All current and future agreements, offers and orders agreed with companies are subject to the following sale and delivery conditions. Differing, contrary or additional general terms and conditions of the customer shall not be incorporated in the contract even if our attention is drawn to the same, unless the application of such terms and conditions has been explicitly approved in writing. In all other instances our sale and delivery conditions shall apply exclusively.
§ 1
Purchase orders and acceptance of orders
(1) Our offers are non-binding and subject to alterations unless explicitly agreed to the contrary. We reserve the right to make reasonable technical changes as well as changes in forms, colours and/or weights. We shall be entitled to make surplus and short deliveries of up to 10% in conformance with standard commercial practice. Surplus or short deliveries received from our suppliers and permitted by such suppliers' general terms and conditions shall also entitle us to make surplus or short deliveries on the same scale. The order shall be performed in the framework of the required technical material and process engineering tolerances. We reserve the right to supply materials with deviating physical characteristics in conformance with the terms of delivery of our suppliers.
(2) Upon placing an order for the goods, the customer bindingly declares its intention to purchase the ordered goods. We are entitled to accept the offer to enter into a contract represented by the purchase order within a period of 2 weeks following receipt of the same by us. Acceptance may be declared in writing or by delivering the goods to the customer. All purchase orders placed with us directly or via field sales representatives are subject to acceptance except in the case of cash transactions.
(3) The contract shall be concluded subject to correct and punctual receipt of deliveries from our own suppliers. The customer shall be informed immediately should supplies not be available. In the event that we are not responsible for non-delivery, particularly in the the case of a congruent covering transaction with our supplier, we shall be released from our duty to perform to the extent that such performance is hindered or delayed accordingly.
§ 2
Delivery and delivery periods
(1) The agreed delivery periods are approximate periods. Fixed dates are only effectively agreed if explicitly confirmed by us in writing.
(2) The agreed delivery periods commence on the date of the confirmation of order at the earliest. The delivery period only begins to run, however, after we have received all the documents and data which we require in order to perform the order. Our duty to deliver is suspended for periods during which the customer defaults on its duty to fulfill any (prior) performances. In the event of a culpable failure to meet an agreed delivery period, delivery default shall only be deemed to have occurred following the expiry of a reasonable period of grace.
(3) Instances of force majeure – such as circumstances and incidents which are unavoidable despite employing the diligence of a prudent businessman – shall result in the contractual duties of the parties being suspended for the duration of such hindrances to the extent that these impinge upon their contractual duties. Should any resulting delays exceed a period of ten weeks, both contractual partners shall be entitled to withdraw from the contract with regard to the supplies and services so affected. All other claims are excluded.
§ 3
Prices, terms of payment
(1) All prices are fixed prices plus statutory value-added tax. Unless otherwise agreed, our deliveries are made ex works excluding packaging, transport insurance, shipping and assembly. Our prices are based on the wage and material or manufacturing costs, as well as the value-added tax, applicable at the time the contract is concluded. Should the basis of quotations be altered after the contract has been concluded as a result of higher wage, material, manufacturing costs, VAT charges or for any other reason, in particular technically-determined changes in calculations, we shall be entitled to modify our prices to take reasonable account of such changes in our calculation base. We are entitled, at our discretion, to withdraw from the contract. This also applies to winding-up or call orders unless otherwise explicitly agreed at the time the contract is concluded.
(2) The quoted prices are binding and due for settlement, net, within 30 days following receipt of the supplies or services. We grant 2% prompt payment discount if full payment is made within 10 calendar days.
(3) In the event of default, the customer shall pay interest of 8% above the base interest rate on the amount owed. We retain the right to demonstrate and assert higher damages for delayed delivery.
(4) In the event of default in payment and the existence of well-founded doubts regarding the ability to pay or credit standing of the customer we shall – without prejudice to any other rights – be entitled to demand collateral or advance payments for outstanding deliveries, to ship the goods cash on delivery, even if other terms of payment have been agreed, and to call due all rights arising from the business relationship immediately. Only uncontested counterclaims or counterclaims which have been ruled final and absolute by a court entitle the customer to offset or retain payment. The customer may only exercise a right to retain if the customer's counterclaim is based on the same contractual relationship.
§ 4
Place of performance, dispatch, risk of loss, transfer of risk
(1) The place of performance is our business address.
