General Delivery and Payment Terms and Conditions
§ 1 Scope
1. These terms and conditions of sale shall only apply to companies, public law legal entities or special government-owned public funds as per § 310 Section 1 BGB (German Civil Code). We shall only recognize any terms and conditions of the purchaser which oppose or deviate from our sales terms and conditions if we have given express written confirmation of our consent to their validity.
2. These terms and conditions of sale shall also apply for all future transactions with the purchaser, provided that these comprise legal transactions of similar nature.
§ 2 Offers and conclusion of contract
1. If an order is to be considered an offer pursuant to § 145 of the German Civil Code (BGB), we can accept it within two weeks.
§ 3 Provided documentation
1. We retain all rights of ownership and copyright to all records and data provided to the purchaser in connection with placing the order, such as calculations, drawings, etc. These documents may not be made available to third parties unless we grant the purchaser our express written consent on this matter. Provided that we do not accept the offer of the purchaser within the deadline detailed in §2, these documents are to be returned to us immediately.
§ 4 Prices and payment
1. Unless agreed otherwise in writing, our prices are ex works and do not include the amount of applicable value-added tax. Costs for packaging will be invoiced separately.
2. Payment of the purchasing price is to be made exclusively to the specified account. The deduction of any discount is only permissible in the event of a special agreement in writing.
3. Provided that other provisions have not been arranged, the purchasing price is to be paid within 30 days of the date of invoice. Interest for late payment will be charged at a rate of 8 percentage points p.a. above the base interest rate at that time. We reserve the right to charge higher damages caused by delay.
4. Provided that no fixed price agreement has been reached, we reserve the right to make suitable price changes due to changed wage, material, or operating costs for deliveries which are made 3 months after conclusion of contract.
§ 5 Offsetting and rights of retention
1. The purchaser is only entitled to offsetting if his counterclaims have been recognized in a legally effective manner or are not in dispute. The ordering party is only entitled to exercise a right to retention if the counterclaim is based on the same contractual relationship.
§ 6 Delivery time
1. The period of delivery determined by us requires the prompt and orderly fulfilment of the obligations of the purchaser. We reserve the right to object to unfulfilled contracts. Delivery terms shall begin with the date of our confirmation of order, but not before the complete clarification of all details in the order has taken place.
2. If the purchaser delays in acceptance or culpably breaches other obligations of cooperation, we are then entitled to claim any damages that arise for us including any additional expenses that have accrued. We reserve the right to make further claims. Provided that the aforementioned conditions apply, the risk of accidental loss or of accidental degradation of the item purchased transfers to the purchaser at which point the purchaser falls into acceptance or payment default.
3. Legal claims and rights of the purchaser due to a delay in delivery remain unaffected.
§ 7 Transfer of risk at dispatch
1. If the goods are sent to the purchaser at the purchaser’s request, the risk of accidental loss or accidental degradation of the goods transfers to the purchaser upon dispatch to the purchaser, but no later than the point in time at which the respective goods leave the factory/warehouse. This applies regardless of whether shipment is made from the place of performance or regardless of who bears the freight costs.
§ 8 Retention of title
1. We retain title to the delivered goods until all payments for all claims under the contract have been received. This also applies to all future deliveries, even if we do not constantly and expressly refer to this fact. We are entitled to take back the object of purchase if the purchaser acts in violation of the contract.
2. The purchaser is obliged to treat the delivered goods with due care as long as the property has not been transferred to the purchaser. As long as title has not been transferred, the purchaser is obliged to inform us immediately in writing if the delivered goods are seized or otherwise subjected to the intervention of any third party. As far as the third party is not in a position to refund to us the judicial or extrajudicial expenses of our prosecution or defence regarding an action as defined by § 771 of the Civil Procedure Code (ZPO), the purchaser shall be liable towards us for the loss resulting from this.
3. The purchaser is entitled to resell the reserved goods in normal business transactions. The purchaser assigns his claims against the resale of the reserved goods in the amount of the mutually agreed final invoice amount (including statutory value added tax). This assignment applies irrespective of whether the purchased goods are resold before or after processing. The purchaser remains authorized to collect the receivables even after assignment. Our authority to collect the receivables ourselves remains unaffected. However, we will not exercise our collection claims as long as the purchaser satisfies his payment obligations arising from the collected proceeds, does not default on payments and in particular is not the subject of an application to open insolvency proceedings and does not discontinue payments. In the case of a cessation of payments or a pending petition for insolvency proceedings, the purchaser is forbidden to resell property.
