design, manufacture and supply of goods to us. Disclosure shall, moreover, mean that the persons receiving such information shall be obliged to maintain silence in accordance with this non-disclosure regulation (Section 12).
4. Any sub-suppliers which the Seller is allowed to call in are to be placed under a corresponding obligation.
5.Our Seller may only use our business relationship for advertising purposes after obtaining our prior written consent.
§ 13 Statute of limitation
1. The reciprocal claims of the Parties to the contract shall become time-barred in accordance with the statutory regulations, unless an agreement has been made otherwise in a given instance below.
2. Notwithstanding Section 438 Para 1 No 3 of the German Civil Code [BGB], the general period of limitation for warranty claims shall be 3 years (36 months) from the passing of risk. Provided that acceptance has been agreed, the period of limitation shall begin with acceptance. The three-year period of limitation shall also apply accordingly for claims based upon legal defects, whereby the statutory period of limitation for real third party rights of surrender (Section 438 Para 1 No 1 of the German Civil Code [BGB]) shall not be affected as a result.
Claims based upon legal defects shall, moreover, not become time-barred in any circumstances, for as long as the third party is still able to assert the right against us - in particular in the absence of a period of limitation.
3.The periods of limitation laid down in the law on sales including the above extension shall apply – to the extent laid down by law - for all contractual claims under warranty. Insofar as we are also entitled to non-contractual compensation claims for damages on account of a defect, the normal statutory period of limitation shall apply (Sections 195 and 199 of the German Civil Code [BGB]), if the law on sales does not result in a longer period of application if the periods of limitation apply in given case.
4.The period of limitation for claims under warranty shall be suspended when the Seller receives our written notification of a defect until the Seller rejects our claims or states that the defect has been remedied or refuses to continue negotiating our claims. If a replacement part is supplied and the defect is remedied, the warranty period for replaced and repaired parts shall start from the beginning, unless we have to assume given the conduct of the Seller, that he did not regard himself as being obliged to take the measures, but instead only supplied a replacement or remedied the defect as a gesture of goodwill for similar reasons.
§ 14 Choice of law, Place of jurisdiction, Miscellaneous
1.These T&Cs and all legal relationships between us and the Seller shall be governed by the law of the Federal Republic of Germany. International uniform law, in particular the Convention on Contracts governing the International Sale of Goods (CISG) shall not apply.
2. The preconditions and effects of the reservation of title shall be governed by the law of the respective storage place of the thing, insofar as the choice of law made accordingly in favour of German law is not allowed or invalid.
3. The exclusive place of jurisdiction is the courts having jurisdiction where our principal place of business is based. We shall however also be entitled to take legal action against the Seller at the court having jurisdiction where his principal place of business is based.
4. The contractual language is English.
General Terms of Sale
§ 1 General, Validity
1. These general terms and conditions of sale (T&Cs) shall apply for all our business relationships with our business partners (hereinafter also known as Client). They shall also apply for all future goods and services or offers made to our Client, even if they are not agreed again separately. The T&Cs shall however, only apply if our Client is an entrepreneur (Section 14 of the German Civil Code [BGB]), a legal entity under public law or a public-law special fund.
2. Our T&Cs shall in particular apply for contracts on the sale and/or supply of movables (hereinafter also known as goods) regardless of whether we manufacture the goods ourselves or buy them in from sub-suppliers (Sections 433 and 651 of the German Civil Code [BGB]).
3. Our T&Cs alone shall apply. If the Client’s general terms and conditions of business differ from, or are contrary to our T&Cs, they shall only become an integral part of the contract, and to the extent that, we have expressly agreed to them. This requirement for our consent shall also apply in those cases in which we carry out an order placed by the Client without expressing any reservations and we are aware of his terms and conditions.
4. Individual agreements made in an individual case with the Client (including side agreements, supplements and amendments) shall in all cases prevail over these T&Cs. A written contract or our written confirmation shall be definitive for the content of such agreements.
