Terms and Conditions

Terms and Conditions of Sale, Delivery and Payment (Status: 2003-01-01)

  

I. General, Scope                                                                       

    

1.   All deliveries and services arising from contracts concluded as of 2003-01-01 shall be based on these Terms and Conditions as well as any separate contractual agreements. Any conflicting or deviating terms and conditions of purchase of the customer shall not become part of the contract even by acceptance of the order, unless we have expressly agreed to their validity in writing. Our Terms and Conditions shall also apply if we carry out the delivery without reservation in the knowledge of terms and conditions that are contrary to or deviate from our Terms and Conditions.

2.   Our Terms and Conditions of sale shall also apply to all future transactions with the customer.

3.   Our Terms and Conditions of sale apply only to companies.

 

II. Offer, copyrights

 

1.   Our offers are subject to change unless otherwise stated in the order confirmation. In the case of the manufacture of unusual items – items deviating from our usual product range – we reserve the right to make design and shape changes that are reasonable for the customer in comparison to the performance owed. Reasonableness in this sense shall be deemed to exist in particular if there are deviations from the performance owed that are favorable to the customer, if the deviations are minor and do not impair the customer’s objective interests, or if the changes are technically necessary.

2.   We reserve the property rights and copyrights to samples, cost estimates, drawings, illustrations, calculations and similar. We reserve the property rights and copyrights to samples, cost estimates, drawings, illustrations, calculations and similar information of a physical and non-physical nature – also in electronic form – even if we charge for them; they may only be made accessible to third parties with our prior written consent. If the order is not placed, they must be returned to us immediately upon request.

 

III. Prices and payment

 

1.   Our prices are Euro prices. Prices are calculated ex works or ex warehouse including loading at the factory, excluding packaging costs. Value added tax at the respective statutory rate is added to the prices.

2.   Packaging shall be charged at cost price, shall be in the customary manner and shall only be taken back if delivered carriage paid.

3.   If, after the conclusion of the contract, there are significant cost increases, in particular due to collective wage agreements or material price increases, for which we are not responsible, we reserve the right to change the prices accordingly. This does not apply if the cost increases occur within eight weeks after conclusion of the contract. We shall provide evidence of the cost increases to the purchaser upon request.

4.   For orders for which no prices have been agreed, our prices valid on the day of delivery as shown in our price lists shall apply; in the absence of such, the usual remuneration shall apply.

5.   The statutory provisions shall apply to the occurrence of default in payment and its legal consequences.

6.   If, after conclusion of the contract, the financial situation or solvency of the customer deteriorates significantly or if we become aware of an earlier deterioration or if the customer does not meet its payment obligations towards us, in particular if it does not honor a check or bill of exchange, we reserve the right to make the delivery of goods not yet paid for dependent on the provision of appropriate security or, alternatively, advance payment. If neither advance payment nor security is provided within a reasonable period of grace set by us, we shall be entitled to withdraw from the contract in accordance with the statutory provisions.

7.   Bills of exchange and checks will only be accepted on the basis of an express agreement. They must be made payable at the registered office of the Seller and shall be deemed to have been accepted only on account of performance. There is no obligation on our part to accept. Discount and other charges shall be borne by the customer and shall be paid immediately after the bill of exchange has been issued. Any collection costs, exchange rate and interest losses will be invoiced and must be reimbursed immediately by the customer.

8.   The customer shall only have the right to offset counterclaims to the extent that its counterclaims are undisputed, have been legally established or have been recognized by us. Furthermore, the customer shall only be entitled to withhold payments to the extent that its counterclaim is based on the same contractual relationship.

 

IV. Terms of delivery

1.    The delivery time results from the agreements of the contracting parties. Their observance presupposes that all commercial and technical questions have been clarified between the contracting parties and that the customer has fulfilled all obligations incumbent upon it, such as the provision of material samples or documents to be procured by it or the payment of a deposit. If this is not the case, the delivery time shall be extended accordingly. This shall not apply if we are responsible for the delay.

2.    All orders shall be deemed accepted only with the reservation of self-delivery. Compliance with an agreed delivery period is subject to correct and timely delivery by our upstream suppliers.

3.    The delivery period shall be deemed to have been complied with if the delivery item has left the factory or notification of readiness for dispatch has been given by the time the delivery period expires.

4.    In the case of orders on call, we grant the customer a period of six months for acceptance, unless otherwise agreed.

5.    Unless expressly agreed otherwise, shipment shall be at the expense of the customer.

6.   If shipment or acceptance of the delivery item is delayed for reasons for which the customer is responsible, the customer shall be charged for the costs incurred as a result of the delay, starting one month after notification of readiness for shipment or acceptance.

7.   If non-compliance with the delivery time is due to force majeure, labor disputes or other events beyond our control, the delivery time shall be extended accordingly. This shall also apply if such hindrances occur during the delay or at a sub-supplier. We will notify the customer of the beginning and end of such hindrances as soon as possible. If the impediment lasts longer than three months, each party shall be entitled, after setting a reasonable deadline, to withdraw from the contract with regard to the part of the contract not yet fulfilled in accordance with the statutory provisions.

