General Terms and Conditions of Business
General Terms and Conditions of Sale
1. General
1.1. Our General Terms and Conditions of Sale apply exclusively; we will not accept any conditions of the Purchaser that conflict with or deviate from our General Terms and Conditions of Sale unless we have expressly agreed to their application in writing. Our General Terms and Conditions of Sale shall still apply if, in the knowledge that the Purchaser's terms and conditions of business conflict with or deviate from our General Terms and Conditions of Sale, we provide our service to the Purchaser unconditionally.
1.2. Our General Terms and Conditions of Sale shall moreover also apply when, the business relationship being continued, no further reference is made to the exclusive effect of these Conditions.
1.3. No deviating agreements, subsequent amendments to the contract or verbal subsidiary agreements shall apply in any case without our express written confirmation.
1.4. The Seller's sales officers are not authorized to conclude any verbal subsidiary agreements or to give verbal warranties that go beyond the contents of the written Contract.
1.5. Our Terms and Conditions apply only vis-à-vis enterprises as defined in § 310 para. 1 German Civil Code (BGB).
2. Offer, Confirmation of Order
2.1. Our offers are made subject to confirmation and non-binding; no contractual obligation will apply until receipt of our written confirmation of order.
2.2. The documents forming part of our offers such as photographs, drawings, details of weight or measurements and any other technical data, and DIN or other operating or industrial standards and other samples, characterize only the subject matter of the contract and represent a guaranteed quality only if the corresponding written confirmation has been issued. We expressly reserve all rights of ownership and copyright to the documents mentioned above.
2.3. The Purchaser's order represents a binding offer which we may accept within two weeks by forwarding a confirmation of order.
3. Prices
3.1. The prices apply ex works or ex warehouse plus the value-added tax applicable on the date of invoice and plus the costs of freight, tax, customs and packing.
3.2. Should unforeseeable tariff wage increases become effective, or the prices of suppliers change unexpectedly after conclusion of the contract, we will be entitled to adjust our prices accordingly. Should these exceed the agreed prices by 20% or more the Purchaser shall be entitled to withdraw from the contract. This right must be asserted immediately after notification of the price increase but at the latest within two working days.
4. Payments
4.1. Our invoices fall due within 20 days from the date of invoice and are payable net without deductions. If the said deadline is not met the Purchaser is in default. If we receive payment within 7 days of the date of invoice we will grant a discount of 2%.
4.2. If the Purchaser is in default we are entitled to demand interest on the overdue account at the usual bank rate, but at least 5% above the applicable base rate of the Deutsche Bundesbank. We will also be entitled to assert additional further loss due to default provided this can be substantiated.
4.3. We are entitled to require payment of the costs incurred in issuing reminders in respect of the associated expenses on staff and material. No substantiation of costs incurred is necessary in respect of expenses up to EUR 5.00 per reminder.
4.4. Payment by instalments will only be accepted subject to special written agreement.
4.5. Payment by bills of exchange will be allowed only on the basis of express agreement. Acceptance of a bill of exchange or of a cheque will be deemed to be payment only on account of performance. In the case of payment by cheque or bill of exchange the Purchaser shall bear the costs of collection and discounting charges.
4.6. The Purchaser shall not be entitled to offset payment unless their counterclaims are res judicata, undisputed or accepted by us. The Purchaser may exercise a right of retention only if their counterclaim is based on the same contractual relationship.
4.7. We are entitled to offset against accounts receivable from the Purchaser even if our account has not yet fallen due. In this case we will grant the Purchaser interest on the difference in the amount of 5% p.a. Any other method of payment (cash on the one hand, an acceptance on the other), shall not exclude admissibility for set-off.
4.8. We are obliged solely to decide against which of several accounts receivable incoming payments are to be offset. If costs and interest have already been incurred we are entitled to offset the payment first against expenses, then against interest and lastly against the main account.
4.9. Our claims to payment become statute barred after five years, notwithstanding § 195 German Civil Code. § 199 of the German Civil Code shall apply with regard to the commencement of the period of limitation.
5. Delivery and Shipping
5.1. The specified delivery periods are not binding on us unless a fixed delivery date was agreed in the confirmation of order.
5.2. The Purchaser shall be entitled to set in writing a two-week extension of the agreed period only if a fixed delivery date stipulated in the confirmation of order has been exceeded. The purchaser is not entitled to withdraw from the contract until expiry of the two weeks. If no delivery period was agreed with binding force the Purchaser shall be entitled upon expiry of three months to set a two-week extension in writing and subsequently to withdraw from the contract. Claims for compensation shall be governed by Article 8.