5. Legally relevant declarations and notices which are to be submitted to us by the Client after the contract is signed (e.g. periods of time to be set, notification of defects, declarations of withdrawal from the contract or reduction of the purchase price) must be made in writing to be legally valid.
6. References to the validity of statutory regulations shall only be significant for the purposes of clarification. Consequently the statutory regulations shall also apply, insofar as they have not been directly modified or expressly precluded in these T&Cs, even without such a clarification.
§ 2 Offer, Conclusion of the contract
1.Our offers shall be subject to change without notice and non-binding, provided that they have not been expressly marked as being binding or include a specific period of acceptance. This shall also apply if we have handed over catalogues, technical documentation (e.g. drawings, plans, electronic files, calculations, costings, references to DIN standards), other product descriptions or documents – including those in electronic format, to the Client.
2. An order placed by the Client for goods shall be regarded as a binding offer to enter into a contract. Provided that there is nothing stated otherwise in the contract, we shall be entitled to accept this offer to enter into a contract within 30 days from receipt by us.
3. Acceptance may be stated either in writing, whereby written form (e.g. by order confirmation) shall suffice, or by means of delivering the goods to the Client.
4. The contract entered into in writing including these T&Cs alone shall apply for the legal relationship with our Client. This contact shall describe all arrangements between us and the Client. Verbal promises made by us prior to the contract being signed are not legally binding. Verbal arrangements shall be replaced by the written contract, unless they do not expressly show that they are to continue to apply on a binding basis. Public comments (e.g. advertising statements, general sales promotion) made by us or by other third parties (e.g., manufacturers) shall not be regarded as an agreement on features and in particular do not include any promise of a guarantee.
5. Information from us about the goods or services (e.g. technical data, weights, dimensions, tolerances, load capacity) as well as presentations, e.g. in the form of drawings or diagrams shall only count as approximations, unless their use for the contractually assumed purpose requires precise conformity. Given this, it is in particular not guaranteed characteristics, but instead a description or marking of our goods or services.
Discrepancies and discrepancies normal within the trade arising as a result of legal regulations or which constitute technical improvements are allowed, provided that they do not impair the usage for the contractually intended objective. The same shall apply mutatis mutandis for the replacement of parts (e.g. parts of sub-assemblies) with equivalent parts.
6. Amendments to or supplements for the contractual agreements made including these T&Cs must be made in writing to be valid. Apart from our directors and authorised signatories, our employees are not entitled to make verbal arrangements differing from written amendments and supplements. Messages sent by telecommunications (e.g. e-mails or fax messages) shall satisfy the requirement for written form, provided that the copy of the signed declaration is forwarded.
§ 3 Delivery, Passing of risk, Acceptance, Default in taking delivery, Part-deliveries
1. The terms of delivery are ex works, which is also the place of fulfilment for the delivery and any cure which may have to be rendered. At the Client’s request and expense the goods shall be despatched to another destination (delivery to a place other than the place of performance). Unless an agreement has been made otherwise, we shall be entitled to specify the method of despatch ourselves (in particular transport company, despatch route and packing). If we owe installation work, the place of fulfilment shall be that place at which the installation work has to be carried out.
2. This risk of accidental loss, accidental deterioration of the goods shall pass over to the Client no later than at hand-over. If the goods sold are to be delivered to a place other than the place of performance the risk of accidental deterioration of the goods as well as the risk of delay shall pass over as soon as the goods are delivered to the haulier, the freight forwarder or to any other person or organisation appointed to despatch the goods. Insofar as acceptance has been agreed, this shall count for the passing of risk. The statutory regulations in contracts for services law shall, moreover, also apply for an agreed acceptance. If the Client is in default with taking delivery of the goods, this shall be the equivalent in terms of the passing of risk as hand-over and/or acceptance.
