GENERAL TERMS AND CONDITIONS OF SALE
§ 1 General – Scope of validity
(1) Only our terms and conditions of sale shall apply. A customer’s terms of business differing from, or contrary to, our terms and conditions of sale will not be recognized by us, unless we have expressly agreed in writing that they shall apply. Our terms and conditions of sale shall also apply in those cases in which we supply a consignment to the customer without reservation in the knowledge that the customer’s terms of business differ from, or are contrary to, our terms and conditions of sale.
(2) All agreements made between ourselves and the customer for the purposes of carrying out this contract are written down in this contract.
(3) Our terms and conditions of sale shall only apply to businessmen within the meaning of § 310 Section 1 of the German Civil Code [BGB].
§ 2 Offer – Offer documents
(1) Our offer shall be subject to change without notice, unless a statement to the contrary is made on the order confirmation.
(2) We shall reserve title and copyright to diagrams, drawings, calculations and other documents. This shall also apply for those written documents designated as "confidential". The customer shall require our express written consent prior to handing such documents on to third parties.
§ 3 Delivery period
(1) The beginning of the delivery period stated by us shall be dependent upon all technical queries having been clarified. (
(2) Compliance with our obligation to supply shall assume that the customer fulfils his obligations properly and on time (e.g. by furnishing documents, licences and clearances). If the customer fails to do so the delivery period stated by us shall be extended by an appropriate period of time. We shall reserve the right to claim that the contract has not been fulfilled by the customer.
(3) We shall be entitled to supply part deliveries at any time provided that we have given advance notice of the part delivery 5 days prior to the subject-matter of the contract being delivered ex Works.
(4) If the customer is in default with taking delivery of a consignment, or if he is in culpable breach of other obligations to co-operate, we shall consequently be entitled to demand the reimbursement of the damages we incur as a result, including any additional expenses which we may have incurred. We shall reserve the right to assert claims over and above this.
(5) Provided that the preconditions in Section (4) have been satisfied, the risk of accidental loss or accidental deterioration of the purchased item shall pass over to the customer at the point in time at which he is in default with taking delivery or in default with payment.
(6) We shall be liable in accordance with the law provided that the underlying purchase contract is a fixed date transaction within the meaning of § 286 Section 2 No 4 of the German Civil Code [BGB] or § 376 of the German Commercial Code [HGB]. We shall also be liable in accordance with the law, in so far as the customer is entitled, as a result of a delay in delivery for which we are to blame, to assert a claim that he no longer has an interest in continuing to have the contract fulfilled. In such cases our liability for compensation for damages shall be limited to the typically occurring foreseeable damages.
(7) Moreover we shall be liable in accordance with the law in so far as the default in delivery is based upon a breach of contract for which we are to blame or upon a breach of contract resulting from intent or gross negligence by us. We shall be liable if such breaches have been caused by our representatives or by our assistants. In so far as the default in delivery is attributable to a breach of contract resulting from gross negligence on our part, our liability to pay compensation for damages shall be limited to the typically occurring foreseeable damages.
(8) We shall also be liable in accordance with the law provided that the default in delivery for which we are to blame is based upon a culpable breach of an important contractual obligation. In this case our liability to pay compensation for damages shall however be limited to the typically occurring foreseeable damages.
(9) If, in the event of Sections (6), (7) Sentence 2 and (8), the customer suffers losses of production as a result of a default in delivery for which we are to blame, we shall not pay compensation for them as a result.
(10) Moreover, in the event of a default in delivery we shall be liable for each to pay lump sum compensation for each full week of delay amounting to 0.5% of the consignment value, up to a maximum of not more than 5% of the consignment value.
§ 4 Passing of risk – Packing costs
(1) Unless the order confirmation states otherwise, delivery shall be agreed to be "ex Works".
(2) Separate agreements shall apply for taking back packing material.
(3) In so far as the customer requests it, we shall take out insurance coverage for the goods in transit. The costs incurred as a result shall be for the customer’s account.
§ 5 Prices and Terms and Conditions of Payment
(1) Unless the order confirmation states otherwise, our prices shall be "ex Works", excluding packing. This shall be invoiced separately. We shall reserve the right to amend our prices as appropriate if, after the contract is signed, costs increase or decrease in particular as a result of collective bargaining agreements being signed or changes in the prices of materials. These shall be proven to the customer upon request.
(2) Statutory value added tax is not included in our prices. It shall be shown separately in our invoices at the statutory rate in force on the date the invoice is raised.
(3) The subtraction of a prompt payment discount shall be subject to separate written agreement.
(4) Unless the order confirmation states otherwise, the purchase price shall be due for payment net (in full) within 30 days from the date of invoice. The statutory regulations shall apply with regard to the consequences of default in payment.
(5) The customer shall only be entitled to offsetting rights if his counter claims have been declared final and absolute in a court of law, are not contested or are recognized by us. Besides which, he shall be entitled to exercise a right of retention provided that his counter claim is based upon the same contractual relationship.
§ 6 Liability for defects
(1) The customer’s warranty rights assume that he has fulfilled his obligations to inspect the goods and notify defects properly in accordance with in § 377 of the German Commercial Code [HGB].
(2) In so far as there is a defect in the purchased item, we shall be entitled as we choose to render subsequent fulfilment either by rectifying the defect or to supply a fault-free thing. In the event of subsequent fulfilment we shall bear the additional expenditure only up to the amount of the purchase price.
(3) If subsequent fulfilment is unsuccessful, the customer shall be entitled as he chooses to withdraw from the contract or to reduce the purchase price.
