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General Terms

General Terms

General Conditions of Sale 01.07.2015
 
I. General, validity
 
1.
The present general terms and conditions of business apply to all our business relationships with our customers (also referred to as clients). The general terms and conditions of business shall only apply if our client is an entrepreneur (Article 14 German Civil Code), a corporate body under public law or a special fund under public law.
 
2.
The general terms and conditions of business shall apply in particular to the sale and/or delivery of goods and chattels regardless of whether we produce the goods ourselves or buy them from sub-suppliers. The general
terms and conditions of business shall also apply as a general agreement for future contracts with the same client regarding the sale and/or delivery of goods and chattels without it being necessary for us to refer to them again in each individual case.
 
3.
Our general terms and conditions of business shall apply exclusively. Terms and conditions of business of the client or of a third party shall not apply, even if we do not object to their validity in an individual case. Even if we refer to a letter containing the terms and conditions of business of our customer or a third party or refer to such terms and conditions, this shall not constitute agreement to the validity of those terms and conditions of business.
 
4.
Individual agreements with the client made in an individual case shall have priority over these general terms and conditions of business. A written contract or our written confirmation shall be decisive for the contents of such agreements.
 
5.
Declarations and notifications of legal relevance that the client has to submit to us after conclusion of contract (e.g. notice of defects, deadlines etc.), shall require the written form (Article 126b German Civil Code) to be effective.
 
6.
References to the validity of statutory provisions shall only be of clarifying importance; statutory provisions shall therefore apply insofar as they are not directly modified or expressly excluded by these general terms and conditions of business.
 
 
II. Quotation, conclusion of contract etc.
 
1.
Our quotations shall be without engagement and obligation. This shall also apply if we have provided our customer with technical documentation (e.g. drawings, calculations, references to DIN standards), other product descriptions or documents.
 
2.
The client is able to accept orders or assignments within 14 days after receipt of our quotation.
 
3.
An order for goods from our client shall apply as a binding offer to enter into a contract. Provided that nothing else arises from the order, we shall be entitled to accept this offer to enter into a contract within 4 weeks after receiving it.
 
4.
Acceptance can either be declared in writing (e.g. by means of confirmation of order) or by supplying the goods to our customer.
 
5.
The written contract as concluded including these general terms and conditions of business shall be of sole significance for the legal relationship with our client. It reflects all the understandings between us and the client. Oral agreements on our part before conclusion of this contract shall not be legally binding. Oral agreements shall be replaced by the written contract provided that it does not arise expressly from them in each case that they shall continue to be binding.
 
Public statements on our part or by other third parties, in particular of the promotional kind, shall not apply as an agreement regarding the appearance and workmanship and shall not contain a promise of guarantee.
 
6.
Modifications or additions to the concluded contractual agreements including these general terms and conditions of business shall require the written form to take effect. Our employees, with the exception of managing directors and general managers, shall not be entitled to come to informal agreements that deviate from this. Transmission by telecommunication (e.g. e-mail or fax) shall be adequate to observe the written form.
 
7.
Information on our part regarding the subject matter of the delivery or performance (e.g. technical data, weights, dimensions, tolerances, capacities) as well as illustrations, e.g. in the form of drawings or images, are only approximately applicable insofar as applicability does not assume exact compliance for the contractually assumed purpose. Insofar this is the description or identification marking of our delivery or performance and does not involve guaranteed quality features. Customary variations that result from legal provisions or that constitute technical improvements are permissible insofar as they do not interfere with the usability for the contractually assumed purpose. This shall apply accordingly to the replacement of parts by equivalent parts (e.g. parts of assembly groups).
 
8.
We reserve proprietary rights or copyright to all quotations and cost estimates that we submit as well as to those documents that we provide to our customer, e.g. drawings, illustrations, calculations, catalogues, models, tools and other documents and devices. Without our express consent the client may not make objects or documents of that kind available as such or with regard to content to third parties, or disclose them, use them himself or allow use by third parties or duplicate them. At our request our customer shall return all the objects to us and destroy any copies that may have been made, if he no longer requires them in the due course of business or if negotiations do not lead to the conclusion of a contract.
 