8.   The customer may withdraw from the contract without setting a deadline if the entire performance becomes definitively impossible for us before the transfer of risk. Furthermore, the customer may withdraw from the contract if the execution of a part of the delivery becomes impossible in the case of an order and the customer has a justified interest in the refusal of the partial delivery. If this is not the case, the customer shall pay the contract price due for the partial delivery. The same applies in the event of inability.

If the impossibility or inability occurs during the delay in acceptance or if the customer is solely or predominantly responsible for these circumstances, the customer shall remain obligated to counter-performance.

9.   If we are in default and the customer incurs damage due to the delay, the customer shall be entitled to demand a lump-sum compensation for the delay. It shall amount to 0.5% for each full week of delay, but in total not more than 5% of the value of that part of the total delivery which cannot be used in due time or in accordance with the contract as a result of the delay. The aforementioned limitation of liability shall not apply in the event of intent or gross negligence; in this case, we shall bear the burden of proof that we have acted neither with gross negligence nor with intent. Furthermore, it shall not apply insofar as a commercial fixed-date transaction has been agreed and the customer can claim that its interest in the performance of the contract has lapsed due to the delay.

If the customer grants us a reasonable period of time for performance in the event of default – taking into account the statutory exceptions – and if the deadline is not met, the customer shall be entitled to withdraw from the contract within the scope of the statutory provisions.

Further claims arising from delay in delivery, in particular for damages in lieu of performance, shall be determined exclusively in accordance with Section VIII of these Terms and Conditions.

10. If the customer is in default of acceptance, we are entitled to demand compensation for additional expenses. If it culpably violates its duties to cooperate, it shall also be liable for damages.

11. Partial deliveries are permissible unless the partial delivery is objectively of no interest to the customer.

12. The type of transport, the means of shipment, the transport route, as well as the type and scope of the required means of protection and the selection of the forwarding agent or carrier, as well as the packaging, shall be left to our choice unless otherwise agreed. This shall be done at our due discretion and with due diligence. We insure the shipment at the customer’s request and expense against theft, breakage, transport, fire and water damage. To avoid double transport insurance, the customer is obliged to inform us of the conclusion or existence of its own transport insurance. If the customer fails to do so, it shall not be entitled to reduce the fee owed by the premium of the insurance concluded by us for the customer.

 

V. Transfer of risk, acceptance

 

1.   Unless expressly agreed otherwise, delivery is agreed “ex works”.

2.   Even if prepaid freight or free delivery has been expressly agreed, the risk of accidental loss and accidental deterioration shall pass to the customer upon handover to the forwarding agent, carrier or collector; this shall also apply if we make the delivery.

3.   The handover is deemed to be the same if the buyer is in default of acceptance.

4.   If a shipment arrives in a damaged condition, the customer must have the damage officially recorded by the carrier without delay in order to secure its claims.

5.   If shipment or acceptance is delayed or does not take place due to circumstances for which we are not responsible, the risk shall pass to the customer on the date of notification of readiness for shipment or acceptance.

 

VI. Retention of title

 

1.   We retain title to the delivered goods until receipt of all payments (including all payments on ancillary claims, claims for damages or other claims, irrespective of the legal basis) arising from the business relationship with the customer, even if the purchase price for specifically designated claims has been paid. In the case of a current account, the reservation applies to the recognized balance. Insofar as we agree payment with the customer on the basis of the check/bill of exchange procedure, the reservation shall also extend to the redemption by the customer of the bill of exchange accepted by us and shall not expire by crediting the check received by us. In the event of conduct by the customer in breach of contract, in particular in the event of default in payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to take back the goods subject to retention of title. After the withdrawal and the taking back of the goods subject to retention of title, we shall be entitled to realize them; the realization proceeds shall be credited against the customer’s liabilities – minus reasonable realization costs.

2.   The customer is obligated to treat the reserved goods with care; in particular, it is obligated to sufficiently insure them at its own expense against fire, water and theft damage at replacement value. The customer hereby assigns to us its claims for compensation to which it is entitled from damages of the above-mentioned kind against insurance companies or other parties obliged to pay compensation in the amount of the final invoice amount (including VAT) of the reserved goods. We accept the assignment. If maintenance and inspection work is required on the reserved goods, the customer must carry this out in good time at its own expense.

3.   In the event of seizure or other interventions by third parties, the customer must notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action pursuant to § 771 ZPO, the customer shall be liable for the loss incurred by us.

4.   The customer is revocably entitled to resell the goods subject to retention of title in the ordinary course of business; however, it already now assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim, which accrue to it from the resale against its customers or third parties, irrespective of whether the goods subject to retention of title have been resold without or after processing. The customer remains authorized to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets its payment obligations from the proceeds collected and is not in default of payment. If this is the case, however, we may demand that the customer inform us of the assigned claims and their debtors, provide all information required for collection, hand over the relevant documents and inform the debtor (third party) of the assignment.

