General Terms and Conditions
General Provisions
(1)
The General Terms and Conditions listed below are part of the contractual relationship between us and the orderer/buyer. In ongoing business relations, this also applies in case of conclusions of contracts by means of teletype or telephone. Any conditions of purchase of the orderer’s/buyer’s different from these conditions are valid only in an individual case and only if this has been confirmed explicitly and in writing. No fulfilment of contract by us will replace this written confirmation.
(2)
The contract will not be concluded before the receipt of our written acknowledgement of order. Up to the written acknowledgement of order, all offers are without obligation and non-binding.
(3)
Any side agreements, amendments or supplements to the contract require a written confirmation by us.
(4)
The records belonging to the offer or to the acknowledgement of order, respectively, like drawings and photographs as well as any other details and performance data are only binding if they have expressly been qualified as binding. Apart from that, details on the object of delivery and performance have to be considered as approximate data only. In particular they do not constitute assured characteristics, but rather are descriptions and markings of the merchandise. A reference to technical bodies of rules and regulations like DIN standards and the like does not constitute an assurance of characteristics by us.
(5)
We reserve the right to make modifications and improvements of our articles to the extent as they are reasonable for the orderer/buyer taking into consideration our interests.
(6)
We reserve the property and the copyright of the records belonging to the offer, like photographs, drawings and the like. They must not be made accessible to any third party and have to be returned to us on request.
(7)
The orderer’s/buyer’s rights from this contract must not be assigned but with our previous consent.
Prices and Terms of Payment
(1)
Our prices are ex works net plus the statutory value-added tax and costs of packaging and transport. Any costs of assembly will be invoiced separately.
(2)
Special wishes concerning the packaging from the orderer’s/buyer’s side have to be communicated us in writing four weeks at the latest before the date of delivery or shipment.
(3)
Unless otherwise agreed by our offer or by the written acknowledgement of order, the payments are payable net cash within 30 days of the date of invoice without deduction or within 8 days with an early payment discount of 2 %. Payments by instalments are not capable of early payment discounts. Any costs of freight and packaging that are invoiced separately are not capable of early payment discounts. Bills of exchange are not considered as means of payment.
(4)
The withholding of payments by the orderer/buyer is excluded, provided the counterclaims result from another contractual relationship. If the counterclaim is based upon the same contractual relationship, the withholding of payments is allowed only if they are uncontested or finally recognised counterclaims.
(5)
The orderer/buyer may declare the set-off against counterclaims only if they are uncontested or finally recognised claims.
(6)
Bills of exchange will be accepted only on previous agreement and only for the purposes of payment as well as subject to the possibility of discounting it. If the payment is made by means of bills of exchange, cheques or other papers of assignment, the orderer/buyer will bear the costs of discounting and collection, if not explicitly agreed otherwise.
(7)
If in connection with the payment of the purchase price by the orderer/buyer a liability for bills of exchange by the seller is constituted (procedure for cheques/bills of exchange), so the claim to the purchase price does not expire before honouring the bill of exchange by the orderer/buyer as drawee. The payments by the orderer/buyer will be treated as security up to the collection of the bill of exchanges and serve as protection against our risks resulting from bills of exchange. When the orderer/buyer honours the bill of exchange, the payment will be set-off against the purchase price, the orderer/buyer being entitled to claim an early payment discount under the conditions of paragraph 6 of this section.
(8)
In case of delay, interests and commissions will be calculated at the amount of the bank rates applicable from time to time for short-term loans, at least at the amount of 4 % above the basic interest rate following the Diskontüberleitungsgesetz [Law on the carry-over of the discount]. If it can be proven that a greater damage has been caused to us by the delay, we are entitled to assert this greater damage. The orderer/buyer is entitled to produce evidence that no damage at all or a considerably smaller damage has been caused to us as a result of the delay in payment.
(9)
In case of delay of a claim, we are entitled to withhold the deliveries or other services, respectively, from all of the contracts up to the complete fulfilment of all claims owed to us by the orderer/buyer. The orderer/buyer may avert this right of detention by supplying an absolute suretyship of unlimited duration by a financial institution that is approved as a customs or tax guarantor at the amount of all claims that are still due. After the fruitless expiry of a term of payment fixed for the orderer/buyer we are also entitled to withdraw from all of the contracts not yet executed. We reserve the assertion of a further damage caused by the delay.
(10)
The orderer/buyer agrees that we may declare the set-off against claims by the orderer/buyer, even if the date of maturity of the mutual claims differ or if cash payment has been agreed upon from one side and a payment in acceptances or customer bills from the other side.
