I. Validity | Offers
[ 01 ] These General Conditions of Sale ("Conditions") shall apply to all present and future contracts and for other services rendered. The conditions of the Buyer do not oblige us to anything, even if, after receipt, they are not specifically declined by us. Deliveries and services are carried out exclusively to our conditions. Orders, supplements to an agreement and other stipulations are effective only in case of written confirmation.
[ 02 ] Our offers are subject to change without notice. Any agreements, especially oral collateral agreements, promises, guaranties and other assurances given by our sales staff shall be binding only once they have been confirmed by us in writing.
[ 03 ] We give back any drawings or sample belonging to an offer only on demand by the Buyer; otherwise we are free to abolish these three months after the offer.
II. Prices
[ 01 ] Our prices are free our warehouse, excluding freight, packaging and duty, unless something else is agreed upon. Value Added Tax will be added. In case of additional deliveries we are not bound to our previous prices. Our current price list is the basis.
[ 02 ] If the items are to be delivered packaged, we will charge the packaging at our cost. We will take back the packaging delivered according to statutory provisions if it is returned to us freight free within a reasonable period of time.
III. Payment and Set-Off
[ 01 ] Our invoices are due within 14 days with a 2 % cash discount or within 30 days net, beginning with the date of the invoice. The payment must take place within this period so that the amount involved is available to us at the latest on the due date. Any cash discount agreed to always applies to the value of the invoice excluding freight and packaging and has a prerequisite that all amounts due by the Buyer have been paid at the time of the discount. No cash discount for payments by exchange.
[ 02 ] Invoices for assembly, repairs, forms, tools, trainings and other services are due immediately without deductions.
[ 03 ] Counterclaims which are contested or have not yet been legally determined to be final and conclusive do not give the Buyer the right to withhold or offset payments.
[ 04 ] When payment is not on time, at the latest by default, we are authorized to invoice interest at the level of the appropriate bank rate for overdraft credits, at a minimum, however, at 8 percentage points over the basic interest rate. A claim for further damages due to this delay remains reserved.
[ 05 ] If it becomes apparent after conclusion of the contract that payment of our claims is in danger due to inability of the Buyer to pay, then we retain the rights under § 321 BGB (Objections Due to Uncertainty). We shall also be authorised to make use of rights under § 321 BGB (German Civil Code) and to make due any and all of our non statutebarred accounts receivable resulting from the same legal relationship, and we may revoke the collection power as set forth in clause V/6 of these Conditions. In addition, when payment is delayed we are entitled, after expiration of an appropriate extension period, to take back the goods delivered and to request that they not be sold or processed. This taking back shall not constitute a withdrawal from the contract. The Buyer can avoid all of these legal consequences by payment or giving security in the amount of our endangered receivables. The regulations of the insolvency law are not affected by the above.
IV. Delivery Deadlines
[ 01 ] Delivery deadlines and dates are considered to have been met when the goods have left our warehouse by the time due. Our commitment to deliver is subject to our correct and timely self-delivery unless we are responsible for the deficient or late self-delivery.
[ 02 ] Delivery deadlines and dates are extended in a reasonable range in case of industrial action, such as strike and lock out, and in case of unforeseen barriers that are beyond our influence. The same shall apply if these circumstances take place at our supplier. We will inform the Buyer immediately. Is the performance of the contract unacceptable for the Buyer he can withdraw from the contract if we are responsible for the delay. The Buyer is on our request obliged to declare whether he will withdraw from the contract or insist on the delivery.
V. Retention of Title
[ 01 ] All goods delivered by us remain our property (Reserved Property) until all claims arising from our business relation have been settled, regardless of the origin of the claims and including future or conditional claims. All deliveries are to be considered as one delivery transaction.
[ 02 ] When the Buyer processes, combines or mixes the reserved goods with other goods, we retain co-ownership in the new product in the relation of the invoice value of the reserved goods to the invoice value of the other goods produced. If our property disappears due to combination or mixture, the Buyer transfers to us already his property rights in the new goods or items in relationship to the invoice value of the reserved goods and will retain them for us without cost. The resulting co-ownership counts as Reserved Property in the meaning of clause V/1 of these Conditions.
