The general sales terms and delivery conditions1>
I. Materialization of the agreement
- These terms and conditions apply exclusively to this and follow-up business with the customer. The customer’s terms and conditions which differ from these terms and conditions are invalid unless the matter concerns individual agreements. The customer’s purchasing conditions which conflict with these terms and conditions are also inapplicable, if they are included in a confirmatory letter from the customer in response to our confirmation of the agreement and we do not contradict them. Our silence signifies refusal. Our terms and conditions will apply as accepted when the customer has received the goods at the latest, especially for a telephone order. Divergences by means of individual agreements require to be made in the written form.
- Supply agreements materialize either by means of our written acceptance of order according to a written order [from the customer], or by means of delivery [of the goods to the customer]. All verbal agreements, especially collateral or supplementary ones and even those about executing the order, require our separate written confirmation for their validity.
- The quotation’s supporting documents such as illustrations, drawings, weights and dimensional information are only approximately definitive (= indicative) insofar as they are not expressivly described as binding. We reserve the proprietary rights and copyright to cost estimates, drawings and other documents: they must not be made accessible to third person.
- In case an order can be treated as quote according § 145 BGB, we can accept this order within two weeks time.
II. Supply and delivery
- The extent of supply will be determined by means of our written acceptance of order. The extent of supply will depend on agreements that are made between the customer and ourselves, if a written acceptance of order does not take place.
- The right is reserved within the period of delivery to make constructional changes or changes in shape which are attributable to technological improvements or legislative requirements, insofar as the delivery item will not be altered considerably and the alterations are reasonable for the customer.
- If we subsequently receive indications about the customer’s irregular payment transactions; about the application or opening of a moratorium or an insolvency procedure (= petition for bankruptcy); about another worsening of his commercial circumstances, then we will be entitled to make the supply dependent on advance payment of the purchase price or to deliver according to cash-on-delivery.
- All of the freight and postage expenses as well as ancillary costs will be charged to the customer, if there is a refusal to accept the delivery (even for cash-on-delivery despatches).
- The extent of supply and the delivery item arise – beyond clause 1 – from supplementary specifications as the case may be, insofar as these have become an object of the contractual agreement.
- We reserve the right to provide goods that are of an equivalent quality and price. We also reserve the right not to provide the promised goods in the case of their unavailability.
III. Time of delivery
- It is our highest objective to comply with the dates of delivery as far as possible, subject to correct and timely self-supply. If difficulties should arise regarding the availability of goods or the punctuality of their availability for the self-delivery, then we would be obligated to notify this circumstance [to the customer] immediately. If there is a delay of more than six weeks, then both of the contractual partners are entitled in this case to withdraw from the agreement by respectively giving the other party a written declaration (= notice). The payments and goods that were already transacted have to be refunded in this case. No further claims exist, especially claims to compensatory damages.
- The time of delivery will begin when the acceptance of order is despatched but not before the provision of documents, statutory consents and approvals that are to be obtained by the customer if necessary, nor before the receipt of an agreed deposit.
- The time of delivery will have been complied with if the readiness to despatch has been notified [to the customer] before it expires, or if the delivery item has left the factory.
- The time of delivery will be extended if measures are taken within the scope of industrial disputes – especially strikes and lockouts – as well as with the onset of unforseeable difficulties which are beyond our control (= force majeure), e.g., breakdowns, delays in the delivery [to us] of [raw] materials, as well as such difficulties that demonstrably have a considerable influence on supplying the delivery item. This provision also applies if the circumstances arise with our own suppliers. The time of delivery will be extended according to the duration of such measures and difficulties. The aforementioned circumstances will not be our responsibility, even if they arise during an already existing delay. The beginning and end of such difficulties will be notified by us [to the customer] as soon as possible, in important cases.
- Compliance with the time of delivery requires that the customer meets his contractual obligations; even those that arise from [his] other business with us.
IV. Delivered documents
- We reserve all rights of ownership and copyright for all documents delivered to the buyer in connection with the order placement, as for example calculations, drawings, declared weights and dimensions etc. These documents may not be made accessible to third parties unless we explicitly give the buyer our written approval. Unless we accept the buyer’s offer within a period of §2 par. 1, these documents have to be returned to us without delay.
- The information in the documents delivered by us, especially declared weights and dimensions, have to be understood as approximate values only.
V. Packaging and despatch
- The despatch of goods (even any returns) will take place at the customer’s [own] cost and risk. This provision will also apply if we deliver the goods with our own vehicles. We are entitled to invoice the delivery costs in every case, up to the amount of the fees or charges which would arise if another kind of despatch had been chosen.