3. Insofar as acceptance has to take place, the goods shall be regarded as having been accepted, if
The delivery and, provided that we also owe installation, installation, has been completed,
We have notified the Client that the goods/services are ready for the acceptance test, and in doing so point out the fictitious acceptance in this paragraph and have called upon him to confirm acceptance,
After delivery or installation, 14 calendar days have passed or the Client has begun to use the goods and in this case 10 working days have elapsed since delivery or installation
Our Client has failed to grant acceptance within this period of time for another reason than on account of a defect of which we have been notified, which makes it impossible or significantly more difficult to use the goods.
4. If the Client is in default with taking delivery, if he is failing to co-operate or if our delivery is delayed for other reasons for which the Client is responsible, we shall consequently be entitled to demand compensation for the loss incurred as a result of this including additional expenditure (e.g. storage costs). We shall charge a lump sum as compensation amounting to 100.00 € per calendar day beginning with the delivery period or – in the absence of a delivery period – with the notification that the goods are ready for despatch. Our right to prove that we have suffered a greater loss and our statutory rights (in particular for compensation for additional expenditure incurred by us, reasonable compensation, right of termination) shall remain unaffected by the above. The lump sum is however to be offset against additional claims for money. The Client shall be allowed to prove that we have not suffered any losses at all or that we have suffered losses which are significantly lower than the above lump sums.
5. We shall be entitled to deliver part deliveries, if the part delivery can be used by our Client as part of achieving the use intended by the contract, we have guaranteed that the remaining goods ordered will be supplied and our does not incur any considerable additional expenditure or additional costs as a result of this (unless we declare that we are prepared to take over such costs).
§ 4 Delivery period, Default in delivery, Call-off
1. The delivery period shall be agreed individually and/or stated by us when accepting an order. Periods of time and deadlines tentatively offered for supplying goods and services shall always only apply as approximations, unless a fixed period of fixed date has been expressly agreed. Provided that this is not the case, the delivery period shall be at least 12 weeks from the contract being signed. The delivery period will have been observed if the goods have left our works by its expiry, or we have notified the Client that the goods are ready for despatch. If a despatch has been agreed, delivery periods and delivery dates shall refer to the point in time of hand-over to the haulier, freight forwarder or other third party contracted to transport the goods.
2. Compliance with periods set for delivering goods and rendering services assumes that our Client has fulfilled all his contractual obligations. Irrespective of our rights if our Client is in default – we may demand an extension of periods set for delivering goods and rendering services or the postponement of dates for delivering goods and rendering services by the duration of the delay plus a reasonable start-up period, if our Client fails to fulfil his contractual obligations and/or responsibilities to us.
3. Provided that we are unable to comply with binding delivery periods for reasons for which we are not to blame, (Non-availability of performance), we shall inform the Client of this straight away and at the same time notify him of a probable new delivery period. If the performance not available within the new delivery period either, we shall be entitled to withdraw from some of or all of the contract. We shall refund a counter-performance already rendered to us by the Client straight away. For these purposes if we are not supplied on time by our sub-supplier in particular, this shall be regarded as an instance of non-availability of a performance, provided that we have entered into a congruent covering transaction and neither we nor our supplier is to blame. The same shall apply mutatis mutandis if we are not obliged in a given case to procure things.
4. Default in delivery shall be determined in accordance with the statutory regulations. In all cases the Client will however, have to send us a written reminder.
5. If we find ourselves in default with supplying our goods or services or if it becomes impossible, regardless of whatever reason, for us to supply goods and services, the liability on our side shall consequently be limited to paying compensation for damages in accordance with Section 9 of these T&Cs. Our rights when our performance obligation is precluded (e.g. as a result of impossibility or unreasonable to expect us to render performance and/or a cure) shall not be affected as a result.