9.
With regard to quantity variances the following regulations in III. number 6 shall be decisive.
 
10.
As a matter of principle the provision of samples shall be at extra cost. Provision of samples only serves as a quality agreement and does not constitute a guarantee.
 
11.
Insofar as nothing else has been agreed, tools shall also not pass into the ownership of our contractual partner even in the event of charging full costs.
 
 
III. Prices, terms of payment
 
1.
The quoted prices are binding. The prices shall apply to the scope of services and delivery stated in the confirmations of orders. The prices are quoted ex works plus packaging and VAT; export shipments are plus customs duties and other public charges. In the case of sale by delivery to a place other than the place of performance the client shall bear the transport costs ex works and the costs of any goods in transit insurance he may require. In accordance with the regulation on packaging we do not take back transport packaging and all other packaging; this shall become the property of our customer. Pallets and lattice boxes shall be excluded.
 
2.
The purchase price is due for payment and must be settled within 14 days after the invoice is issued and delivery or acceptance of the goods.
 
3.
The client shall be in default as soon as the preceding period allowed for payment has expired. During the default period the purchase price shall be subject to interest at the legally applicable default interest rate in each case.We reserve the right to assert a further claim for damages caused by delay. Our claim to commercial maturity interest (Article 353 German Commercial Code) shall remain unaffected.
 
4.
The client shall only be entitled to set-off rights or rights of retention insofar as his claim has been established as final and absolute or is undisputed. Notwithstanding this, counterclaims by our contractual partner shall remain unaffected in the case of defects in delivery, in particular in accordance with VII. of these general terms and conditions of business.
 
5.
We shall be entitled to only make outstanding deliveries or give performance against prepayment if circumstances become known to us after conclusion of a contract that are suitable to significantly decrease the credit rating of the client and due to which payment is jeopardised of our outstanding claims by the client arising from the respective contractual relationship (including those from other individual orders to which the same frame contract applies). Apart from that the regulations of Article 321, in particular paragraph 2 of the German Civil Code, shall continue to apply. We are able to declare our immediate withdrawal in the case of contracts regarding the production of unjustifiable items (made-to-order production, e.g. according to drawing); the statutory rules regarding the dispensability of the deadline shall remain unaffected.
 
6.
On account of technical circumstances during production or commercial circumstances during the procurement of half-finished products for supply to our client, it is possible that we will not be able to provide the exact quantity during production. The contract will be adapted following excess quantities or shortfalls to an extent of up to 10 %. Such deliveries of excess quantities or shortfalls shall not constitute a deficiency. Accounting shall be in accordance with the actual delivery quantity.
 
 
IV. Delivery, delivery time, default
 
1.
The deadlines and schedules we promise for deliveries and performance shall always only be approximately applicable, unless an express fixed deadline or a firm date has been assured or agreed. If forwarding has been agreed, the terms of delivery and delivery times refer to the time of handover to the forwarding agent, freight carrier or other third parties commissioned with transport.
 
2.
If we are unable to comply with binding delivery times for reasons for which we are not responsible, we will immediately inform our client of this and notify the anticipated new delivery time at the same time. If performance is also not possible within the new delivery time, we shall be entitled to withdraw from the contract in full or in part; we shall immediately refund any consideration already paid by our customer. In particular failure to deliver on the part of our suppliers shall apply as a case of unavailability of performance to this effect, provided that we have concluded a congruent covering transaction and that neither we nor our supplier are to blame.
 
3.
The beginning of default in delivery shall be regulated by the statutory provisions. At any rate a reminder from our customer shall be necessary.
 
If there is a delay in delivery the client shall be able to demand liquidated damages for delay. The lump-sum compensation amounts to 0.5 % of the net price (net value of the goods delivered) for every full calendar week of the delay, however in total no more than a maximum of 5 % of the delivery value of goods delivered behind schedule. We reserve the right to provide proof that our customer did not suffer any damages at all or only significantly lesser damages than the preceding lump-sum.
 
