General terms and conditions
Status: August 1, 2010
1 General – Scope of application
Our terms and conditions apply exclusively; we do not recognise any conflicting or deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing. Our terms and conditions shall also apply if we carry out delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions.
2. Our terms and conditions shall apply to purchase contracts; however, they shall also apply mutatis mutandis to contracts for work and services concluded by us.
3. All agreements made between us and the customer for the purpose of executing this contract are set out in writing in this contract.
4. German law shall apply exclusively to the entire contractual relationship.
2 Offer – Offer documents
1. If the order is to be qualified as an offer according to § 145 BGB (German Civil Code), we could accept it within 4 weeks.
2. We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents. The customer requires our express written consent before passing them on to third parties.
3 Prices – Terms of payment
1. Unless otherwise stated in the order confirmation, our prices shall apply “ex works”, excluding packaging; this shall be invoiced separately.
2. The statutory value added tax is not included in our prices; it will be shown separately in the invoice at the statutory rate on the day the invoice is issued.
3. The deduction of a discount requires a special written agreement.
4. Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date.
5. The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, he is entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
4 Delivery period
1. The beginning of the delivery period stated by us presupposes the clarification of all technical questions.
2. The observance of our delivery obligation further presupposes the timely and proper fulfilment of the customer’s obligations. We reserve the right to plead non-performance of the contract.
3. If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us in this respect, including any additional expenses. We reserve the right to assert further claims.
4. Insofar as the conditions of paragraph 3 are met, the risk of accidental loss or accidental deterioration of the goods to be delivered shall pass to the customer at the point in time at which the customer is in default of acceptance or debtor’s delay.
We shall be liable in accordance with the statutory provisions insofar as the underlying contract is a firm deal within the meaning of § 361 BGB (German Civil Code) or § 376 HGB (German Commercial Code). We shall also be liable in accordance with the statutory provisions if, as a result of a delay in delivery for which we are responsible, the customer is entitled to assert that his interest in the further performance of the contract has ceased.
We shall also be liable in accordance with the statutory provisions if the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or vicarious agents shall be attributable to us. Insofar as the delay in delivery is not due to an intentional breach of contract for which we are responsible, our liability for damages shall be limited to the foreseeable, typically occurring damage.
7. We shall be liable in accordance with the statutory provisions insofar as the delay in delivery for which we are responsible is based on the culpable breach of an essential contractual obligation; in this case, however, the liability for damages shall be limited to the foreseeable, typically occurring damage.
5 Transfer of risk – Packaging costs
1. Unless otherwise stated in the order confirmation, delivery “ex works” is agreed.
2. Transport packaging and all other packaging in accordance with the Packaging Ordinance shall not be taken back, with the exception of returnable pallets. The customer is obliged to dispose of the packaging at his own expense.
3. If the customer so wishes, we will cover the delivery with transport insurance.
6 Warranty for defects
1. The warranty claims of the purchaser presuppose that he has inspected the delivered goods without delay and that he has also notified any defects found without delay.
2. If there is a defect in the delivered item for which we are responsible, we shall be entitled, at our option, to remedy the defect or to make a replacement delivery.
3. The warranty period shall be governed by the statutory provisions.
4. The VOB does not apply to our trades.
7 Retention of title security
1. Current account/balance sheet clause: We retain title to the delivered goods until all our claims against the customer arising from the business relationship, including future claims arising from contracts concluded simultaneously or later, have been settled. This shall also apply if individual or all claims have been included in a current account and the balance has been struck and acknowledged.
2. The customer is obliged to treat the delivered item with care; in particular he is obliged to sufficiently insure it at his own expense at replacement value against fire, water and theft. If maintenance and inspection work is necessary, the purchaser must carry this out in good time at his own expense.
3. In the event of attachments or other interventions by third parties, the customer must notify us immediately in writing so that we can file a suit in accordance with § 771 ZPO (Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of such an action, the customer shall be liable for the loss incurred by us.
4. The customer is entitled to resell the delivered item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including value added tax) of our claim which accrue to him from the resale against his customers or third parties, irrespective of whether the item has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected thereby. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the collected redemption, is not in default of payment and, in particular, no petition for the opening of insolvency proceedings has been filed and payments have not been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claim and its debtor, provides all information required for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
5. The processing or transformation of the delivered item by the customer is always carried out for us. If the delivered item is processed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the item delivered by us (final invoice amount including value added tax) to the other processed items at the time of processing. In all other respects, the same shall apply to the item created by processing as to the item delivered under retention of title.
6. If the delivered item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the value of the item delivered by us (invoice amount including value added tax) to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer assigns co-ownership to us on a pro rata basis. The customer shall keep the resulting sole ownership or co-ownership in safe custody for us.
7. To secure our claim against him, the customer also assigns to us the claim against a third party arising from the connection of the delivered item with a piece of real estate.
8. If, in connection with the payment by the customer, a bill of exchange liability of our company is established, the retention of title as well as the underlying claim from deliveries of goods shall not expire before the payment of the bill of exchange by the customer as drawee.
9. We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10%; the choice of the securities to be released shall be incumbent on us.
8 Jurisdiction – Place of performance
1. If the customer is a merchant, our place of business shall be the place of jurisdiction; however, we shall also be entitled to sue the customer at the court of his place of residence.
2. Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.