6. We cannot be held liable for impossibility of delivery or for delays in delivery, insofar as these have been caused by force majeure or other events which could not have been foreseen when the contract was signed. This shall apply, for example, for operational disruptions of all types, difficulties in the procurement of materials or power, transport delays, strikes, lawful lock-outs, labour shortages, power shortages or shortages in raw materials, difficulties in obtaining official consents required, for which we are not to blame. In addition to this, Section 4 Paragraph 3 Sentence 3 shall apply. Provided that such events make is much for difficult for us to supply goods or to render performance, and the hindrance is not only of a temporary nature, we shall be entitled to withdraw from the contract. If hindrances are of a temporary nature, the periods of time allowed for delivery or performance shall be extended by the duration of the hindrance plus a reasonable period of time to allow for start-up. Insofar as the Client cannot be expected to accept the deliveries or performances as a result of the delay, he may withdraw from the contract by making a written statement to us to that effect straight away.
7. If delivery by call-off has been agreed, all call-offs by our Client are to be made within 12 months from the contract being entered into, unless an agreement has been made otherwise in writing.
§ 5 Prices, Terms of Payment, Offsetting, Discrepancies in quantities
1. The prices shall be determined in accordance with the contractual agreements made with our Client. They shall apply for the scope of delivery and performance stated in the order confirmations. The prices are in Euros, quoted ex works plus the rate of value added tax in force at that time and plus packing. Customs duty and fees and other public duties will be added to export orders. Additional or special performances will be invoiced separately.
Provided that the agreed prices are based upon our list prices, and the goods are only to be delivered four months more than four months after the contract has been signed, our list prices in force when the goods are delivered shall apply (minus any percentage or fixed discount which may have been agreed).
2. For a sale by delivery to a place other than the place of performance (Section 3 Para. 1) the Client shall bear the transport costs ex stores and the costs of any transport insurance requested by the Client. We shall not take back transport packing or any other packing/packaging – in accordance with the German Packing Regulations. With the exception of pallets and lattice boxes and other reusable containers, they shall become the Client’s property.
3. The purchase price shall be due for payment and payable in full within14 days from presentation of invoice and delivery or acceptance of the goods, unless an agreement is made otherwise in writing. For contracts in which the value of goods to be delivered is in excess of 5,000.00 €, we shall, however, be entitled to demand a down payment of 50% of the purchase price. The down payment shall be due for payment and payable within 14 days from presentation of invoice.
4. The Client shall be in default when the above period of time allowed for payment expires. Default interest is to be paid on the purchase price paid during the period of default at the statutory rate of default interest. We shall reserve the right to assert a claim for damages over and above the default interest above. Our entitlement to commercial interest payable from the due date of payment shall not be affected by the above (Section 353 of the German Commercial Code [HGB]).
5. The Client shall only be entitled to offsetting rights or rights of retention to the extent that his claim has been adjudicated in a court of law or if it is not contested. If there are defects in the goods delivered, the adverse rights of the Client shall not be affected, in particular in accordance with Section 7 Para 5 Sentence 2 of these T&Cs.
6. If, after the contract has been entered into, it becomes apparent that our claim to the purchase price is jeopardised as a result of the Client being unable to render his performance (e.g. as a result of an application being made to open insolvency proceedings), we shall consequently be entitled under the statutory regulations to refuse performance and – if necessary after setting a period of time for the Client to render his performance – to withdraw from the contract (Section 321 of the German Civil Code [BGB]). Contracts for the manufacture of non-fungible things (Special productions) we may withdraw from the contract immediately. The statutory regulations governing the dispensability of having to set a period of time for performance shall not be affected by the above.
7. Samples provided shall generally be invoiced. If a sample is cleared, it will not be defective if goods are supplied in compliance with the sample. If we manufacture to the specifications of samples provided, this shall not mean that we shall furnish a manufacturer’s guarantee.
