Article 1 Area of applicability
1. These terms and conditions apply exclusively to companies, legal entities under public law, or a public law special fund, as specified in Article 310 para. 1 of the German civil code (BGB). We shall only recognize the purchaser’s conditions that conflict with or deviate from our terms and conditions if we have expressly agreed to the applicability of these conflicting or deviating terms in writing.
2. These terms and conditions also apply for all future transactions with the purchaser, if these are legal transactions of a related type.
Article 2 Quotation and contract conclusion
If a purchase order must be viewed as quotation as specified in Article 145 of the German Civil Code, we can accept it within two weeks.
Article 3 Entrusted documents
We reserve the property rights and copyrights to all documents, such as calculations, drawings, etc. entrusted to the purchaser in conjunction with the placement of an order. These documents should not be made accessible to third parties unless we grant our express consent in this regard to the purchaser. If we do not accept the quotation of the purchaser within the period specified in Article 2 of these Terms and Conditions, these documents must be sent back to us without delay.
Article 4 Prices and payment
1. If nothing to the contrary is agreed in writing, our prices ex works excluding packaging and plus VAT in the valid amount, shall apply. Packaging costs shall be invoiced separately.
2. Payment of the purchase price shall be made exclusively to the bank account specified on the overleaf. Deduction of a discount is granted in the amount of 2% for payment within 8 days of receipt of invoice.
3. If nothing to the contrary is agreed, the purchase price shall be due and payable 30 days after the invoice date. Interest on payments in arrears shall be calculated in the amount of 8% p.a over the respective prime lending rate. We reserve the right to assert higher damages due to delay in performance.
4. If a fixed price agreement has not been concluded, we reserve the right to make reasonable price changes due to changed wage, material, and sales costs for deliveries that are executed 3 months or later after the contract conclusion.
Article 5 Offset and retention rights
The purchaser shall be authorized to offset only if purchaser’s counterclaims have been made legally binding or are uncontested. Purchaser shall be entitled to exercise a right of retention, only insofar as his counterclaim is based on the same contractual relationship.
Article 6 Delivery time
1. Prompt and proper fulfillment of the purchaser’s obligations shall be the prerequisite for the beginning of our specified delivery time. The right to object on grounds of non-performance shall be reserved.
2. If the purchaser is in arrears with acceptance or culpably violates other participatory obligations, we shall be authorized to demand compensation for damages that we have incurred in this respect, including possible additional expenses. We reserve the right to enforce additional claims. Should the prerequisites set forth above exist, the risk of loss or accidental deterioration of the purchase object shall pass to purchaser as of the time when the default of acceptance or debtor’s delay occurred.
3. We shall be liable in the event of a delay in delivery that is not caused by us intentionally or through gross negligence for each completed week of delay within the framework of a lump-sum compensation for delay in the amount of 3 % of the value of the goods to be delivered, but not in excess of a maximum amount of 15 % of the value of the goods to be delivered.
4. Further legal claims and rights of purchaser due to delivery delay shall remain reserved.
Article 7 Transfer of risk when shipping
If the goods are shipped to the purchaser upon purchaser’s request, the risk of accidental loss, or accidental deterioration of the goods shall be transferred to the purchaser with the shipment to the purchaser, at the latest when the goods leave the plant/warehouse. This shall apply regardless of whether the shipment of goods is executed from the place of fulfillment or who bears the freight costs.
Article 8 Retention of title
1. We shall reserve the title to the delivered object until complete payment of all receivables arising from the contract. We shall be authorized to take back the purchase object if the purchaser violates contractual obligations.
2. The purchaser shall be authorized to treat the purchase object with care as long as title has not been transferred to the purchaser. If maintenance and inspection tasks are required, purchaser shall be required to carry out such maintenance and inspection tasks at his own expense and in good time. As long as the title has not been transferred the purchaser shall be obligated to notify us in writing without delay if purchaser pledges the object or is subject to other third-party intervention. Should the third party not be in a position to refund the court and out-of-court costs incurred by as a result of a legal action in accordance with Article 771 ZPO, the customer shall be held liable for the losses we have incurred in this regard.