- The kind of despatch will be chosen at our discretion. We do not accept any liability for [using] the cheapest [method of] despatch.
- We retain the right not to carry out the despatch from the place of performance (=domicilium disputandi) for the purposes of point XIII, clause 1, but from another place of our choice [instead].
- We will charge for the packaging separately. We will remunerate 2/3 [two-thirds] of the charged value for packagings which are designated on the invoice as ‘returnable’, if they are returned to us carriage paid (= franco domicile) within one month.
- The prices are ex-works without a cash discount and other discounts. The statutory amount of value-added tax will be added to the prices respectively. Cost of packaging will be invoiced separately.
- List prices and catalogue prices are not binding. We will always invoice the prices that are applicable on the day of delivery.
- The payment of purchasing price need to be drawn to bank account mentioned in order confirmation exclusively. Deduction of cash discount is only allowed when written agreement exists.
- It nothing else is agreed upon, purchasing price has to be paid within 10 days after delivery. Interest on late payment will be charged according to § 288 BGB. Enforcement of higher damages caused by default remain under reservation.
- If an estimated ordering quantity is established when concluding the agreement and we have (sustained) developmental and preliminary costs concerning the development and creation of the production´s prerequistites which are included in our pricing calculations on the basis of the intended ordering quantity, then we will be entitled to subseuqently charge for the partial, non-amortized, aforementioned costs if the costumer does not call the estimated ordering quantity forward for reasons that are not out responsibility, e.g., because of reduced demand, termination of the agreement, etc. The aforementioned provision also applies to basic agreements and multiple delivery contracts.
VII. Reservation of ownership (= pactum reservati dominii)
- We reserve ownership to the delivered goods, for all debt claims arising from the present or future business connection with the customer (current account reservation). The discontinuance of individual debt claims in a current invoice or the settlement and its acknowledgement do not cancel the reservation of ownership.
- We are entitled to remove our conditional commodities during the customer’s normal business hours if he has not fulfilled his obligations to us – especially when there is a default of payment – and to enter the customer’s warehouse(s) and business premises for this purpose. The removal is not a forbidden, unauthorized act.
- In the case that our goods are processed or they are combined with other products, we will acquire joint ownership to the items that are produced by the processing or combination with other products, which the possessor will look after for us with the care of a respectable businessman and free of charge. Our joint share of the ownership will be determined according to the fraction which corresponds to the value of our goods in relation to the produced item’s value. If the customer acquires sole ownership by means of the combination, then he shall herewith transfer joint ownership to us according to the ratio of the conditional commodity’s value to the produced item’s value. Clause 4 applies to resale; the debt claim arising from the resale or other legal argument (= title) will be assigned to us herewith as the amount of the aforementioned fraction.
- If the conditional commodity is sold alone or together with goods that do not belong to us, then the customer shall herewith assign the debt claim arising from the resale and amounting to the conditional commmodity’s value, with all ancillary rights and status before the rest (= residue). We accept the assignment. The conditional commodity’s value is our invoiced amount.
- The customer is only entitled to resell, use or install the conditional commodity during the usual course of proper business. The customer is not entitled to dispose of the conditional commodity otherwise, especially by seizure or the transference of security. Concerning a payment by cheque or exchange procedures, the reservation of ownership is only extinguished when the exchange or cheque has been honoured and the invoiced amount has been credited.
- The authorization for reselling, using or installing the conditional commodity does not apply if the customer assigns to us the debt claims against a third party that he has concluded at a third party’s conditions, according to which it is impermissible for him to do so.
- The customer authorizes us to collect the assigned debt claims subject to countermand (= revocation). We will not make any use of our own powers of collection for as long as the customer fulfils (= meets) his payment obligations. The customer has to give us on demand all requisite information about the existence of goods that are owned by us and the debt claims and rights that are assigned to us, as well as to inform his buyer about the assignment. We are entitled – but not obligated – to report the assignment to the customer’s buyer and to assert the assigned claims in our own name, at any time. The implementation of assigned rights will take place at the customer’s [own] cost and risk, without us being obligated for this purpose or without the customer being able to make us liable by reason of this action.
- The customer has to inform us immediately about a third party’s compulsory execution measures for the conditional commodity or for the assigned debt claims, by handing over the documents that are required to countermand them.
- We undertake to release the securities that we are entitled to hold – insofar as the customer’s demands them – as the value of his debt claims that are to be secured, insofar as these are not yet settled and exceed more than 20%.
- Seizures, transferences of security and assignments of security in the conditional commodity by the customer, as well as uses by the customer which adversely affect the rights accruing to us and our other rights, are impermissible.