(4) We shall be liable in accordance with the law in so far as the customer asserts claims based on intent or gross negligence, including intent or gross negligence on the part of our representatives or assistants. In so far as we are not charged with intentional breach of contract, liability for compensation for damages shall be limited to foreseeable and typically-occurring damages.
(5) We shall be liable in accordance with the law in so far as we culpably breach an important contractual duty. In this case however, liability for compensation for damages shall be limited to foreseeable and typically-occurring damages. An important contractual duty shall exist if it refers to a duty on the fulfilment of which the customer has relied and may also trust in.
(6) If the customer sustains production losses in the event of Sections (4) and (5) as a result of a default in delivery for which we are to blame, we shall not pay compensation for these losses (cf. § 3 (9)").
(7) Liability on account of a culpable loss of life, personal injury and physical harm shall not be affected. This shall also apply for compulsory liability in accordance with the Product Liability Act.
(8) Provided that nothing has been arranged to the contrary above, liability shall be excluded.
(9) The period of limitation for warranty claims shall be 12 months counting from the passing of risk.
§ 7 Joint liability
(1) Any further liability for compensation for damages other than provided for in § 6 is inadmissible – regardless of the legal nature of the asserted claim. This shall apply in particular for compensation claims for damages based on fault when the contract is signed, on account of other breaches of duty or on account of tortious claims for the compensation of property damages in accordance with § 823 of the German Civil Code [BGB].
(2) The limitation in accordance with (1) shall also apply in so far as the customer demands compensation for expenditure spent unsuccessfully instead of a compensation claim for damages instead of performance.
(3) In so far as liability for compensation for damages against us is inadmissible, or limited, this shall also apply with regard to the personal liability for damages of our salaried staff, employees, representatives and assistants.
§ 8 Security for reservation of title
(1) We shall reserve the title to the purchased goods until we have received all payments from the business relationship with the customer. In so far as we agree that the purchase price owed is to be paid by cheque or draft, the reservation of title shall also exist until the customer’s draft accepted by us has been cashed and shall not be relinquished until the cheque received by us has been credited to our bank account. In the event of the customer’s conduct being in breach of contract in particular in the event of delay in payment, we shall be entitled to take back the purchased item. Taking back the item by us shall constitute withdrawal from the contract. Once we have taken back the item we shall be entitled to sell it. The proceeds from a sale – minus reasonable sale expenses - are to be offset against the customer’s liabilities.
(2) The customer is obliged to treat the purchased item with care; in particular he shall be obliged to take out adequate replacement value insurance cover at his own expense against fire damage, water damage and theft. In so far as maintenance and inspection work is required, the customer shall have to carry them out in good time at his own expense.
(3) In the event of levy of execution or other third party interference the customer must notify us straight away in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure [ZPO]. In so far as the third party is not able to reimburse us for the costs incurred by us in and out of court of taking legal action in accordance with § 771 of the German Code of Civil Procedure [ZPO], the customer shall be liable for the shortfall we have incurred.
(4) The customer is entitled to sell on the purchased item as part of a normal commercial transaction. However, he shall assign to us here and now all accounts up to the value of the total amount invoiced to him by us (including value added tax) for our claim, accruing to him against his buyers or third parties from the resale, and to be more precise, irrespective of whether the purchased thing has been resold with or without processing. The customer shall continue to be authorised to collect this account even after it has been assigned to us. Our authority to collect the account ourselves shall not be affected by this. We shall however undertake not to collect the account for as long as the customer fulfils his payment obligations from the proceeds he collects, does not fall into arrears with payment and in particular no application is made for the instigation of a settlement or insolvency proceedings or he stops making his payments. If this is however the case, we may consequently demand that the customer informs us of the assigned accounts and who owes them and provides us with all the information required to collection them together with the relevant documents and notifies the debtors (third part) of the assignment.
(5) The processing or modification of the purchased thing by the customer shall always be carried out on our behalf. If the purchased thing is mixed with other items not belonging to us, we shall consequently acquire co-ownership to the new thing in proportion to the value of the purchased thing (total invoiced amount including value added tax) to the other processed items at the time of processing. Moreover the same shall apply for the thing created by processing as for the purchased thing supplied subject to reservation of title.
(6) If the purchased item is indivisibly mixed with other items not belonging to us, we shall consequently acquire co-ownership to the new item in proportion to the value of the purchase (total invoiced amount, including value added tax) to the other combined items at the point in time of combination. If the items are combined in such a way so that the customer’s item is to be regarded as the main item, it shall consequently be regarded as agreed that the customer shall assign a proportional co-ownership to us. The customer shall keep the sole ownership or co-ownership thus created in safe-keeping for us.
(7) We shall undertake to release the securities to which we are entitled at the customer’s request to the extent that the market value of our securities exceeds the accounts to be secured by more than 10%. The selection of the securities to be released shall be incumbent upon us.
§ 9 Proprietary rights with regard to production documents handed over to us
We shall not accept any liability whatsoever for the breach of any proprietary rights which may exist in the event that a delivery is supplied to customer specifications, in particular on the basis of drawings, models or specimens handed over to us. This shall also apply if such drawings, models or specimens are made available to us by third parties at the customer’s instructions. It is the customer’s responsibility, and his alone, to check the existence and scope of such proprietary rights. The customer is obliged to exempt us from all third party claims arising from a breach of a proprietary rights as well as from all associated expenditure incurred by us as a result.
§ 10 Place of jurisdiction – Place of fulfilment – Applicable law
(1) In so far as the customer is a registered business, the courts having jurisdiction where our company is based shall be the place of jurisdiction. We shall however be entitled to also take legal action against the customer at the courts having jurisdiction at his place of residence.
(2) The law of the Federal Republic of Germany shall apply. The UN law on sales shall not apply.