5.3. Even if terms and deadlines were agreed with binding force, we will not be liable for delays in deliveries and services due to force majeure and events that render delivery considerably more difficult or impossible for us to effect, including in particular strike, lockout, order by the authorities etc., even if they occur to our suppliers or their sub-suppliers. They entitle us to postpone the delivery or the service by the period of the hindrance plus a reasonable run-in time, or because of the part of the delivery or service not yet completed, if the supply is materially or commercially impossible, to withdraw partially or completely from the contract. In particular, we will be entitled to withdraw from the contract if we fail to receive a delivery, receive the wrong delivery or do not receive a delivery on time. If the hindrance lasts longer than four weeks the Purchaser shall be entitled, after setting in writing an extension of 2 weeks to withdraw from the contract in respect of the part not yet completed. If the delivery period is extended or if we are released from our obligation to perform for the aforementioned reasons, the Purchaser may not consequently derive any claims for compensation. We may only invoke the said circumstances if we inform the Purchaser without delay and at once repay to the Purchaser any payments already made.
5.4. The assertion of claims for compensation shall be governed by Article 8.
5.5. Compliance with the supply and service obligations on the Seller depends on the punctual, proper compliance with the obligations on the Purchaser. We are entitled to withdraw from the contract if the Purchaser has applied for insolvency proceedings to be commenced in respect of the Purchaser's assets, has executed a statutory declaration as defined in § 807 of the German Code of Civil Procedure (ZPO) or the commencement of insolvency proceedings in respect of the Purchaser's assets has been rejected for lack of assets. Instead, we may at our discretion make the supply depend on the settlement of old accounts, the furnishing of security or cash payments in advance. Only upon fulfilment of these conditions will agreed delivery periods and deadlines be computed.
5.6. Should the Purchaser be in default of acceptance or infringe other duties of cooperation then we shall be entitled to require that the Purchaser make good our loss including any additional expenses. The compensation payable to us by the Purchaser amounts to 30% of the purchase price, whereby the contracting party is free to prove that no loss or a lesser loss was incurred. We are allowed to prove a greater loss. In the case of default of acceptance the risk of accidental perishing or accidental deterioration of the object of purchase shall be transferred to the Purchaser at that moment in time in which the Purchaser defaults in acceptance.
5.7. If the Purchaser cancels an order which we have already confirmed, we may require 10% of the sales price for the expenses incurred through processing and for the profit not realized.
5.8. We are authorized to make partial deliveries and to issue corresponding invoices.
5.9. The Purchaser must deliver the parts they have to supply free at our works and unencumbered by third party rights. The Purchaser alone is liable for their nature and suitability to the exclusion of any duty on us to examine them. The supplementary conditions of delivery apply additionally to supplies that are manufactured to special order.
5.10. Shipping and storage from the time the supplies are ready for dispatch shall always, even when delivery is freight paid, be for the account and at the risk of the Purchaser, i.e. "ex works". We will take out transport insurance and other insurance only at Purchaser's written request and at Purchaser's expense. In the absence of a special agreement, the route, means of transport and type of packing will be subject to our discretion, to the exclusion of our liability.
6. Retention of title
6.1. The supplied goods shall remain our property until complete payment has been made for all previous, current and future accounts - regardless of the cause in law. This shall also apply if individual or all accounts receivable have been included for current account and the account has been balanced and accepted.
6.2. The Purchaser must advise us without delay about measures regarding the goods subject to retention of title when such measures are taken by third parties to enforce debt, handing over to us the documents necessary for any intervention; this shall also apply to detriment of any other kind. Regardless of the foregoing, the Purchaser must advise the third parties from the start about existing rights to the goods. The cost of intervention by the Seller shall be borne by the Purchaser, even if we acquire claims for reimbursement against third parties. We may collect these ourselves or assign them to the Purchaser following payment by the Purchaser. Pledging and assignment by way of security are excluded for the duration of our retention of title.
6.3. The Purchaser is entitled in the ordinary course of business to sell the goods supplied by us. In this case they hereby assign to us by way of security all accounts receivable from third parties in the amount of the purchase price agreed between us and the Purchaser including value-added tax. The Purchaser shall continue to be authorized to collect this account after the assignment. Our authority to collect the account ourselves shall not be affected by this. However, we undertake not to collect the account, as long as the Purchaser fulfils their payment obligations out of proceeds received or does not get into arrears, or if in particular no application has been made for the commencement of composition or insolvency proceedings or there is a suspension of payments. If this is the case we may require the Purchaser to inform us about the assigned accounts and their debtors, to give us all the details necessary for the collection, to hand over the associated documents and to advise the debtor third parties about the assignment.
6.4. Any processing or transformation of the object of purchase by the Purchaser shall always be undertaken for us. If the object of purchase is processed with other items not being our property we shall acquire co-ownership of the new object in the amount of the purchase price agreed between ourselves and the Purchaser plus value-added tax. For the rest the same shall apply to the object that is the result of the processing as to the object of purchase that is subject to retention of title.
