GENERAL TERMS AND CONDITIONS OF BUSINESS
FOR SALE, DELIVERY AND PAYMENT
Business transactions with us, including all future transactions, shall be subject to the following terms and conditions only.
1. All quotes, agreements and deliveries are based exclusively on these terms and conditions. Any divergent conditions of the purchaser not expressly acknowledging us in writing are non-binding on us, even if we do not explicitly object to them. Deliveries by us shall not be tantamount to any acknowledgement of the purchaser’s terms and conditions.
2. Quotes from us shall be regarded as being without obligation and non-binding unless expressly declared to be “binding” in writing.
II. Terms and Conditions of Business
1. Prices: our prices are understood to be ex works only. If shipment is requested by the purchaser, the additional costs shall be borne by the purchaser. Expenses for producing fair drawings, printing documents and special tools shall be invoiced separately. We reserve the right to increase our prices accordingly if cost increases occur after the contract is entered, in particular as a result of collective agreements or increases in material prices. Proof of such shall be given to the customer on request.
2. Shipment: shipment shall take place at risk of the purchaser. The means of transportation shall be chosen at our discretion.
3. Delivery obligation: delivery periods and delivery dates shall always be regarded as approximations only unless they have been expressly declared as binding in writing. They refer to the time of dispatch and shall be deemed to have been met upon notification of readiness for shipment. All delivery transactions shall be subject to the condition that we receive correct and punctual delivery from our own suppliers. Delivery periods shall only commence once agreement has been reached on all details of the order. If the purchaser requests a change after the order has been confirmed, and if this request is accepted by us, the delivery period shall only begin upon confirmation of said change. Notwithstanding the rights of the vendor arising from default on the part of the purchaser, delivery periods shall be extended by the period by which the purchaser fails to meet its obligations arising towards the vendor from this transaction or other transactions. The same shall apply mutatis mutandis to delivery dates. If we exceed an agreed delivery date by more than two weeks, or if, following a reminder, fulfilment of a due delivery obligation is otherwise delayed by more than two weeks, the purchaser shall, after setting us a period of grace to no avail, be entitled to withdraw from the delivery contract in respect of the delivery for which we have exceeded the delivery date or are in default. Insofar as we are not responsible for exceeding the delivery date, the period of grace must be at least one month and also reasonable in all other respects. There shall be no other claims on the part of the purchaser on account of exceeding the delivery date, other delays in delivery or frustration, regardless of whether we are responsible for the same or not. In the event of default of payment on the part of the purchaser, if an application is filed to open insolvency proceedings as well as in the event of any significant deterioration in the purchaser’s financial circumstances, we shall be entitled to make delivery contingent on advance payment.
4. Taking delivery: in the case of call-off orders, goods announced as being ready for shipment must be called off immediately, otherwise we shall be entitled, following a reminder and at our option, either to dispatch them at the purchaser’s expense and risk or, at our discretion, to put them into storage and invoice them immediately. In the case of transactions involving ongoing shipment, we must be notified of call off’s for delivery and type classifications for approximately equal monthly quantities; otherwise we shall be entitled to make provisions at our reasonable discretion. Insofar as no deadlines are agreed for call-off orders, the purchaser must call and take delivery of the entire quantity no later than six months after entering the order contract.
5. Information and advice: information on ways of processing and using the goods we supply, technical advice and other details shall be given to the best of our knowledge, however without any obligation and excluding any liability. In particular, our verbal or written technical advice regarding usage does not exempt the purchaser from its own responsibility to check the delivered goods in respect of their suitability for the intended processes or purposes. The exclusion of liability shall not apply if such information has been provided within the framework of a special consultancy contract which has been explicitly designated as such.
6. The purchaser shall have rights of retention and set-off only if its counterclaims have become res judicata, are undisputed or acknowledged by us.
III. General Limitation of Liability
1. We shall only be liable also on behalf of our executive employees and other vicarious agents – for the breach of contractual and non-contractual obligations, in particular for frustration, default, culpa in contrahendo and tortuous acts, in cases of intent and gross negligence, limited to the damage typical for the contract and foreseeable at the time at which the contract was entered.
2. These limitations shall not apply in cases of any culpable violation of significant contractual obligations insofar as achieving the purpose of the contract is placed at risk, in cases of mandatory liability under the German Product Liability Act (Produkthaftungsgesetz), in cases of damage to life, limb and health and not either if and insofar as we have fraudulently concealed product defects or have guaranteed the absence thereof. This shall not affect the rules on the burden of proof.
3. Unless otherwise agreed, the purchaser’s contractual claims arising against us from or in connection with the delivery of goods, shall become statute-barred one year after the goods are delivered. This period shall also apply to goods which, in accordance with their normal usage, are used for an edifice and have caused its defectiveness. This shall not affect our liability arising from any intentional and grossly negligent violation of duties nor shall it affect the limitation of statutory rights of recourse through lapse of time, insofar as such exist. The limitation period shall not recommence in any cases of subsequent performance.
IV. Technical Terms and Conditions of Delivery
1. For all deliveries (including replacement deliveries) ± deviations of 15% for up to 5000 pieces, 10% for up to 25000 pieces and 5% from 25000 pieces shall be permissible.
2. It is recommended to store the products supplied at 15 – 35°C and in a relative humidity of 45 – 75%. These must be protected from UV radiation. Particularly when stored outdoors these products are exposed to environmental conditions (outside dusts, humidity, UV radiation), the effect of which cannot be controlled.
3. We shall not be liable in any way for any damage attributed to improper storage at the customer’s premises.
V. Reservation of Title
The goods delivered shall remain our property until the purchaser has met all payment obligations in relation to us. The purchaser shall be entitled to utilise or sell the goods in the orderly course of business under the proviso that it meets its obligations to us under this contract or other contracts in due time.
