§ 1 Application
(1) All our deliveries, services and offers shall be governed by these general by these terms and conditions exclusively. They shall only apply vis á vis entrepreneurs, governmental entities and special governmental estates.
(2) Differing or contrary terms shall not apply except if expressly agrees upon in writing.
(3) By placing an order or accepting deliveries, the purchaser recognises that our terms and conditions apply, not only to this transaction, but also to all future transactions.
§ 2 Offer, Acceptance
(1) All our offers are subject to change without notice in the sense that a contract is formed only upon our acceptance of the purchase order.
(2) Collateral agreements relating to our offers and order acknowledgements shall only be valid with our written confirmation.
§ 3 Delivery, Passing of Risk
(1) To the extent that no assurance designated on our part as being binding exists, a delivery period shall only be deemed agreed approximately.
(2) Circumstances beyond our control or a disruption of production and operation on our or our supplier's side i.e. by riots, strike, lock outs, destruction of our production facilities, which are causing a delay of delivery within the agreed periods or dates which are not subject to our influence, prolong binding and nonbinding delivery dates and periods for the durability of these circumstances, preventing us from a regular performance.
(3) The delivery period shall be extended by the period in which Buyer is in arrears with its contractual duties within an ongoing business relationship, also from other contracts.
(4) In the case of a default on delivery, for which we are at fault, the buyer may withdraw from the contract after expiry of a reasonable grace period to be set by him in writing. Any additional claims by the ordering party, particularly those concerning damages instead of performance and replacing any other direct or indirect damages, including ancillary or consequential damage, irrespective of their legal basis, shall be excluded. The aforementioned limitations of liability shall not apply if the damage is attributable to a wilful or grossly negligent breach of obligations, if a guarantee for the properties of the service has been stipulated, or if damages for bodily injuries, death, or other impairment of health are claimed. If the delivery delay for which we are responsible concerns a non-accidental breach of an essential contractual duty or a cardinal obligation, we are liable according to the legal regulations; in this case, the liability compensation is limited to the foreseeable, typically occurring damage. The previously mentioned liability limitation does not apply if a fixed business was agreed upon.
(5) Delivery deadlines shall be considered as met if prior to deadline expiry the delivery item has left our factory or if we have informed the purchaser that the order is ready for shipment.
(6) We are entitled to make partial deliveries if this is deemed reasonable for the purchaser taking into account our interests and is not excluded according to the nature of the order.
(7) In case of default in acceptance or other breach of duties to cooperate by the purchaser we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default or breach of duty to cooperate.
(8) If the purchaser demands shipment of the goods the risk of loss or damage to the goods passes to the purchasers upon delivery of the products by us to the carrier.
§ 4 Prices
(1) All prices shall be deemed net prices and calculated ex works plus current valid sales tax including services for loading and packaging. With the completion of transport insurance, we are only obliged with an explicit and written instruction from the purchaser, the costs of this insurance are carried by the purchaser.
(2) If considerable changes in raw material, wage, energy or other costs arise after the quotation has been submitted or after conclusion of the contract, we have the right to charge a reasonable modified price in line with the change in the price factors.
(3) For deliveries by instalments each delivery may be invoiced separately.
(4) If no prices have been agreed at the completion of contract, our delivery day prices shall be applicable.
§ 5 Payment
(1) Unless otherwise agreed or specified in our invoices, the purchase price is due immediately without discount after delivery or the readiness for dispatch was given. From the due date default interest in the amount of 8 % above the respective base interest rate p.a. shall accrue. We reserve all rights to claim further damages.
(2) If circumstances become known after finalization of the contract that place the creditworthiness of purchaser in question, we retain the right to perform outstanding deliveries against prepayment only or make claims that have occurred up until that point in time subject to payment to the full extent.
(3) The purchaser may only make a set-off against our claim if it has a claim with the force of a final judgment or a claim which we have specifically acknowledged. He may only assert his right of retention insofar as it is based on the same contractual relationship.
(4) We shall not be obliged to accept bills, cheques and other promises to pay, their acceptance shall at all times be on account of performance. If and to the extent to which we agree that payment can be made by note or check, the amount will be credited when actually received, less expenses, to the day of valuation at which we can irrevocably dispose of the amount.
§ 6 Retention of Title
(1) The goods delivered by us shall remain our property until full settlement of all our receivables arising from the business with the purchaser.