§ 6 Reservation of title, Tools
1. We shall reserve the title to the sold goods until all our current and future accounts from supply contracts and under a continuous business relationship have been paid in full. The goods as well as the goods replacing them covered by the reservation of title in accordance with the terms and conditions below shall be known below as "goods subject to reservation of title". Our Client shall keep the goods subject to reservation of title in safe-keeping for us free of charge.
2. The goods subject to reservation of title must not be pledged or assigned by bill of sale as a security to third parties before payment for the secured claims has been made in full. Our Client has to inform us straight away in writing if, and insofar as, third parties have seized the goods subject to reservation of title, to enable us to enforce our ownership rights. Provided that the third party should not be in a position to reimburse us for the costs incurred by us in or out of court in connection with enforcing our ownership rights, our Client shall be liable to us for them.
3. If the conduct of our Client is in breach of contract, in particular if he fails to pay the purchase price payable, we shall be entitled to withdraw from the contract in accordance with the statutory regulations and/or to demand the return of the goods subject to reservation of title. The demand for the return of the goods shall not at the same time constitute the declaration that we are withdrawing from the contract. We shall, instead, be entitled to only demand the return of the goods and to reserve the right of withdrawal from the contract. If our Client does not pay the purchase price payable, we may only assert these rights if we have set our Client a reasonable period of time beforehand to pay the purchase price and he has not done so or if we do not have to set such a period of time for payment by law.
4. Our Client shall be entitled to process and sell the goods subject to reservation of title in a proper commercial transaction. Resale is not allowed if our Client is in arrears with making his payments to us or if an application for insolvency proceedings has been opened on his firm, such insolvency proceedings have been opened or if an application for such insolvency proceedings to be opened was rejected on account of insufficient assets as well as in cases in which the Client stops trading or stops making his payments. In each case we shall then be entitled to object to the resale of the goods subject to reservation of title for an important reason.
5. If the goods subject to reservation of title are processed by our Client, they shall consequently be processed for our account and in our name as manufacturer. We shall acquire direct ownership of them or – if they are processed out of materials supplied by more than one owner, or if the value of the processed materials is higher than the value of the goods subject to reservation of title – co-ownership (fractional ownership) of the newly created thing in proportion to the value of the goods subject to the reservation of title to the value of the newly created thing. In the event that we should not acquire such ownership, our Client shall assign to us here and now his future title or – as described above – co-ownership in the newly created thing as a security. If the goods subject to the reservation of title are connected or indivisibly mixed with other things to become jointly-owned property, and if one of the other things is to be regarded as the main thing, the Client shall, insofar as the main thing belongs to him, assign to us a proportion of the co-ownership in the jointly-owned property in the ratio named in Sentence 2 above.
6. In the event that the goods subject to reservation of title are resold, our Client shall assign the account materialising against the buyer as a result to us here and now as a security – and in the event that we have co-ownership of the goods subject to reservation of title he shall assign a proportion of the account reflecting the proportion of our co-ownership –. We accept the assignment. The same shall apply for other accounts replacing the goods subject to reservation of title or materialise otherwise with regard to the goods subject to reservation of title, such as, for example, insurance claims or claims based on an unlawful act in the event of loss or destruction.
7. We shall authorise our Client on a revocable basis to collect in his own name the accounts assigned to us, for as long as he is not in default with his payments to us, an application has not been made to open insolvency proceedings on his assets, no insolvency proceedings have been opened, or insolvency proceedings have been rejected on account of insufficient assets and our Client has not stopped trading or making payments. In each set of circumstances above we shall be entitled to revoke the authorisation given by us to the Client to collect accounts.
8. We shall undertake not to collect an account for as long as the Client fulfils his payment obligations to us, does not fall into arrears with his payments, an application has not been made to open insolvency proceedings on his assets, no insolvency proceedings have been opened, or insolvency proceedings have been rejected on account of insufficient assets and there is no other defect in his performance. If, however, this is the case, we may consequently demand that our Client informs us of the assigned accounts and the identity of the debtors and passes over all the information required by us to collect said accounts.
