The following Terms of Delivery and Terms of Payment apply to all contracts, deliveries and other services, including consulting services, unless they are modified or excluded with our explicit written approval. General terms and conditions of the buyer will not become binding on us even if we have not objected to them explicitly once more.
We remain bound by our written quotations for four weeks. All orders and side agreements shall become binding on us when we have confirmed them. Orders and assurances accepted by our representatives and field force staff regarding special terms of contract shall become valid only with our written agreement. Illustrations in catalogues or prospectuses are non-binding. We reserve the right to change designs and shapes up until delivery.
The same applies to deviations from dimensions that are due to design changes; excluded are cases where the buyer has explicitly made it a priority that the dimension determined are kept or where a modification of the dimension would risk the fulfilment of the purpose of the contract. Produced structures that are ready for assembly can only be exchanged against the charge for the incurred additional costs of the adjustment to new dimensions. The buyer shall be liable for installing the officially required protection equipment. Our offers generally do not include any special protection equipment, e.g. covers for mechanically operated components. These must be ordered additionally by the buyer if applicable.
The period for deliveries or services begins on the day of the written order confirmation, for which purpose “day” is understood to mean a working day. In case of a subsequent change of the order, we shall not be bound by the assured and confirmed delivery period. If a failure to adhere to the period for deliveries or services is verifiably due to force majeure, war or war-like events, official orders and measures by authorities, and other restrictions of the supply capacity due to events that occur at our upstream suppliers, which are outside of our sphere of influence, the period shall be extended appropriately.
Failure to keep the period for reasons other than the ones referred to above (delay) or non-delivery due to impossibility shall not be within our responsibility, provided that this is at no fault of ours, our vicarious agents or upstream suppliers. For the rest, we shall be liable in accordance with the legal regulations. If we are required to pay damage compensation in these cases, any damage compensation claim in the buyer’s entitlement shall be limited to the damage predictable at the time of the conclusion of the contract – insofar as the contract relates to the buyer’s commercial activity – whereas at most to 10% of the value of the part of the overall delivery, which cannot be used on time or not in accordance with the contract in consequence of the delay or non-delivery.
Further compensation claims of the buyer shall also be excluded after expiration of a grace period potentially set by us. This limitation shall not apply to the extent that we are necessarily liable in cases of intent or gross negligence. The buyer’s right to withdraw after idle expiration of a grace period set by us remains unaffected. If an order is withdrawn without cause or if the buyer does not accept the goods without having a right to refuse acceptance, the costs incurred already, including lost profit, shall be compensated to us in any case. However, we are also entitled to withdraw from the contract after setting a grace period of 10 days.
Unless agreed otherwise, the shipment shall be made ex-factory on account and at the risk of the recipient. If no special shipment method has been agreed, the mode of shipment shall be up to our equitable discretion. Invoiced packaging material will generally not be taken back. The risk shall transfer to the buyer, notably also if delivery with freight paid has been agreed, when the goods were brought to shipping or picked up. If the shipment is delayed on request or at the fault of the buyer, the goods shall be stored at the cost and risk of the buyer. In that case, the notification of the readiness for shipment shall be held equal to shipment.
The price is understood plus the value added tax in the respective statutory amount. The invoice total for our deliveries and services shall be paid 10 days after the invoice date with 2% discount or within 30 days net without deductions. We expressly reserve the acceptance of bills of exchange. Interest and costs for discounting or collection of bills of exchange shall be at the buyer’s expense. For bills of exchange and cheques, the buyer’s debt shall be deemed paid only upon the final discharge and encashment respectively. We are not liable for the timely presentation of bills of exchange and cheques. All of the buyer’s payments shall be deducted from the oldest claim in the current account relationship.
Our representatives and field force staff are not authorised to accept payments without special written power of attorney. In case the payment period is exceeded, we are authorised to demand interest as of the due date in the amount of the interest rate charged by the commercial banks at our company’s place of registration for unsettled current account overdrafts, whereas at least at the rate of 3% above the respectively valid discount rate of Deutsche Bundesbank. We reserve the right to bring further claims of default damage.
On our request, the buyer shall provide us with collateral for the fulfilment of its liabilities that can be called at any time in a form that we deem appropriate. In the case of arrears in payment, non-encashment of cheques or failed discharge of bills of exchange, initiation or opening of settlement or bankruptcy proceedings, all still unsettled receivables shall be due immediately in the full amount. This also applies to accepted bills of exchange that become due at a later point in time. Discounts shall not be granted if the buyer is in arrears with the payment of previous deliveries or services.