- The customer will indicate our ownership and he will inform us by immediately sending all of the documents that are required for an intervention in the event that third parties have access to the conditional commodity, the debt claims that were assigned by us or the rights that are based on the aforementioned clauses. No withdrawal from the agreement is signified by taking back the conditional commodity or its seizure by us; such measures will only take place in order to secure our claims. We do not agree to a resale of the conditional commodity in the case that legal proceedings are started for settlement or insolvency.
- Invoices are payable as follows within 10 days from the invoicing date. Repair invoices, invoices under € 50 net without value-added tax and invoices insofar as they are not settled in cash but by setting off against credit notes, are not discountable. The aforementioned cash discounts for individual deliveries will not be given, insofar as the customer is in arrears with the payment of earlier deliveries.
- All payments have to be made to our registered office and free of expense. Prior settlement according to agreement of all the invoiced amounts that are due for payment, is the prerequisite for claiming a cash discount. Discounting of the entire invoice in the case of partial deliveries, is only permissible if the corresponding partial amounts are punctually paid for the partial deliveries.
- Payments by exchange are excluded unless a further written agreement has been expressly made in writing. An exceptional assumption of acceptance only applies for as long as no disadvantageous alterations occur or become known for the respite (delay in payment) of the purchase price and for the customer’s commercial circumstances. Exchange payments are not cash payments. Discount expenses and other expenses have to be paid immediately by the customer with the exchange method, in every case. We do not accept any liability for punctual submission, raising protests or repayment of the exchange, or both. The acceptance of cheques will not take place on fulfilment, but for reasons of fulfilment.
- We will charge 8% p.a. above the European Central Bank’s respective basic interest rate, as the penalty interest on arrears. It will be assessed more highly if we can prove a charge with a higher interest rate or if the customer can prove a lower charge.
- The retention of payments against any of the customer’s counterclaims that are not recognized by us or are not legally established, is legally inadmissible; the same applies to offsetting them too.
- If the terms and conditions of payment are not complied with, or if facts become known which lead one to conclude that claims against the purchase price are jeopardized as a consequence of the customer’s difficulties with liquidity, then we will be entitled to make further deliveries dependent on cash-in-advance or the provision of securities.
IX. Passage of risk
The risk passes to the customer in every case, when the consignment leaves our registered office or when the despatch is deferred at the customer’s request after it is ready for shipment. Transport damage or loss of the goods will not be covered by us. A customer’s claim against us will be exhausted with assignment of the debt claim to the customer, insofar as claims against a liable third party or insurer (insurances will only be arranged by us at the customer’s request and cost), or both, can be asserted.
- Insofar as we do not ourselves manufacture the goods that are supplied to the customer but we have purchased them from our upstream suppliers, we will fulfil our warranty obligations by means of assigning to the customer herewith our own entire warranty claims against our upstream suppliers. The customer accepts this assignment for reasons of fulfilment. The subsidiary warranty claims against us will depend on provisions of the following clause 2, in the event that they are unenforceable or unsuccessful.
- The supplied goods represent the quality that is evident from the product’s description, or the commercially merchantable quality otherwise. Declarations (= definitions) about the quality do not represent any guarantee, insofar as they are not expressly described as such. No guarantee at all will be accepted beyond the warranty [that is given] according to these terms and conditions or the law. The customer has to immediately inspect the goods for defects and quality. Defects have to be criticized within one week after the delivery by means of sending us a written notice. More far-reaching legal provisions remain unaffected. Latent defects must be criticized in writing to us within one week at the latest after their discovery. In the case that a defect is established, the customer will be obligated to place the criticized goods at our disposal for inspection. Culpable refusal will invalidate all claims. The aforementioned duty of notification also applies if the customer discloses to his buyer any defects in the goods or parts that were delivered by us. If the complaint by the customer is justified, then he will have the right to demand a repair or replacement delivery within the scope of recompliance. We are entitled to refuse the chosen kind of recompliance if it is only possible to achieve at an unreasonably high cost, or if the chosen kind of recompliance is more expensive than the alternative and this does not entail any considerable disadvantages for the customer in relation to the other possibility of recompliance. In the case of recompliance by repair, our right of repair is limited to three attempts regarding one and the same defect; totally six attempts regarding all of the defects. If the purchased item has to be sent to a place other than the original place of delivery after the recompliance has been carried out, then the customer will pay for the extra costs insofar as they arise. The same provision applies if the customer returns the defective item to us for the purposes of recompliance, from a place other than his registered office or the place of delivery. The customer is only entitled to assert more far-reaching warranty claims, if he has set us a reasonable time-limit for carrying out the repair or replacement delivery and this has expired unsuccessfully. The customer’s right to withdraw from the agreement is excluded if only an slight defect is present. The right to reduce the purchase price remains unaffected by this circumstance.