9. If the marketable value of the securities exceeds our accounts by more than 10% we shall, as the request of our Client, release them as we choose.
10. Even in the event that the full-cost pricing method is applied, tools shall not become the property of the Client – unless an agreement is made otherwise –. They shall remain our property.
§ 7 The Clients warranty claims
1. Provided that nothing is specified otherwise below, the statutory regulations shall apply for the Client’s rights in the event of quality defects or legal defects (including the wrong goods or quantity shortfalls being supplied as well as incorrect assembly or incorrect assembly instructions. In all cases the special statutory regulations governing the final delivery of the goods to a consumer shall apply (Entrepreneur’s right of recourse Sections 478 and 479 of the German Civil Code [BGB]).
2. Our liability for defects shall above all be based upon the agreement made governing the condition of the goods and/or performance service. Insofar as the condition was not agreed, assessment is to be made on the basis of the statutory regulations, as to whether a defect is extant or not (Section 434 Para 1 P 2 and 3 of the German Civil Code [BGB]). All product descriptions constituting the subject-matter of the individual contract shall be regarded as the agreement on the condition of the goods. It shall not make any difference here as to whether the product description comes from us, from the manufacturer or from our Client. We shall not accept any liability for public statements made by the manufacturer or other third parties (e.g. advertising messages).
3. The Client’s warranty claims shall be subject to the fulfilment by him of his statutory obligation of inspection and notification (Sections 377 and 381 of the German Commercial Code [HGB]). That means that the goods supplied are to be inspected carefully straight away after they have been handed over to the Client or to third parties instructed to do so by him. If during the inspection or subsequently a defect becomes apparent, we are to be notified of this straight away in writing. Notification will be regarded as having been made straight away if it is made within 7 working days, whereby the period of time allowed for notification will be satisfied if notification has been sent on time. Irrespective of this obligation of inspection and notification the Client shall have to notify us in writing of manifest defects (Including the delivery of incorrect goods or shortfalls in quantity) within 7 working days from delivery, whereby the period of time allowed for notification will be satisfied if notification has been sent on time. If the Client fails to carry out the inspection properly, and/or notify us of a defect, we cannot be held liable for defects of which we have not been notified.
4. If the thing supplied is defective, we may first of all decide whether to effect a cure by remedying the defect (repair) or by supplying a fault-free thing (replacement). Our right to refuse to effect a cure in accordance with the statutory regulations shall not be affected by the above.
5. We shall be entitled to make the cure owed dependent upon the Client having paid the purchase price due. The Client shall however, be entitled to retain a reasonable part of the purchase price in proportion to the defect.
6. The Client shall have to allow us the necessary time and opportunity to carry out the cure owed, in particular the rejected goods must be handed over for the purpose of inspection and/or if necessary for a cure at the place of fulfilment. In the event that a replacement is supplied, the Client shall have to provide the defective thing at the place of fulfilment carriage free. If the notified defect is justified, we shall remunerate the Client the costs of the cheapest despatch route. This shall not apply if the costs have been increased because they are located at another place other than the place of fulfilment. If, however, it turns out that the Client’s request for a defect to be rectified is unjustified, we may demand that the costs incurred by us for this are reimbursed by the Client, unless the Client was unable to identify that the goods were not defective.
Only in urgent cases, e.g. if operational safety is at risk or to avert disproportionate damages shall the Client be entitled to rectify the defect himself and to demand that we reimburse him the expenses incurred by him which are necessary from an objective view. We are to be informed straight away if the Client intends to carry out a repair himself, and beforehand if possible. The Client shall not be entitled to carry out a repair himself if we would have been entitled to effect a corresponding cure in accordance with the statutory regulations.
7. The cure shall not include the removal of the defective thing or reinstalling it again if we were not originally obliged to install it.