6.5. If the object of purchase is inseparably mixed with items not our property then we shall acquire co-ownership of the new object in proportion to the value of the object of purchase (plus value-added tax) to the items being mixed at the time of mixing. Should the mixing take place such that the Purchaser's object is to be regarded as the main object, then it shall be deemed to be agreed that the Purchaser assigns proportional co-ownership to us. The Purchaser shall have custody for us of any sole ownership or co-ownership thus arising.
6.6. The Purchaser also assigns to us by way of security for our accounts receivable from the Purchaser those accounts receivable from a third party which arise through the union of the object of purchase with real property. The assignment shall be made in advance. We accept the assignment.
6.7. Should the value of the security exceed our claims against the Purchaser by more than 10% then at Purchaser's request and at our discretion we must release security due to us to the corresponding extent.
7. Guarantee
7.1. The Purchaser will lose all guarantee claims if they do not comply with their obligations to examine and to notify of defects. Written notification must be made of recognizable defects without delay and at the latest within five days of receipt of the goods. Notification of hidden defects must be made at the latest within 10 days of discovery, whereby the date on which we receive notification is significant for compliance with the deadline. At our request the defective goods must be forwarded to us.
7.2. We undertake no guarantee for the suitability of the subject of supply for the purpose advised or determined by the Purchaser. The Purchaser alone is responsible for checking that our products are suitable for the intended use. We guarantee congruity between sample and supply or between several lots only in the scope of tolerances corresponding to experience that arise in the course of an efficient production process. We are liable for the raw materials and third party products that we use exclusively to the extent that we can assert claims on our own part against our suppliers by virtue of a law or their terms and conditions of business.
7.3. The guarantee is excluded in the case of unsuitable and improper use, incorrect assembly, improper putting into operation of the subject of supply by the Purchaser or third parties, natural wear and tear, excessive loads, unsuitable operating material, replacement tools or other factors causing loss or damage for which we are not responsible.
7.4. The guarantee period is one year as from the transfer of risk. The limitation period in the case of recourse concerning delivery as defined in §§ 478, 479 German Civil Code shall remain unaffected. This does not apply insofar as claims for compensation due to defects are concerned, in which case Article 8 shall apply.
7.5. Insofar as we are liable for a defect in the object of purchase, the Purchaser in asserting their rights shall stipulate an appropriate period for us to remedy the defect. In the case of defect we reserve the right to choose the type of remedy.
If the Purchaser has combined the goods supplied by us with other objects we will not be liable for the expenses incurred in installing and removing the defective goods or installing the replacement goods supplied subsequently.
8. Liability
Our liability for the failure to comply with our contractual duty and for tortious acts is limited to intent and gross negligence. This does not apply to bodily injury including damage to health or life, claims for infringement of cardinal duties and compensation for loss or damage caused by delay/default (§286 German Civil Code). Liability in the case of the infringement of cardinal duties is limited to ordinarily foreseeable loss or damage. Should we be responsible for not complying with terms and deadlines that are subject to binding agreement, or if we are in default, the Purchaser shall from the second week of the delay/default for which we are responsible have a claim to compensation for damage resulting from delay/default in the amount of 0.5% per full week of delay but totalling not more than 5% of the invoice value of the goods and services affected by the delay/default. However, we reserve the right to prove to the Purchaser that no or a lesser loss or damage was incurred as a result of the delay in delivery. Any greater liability is excluded regardless of the legal nature of the claim asserted. This does not apply to claims defined in §§ 1, 4 Product Liability Law, cases of impossibility or claims arising out of bodily injury including damage to health or life. Should liability for loss or damage that is not based on bodily injury including damage to health or life not be excluded for ordinary negligence, such claims shall become statute-barred within one year from creation of the claim. The limitation of liability also applies in respect of the personal liability of our employees (both office and factory workers), colleagues, representatives and vicarious agents.
9. Final Provisions
9.1. The place of performance for both parts shall be Frankfurt am Main.
9.2. The place of jurisdiction shall be Frankfurt am Main. However, we are also entitled to institute legal proceedings against the Purchaser at the court competent for their registered office.
9.3. The law of the Federal Republic of Germany, the trade terms and practices at our Head Office shall also exclusively apply to exports and other business involving foreign connections and the settlement of such business, as apply between German domestic enterprises in Germany, i.e. to the exclusion of provisions on the international sale of goods. The application of the UN Sales Convention is excluded.
9.4. Should one or more provisions of these Conditions of Sale be or become ineffective this shall not affect the validity of the remaining clauses. The contracting parties shall replace the ineffective provision by one which most nearly approaches the ineffective clause and is valid.
Status July 2015