The buyer can offset solely against such claims that have been found valid by final and absolute judgement. The assertion of a right to withholding due to counterclaims that are unacknowledged or not found valid by final and absolute judgment is precluded, provided that these claims are not based on the same contractual relationship. If a notice of defects is given, the buyer’s payments may be withheld to an extent that is in an appropriate relation to the defects occurred. However, if the contract is part of its commercial enterprise, the buyer can withhold payments only if notice of defects is given the justification of which is not doubted.
a.) The products delivered by us shall remain our property until the complete payment of all of our receivables. In the case of a breach of essential contractual duties, especially in the case of default on payment, we shall have a right to take the goods back and the buyer shall be obligated to surrender them. In these cases, the buyer shall lose its property right. All costs relating to the removal shall be borne by the buyer. In the case that the goods are taken back or in case of any attachment by us, a withdrawal from the contract is given only if we explicitly declare this in writing. The buyer shall inform us immediately of any interference in our rights resulting from the reservation of title and advise third parties of our rights.
b.) The buyer is entitled to resell the goods in the ordinary course of business on the condition that the receivables from the resale are transferred to us as follows: The buyer hereby assigns to us on this day already all receivables with all ancillary rights that arise for it from the resale against the further buyer or third parties, notably regardless of whether the products subject to the reservation of title are resold without or after processing. The buyer shall be authorised to collect these receivables also after the assignment. Our right to collect these receivables ourselves remains unaffected thereof. However, we undertake not to collect the receivables for as long as the buyer duly fulfils its payment obligations. The buyer shall be obligated on our demand to disclose the receivables assigned to us and their debtors, provide all information required for collection, surrender the related documents, and inform the debtor of the assignments. If the products are resold together with other products that are not our property, the buyer’s claim against its buyer shall apply as assigned to us in the amount that equals the invoice value of our products subject to the reservation of title at the time of the delivery.
c.) The products subject to the reservation of title shall be worked and processed on our behalf as the manufacturer in the definition of Sec. 950 BGB without giving rise to an obligation for us. The processed product shall be deemed the product subject to the reservation of title in the definition of these terms. If products subject to the reservation of title are treated or processed together with other items that are not our property, we shall acquire the co-ownership of the other products used, at the percentage of the invoice value of the products subject to the reservation of title relative to the other processed items at the time of the processing. The co-ownership rights thus created shall be deemed the products subject to the reservation of title in the definition of these terms. If our products are combined with other movable items into one unitary object and if the other item must be regarded as the primary object, it shall apply as agreed that the buyer transfers to us the proportionate co-ownership right to the extent that the primary object is the buyer’s property. Furthermore, the same as applies to the products subject to the reservation of title shall also apply to the object created through the processing and combination.
d.) We undertake to release the collateral in our entitlement to the extent that its value exceeds the collateralised receivables where these are not paid yet by more than 25%.
For defects, also including the absence of assured properties and condition, we shall be liable as follows:
a.) The buyer shall inspect the received products immediately upon arrival as to quantity, condition and assured properties. It shall report any apparent defects to us within one week by written notice. Notices of defects given to our representatives or field force staff are ineffective.
b.) In the case of justified complaints, we shall provide at our choice either reworking of the defective product or a replacement delivery.
c.) The buyer shall provide us with the required amount of time and ample opportunity to correct the defects, in particular make the complained item available for this purpose; otherwise, any warranty for it shall lapse.
d.) In the case that we let an appropriate grace period set by the buyer pass without correcting the defect or delivering a replacement, or if the reworking or replacement is impossible or refused by us, the buyer shall have the right at its choice of reversing the contract (reversal) or reduction of the purchase price (reduction).
e.) The warranty for defects does not apply to natural wear and tear, furthermore also not to damages that occur after the transfer of risk in consequence of improper handling, treatment of processing or assembly and excessive strain. Liability for the consequences arising from any modifications and commissioning work executed improperly by the buyer or third parties is excluded.
f.) If the contract is part of the buyer’s commercial enterprise, the warranty period for reworking and replacement shall be three months. Otherwise, the warranty period for reworking shall be three months and for replacement deliveries six months. The warranty period shall prolong respectively by the period from the complaint until acceptance of the repair or replacement delivery.
g.) Further claims of the buyer against us and our vicarious agents are excluded, in particular a claim to compensation of damages that have occurred not directly on the item of delivery itself. This shall not apply to the extent that liability necessarily applies in cases of intent, gross negligence or absence of assured properties and condition.
Our liability shall be determined exclusively by the agreements concluded in the following. Other damage compensation claims of the buyer, in particular arising from culpa in contrahendo, positive breach of contractual duties and tortious act are excluded, unless they are based on intent, gross negligence by us or by one of our vicarious agents. These claims shall lapse by limitation one year after receipt of the item of delivery by the buyer.
The place of fulfilment and the exclusive place of jurisdiction for deliveries and payments, and for all legal disputes arising in connection with the delivery transaction, including protests against cheques and bills of exchange, shall be the court competent for us in Schwabach provided that the buyer is a general merchant. The contractual relations between the Parties are governed exclusively by the law of the Federal Republic of Germany.
If individual provisions are or become invalid, this shall not be affect the validity of the remaining provisions. The Parties are obliged to agree a new provision, which comes closest to the economic purpose pursued by the invalid provision.
Status July 2008