4.
We shall not be liable for the impossibility of delivery or for delays in delivery insofar as these were caused by force majeure or other unforeseeable occurrences at the time of concluding the contract (disruptions of all kinds, difficulties in the procurement of material or energy, delays in transport, strikes, lawful lockouts, lack of labour force, energy or raw materials, difficulties in obtaining necessary official approvals, official measures or failure to deliver, incorrect or unpunctual delivery by suppliers), for which we are not responsible. If occurrences of this kind make it essentially difficult or impossible for us to make delivery or give performance and the obstruction is not only for a temporary period, we shall be entitled to withdraw from the contract. In the case of temporary obstructions the delivery times or performance periods will extend or the scheduled delivery dates or performance schedules shift by the duration of the obstruction plus a reasonable start-up period. Insofar as the acceptance of the deliveries or performance cannot be expected of the client as a consequence of the delay, he shall be able to immediately withdraw from the contract by providing us with a written declaration.
 
5.
We shall be entitled to make part-deliveries if

  • the part-delivery is suitable for our client within the framework of the contractual intended use,
  • delivery of the remaining ordered goods is ensured and
  • our customer does not incur any significant extra costs or additional expenses due to this (unless we agree to accept such costs).

 
6.
In the event that we fall behind with delivery or performance or if delivery or performance is not possible for us for whatever reason, our liability for damages shall be restricted in accordance with IX. of these general terms and conditions of business.
 
7.
Notwithstanding our rights arising from the default of the client, we shall be able to demand from him an extension of delivery times and performance periods or postponement of scheduled delivery dates and performance schedules by the time during which our customer does not comply with his contractual obligations towards us.
 
 
V. Place of performance, passing of risk, shipment, call-off order etc.
 
1.
Insofar as nothing else has been specified, our head office shall be the place of performance for all obligations arising from the contractual relationship. On demand and at the expense of our customer, the goods will be shipped to another destination point (sale by delivery to a place other than the place of performance). Insofar as nothing else has been agreed, we shall be entitled to specify the type of shipment in all respects; stipulation shall be at our dutiful discretion.
 
2.
The risk of accidental perishing or accidental deterioration shall pass to the client at the latest upon handover of the delivery item. However, in the case of sale by delivery to a place other than the place of performance the risk and the risk of delay already pass over to our client upon delivery (commencement of the loading process is decisive) to the forwarding agent, freight carrier or other third parties specified to carry out shipment. This shall also apply if part-deliveries are carried out and we have also taken on other services. If shipment or handover is delayed as a consequence of a circumstance the cause of which is with our customer, risk shall pass to our client as from the day on which the delivery item is ready for shipment and on which we notified our customer of this.
 
3.
Our client shall pay storage costs after the passing of risk. If we provide storage the storage costs will amount to 0.25 % of the invoice amount per full week of the delivery items to be stored. The right is reserved to the assertion and proof of further or lesser storage costs in each case. The lump-sum storage costs shall be offset against any further claims to payment.
 
 4.
If delivery on call has been agreed, call-off orders must be placed within 12 months at the latest after conclusion of contract if an alternative agreement has not been made in writing. We shall also be entitled to assert our claim without a call-off order by the client after the preceding call-off deadline, alternative agreement if applicable, has elapsed.
 
 
VI. Reservation of title
 
1.
We reserve title to the goods sold until full payment of all our current and future claims arising from the contract of purchase and an ongoing business relationship (secured claims) has been made.
 
2.
Before full payment of the secured claims, the goods under reservation of title may not be assigned to third parties or transferred as security. The client shall inform us immediately in writing if and insofar as there is access by third parties to the goods belonging to us.
 
3.
In the event of behaviour by the client contrary to the contract, in particular in the event of non-payment of the due purchase price, we shall be entitled to withdraw from the contract according to the statutory provisions or/and to demand surrender of the goods on account of the reservation of title. At the same time, the demand for surrender shall not include a declaration of withdrawal; in fact we shall be entitled to simply demand surrender of the goods and reserve the right to withdrawal. In the event that the client does not pay the due purchase price, we may only assert these rights if we unsuccessfully set the client a reasonable deadline to make payment prior to this or if such a deadline is dispensable according to the statutory provisions.
 