3. The customer shall be authorized to resell the goods subject to retention of title in normal business transactions. The receivables from the buyer arising from the resale of the goods subject to retention of title, the purchaser shall now assign to us in the amount of the agreed invoiced final amount (including VAT). This assignment shall apply regardless of whether the purchase object has been resold with or without further processing. Purchaser shall remain entitled to collect this claim also following the assignment. Our right to collect the claim ourselves shall remain unaffected. However, we shall refrain from collecting the claim as long as purchaser meets the payment obligations from the collected revenues, is not in arrears with payment, or in particular, has not filed an application to open composition or insolvency proceedings, or cessation of payments is present.
4. Processing of and modifications to the object of sale by the purchaser shall always be executed in our name and in behalf of us. In this case, the expectant right of the purchaser to the object of sale / transformed article shall be continued. If the object of sale is combined with other objects that do not belong to us, we shall acquire joint ownership to the new object in the ratio of the value of our object of sale to the processed objects at the time of processing. The same shall apply in the event of combination. If the combination is executed in such a manner that purchaser’s object is viewed as the main object, it shall be agreed that purchaser shall proportionally transfer joint ownership and the sole ownership or co-ownership as it has thus originated shall be held in custody for us by the purchaser. To secure our claims against purchaser, purchaser shall also assign such claims to us that arise against a third party to which purchaser is entitled, due to the combination of the goods subject to retention of title with a piece of property; we accept this assignment at this time.
5. We shall be obligated to release the securities to which we are entitled on purchaser’s request, should their value exceed the claims to be secured, by more than 20%.
Article 9 Warranty and notice of non-conformity as well as recourse/manufacturer’s redress
1. Claims of purchaser based on defects shall require that purchaser has duly fulfilled his obligation to examine and to provide notice of non-conformity pursuant to Article 377 of the German Commercial Code (HGB).
2. The period of limitation for warranty claims expires 12 months after purchaser receives the goods we have delivered. The above provisions shall not apply where longer periods are mandatorily prescribed by law as stipulated in Section 438 para. 1 no. 2 German Civil Code (BGB) (buildings and things used for buildings), Section 479 para. 1 German Civil Code (BGB) (right of recourse) and Section 634 a, para. 1 German Civil Code (BGB) (defects of a building). Our consent shall be obtained prior to any return shipment of goods.
3. If, despite all care being taken at our premises, the delivered goods contain a defect that already existed at the time the risk was transferred, then we shall, at our discretion and subject to receiving notice of non-conformity within the required time, repair the goods or deliver replacement goods. The purchaser shall always give us the opportunity to effect subsequent performance within a reasonable period. Claims under a right of recourse shall remain unaffected by the above provision.
4. In the event that the subsequent performance fails, purchaser shall be entitled to either withdraw from the contract or to request a reduction in purchase price, without prejudice to possible claims for damages.
5. Deficiency claims do not exist in the case of insignificant deviation from the agreed condition, for only insignificant impairment of usability, natural wear or damages that occur after transfer of risk as a consequence of incorrect or negligent treatment, excessive stress, unsuitable operating materials, defective construction work, unsuitable building ground, or that arise due to special external influences which are not specified in the contract. If from the purchaser or from third parties improper changes or repair work has been carried out, then for these and the subsequent consequences likewise there shall be no claims of deficiencies.
6. The purchaser shall have no claim with respect to expenses incurred in the course of subsequent performance, including costs of travel and transport, labor, and material, to the extent that expenses are increased because the goods we delivered were subsequently brought to a location other than the purchaser’s branch office, unless doing so complies with the intended use of the goods.
7. Purchaser’s claims for recourse against us shall only exist insofar as the purchaser did not reach any agreements with its purchaser in excess of the statutory claims on account of defects. For the scope of the claim under the right of recourse by the purchaser against the supplier paragraph 6 shall apply accordingly.
Article 10 Other
1. This contract and the entire legal relationships of the parties shall be subject to the law of the Federal Republic of Germany under exclusion of the UN convention on contracts for the international sale of goods (CISG).
2. Unless stated otherwise in the order confirmation, our place of business shall also be the place of performance and exclusive place of jurisdiction for all disputes arising from this contract.
3. All agreements that have been made between the parties for the purpose of executing this contract shall be specified in writing in this contract.
4. Should individual provisions of this contract be ineffective, or become ineffective, then the effectiveness of the remaining provisions shall remain hereby unaffected. Instead of the ineffective provision the parties shall be obligated to agree on a legally permissible provision that most nearly approaches the ineffective provision, or that fills this loophole.