Basis of credits:
(1)
The precondition of the delivery is the orderer’s/buyer’s creditworthiness. In case after the conclusion of the contract we receive information that the grant of a loan at the amount resulting from the order does not appear to be safe, or if facts appear that allow any doubt in this respect, if in particular a considerable worsening of the financial status occurs (foreclosure, suspension of payments, bankruptcy, closure of the business, loss of business), we are entitled to demand a payment in advance or the supply of sureties, respectively, or cash payment without consideration of previous agreements to the contrary.
(2)
Under the same conditions we are entitled, after the delivery has been made to the orderer/buyer, to visit its storage facilities and to provisionally seize any merchandise subject to a reservation of proprietary rights until the cash payment has been made, without consideration of previous agreements to the contrary. The orderer/buyer bears the costs of transport and storage.
Dates of delivery and delivery periods
(1)
Provided the acknowledgement of order does not explicitly provide otherwise, the dates of delivery stated are without obligation, no responsibility being taken for meeting the deadline.
(2)
The delivery period starts on the day of the final acknowledgement of order, however, but not before the complete clarification of all details of the execution, in particular any receipt of documents to be supplied by the orderer as well as the receipt of a down payment that has been agreed upon and becomes due at the conclusion of the contract. In addition, the observance of the delivery period requires the fulfilment of its contractual obligations by the orderer/buyer.
(3)
Without affecting our rights from delay, the agreed delivery period is extended by the period during which the orderer is in default of its from this or another contract.
(4)
The delivery period is observed if up to its expiry the object of the delivery has left the works or, in case of collection by the orderer/buyer, the consignment is ready for delivery and informed the orderer/buyer of this. The orderer/buyer may not reject part deliveries.
(5)
The delivery period is extended at a reasonable extent in case of the occurrence of unforeseen events or force majeure, provided such hindrances demonstrably influence the completion or delivery of the delivery item and occur with our company, a pre- or subcontractor or carrier which we are not responsible for, our liability being excluded for slight negligence only. If the aforementioned circumstances result in that rendering the service will become impossible for us, we are also entitled to withdraw from the contract.
(6)
In case of delay from our side, the orderer/buyer is entitled to withdraw from the contract. Instead, a claim for damages for non-fulfilment may be asserted if we acted wilfully or grossly negligently. Orderers/buyers that are neither businessmen within the meaning of the Commercial Code nor public-law special funds nor public-law legal entities may claim damages for non-fulfilment even if we acted slightly negligently. Also businessmen within the meaning of the Commercial Code are entitled to this, if the legal transaction does not form a part of the operation of their business. The claim for damages for non-fulfilment in case of slight negligence is limited to 50 % of the predictable damages, at a total, however, of 10 % of the purchase price at maximum.
(7)
If a proven damage arising from a delay is caused to the orderer/buyer by a delay that we are responsible for due to wilful or grossly negligent behaviour, the orderer/buyer, with the exclusion of any further entitlements, is entitled to claim a compensation for delay. Any orderers/buyers that are neither businessmen within the meaning of Commercial Code nor public-law special funds nor public-law legal entities may claim a compensation for delay even if a delay has occurred through slightly negligent behaviour from other side. Also businessmen within the meaning of Commercial Code are entitled to this if the legal transaction does not form a part of their business. The entitlement to a compensation for delay in case of slight negligence is limited to 1/2 % for each full week of delay, at a total, however, of 5 % of the value of the total delivery at maximum.
(8)
If the shipment is delayed at request by the orderer/buyer or for reasons that the orderer/buyer is responsible for, we shall charge the costs incurred by the storage, in case of storage in our works to the account of the latter, beginning one month after the ready for shipment notification, at a rate of at least 1/2 % of the amount invoiced for each commenced month. The assertion of any further rights from delay remains unaffected.
(9)
In addition we are entitled, after fixing a reasonable deadline for the acceptance and its fruitless expiry, to dispose of the delivery item otherwise and to supply the orderer/buyer anew after a reasonable time limit, or withdraw from the contract or to claim damages for non-fulfilment.
Reservation of proprietary rights
(1)
We reserve the proprietary rights on the merchandise delivered by us as well as the any objects resulting from its processing and machining up to the fulfilment of the claim to the purchase price. The secured claim to the purchase price in the aforementioned sense also includes the expenses incurred by us in connection with the conclusion and the execution of the contract of purchase, the preservation of the purchased object and of the assertion of the rights of the purchased object reserved to us. These are in particular: the costs of the acceptance, shipment, packaging as well as interests for maturity und delay, costs for the accommodation, housing and insurance as well as those costs that are incurred on occasion of the judicial or extrajudicial assertion of our rights.