8. If the cure is unsuccessful or if a reasonable period of time to be set by the Client for the cure to be carried out has elapsed without a cure having been effected, or if such a period of time does not have to be set under the statutory regulations, the Client may withdraw from the contract or reduce the purchase price. The Client shall not, however, be entitled to withdraw from the contract on account of a minor defect.
9. The Client’s claims for compensation for damages or the reimbursement of expenditure he has incurred in vain shall only exist subject to the proviso of Section 9 and shall not otherwise be recognised.
10. When selling used movables, no rights on account of defects and all compensation claims for damages shall be recognised. The above regulations on the exclusion of compensation claims for damages for used things shall not apply for damages arising from death, personal injury or physical harm, if we are to blame for our obligations being breached and not for other damages attributable to intentional or grossly negligent breach of duty by us. Breaches of duty by our legal representatives or assistants shall be regarded as the equivalent of breaches committed by us. Claims asserted under the German Product Liability Act as well as if a product guarantee is furnished by us or if we accept the procurement risk shall not be affected by the above.
11. If products manufactured by other manufacturers (e.g. individual components, components of sub-assemblies) are defective and we are unable to remedy them for reasons attributable to licence law or actual reasons, we shall, as we choose, assert our warranty claims against the manufacturer and/or supplier on behalf of our Client or assign our claims to him. Warranty claims asserted against us shall only exist for such defects subject to other preconditions and in accordance with these T&Cs, if enforcement of the above-named claims against the manufacturer and supplier were unsuccessful in court or for example there is no prospect of success as a result of them being insolvent. During the legal dispute the period of limitation of the respective warranty claim of our Client towards us shall be suspended.
12. The warranty shall not be valid if the Client modifies the item supplied without our consent or allows it to be modified by third parties and as a result of this it becomes impossible or unreasonably more difficult to rectify the defect as a result thereof. In all cases our Client shall have to bear the additional costs of having the defect rectified as a result of the modification.
§ 8 Proprietary rights – Copyrights etc.
1. We shall reserve the title right and/or copyright to all the offers and cost estimates submitted by us as well as to those documents which we provide to our Client, such as, for example, drawings, diagrams, calculations, catalogues, models, tools and other documents and tools. The Client must not allow third parties access to such items or documents without our express consent either as such or their contents and he must not divulge them, use them himself or through third parties or reproduce them. Our Client must return them in full to us upon our request and destroy any copies of them there may be, if they are no longer required in a proper commercial transaction or if negotiations do not result in a contract being entered into. The above shall not apply for the storage of data provided electronically for the purposes of normal data back-up.
2. Each Party to the contract shall notify the other straight away, if claims are asserted against him on account of a breach of third party industrial proprietary rights or copyrights.
3. In cases in which the supplied item is in breach of a third party industrial proprietary right or copyright, we shall, as we choose, and at our expense, modify or replace the item supplied in such a way so that no third party rights are breached any longer, but the supplied item continued to fulfil the contractually agreed function or procure the right of use for our Client by entering into a licence agreement. If we are unable to do this within a reasonable period of time, our Client shall be entitled to withdraw from the contract or to reduce the purchase price as appropriate. Any compensation claims for damages our Client may have shall be subject to the restrictions in the following arrangements in Section 9.
4. If we manufacture to the instructions of our Client, or if we render services to his specifications, the Client shall be obliged to exempt us from any third party claims which may be asserted against us on account of breaches of proprietary rights / copyrights and such like.
Section 9 Compensation for damages, other liability
1. Insofar as there is nothing stated otherwise in these T&Cs including the following provisions, we shall be liable for in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory regulations.
2. We shall be liable for compensation for damages – regardless of whatever legal reason upon which they are based – in line with the liability for fault if in cases of intent and gross negligence. In cases of ordinary negligence we shall be liable subject to a more lenient scope of liability in accordance with statutory regulations (e.g. for care in one’s own matters) only
a) for damages arising from death, personal injury or physical harm,
b) for damages arising from a breach of an important contractual duty (that means an obligation the fulfilment of which makes it possible to carry out the contract properly in the first place and upon compliance with which the other Party to the contract normally relies and may rely). In this case our liability shall however be limited to the reimbursement of foreseeable damages typically occurring.