[ 03 ] The Buyer may re-sell the Reserved Property only in his normal business relations and to normal business conditions as long as he is not in arrears and only on the condition that the claims from the related sale are transferred to us according to clauses V/5 to V/6 of these Conditions. He is not authorized to use the Reserved Property for any other purpose.
[ 04 ] The Buyer may assure the Reserved Property against fire and larceny and has to prove the coverage on our request. He subrogates his possible insurance claims due to damaging, destruction or larceny of the Reserved Property to us already now; in case of processing, combining or mixing the reserved goods with other goods only in an amount according to our part of the co-ownership.
[ 05 ] The claims of the Buyer from the further sale of the Reserved Property count already as transferred to us. They count, in the same relationship, as security as do the Reserved Property. If the Reserved Property is sold by the Buyer together with other goods not sold by us, the assignment of the claim from the further sale is only in the amount of the sales value of the Reserved Property. With the sale of goods on which we have co-ownership according to clause V/2 of these Conditions, the assignment of the claim is in the amount of this co-ownership.
[ 06 ] The Buyer is authorized to collect claims from the further sale until we exercise our rights of revocation at any time. This right of revocation will only be used in those cases listed in clause III/5 of these Conditions. At our request, the Buyer is required to inform his customers immediately about the cession to us - as far as we do not do it ourselves - and to provide us with the necessary information and details to accomplish collection. The collection authorization expires automatically - without any revocation - if the Buyer or any other third party files for insolvency.
[ 07 ] The Buyer must inform us immediately about any seizure or other adverse actions on the part of third parties. Moreover he has to inform third parties and judgment creditors about the Reserved Property and the co-ownership.
[ 08 ] Should the value of the existing securities exceed the value of the secured claims by more than 20 %, we are required to release securities of our choice upon demand of the Buyer.
[ 09 ] Shall the aforesaid conditions regarding the Retention of Titel not comply with our other general conditions, these aforesaid conditions shall prevail exclusively.
VI. Performance of Deliveries
[ 01 ] Unless otherwise agreed we choose packaging, mode and route of dispatch at our best discretion. When the goods are handed over to a forwarding agent or a carrier, at the latest, however, when the goods leave the warehouse or - with direct sales - the supplying plant, the risk is transferred to the Buyer in all cases, even those which are prepaid or free house deliveries. The Buyer must bear the responsibilities and costs of unloading. We shall obtain insurance only at the instruction of and at the Buyer's costs.
[ 02 ] We are permitted to make partial deliveries in reasonable amounts. With goods manufactured to the Buyer's specification, deliveries are permitted which are reasonable more or less than the quantity ordered.
[ 03 ] With call contracts, we are permitted to produce or have the total quantity produced at one time. Any changes desired cannot be considered after the order has been given unless this has been specifically agreed to. Unless there is a firm agreement, call up times and quantities can only take place according to our supply or manufacturing capabilities. Should the goods not be called according to the contract, after a reasonable additional period of time we are authorized to invoice them as having been delivered.
VII. Liability for Defects
[ 01 ] The interior and exterior characteristics of the goods, in particular their quality, grade and dimensions are determined by the agreed, in the absence of an agreement by the current DIN and EN-norms at the time of the conclusion of the contract, in the absence of such by exercise and trade usage. Reference to norms and similar technical standards as well as information to quality, grade, dimensions, weights and usability of goods, information in drawings and figures plus statements in advertising material shall not be deemed as a assurance or guarantee of quality; the same shall apply to declarations of conformity and correlative labels as CE and GS. The Buyer bears the risk of suitability and usability.
[ 02 ] In case of defects of the goods warranty rights are granted according to the statutory law; but we can, at our choice, either remedy the defect or replace the defective good by subsequent delivery. If the defect is only minor, he has only a right of reduction of the purchase price.
[ 03 ] Due to the examination of goods and notice of defects the statutory law shall apply; the notice of the defects has to be done in writing.
[ 04 ] We shall take over costs in connection with the remedy or subsequent delivery according to the statutory law. Costs in connection with the installation or removal of the defective goods are excluded. We shall not take over costs incurred due to remedy of defects by the Buyer and due to the goods being brought to a location other than the place of performance.