(2) Should the goods be dispatched to a location other than the place of performance by us at the request of the customer, packaging and transport costs shall be charged to the customer separately. The risk of accidental loss and of accidental deterioration of the goods shall pass to the customer on transfer, or in the case of a sales shipment upon delivery, of the goods to the forwarding agent, carrier or other shipping agents or persons appointed for dispatch purposes, even if such persons are our own employees. Risk shall also be transferred to the customer should the latter default on acceptance.
§ 5
Warranty
(1) We guarantee to eliminate defects in the goods by making subsequent improvements or substitute delivery at our discretion. Should supplementary performance be abortive, the customer shall in all cases be entitled, at its discretion, to demand a reduction in the purchase price (Minderung) or rescission of the contract (Rücktritt). In the event of a minor breach of contract, in particular in the case of minor defects or nonconformities, the customer shall not however be entitled to exercise a right to withdraw.
(2) Warranty claims may only be asserted if the customer notifies overt defects to us in writing within a period of 2 weeks following receipt of the goods. The customer shall bear the full burden of proof regarding all prerequisites of claims, in particular relating to the defect itself, the time at which the defect is detected, and the timeliness of notifications of defects.
Should the customer opt to withdraw from the customer following abortive supplementary performance to rectify material defects or defects of title, the customer shall not be entitled to assert further claims for damages based on the defect. Should, following abortive supplementary performance, the customer opt to assert claims for damages, the goods shall, where reasonable, remain in the possession of the customer. Claims for damages shall be limited to the difference between the purchase price and the value of the defective goods, except in the case of a fraudulent breach of contract.
(3) The warranty period is one year subsequent to delivery of the goods. The agreed physical characteristics of goods shall be exclusively those in the manufacturer's product description. Public pronouncements made or promotion or advertising undertaken by the manufacturer shall not be deemed to constitute additional contractual physical characteristics of the goods. We disclaim all legal warranties to the customer. The procurement risk is excluded
(4) To the extent legally permissible, our duty to provide compensation for damages, regardless of the legal standing of such claims and limited to the invoice value, is restricted to those of our goods directly involved in the event resulting in damages.
§ 6
Retention of title
(1) We retain title to the goods pending full settlement of all claims arising from ongoing business relationships with the customer and thus until all our claims, including accessory claims and claims for damages, are settled in full. Payment by means of cheque shall not terminate our retention of title before the irrevocable value date of such cheques.
(2) The customer shall inform us immediately should the goods be seized, i.e. attached, or damaged or destroyed. The customer shall inform us immediately should possession of the goods change hands or should there be a change in the customer's permanent address. The customer shall notify us immediately in the event of attachments and seizure or other third-party dispositions. We shall be informed in writing immediately and provided with all the information required in order to bring an action in opposition to execution of a judgment brought by a third party pursuant to § 771 ZPO (Code of Civil Procedure). The customer shall be liable should we suffer losses owing to the inability of a third party to reimburse us the judicial and extra-judicial costs of an action pursuant to § 771 ZPO. The customer may not pledge the delivery item or assign the same by way of security without our prior consent.
(3) Should the customer commit a breach of contract, in particular by defaulting on payment or infringing a duty pursuant to sections 3 and 4 of these provisions, we shall be entitled to withdraw from the contract and demand the return of the goods.
(4) If the customer is authorized by us to sell the goods in the ordinary course of business, the customer herewith assigns to us all claims equal in value to the outstanding invoice amounts due to the customer following resale of the goods to the third party. We hereby accept such assignment. Following such assignment the customer is empowered to collect such claims. We nonetheless reserve the right collect such claims ourselves immediately should the customer fail to fulfill its payment obligations and default on payments.
(5) In all cases the goods shall be worked and processed by the customer in our name and on our behalf. Should the goods be worked into objects to which we do not hold title, we shall acquire proportionate co-title to the new object based on the ratio of the value of the supplied goods to the other objects processed. This shall also apply should the goods be mixed with other objects to which we do not hold title.
(6) The purchaser shall insure the retained goods appropriately, in particular against fire and theft.
§ 7
Other provisions
Should any of the clauses of these terms and conditions be invalid, this shall not affect the validity of the remaining provisions. In such cases a valid provision shall be adopted which corresponds as closely as possible to the business and economic purpose and intent of the invalid provision; alternatively the provisions of the BGB (German Civil Code) shall apply.