Moreover, towards businessmen we reserve the proprietary rights of the merchandise delivered by us and of the objects resulting from their processing and machining up to the fulfilment or all of our present and future claims due to us against the orderer from the business connection, even conditional and temporary, for whatever legal basis.
(2)
The orderer/buyer is obliged to separately store and mark the merchandise subject to the reservation of proprietary rights. The orderer/buyer will perform any processing and machining for us, without any obligations for us arising from this. If the orderer/buyer processes our merchandise subject to the reservation of proprietary rights together with other articles that are the orderer’s/buyer’s property, we are the only ones who are entitled to the property of the new objects. If the orderer/buyer processes our merchandise subject to the reservation of proprietary rights with other items that are not the orderer’s/buyer’s property, we are entitled to the joint ownership of the new objects in relation to the value of the processed merchandise subject to the reservation of proprietary rights and other items at the time of processing an machining. Already now, the orderer/buyer transfers his shares in joint ownership arising from connection, mixing or blending of the merchandises delivered with other objects. The orderer/buyer will possess the objects as custodian. He will be liable for his own wilful and negligent behaviour as well as for that of his legal representatives and of the persons they employ for the fulfilment of his liabilities. The orderer/buyer may only sell the delivered merchandise and the objects arising from its processing and machining, its connection, mixing and blending only in proper business transactions against payment in cash or with the reservation of proprietary rights. Transfers of property for securing claims, pledging and other disposals endangering our rights are not permitted.
(3)
The orderer/buyer already now cedes to us, at their full amounts, any claims they are entitled to from the resale or from another legal basis concerning the merchandise subject to the reservation of proprietary rights, even claims for compensations for damages to or destruction of the merchandise subject to the reservation of proprietary rights, no matter whether contractual or legal claims against the person who caused the damage, insurance companies or other third parties are concerned, and uses realised as replacement.
(4)
If the merchandise subject to the reservation of proprietary rights is sold by the orderer/buyer together with his own or any third party merchandises in unprocessed condition, the orderer/buyer cedes to us the claim resulting from the resale at the amount of the value of the merchandise subject to the reservation of proprietary rights. If the portion of the purchase price from the sale of our merchandise subject to the reservation of proprietary rights is greater than the value of our merchandise subject to the reservation of proprietary rights, we are also entitled to the surplus amount.
(5)
In case we acquire a joint ownership of the new object by processing or machining of the merchandise subject to the reservation of proprietary rights with goods delivered by other supplier, the cession in case of resale includes the portion of the claim corresponding to our portion in the joint ownership, as far as the latter can be determined; otherwise, the invoiced value of our processed merchandise subject to the reservation of proprietary rights.
(6)
If the processing or machining is done within the scope of a manufacturing or delivery on service contract, the orderer/buyer, also in advance, cedes to us his proportion of the claim to remuneration from the manufacturing on service contract that corresponds to the value of the processed merchandise subject to the reservation of proprietary rights ab.
(7)
In case the aforementioned claims are introduced into an account current by orderer/buyer, the claims from the account current are hereby ceded to us at their full amount. After balancing, they are superseded by the balance that has to be deemed ceded up to the height the original claim from the account current amounted to. In case of termination of the account current, this applies accordingly to the final balance. This provision does not apply to business transactions with orderers/buyers that are not businessmen within the meaning of Commercial Code, as well as for transactions with a businessman that are not part of his business operation.
(8)
As long as the orderer/buyer meets his obligations, the cession is treated as silent cession, and the orderer/buyer is entitled to collect the claim. The orderer/buyer has to separately book and separately keep the amounts received on the ceded claim.
(9)
In case the contracts concluded by the orderer/buyer within the scope of the resale of the merchandise subject to the reservation of proprietary rights are invalid or void, the orderer/buyer already now cedes the legal claims he is entitled to in place of the ceded contractual claims, in particular claims referring to enrichment, and that to the same extent.
(10)
Provided, and as far as the registration and/or the fulfilment of other requirements are a precondition for the effectiveness of the reservation of proprietary rights, the orderer/buyer is obliged, at their costs, to immediately carry out any acts necessary for that and to make any necessary notifications.
(11)
If in connection with the payment of the purchase price by the orderer/buyer a liability based upon bills of exchange on the seller’s side is constituted (procedure for cheques/bills of exchange), the reservation of proprietary rights does not expire before the collection of the bill of exchange by the orderer/buyer as the drawee.