4.
The client shall be authorised to resell and/or process the goods under reservation of title in the due course of business. The due course of business no longer exists if a petition in insolvency has been made, insolvency proceedings have been stopped for insufficiency of assets or in cases of the cessation of business or the cessation of payment; in any case we shall be entitled for an important reason to object to the resale of goods under the reservation of title. If resale is permitted according to these regulations, the following provisions shall apply in addition.
 
a)
The reservation of title shall extend to the products and their full value arising due to the processing, blending or linking of our goods, whereby we shall be regarded as the manufacturer. If the ownership of a third party continues to exist following processing, blending or linking with his goods, we shall acquire co-ownership proportionate to the invoice value of the processed, blended or linked goods. Apart from that, the same shall apply to the arising product as to the goods supplied under reservation of title.
 
b)
The client shall already now assign to us as security the claims against third parties arising from the resale of the goods or the product in total or in the amount of any of our co-ownership shares in accordance with the preceding paragraph. We accept the assignment. The duties of the client mentioned in paragraph 2 shall also apply in consideration of the assigned claims.
 
c)
The client is authorised to collect the claim in addition to us. We undertake not to collect the claim as long as the client complies with his payment obligations towards us, is not in default of payment, has not made a petition in insolvency and no other deficiency in his performance exists. However, if this is the case, we are able to demand that the client informs us of the assigned claims and the debtors, provides all details necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
 
d)
In the event that the liquidable value of the securities exceeds our claims by more than 10 %, we will release securities of our choice on demand by the client.

 
VII. Guarantee, defect as to quality
 
1.
The statutory provisions shall apply to the rights of our customer in the event of defects as to quality and defects of title (including wrong delivery and short delivery as well as inadequate assembly or faulty assembly instructions), insofar as nothing else is specified below. In all cases the statutory special provisions shall remain unaffected in the case of final delivery of the goods to a consumer (Articles 478, 479 German Civil Code – supplier redress).
 
2.
The agreement reached on the appearance and workmanship of the goods shall be the basis of our liability for defects.
 
3.
Insofar as appearance and workmanship have not been agreed, any assessment of whether a defect exists or not shall be made according to the statutory rules (Article 434 para. 1 clause 2 and clause 3 German Civil Code).
 
4.
The warranty claims of our customer presuppose that he has complied with his legal obligation to inspect and requirement to make a complaint in respect of a defect (Articles 377, 381 German Commercial Code). If a defect appears during examination or at a later time, we must be notified of these defects immediately in writing. Notification is regarded as immediate if it is made within 8 calendar days, whereby timely posting of notification suffices for the deadline. Irrespective of this obligation to inspect and requirement to make a complaint in respect of a defect, our client must give written notice of obvious defects (including wrong delivery and short delivery) within 8 days, whereby timely posting of notification also suffices in this case to comply with the time limit. If our client fails to carry out a proper inspection and/or make a complaint in respect of a defect, our liability shall be excluded for any complaint not made in respect of a defect.
 
5.
At our request any rejected item of delivery must be returned to us carriage prepaid. In the case of a justified complaint in respect of a defect we will reimburse the costs of the lowest priced shipping route. However, this shall not apply insofar as the costs increase, because the delivery item is at a place other than the place of intended use.
 
6.
If the item as delivered is defective, we can choose whether we will provide supplementary performance by eliminating the defect (subsequent improvement) or by supplying an item free of defects (replacement delivery). Our right to refuse supplementary performance under the legal conditions shall remain unaffected.
 
7.
We shall be entitled to give any supplementary performance owed dependent on our customer paying the due purchase price. However, he is entitled to keep back a reasonable part of the purchase price proportionate to the defect.
 
8.
Our customer must grant us the time and opportunity necessary for the supplementary performance owed, in particular hand over the rejected goods for inspection purposes. In the case of a replacement delivery our client shall return the defective item to us in accordance with the statutory provisions. Supplementary performance neither includes disassembling the defective item nor re-assembling it, if we are not primarily obligated to carry out assembly.
 