3. The limitations of liability arising in Paragraph 2 above shall not apply, insofar as we have maliciously concealed a defect or if we have furnished a guarantee for the condition of the goods. The same shall apply for the Client’s claims under the German Product Liability Act and in the event of fraudulent intent on our part.
4. The Client may only withdraw from the contract or serve notice of termination on account of a breach of duty not consisting of a defect, if we are to blame for the breach of duty. The Client shall not be entitled to an unrestricted right of termination (in particular in accordance with Sections 651 and 649 of the German Civil Code [BGB]). Moreover, the statutory preconditions and legal consequences shall apply.
5. The above exclusions of liability shall apply to the same extent for our executive bodies, legal representatives, salaried staff and other assistants.
6. Insofar as our colleagues pass over technical information or act in an advisory capacity, and this information or advice is not included in the contractually agreed scope of performance owed by us, this shall be done on a cost-free basis with no liability.
§ 10 Period of limitation
1. Notwithstanding Section 438 Para 1 No 3 of the German Civil Code [BGB], the general period of limitation for claims based upon quality defects and legal defects shall be one year from delivery. Insofar as acceptance test has been agreed, the period of limitation shall begin when acceptance has been granted.
2. If the goods are, however, a structure or a thing which has been used in accordance with its normal method of use for a structure and has caused it to be defective (Building material), the period of limitation in accordance with the statutory regulation shall be 5 years from delivery (Section 438 Para 1 No 2 of the German Civil Code [BGB]). Statutory special arrangements for real third party claims to surrender (Section 438 Para 1 No 1 of the German Civil Code [BGB]), shall not be affected in the event of fraudulent intent on the part of the Client (Section 438 Para 3 of the German Civil Code [BGB]) and for claims when the entrepreneur has recourse against suppliers for final delivery to a consumer (Section 479 of the German Civil Code [BGB]).
3. The above period of limitation of the law on sales shall also apply for the Client’s contractual and non-contractual compensation claims for damages based upon defective goods, unless the application of the normal statutory period of limitation (Sections 195 and 199 of the German Civil Code [BGB]) would in a given instance result in a shorter period of limitation. The Client’s compensation claims for damages in accordance with Section 9 Para 2 P 1 and P 2 a) as well as under the German Product Liability Act shall, however, only become time-barred in accordance with the statutory period of limitation regulations.
§ 11 Choice of law and Place of jurisdiction etc.
1. These T&Cs and all legal relationships between us and the Client shall be governed by the law of the Federal Republic of Germany. However, uniform international law and in particular, the UN law on sales [CISG] shall not apply. Preconditions and effects of the reservation of title in accordance with Section 6 shall be governed by the law of the respective storage place, insofar as accordingly the choice of law made favouring German law is not allowed or invalid.
2. The contractual language is English.
3. If the Client is a registered trader within the meaning of the German Commercial Code, a legal entity in accordance with public law or a public-law special fund, the sole place of jurisdiction – for transactions of an international nature as well – for all disputes arising directly or indirectly from the contractual relationship shall be the courts having jurisdiction where our Company is based. We shall, however, also be entitled to sue the Client at his general place of jurisdiction.
4. Insofar as the contract or these T&Cs contain gaps, those legally valid regulations which the Parties to the contract would have agreed given the set economic objectives of the contract and the objective of these T&Cs, had they known about the gaps in the contract shall be regarded as having been agreed to fill those gaps.
Note: the Client takes note that we shall save data from the contractual relationship in accordance with Section 28 of the German Federal Data Act (BDSG) for the purposes of processing data and we shall reserve the right to forward the data to third parties, provided that this is necessary to fulfil the contract.
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