5.   The processing or transformation of the reserved goods by the customer shall always be carried out for us, but without any obligation on our part. If the reserved goods are processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the reserved goods to the other processed items at the time of processing. The same shall apply to the item created by processing as to the goods delivered under retention of title.

6.    We undertake to release the securities to which we are entitled at the customer’s request to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released shall be incumbent on us.

 

VII. Claims in the event of defective performance

 

In the event of defects in the purchased item, the customer shall have the following rights, to the exclusion of any further claims – but subject to Section VIII. – following rights:

1.    The rights of the customer in the event of non-contractual performance presuppose that the customer has properly fulfilled its obligations to inspect and give notice of defects in accordance with § 377 of the German Commercial Code (HGB).

2.    Insofar as an asserted material defect consists of the absence of a characteristic which we have attributed to the subject matter of the contract in an advertising statement (§ 434 para. 1 sent. 3 BGB), the customer must prove that the advertising statement was partly responsible for its decision to purchase. Otherwise, there is no material defect.

3.   In the event of a defect in the delivery item, we shall be entitled, at our discretion, to subsequent performance by remedying the defect or by making a replacement delivery. Replaced parts become our property. The expenses necessary for the purpose of subsequent performance shall be borne by us. If the type of subsequent performance chosen by us is impossible or involves disproportionate costs, we shall be entitled to refuse this type of subsequent performance. In this case, the customer is entitled to demand the other type of subsequent performance. Should this also be impossible or associated with disproportionate costs, the customer’s right to subsequent performance shall lapse.

4.   Insofar as we have become active at the request of the customer on the basis of a defect report without there being a defect or without the customer having sufficiently informed us of this in accordance with its state of knowledge, we may demand appropriate compensation for our expenses.

5.   In the event of a defect in the delivery item, the customer shall have the right to reduce the remuneration or to withdraw from the contract at its discretion within the framework of the statutory provisions if we – taking into account the statutory exceptions – allow a reasonable period set for us for subsequent performance due to a material defect to expire fruitlessly, if the type of subsequent performance to which the purchaser is entitled fails, is refused by us or if it is unreasonable for us. If there is only an insignificant defect, the customer shall only be entitled to a reduction of the purchase price.

6.   We shall be liable for replacement deliveries and repairs to the same extent as for the original delivery item, but limited in time to the end of the limitation periods due to defects of the original delivery item. The period of liability for defects in the delivery item shall be extended by the time taken by us to inspect and rectify the defects.

7.   In the absence of an express written declaration to the contrary on our part, persons commissioned by us to inspect for defects shall not be entitled to acknowledge defects at our expense.

8.   If the customer receives defective assembly instructions, we are only obligated to deliver assembly instructions that are free of defects and this only if the defect in the assembly instructions prevents proper assembly.

 

VIII. Claims for damages

 

1.   We shall only be liable – for whatever legal reasons – for damages not occurring to the delivery item itself

•   in the event of intent and gross negligence;
• in the event of culpable injury to life, limb, health;
• in the event of fraudulently concealed defects;
• in the event of the provision of a quality or durability guarantee; liability shall, however, be limited to the direct scope of the guarantee;
• in the event of defects to the delivery item, insofar as liability exists under the Product Liability Act for personal injury or property damage to privately used items.

 

In the event of culpable breach of material contractual obligations, we shall also be liable in the event of simple negligence, but limited to the damage typical for the contract and reasonably foreseeable at the time of conclusion of the contract.

Any further claims, in particular for compensation of financial losses, are excluded.

2.    Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and vicarious agents.

 

IX. Statute of limitations

 

1.    The limitation period for claims due to defects of the subject matter of the contract is, subject to Item 2, in principle one year from the beginning of the statutory limitation period. This also applies to consequential damages.

2.    Insofar as claims for damages are asserted in tort, for injury to life, limb or health or under the Product Liability Act, the statutory limitation periods shall apply.

3.    A suspension of the statute of limitations due to ongoing negotiations pursuant to Section 203, sent. 1 of the German Civil Code (BGB) requires that the customer asserts its claims in writing.

 

X. Applicable law, place of jurisdiction

 

1.    All legal relations between us and the customer shall be governed exclusively by the law of the Federal Republic of Germany applicable to the legal relations between domestic parties, excluding the provisions of the UN Convention on Contracts for the International Sale of Goods dated 1980-04-11 and comparable international regulations.

2.    The exclusive place of jurisdiction, also for the dunning procedure after transfer to the litigation procedure, is Worms, Germany. However, we are also entitled to sue the customer at its place of residence.

3.    The agreement on the place of jurisdiction pursuant to the Item 2, sent. 1 above shall also apply if the customer does not have a place of jurisdiction in Germany or if the customer’s place of residence or habitual abode is unknown.

4.    Unless otherwise stated in the order confirmation, the place of performance shall be Westhofen, Germany.