(12)
In case the value of the sureties exceeds our claims by more than 20 %, the orderer/buyer is entitled to claim the release of sureties in this respect.
(13)
The orderer/buyer must notify us immediately about any accesses made by any third party to the merchandise subject to the reservation of proprietary rights or the ceded claims, handing over the documents required for the intervention. The orderer/buyer will bear the costs of the intervention.
(14)
The orderer/buyer will bear the costs of the backhaul of the merchandise subject to the reservation of proprietary rights.
(15)
In case that the orderer’s/buyer’s financial liabilities are settled by the participation in a direct debit scheme, all of our rights resulting from the reservation of proprietary rights that is governed by the preceding rules will remain existent until a revocation of the direct debit is no longer possible, provided our rights do anyway not remain existent based upon the previous provisions.
Transfer of Risks – Guarantees • Claims for Damages
(1)
Every risk is transferred to the orderer/buyer at the moment of the handover of the delivery item to the carrier. This also applies in case of deliveries carriage paid, cif, fob and similar transport clauses. In case of a transport by means of our vehicles and staff, every risk is transferred to the orderer/buyer at the end of the loading process. In case of delays in delivery we are not responsible for all risks are transferred to the orderer/buyer as of the day of the begin of the ready for shipment condition.
(2)
We shall guarantee for defects of the merchandise existing at the moment of the transfer of the risks, including the lack of assured features, according to the following provisions.
(3)
Any obvious or detected defects must be notified to us by the orderer/buyer in writing without delay and with immediate suspension of any processing and machining. In case of violations of the obligation to examination and noticing, any claims to guarantees are excluded.
(4)
If the orderer/buyer does not give us any possibility to satisfy ourselves of the defect, us in particular, if he does not immediately make available, on request, the merchandise the defect of which is notified, or samples of it, all guarantee claims are cancelled.
(5)
The preceding provisions apply even in case of deliveries and performances of merchandises other than as per agreement.
(6)
For damages to the orderer’s/buyer’s interests protected by law, with the exclusion of such damages that occur as a result of a lack of assured features, which is intended to protect the orderer/buyer against the risk of damage, we are liable, for whatever legal basis, only in case of wilful or grossly negligent behaviour. A slightly negligent behaviour from our side only constitutes a liability for damages if key contractual obligations are violated. Key contractual obligations are only such obligations the observation of which is indispensable for the achievement of the object of the contract. Likewise, any guarantee is excluded if damages occur due to a failure of the orderer’s/buyer’s to give indications of special conditions of operation, like, e.g., the use of chemicals, Cola light, etc.
In addition, no guarantees are granted for wearing parts, machine components (chains, bearings, etc.).
In case of slightly negligent behaviour, a liability for damages is only assumed as far as this could be foreseen at the conclusion of the contract or on the occasion of the violation of the obligation. Towards businessmen, any liability is excluded for consequential damages of defects for which only a liability from positive violations of the contract comes into question.
(7)
In case of a justifiable notice of defects made at due date we are obliged to rework or replacement, at our discretion. In case rework fails, or we do not fulfil our obligation to replacement at all or not according to the contract, the orderer/buyer may demand, at his choice, the reduction of the consideration or annulment of the contract.
(8)
The prescriptive period is not extended through the exchange of parts within the scope of the execution of rework and by replacement deliveries.
(9)
In the general sense, these General Terms and Conditions also apply to wage work. If defects occur that we are responsible for according to these conditions of sale and delivery, we shall perform the processing anew; in addition we are entitled to withdraw from the order. For material delivered, we shall only make reparation in case of a previous written agreement. The responsibility for defects does not refer to damages that are caused by undetected faults in the ingoing material delivered.
Additional conditions for Manufacturing or Delivery on Service Contracts
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Final clauses
(1)
The place of performance and venue for all disputes from any business to which these General Terms and Conditions apply is the place of our registered office, for legal actions that we bring as well as for legal actions that are brought against us. This provision does not apply to business transactions with orderers/buyers that are neither businessmen within the meaning of Commercial Code nor public-law special funds nor public-law entities, as well as for business transactions with a businessman that are not part of the operation of his business.
(2)
The relations between us and the buyer are exclusively subject to the laws of the Federal Republic of Germany, however, with exclusion of the Conflicts of Law, the Hague Uniform Laws of Sale and the Vienna Convention on Contracts for the International Sale of Goods (CISG).
(3)
In case any individual provisions of these General Terms and Conditions are or will become inoperative, this will not affect the validity of the remaining provisions. In lieu of the inoperative provision that legally effective provision will apply that is closest to the target pursued by the inoperative provision.