4. The processing or reworking of the goods by the purchaser shall always be on behalf and by order of us. In this case, the expectant right of the purchaser in the goods purchased will continue in the reconstructed object. Should the purchased item be processed together with objects not belonging to us, we shall acquire joint ownership of the new item in proportion to the objective value of our purchase object to the value of the other processed items at the time of processing. The same shall apply in the case of intermixtures. Should the intermixture result in such a manner that the item of the purchaser is to be regarded as the main item, then it shall be understood as agreed that the purchaser transfers proportionate co-ownership to us and shall hold the resulting sole-ownership or co-ownership for us in safekeeping. To secure our claims against the purchaser, the purchaser also assigns to us any receivables from third parties that arise for the purchaser as a result of the incorporation of the conditional goods in real property; we hereby accept this assignment.
5. We undertake to release the securities due to us at the request of the purchaser insofar as the value of the securities exceeds the secured accounts receivable by more than 20 %.
§ 9 Warranty and notification of defects as well as recourse/manufacturer recourse
1. The purchaser’s right of warranty requires that he has duly fulfilled his obligations to inspect and notify the seller as per § 377 of the German Civil Code (HGB):
2. Claims for defects expire 12 months after goods supplied by us have been successfully delivered to the purchaser. The aforementioned provisions do not apply insofar as the law pursuant to § 438 Section 1 No 2 of the German Civil Code (BGB) (buildings and building materials), §479 Section 1 German Civil Code (BGB) (recourse claims) and § 634a Section 1 German Civil Code (BGB) (building defects) stipulate longer periods. Our consent must be obtained before any return delivery of the goods.
3. If, despite all care taken, the delivered goods exhibit a defect that already existed at the time of transfer of risk, we will, at our choice, either repair the goods or supply replacement goods, provided that the notice of defects was given in due time. The opportunity to carry out repairs within an appropriate period is always to be given to us. The above provision does not affect the rights of recourse in any way.
4. If the supplementary performance fails, the purchaser – notwithstanding possible claims for damages – may withdraw from the contract or reduce the compensation.
5. Defect claims do not apply if there is only a minor deviation from the agreed nature of the goods, only a minor impairment of usability, natural attrition or wear such as with damages which originate after the passing of risk as a result of faulty or negligent treatment, excessive operational demands, unsuitable operating resources, defective installation, or on account of specific external influences which are not presupposed according to the contract. Should the purchaser or a third party carry out improper repair work or modifications, claims for defects cannot be asserted for these or the resulting consequences.
6. Claims on the part of the purchaser for expenditures necessary for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded provided these expenditures increase because the goods delivered by us were subsequently transported to a location other than the purchaser’s place of business, unless such transport is consistent with the goods‘ intended use.
7. Claims to recourse against us by the purchaser only exist insofar as the purchaser did not enter into any agreements with his purchasers which extend beyond the statutory mandatory claims related to defects. Furthermore, as for the scope of the purchaser’s right of recourse against the supplier, Section 6, applies accordingly
8. If the manufacture and delivery of goods is carried out based on specifications of the purchaser such as submission of designs, drawings, samples, etc., the purchaser is liable for ensuring that utilizing these documents does not infringe upon any industrial or other property rights of any third parties. Should a third party make claims against us, in particular claims for damages, the purchaser must indemnify us against all claims of third parties.
§ 10 Miscellaneous
1. This agreement and the entire legal relationship between the parties are subject to the laws of the Federal Republic of Germany excluding the UN-Convention on Contract for the International Sale of Goods (CISG).
2. Place of fulfilment and sole court of jurisdiction for all disputes arising from this contract is our place of business, insofar as not otherwise agreed upon in the confirmation of order.
3. All agreements that are made between the parties for the purpose of the execution of this contract are stipulated in this contract.
4. Should individual terms of this contract be or become inoperative or should they include a gap, this will not affect the remaining terms of this contract. The parties undertake to reach an agreement in place of the invalid stipulation, which corresponds as closely as possible to the commercial purpose of the invalid clause or which fills this gap.