(2) The purchaser shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
(3) In case where goods delivered by us are combined and/or mixed, every acquisition of title by the purchaser is excluded. Re- working or processing shall be affected on our behalf in such manner that we are to be regarded as the manufacturer. If the goods delivered by us are processed, we shall acquire joint title to the new item in the ratio of the invoiced value of our goods in relation to the value of the other goods at the time of processing. The property created for us as result of re- working or processing, combining or mixing shall, in legal terms, be treated in the same way as the original goods.
(4) The purchaser may resell goods subject to the above retention of title only in the course of his regular business. All the purchaser’s receivables arising from reselling of goods to which we hold title or joint title shall, up to the sum of the invoiced value, already pass to us at the time of conclusion of the purchase contract, regardless of whether the goods are sold without having been re- worked, processed, combined or mixed or after having been re- worked, processed, combined or mixed and regardless of whether they are sold to one customer or to several customers.
(5) At our request the purchaser shall give the debtors of the assigned receivables notification of the assignment, make known the debtors and the amount owed by them and hand over to us the documents which we require for asserting the receivables assigned.
(6) Goods owned or partly owned by us may be sold, re-worked or processed or be combined with goods of a different origin only in the normal course of business.
(7) If the purchaser wholly or partly defaults on performing an obligation secured by reservation of title, or if circumstances which make our rights appear jeopardised become known to us, we may demand surrender of the goods delivered by us, without having declared rescission from the purchase contract before and in accordance with § 440 of the German Civil Code [BGB] and without having set a time limit for performance of the payment obligation before and in accordance with § 323 of the German Civil Code [BGB]. Neither the continuance of the purchase contract nor the purchaser’s obligations shall be affected by such a demand or by surrender of the goods.
(8) The reservation of title is subject to the condition that, upon full payment of all our receivables arising from the business relationship, title to the goods under reservation of title shall automatically pass to the purchaser and the assigned receivables shall accrue to him. Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon the purchaser’s request.
§ 7 Nature Illustrations
Drawing, dimensions and weights contained in catalogues, pricelists or other printed material constitute approximate data. We reserve the right to make deviations, in respect of design or material, which are technically essential or are absolutely necessary for the styling, in so far as such alterations are reasonable for the purchaser, taking account of the intended purpose of the goods.
§ 8 Warranty
(1) Precondition for any warranty claim of the purchaser is the purchaser’s full compliance with all requirements regarding inspection an objection in accordance with § 377 of the German Commercial Code [HGB].
(2) Warranty claims shall be time-barred after 12 month of the passage of risk.
(3) In the case of a justified notice of defects, we shall carry out subsequent performance either by means of professional elimination of the defect (reworking) or through the quickest possible replacement delivery. If the remedying of the defect or the supply of a replacement within a reasonable period fails, the Buyer shall be entitled to reduce the purchase price or, provided it is not just an insignificant defect, to, withdraw from the contract.
(4) If one of the two or both types of subsequent fulfillment is impossible or disproportionate, we are entitled to refuse them. We can also refuse subsequent fulfillment if the purchaser has not fulfilled his payment obligations to an extent that corresponds to the defect-free part of the service performed.
(5) If the remedying of the defect or the supply of a replacement within a reasonable period fails, the Buyer shall be entitled to reduce the purchase price or, provided it is not just an insignificant defect, to, withdraw from the contract.
(6) Any additional claims by the ordering party, particularly those concerning damages instead of performance and replacing any other direct or indirect damages, including ancillary or consequential damage, irrespective of their legal basis, shall be excluded. The aforementioned limitations of liability shall not apply if the damage is attributable to a wilful or grossly negligent breach of obligations, if a guarantee for the properties of the service has been stipulated, or if damages for bodily injuries, death, or other impairment of health are claimed. If the delivery delay for which we are responsible concerns a non-accidental breach of an essential contractual duty or a cardinal obligation, we are liable according to the legal regulations; in this case, the liability compensation is limited to the foreseeable, typically occurring damage.
§ 9 Data Protection
We may save and process any data relating to the Customer, to the extend necessary for the purpose of the execution and implementation of the sales contract and as long as we are required to keep such data in accordance with applicable law.
§ 10 Applicable Law and Competent Court
(1) Any contracts entered into between us an the purchaser shall be governed by the laws of the Federal Republic of Germany under exclusion of the UN Convention on the International Sale of goods (CISG), without prejudice to any mandatory conflict of laws provisions.
(2) Sole venue for all disputes arising directly or indirectly out of the contract shall be our place of business.
§ 11 Severability Clause
In the event of one or more of the provisions of these Terms and Conditions of Payment and Delivery being or becoming unenforceable or void in whole or in part, both parties hereby undertake to agree on a provision which comes as close as possible to the meaning and purpose of the provision that has become unenforceable or void.