- Warranty obligations do not exist if:
- a) the defect is attributable to an improper use, operation or maintenance, or defective maintenance as the case may be, defective assembly and commissioning, or to the effect of force, as well as other external influences (e.g. chemical, electromagnetic, electrical, etc.), insofar as we are not responsible for it;
- b) the defect is caused by an improper modification of the delivered item, particularly a use of unsuitable spare parts – especially foreign ones – and the damage is connected with the modification or use.
Natural wear and tear, or damage that is attributable to negligent or improper operation of handling, are excluded from the warranty.
- The criticized goods have to be sent in to us with the original delivery note or a photocopy of it. We do not waive the objection (= plea) to unpunctual or improper criticism of the defect by [engaging in] negotiations about complaints.
- The customer is only entitled to retain payments and appeal about defects claims, insofar as he is reasonable according to good faith in respect of the criticized defect, i.e., only up to amount of the purchase price at the highest of the article that is definitively criticized as defective.
- If the customer or a third party carries out repairs improperly, then we will not accept any liability at all for the duration of the arising consequences. The same provision applies to alterations that are carried out on the delivered item without our prior consent [having been given] in writing.
- Section XI applies supplementarily to claims for compensatory damages.
- Insofar as software or other goods with a copyright and rights are included in the extent of supply, the customer will not be granted an exclusive right to use the supplied software including the associated documentation. The customer may only use and process the software to the legal extent and he is obligated not to remove or change (= modify) the manufacturer’s information without our prior consent in writing. The customer is not entitled without our prior consent in writing to further transfer – by licensing for example – the software or rights to a third party.
- The warranty period due to material defects (= redhibitory defects) amounts to two years from delivery of the goods onwards. This provision does not apply insofar as we are liable for a defect that is unknown to us, which is due to (criminal) intent or deceitful (= fraudulent) silence: we will be liable according to the legal regulations in these cases.
- The costumer is not entitled to use an advertisment that has not been approved by us, within the scope of (his) marketing the goods that were manufactured by us. If the customer´s buyer asserts claims for compensatory damage which rely on divergences of the purchased goods from the marketing partner´s hereditary statements, then this person will not be entitled to derive claims against us from this circumstance.
- We are only liable in the case of (criminal) intent and gross negligence for the customer´s damages irrespective of whatever reason; particulary as a result of duties arising from the contract being infringed (= breached), as well as arising from unauthorized action or according to the (German) productliability law, but not to the extent of:
- a) being liable for injury to life, body or health
- b) being liable for the infringement of essential confractual duties.
- The claim to compensatory damages due to an infringement of essential confractual duties, is however limited to contractually typical damage that can be regularly foreseen.
- This provision also applies in cases of defects liability.
- The limitations of liability in points X and XI als apply regarding any liability as a result of (giving) faulty advice, faulty assembly instruction and other infringements of ancillary duties.
- More far-retching claims to compensatory damages are excluded.
- Point X, clause 9 applies to statutory limitation of th aforementioned claims.
XII. Compensation and the right of retention
- The costumer can only set off our debt claims with counterclaims, if the counterclaims are undisputed or they have been legally established by a court of law.
- This provision also applies to asserting rights of retention, insofar as nothing to the contrary is stipulated in these terms and conditions of business.
XIII. Place of performance (= domicilium disputandi) and place of jurisdiction (= domicilium disputandi)
- Weiden is the place of performance.
- Concerning all disputes that arise from the contractual relationship, the lawsuit has to be brought in the court that is responsible (= has jurisdiction) for our company´s registered office (= legal domicile) if the cutsomer is a full businessman, a legal persona under public law or special asstes under public law.
XIV. Applicable law
German law excusively applies by excluding the laws about international purchase of unfixed articles ( movables), even if the costumer has his registered office abroad.
XV. Formal agreements
- Alterations, supplements and collateral agreements to these general terms and conditions require to be made in written text for their effectiveness. This provision would also apply if alterations were to overrule the written text.
- No collateral agreements have been verbally made.
- Transfer of the costumer´s rights and duties that arise from the agreement which has been concluded with us, require our written permission for their effectiveness.
- If individual provisions of the aforementioned General Standard Terms and Conditions of Business are or become wholly or partially invalid, contestable or inoperative, then the effectiveness of remaining provisions and the contract (itself) will not be incidentally affected by them. The contractual parties will then implement the agreement with an operatively substitude provision, which approximates to the inapplicable provision´s intended commercial purpose as closely as possible.