Our title shall also extend to those new products resulting from processing the goods subject to reservation of title which, accordingly, are manufactured by the purchaser for us as manufacturer within the meaning of Section 950 of the German Civil Code (BGB). In the event of any processing, combination or intermixing with items not belonging to us, we shall acquire co-ownership in direct or relevant application of Section 947 of the German Civil Code (BGB). If, however, in individual cases, our ownership of the goods subject to reservation of title should be completely lost as a result of combination, intermixing or processing, the purchaser shall hereby, even at this stage, assign to us those objects resulting from combination, intermixing or processing as security for all our claims described in sub-section 1.
The objects which are our property shall be held in safe custody by the purchaser on our behalf without any claims arising for the purchaser against us from combining, intermixing or processing or from safekeeping. The purchaser shall hereby assign to us all receivables arising from the sale of goods subject to reservation of title, including all items owned by us in accordance with sub-section 2, together with all ancillary rights and security interests, including bills of exchange and cheques, as security for all our claims described in sub-section 1. In the event goods being sold in which we have co-ownership pursuant to sub-section 2, assignment shall be limited to that share of the claim which equates to our share in co-ownership.
If goods subject to reservation of title are sold together with other objects at a total price, assignment shall be limited to the share in the amount of our invoice, including value added tax for the goods subject to reservation of title that were included in the sale. In the event of any processing within a contract for work and services, the labour cost claim for the work and services in the amount of the pro rata amount of our invoice, including value-added tax for the goods subject to reservation of title included in such processing, shall, even at this stage, be assigned to us. The purchaser shall be authorised, as long as it is willing and able to meet its obligations towards us in due form and we have not revoked authorisation, to dispose of the goods owned by us in the orderly course of business and to collect the receivables assigned to us. The purchaser must immediately inform us of any impediment to our rights in respect of goods which are our property or to the receivables assigned to us. lf the purchaser defaults on a payment to us or violates one of the obligations arising from the agreed reservation of title, all of our claims designated in sub-section 1 shall become due immediately. In these cases, and if the assertion of our claims appears to be at risk for other reasons, the purchaser must, on request, inform us of the stock of the goods subject to reservation of title, including all objects which are our property in accordance with sub-section 2 as well as inform us of the customers to whom it has sold the goods subject to reservation of title or the articles which are our property in accordance with sub-section 2, and must enable us, to the exclusion of all rights of retention, to take possession of and, in particular, take back the goods subject to reservation of title or objects which are our property in accordance with sub-section 2, to notify its customers of the assignment of the receivables to which we are entitled and to provide us with all necessary information and documents. The taking back of goods subject to reservation of title shall only equate to our withdrawal from the contract if we expressly declare such in writing. lf, in accordance with the above conditions, we make use of our reservation of title by taking back the goods subject to reservation of title, we shall be entitled to sell the goods by private treaty or to have them auctioned. The goods subject to reservation of title shall be taken back at the proceeds obtained, but at most at the agreed delivery prices. We reserve the right to assert further-reaching claims for damages, in particular lost profit. If the value of the securities existing for us exceeds the receivables being secured by more than 20%, we shall, at the purchaser’s request, release securities at our option.
VI. Place of Performance, Place of Jurisdiction, International Sale of Goods, Miscellaneous
1. The place of performance for our deliveries made ex works shall be the supplying plant, our warehouse for all other deliveries. The place of jurisdiction shall, at our option, be the registered office of our headquarters or the registered office of the purchaser.
2. In addition to these terms and conditions, German non-harmonised substantive law shall apply to all legal relationships between us and the purchaser. Insofar as the purchaser has its place of business abroad, the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall apply unless anything to the contrary follow from these terms and conditions. In addition, the purchaser of consumer goods in accordance with Section 475 of the German Civil Code(BGB) shall undertake not to exclude application of the CISG in the event of the goods being resold abroad. We assume no liability for the goods delivered being suitable for any purposes other than those expressly agreed in writing. In the event of goods or services failing to conform with the contract, the purchaser shall undertake, prior to rescinding the contract and asserting claims for damages, to specify an appropriate period of grace for meeting the contractual obligations. This shall not apply if circumstances make it impossible or unreasonable for the purchaser to grant a period of grace. The assertion of claims for damages against the vendor shall always be contingent on a fault on the part of the vendor or its employees. Any price reduction in accordance with CISG article 50 shall be limited to the reduced value of the non-conforming goods. The liability relief or release from liability defined for us in these provisions also apply to all employees. Any amendment to or rescission of the contract as well as the assertion of all rights of the purchaser must be made in writing, whereby it shall be sufficient to submit such by e-mail or fax; the declarations must be submitted to us.
3. If a purchaser, which is located outside of the Federal Republic of Germany, or its authorised representative, collects goods or transports or ships them abroad, the purchaser must provide us with proof of export required for tax purposes. If this proof is not provided, the purchaser must pay the value-added tax on the invoice amount applicable to deliveries within the Federal Republic of Germany.
4. In the case of deliveries from the Federal Republic of Germany to other EU member states, the purchaser must, prior to taking delivery, inform us of its VAT identification number under which it pays tax on the acquisition of goods within the EU. Otherwise, the purchaser must pay the statutory value-added tax amount owed by us for our deliveries in addition to the agreed purchase price.
5. When invoicing deliveries from the Federal Republic of Germany to other EU member states, the value-added tax regulation of the respective recipient member state shall apply if either the purchaser is registered for value-added tax in another EU member state or if we are registered for value-added tax in the recipient member state.
VII. Severability Clause
Should any of the above provisions be ineffective, this shall not affect the validity of the remaining provisions. Data shall not be passed on to third parties.