9.
If a defect actually exists we will cover the expenditure we require for the purpose of inspection and supplementary performance, in particular transport costs, travel costs, labour costs and material costs (not however disassembly and assembly costs). However, if our customer‘s demand for rectification of a defect turns out to be unjustified, we are able to demand compensation for the costs incurred by this.
 
10.
If supplementary performance is not successful or if a reasonable time-limit to be set by our client for supplementary performance has expired without success or is dispensable according to statutory provisions, our customer can withdraw from the contract or reduce the price. However, a right to withdrawal does not exist in the case of a negligible defect.
 
11.
Claims by our client to compensation for damages or compensation for futile expenditure shall only exist according to the following regulations in IX. Apart from that claims of that kind shall be excluded.
 
12.
Rights shall be excluded on account of defects and all claims to compensation for damages in the case of the sale of used, movable objects. The preceding regulations on the exclusion of claims to compensation for damages in the case of used items shall not apply to damages arising from death or injury to body or health, if we are responsible for the neglect of duty and not for other damages that are based on an intentional or grossly negligent neglect of duty on our part. Neglect of duty by our legal representatives or vicarious agents is of equal importance. Claims according to the Product Liability Act as well as upon acceptance of a guarantee or a procurement risk shall remain unaffected.
 
13.
In the case of defects on products from other manufacturers (e.g. component parts, sub-assembly parts), that we are unable to eliminate for licensing reasons or actual reasons, we will, at our own option, assert our warranty claims against the manufacturer or supplier for our customer’s account or assign them to him. Warranty claims against us only exist for such defects under the other requirements and according to these general terms and conditions of business, if legal enforcement of the claims mentioned above against the manufacturer and supplier was without success or, for example, is futile on account of insolvency. The limitation of action of the relevant warranty claim by our customer against us is inhibited for the duration of the legal dispute.
 
14.
Warranty is not applicable if our customer amends the delivery item without our consent or has it amended by a third party, thus rendering rectification of a defect impossible or making it unacceptable. In either case our client shall bear the additional costs of the rectification of a defect due to the amendment.
 
 
VIII. Proprietary rights
 
1.
Each contractual partner shall immediately inform the other partner in case third party claims are asserted against him on account of the violation of industrial property rights or copyrights.
 
2.
In the cases in which the delivery item violates an industrial property right or copyright of a third party, we shall, at our own option and at our expense, amend or substitute the delivery item in such a way that no more third party rights are violated, but so that the delivery item continues to comply with the functions stipulated by contract or acquire the right of use for our customer by the conclusion of a licence agreement. If we do not succeed in doing this within a reasonable period of time, our client shall be entitled to withdraw from the contract or make a reasonable reduction to the purchase price. Any claims to compensation for damages by our customer shall be subject to the restrictions in the following regulations in IX.
 
3.
In the event of the violation of rights by products from other manufacturers supplied by us, we shall, at our own option, assert our claims against the manufacturers or upstream suppliers for our customer’s account or assign the claims to him. In these cases claims against us shall only exist according to number VIII. if legal enforcement of the aforementioned claims against the manufacturer and/or upstream suppliers was unsuccessful or, for example, appears to be futile on account of insolvency.
 
4.
In the event that we produce something according to instructions from our customer or if we give performance according to his specifications, our client shall be obligated to indemnify us from any claims asserted against us by third parties arising from infringements of industrial property rights/copyright infringements.
 
 
IX. Compensation for damages, liability for fault
 
1.
Our liability for compensation for damages, irrespective of the cause in law, in particular due to impossibility, default, liability for defects or wrong delivery, violation of contract, breach of duties arising from contract negotiations or an unlawful act, shall be restricted in accordance with the following provisions insofar as it comes down to fault in each case.
 
2.
We shall not be liable in the case of basic negligence by our institutions, legal representatives, salaried employees or other vicarious agents, insofar as an infringement of essential contractual obligations is not involved. Obligations essential to the contract are those obligations whose fulfilment render execution of the contract possible in the first place and in the compliance with which our customer regularly trusts in or is able to trust in.
 