[ 05 ] Unless the Buyer gives us the possibility to convince ourselves of the defects, especially if, when requested, he does not make the defective goods or samples thereof available to us, he cannot claim that the goods are defective.
[ 06 ] In accordance with clause VIII of these Conditions, additional claims are not acceptable. This applies in particular to claims for damages which did not occur to the goods themselves (consequential damages).
VIII. General Limitations of Liability and Statute of Limitations
[ 01 ] We are liable for breach of contractual and non-contractual duties, especially those due to impossibility, delay, culpa in contrahendo and tortuous acts - also those of our managerial staff and other personnel - only in those cases of wrongful intent or gross negligence. Our liability shall in any case be limited to the loss foreseeable at the time of the conclusion of the contract.
[ 02 ] The aforesaid restriction shall not apply to such cases where we breach our fundamental contractual obligations and where such a breach of contract will endanger the contractual purpose; it shall neither pertain to such cases where our liability is compulsory under statutory law, either under the German Product Liability Act (Produkthaftungsgesetz), or with regard to damages to life, to the body or to health, or where we have wilfully concealed any defects of the goods or guaranteed their absence. Any statutory rules regarding the burden of proof shall remain unaffected by the aforesaid.
[ 03 ] Unless otherwise agreed to any contractual claims which the Buyer is entitled to in connection with the delivery of the goods or other services shall fall under the statute of limitations within a period of one year after the goods have been delivered to the Buyer. This limitation period shall also apply to such goods and services which, according to their normal purpose of use, have been used for constructional works related to real estate property and which have caused damage within this construction, unless this purpose of use has been agreed upon in writing. This limitation period shall not apply to our liability resulting from breaches of contract caused by our wrongful intent or by our gross negligence; neither shall it apply with regard to damages to life, to the body or to health and to any of the Buyer's statutory rights of redress (§§ 478, 479 BGB).
IX. Copyrights
[ 01 ] We reserve our property and our copyrights of all cost estimates, drafts, drawings and other supporting papers. They may be made available to third parties only after our agreement. Drawings and other supporting documents relating to offers must be returned at our request.
[ 02 ] So far as we have delivered items according to drawings, models, samples or other supporting documents supplied by the Buyer, he takes over the liability that intellectual property rights of third parties have not been damaged. If third parties, with reference to intellectual property rights, do not permit the manufacturing and delivery of those types of items, we are permitted -without being required to check the legal situation - to stop all further activities and to request damages when the Buyer is liable. In addition, the Buyer is responsible to immediately hold us free from ail claims of third parties in this connection.
X. Test Parts | Forms | Tools
[ 01 ] If the Buyer is required to provide parts to complete the order, they must be provided delivered free to the place of production in the required quantity, or with an additional quantity to cover any scrap, on time, without costs and free of any defects. If this does not occur, any resulting costs and other consequences will be for his account.
[ 02 ] The construction of test parts, including the costs for forms and tools are for the account of the Buyer.
[ 03 ] Property rights for forms, tools and other devices necessary for the construction of the ordered parts are according to the agreement made. Should these types of devices become unusable before the agreed upon quantities have been produced, the costs for replacement devices will be taken over by us. We promise to keep such devices available for a minimum period of two years after their last usage.
[ 04 ] Our liability for tools, forms and other manufacturing devices provided by the Buyer is limited to the care which we would normally apply in our own affairs. The Buyer takes over the costs for maintenance and repair. Our safekeeping responsibility ends - independent of the ownership rights of the Buyer - at the latest two years after the last manufacturing using the form or tool.
XI. Place of Performance | Jurisdiction and Applicable Law
[ 01 ] The place of performance for our deliveries is our warehouse. The place of jurisdiction between "merchants" (Kaufleute) is our principal office. We may, however, also sue the Buyer at his place of jurisdiction.
[ 02 ] All legal relationships between ourselves and the Buyer shall be governed by the laws of the Federal Republic of Germany supplementing these Conditions, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods from 11.04.1980 (CISG).
XII. Applicable Version
In case of doubt, the German version of these General Conditions of Sale shall prevail.