3.
Insofar as we are liable for compensation for damages in accordance with paragraph 2 above, this liability shall be restricted to damages that we were able to foresee upon conclusion of contract as a possible consequence of a violation of contract or that we should have foreseen with due care and attention. Moreover, indirect damages and subsequent damage as a consequence of defects to the delivery item shall only be entitled to replacement if damages of this kind are typically to be expected upon designated use of the delivery item.
 
4.
In the case of liability for basic negligence our duty of replacement for damages to property and other financial losses arising from this shall be restricted to an amount of 1,000,000.00 € per damage event, even if this involves a violation of essential contractual obligations.
 
5.
The preceding liability exclusions and restrictions shall apply to the same extent in favour of our institutions, legal representatives, salaried employees and other vicarious agents.
 
6.
Insofar as our salespersons provide technical information or advice and this information or advice does not belong to the scope of supply and services stipulated by contract that we owe, this shall be free of charge and to the exclusion of all liability.
 
7.
The restrictions of number IX. shall not apply to our liability on account of intentional behaviour, guaranteed quality features, damages arising from death, injury to body or health or according to the Product Liability Act and also not in the case of fraudulent concealment.
 
8.
Our customer shall only be able to withdraw or give notice on account of a breach of duty that does not involve a defect, if we are responsible for the breach of duty. An absolute right of termination of our client (Article 649, Article 651 German Civil Code) shall be excluded. Apart from that the statutory requirements and legal consequences shall apply.
 

X. Limitation of action
 
1.
Notwithstanding Article 438 para. 1 no. 3 German Civil Code the general period of limitation for claims arising from defects as to quality and defects of title shall be 1 year as from delivery. Insofar as acceptance has been agreed, the limitation of action shall begin upon acceptance.
 
2.
However, if the goods in question are a construction or an item that was used for a construction in accordance with its customary manner of use or has caused its defectiveness, the period of limitation in accordance with the statutory rule shall be 5 years as from delivery (Article 438 para. 1 no. 2 German Civil Code). Statutory special regulations for actio in rem (Article 438 para. 1 no. 1 German Civil Code), in cases of deceitfulness on our part (Article 438 para. 3 German Civil Code) and for claims in supplier’s redress following final delivery to a consumer (Article 479 German Civil Code) shall also remain unaffected.
 
3.
The preceding periods of limitation shall also apply to contractual and non-contractual claims by our customer for compensation for damages that are based on a defect of the goods, unless application of the regular statutory limitation of action (Articles 195, 199 German Civil Code) would lead to shorter limitation of action in an individual case. At any rate, periods of limitation according to the Product Liability Act shall remain unaffected. Apart from that, the statutory periods of limitation shall apply exclusively to claims for compensation for damages by our client.
 
 
XI. Miscellaneous, final provisions
 
1.
If our customer is a businessman as defined by the German Commercial Code, a corporate body under public law or a special fund under public law, the exclusive place of jurisdiction – also international – for all disputes arising directly or indirectly from the contractual relationship shall be our place of business. We are, however, entitled to claim against our customer at the place of general jurisdiction.
 
2.
The contract languages are German and English.
 
3.
The law of the Federal Republic of Germany shall apply to these general terms and conditions of business and all legal relationships between us and our customer to the exclusion of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG). Requirements and effects of the reservation of title in accordance with VI. shall be subject to the law at the respective storage location of the item, insofar as the agreed choice of law in favour of German law is inadmissible or ineffective accordingly.
 
4.
Insofar as this contract or the general terms and conditions of business contain gaps in the provisions, those legally effective provisions shall be regarded as agreed to fill these gaps that the contractual partners would have agreed upon according to the commercial objectives of this contract and the purpose of these general conditions of delivery, if they had recognised the gap in the provision. The same shall apply correspondingly in the case of the invalidity of individual provisions.
 
5.
Note: The customer takes note that we store data from the contractual relationship for the purpose of data processing in accordance with Article 28 of the Federal Data Protection Act and that we reserve the right to transmit the data to third parties if this is necessary for performance of the contract.