Terms of delivery
1. General Provisions1.1 Our deliveries and services are subject to the following conditions. They apply also to all future deliveries and services rendered to the Customer. Any conflicting terms or terms deviating from our terms shall not be applicable, unless we have expressly agreed to their validity. The following terms shall also apply if we, having knowledge of conflicting or deviating terms of the Customer, perform his order without reservation.
1.2 Oral agreements made before, upon or after conclusion of the contract require our written confirmation to become effective.
1.3 An order is to be qualified as an offer to conclude a contract. We can accept it within two weeks by sending a confirmation of the order (also by fax or e-mail) or by sending the goods ordered.
1.4 Our offers are without engagement and not binding, unless we have expressly designated them as binding.
1.5 We reserve all title, copyrights as well as other protective rights in all samples, estimates of costs, drawings and similar information of a tangible and intangible kind (also in an electronic form). The Customer is only permitted to disclose them to third parties with our consent, irrespective of whether or not we have marked them as confidential.
2. Prices, Terms of Payment, Minimum Order Value2.1 Unless otherwise agreed in writing our prices are understood "ex works" exclusive of packaging. The VAT at the applicable legal rate is added to the prices.
2.2 Unless otherwise agreed in writing, payment is to be made without any deduction within 30 days from the invoice date. Deduction of discount is subject to special written agreement. Terms of payment are regarded as observed when we can dispose of the amount within the period. We are entitled to set payments off against other outstanding claims.
2.3 Cheques will only be accepted by us on account of performance and are valid as payment only after their encashment. Discount and collection charges as well as interest are to be refunded to us.
2.4 In case the Customer defaults in his payment obligations as a whole or in part, we shall be entitled - without prejudice to any other rights we are entitled to - to charge default interest to an amount of 8 % above the base interest rate per year. We reserve the right to assert further claims for damages.
2.5 Set-off or retention by the Customer is excluded, unless the claim set off or retained is undisputed or has become effective in law.
3. Delivery, Period of Delivery, Delay in Delivery3.1 Any dates or periods of delivery that have not been expressly agreed upon as binding are exclusively non-binding indications. The period of delivery indicated by us commences only after all commercial and technical questions have been clarified between the Customer and us and the Customer has fulfilled all obligations incumbent on him (e.g. submission of required drawings). If that should not be the case, the period of delivery will be extended accordingly; this does not apply if we are solely responsible for the delay.
3.2 Observance of dates or periods of delivery is subject to our own correct and timely receipt of supply. We will communicate any emerging delays as soon as possible.
3.3 Partial deliveries and services are admissible, unless they are unreasonable for the Customer.
3.4 Dates or periods of delivery are observed when, until their expiration, the delivery item has left our plant or its readiness for shipment has been notified.
3.5 In case we get in default and such default causes a damage to the Customer, the Customer shall be entitled to demand a flat-rate compensation for default. Such compensation amounts to 3 % of the delivery value for every complete week, on the whole, however, to a maximum amount of 15 % of the delivery value.
In case the Customer - taking into account the exceptional cases provided for by law - fixes a reasonable period for us to perform and such period is not observed, the Customer shall be entitled to rescission within the scope of the applicable legal regulations.
Further claims of the Customer based on default on our part are exclusively governed by Section 7. of these Terms.
4. Passing of Risk, Shipment4.1 Loading and shipment are made uninsured at the Customer's risk. With regard to type and route of shipment, we will make an effort to take the wishes and interests of the Customer into account; any resulting additional costs shall be borne by the Customer.
4.2 At the Customer's request and expense, we will insure the deliveries against the usual transport risks.
5. Reservation of Title
5.1 We reserve title to the goods delivered until receipt of all payments from the business relationship with the Customer (reserved goods).
5.2 Within the course of his proper business operations, the Customer is entitled to process, transform or combine the reserved goods. For securing our claims set forth under Subsec. 5.1 above, we acquire co-ownership in the products created by processing, transformation or combination, which co-ownership is assigned to us by the Customer already now. The Customer will keep the items subject to our co-ownership in custody for us free of charge. The amount of our co-ownership depends on the ratio of the value of the reserved goods to the value of the item created by processing, transformation or combination at the time of processing, transformation or combination. To the item created by processing, transformation or combination, there applies the same as to the reserved goods.
5.3 The Customer is entitled to resell the items subject to our reservation or co-ownership in the due course of business, as long as he is not in default in payment. Already now, the Customer assigns to us all claims due to him from the resale of the goods delivered by us or on another legal ground (insurance, tortuous act) with regard to these goods (including all balance claims from current accounts) with ancillary rights to the amount of the value of the delivered goods invoiced by us (including VAT), irrespective of whether or not the goods delivered by us have been further processed, transformed or combined with other items. The assigned claims serve to secure our claims according to Subsec. 5.1 of these Terms. The Customer is entitled to collect the assigned claims until revocation. The right to collect can be revoked by us any time as soon as the Customer fails to properly meet his payment obligations.
5.4 Upon our request, the Customer has to inform us immediately in writing to whom he has sold the goods subject to our reservation or co-ownership and what claims are due to him from the resale or on another legal ground with regard to these goods, notify the assignment of the claims to the respective debtors and hand over to us the documents (e.g. invoices) and give us the information required for asserting our rights.
5.5 The Customer is not entitled to dispose in any other way of the items subject to our reservation or co-ownership or of the claims assigned to us, in particular to pledge the items or transfer them by way of mortgage. The Customer has to notify us immediately of any attachment of or any other impairment of the rights in the items or claims owned by us as a whole or in part. All costs incurred by us for the termination of the attachment of these items or claims by third parties as well as for the assertion and enforcement of our respective rights shall be borne by the Customer, unless they can be collected from a third party.
5.6 The Customer has to treat the items subject to our reservation or co-ownership with care and insure them at his expense adequately at replacement value against damage by fire, water and theft.
5.7 In case the Customer acts contrary to the contract, in particular if he gets in default in payment, if he is overindebted or ceases to make payments or if an application for the institution of insolvency proceedings against his assets is filed, we shall be entitled to demand return of the items subject to our reservation or co-ownership. If we make use of this right, that shall only constitute a rescission of the contract when that is expressly declared by us. We shall be entitled to realize the items returned. After deduction of reasonable costs of realization, the proceeds from the realization shall be set off against the amounts owed to us by the Customer.
5.8 We oblige ourselves to release the securities due to us at the Customer's request to the extent the realizable value of the securities exceeds the claims to be secured by more than 10 %. The choice of the securities to be released is incumbent on us.
6. Claims Based on Defects
6.1 Rights of the Customer with regard to claims based on defects shall only exist when the Customer has properly fulfilled the duties of examination and complaint owed by him according to Art. 377 HGB (Commercial Code).
6.2 In case of a defect the cause of which existed already at the time of the passing of risk, the Customer's claims based on defects first are limited, at our choice, to removal of the defect or delivery of an item free from defects (subsequent performance). In case of a failure of subsequent performance, the Customer - without prejudice to claims for damages, if any - has the right, at his choice, to either reduce the purchase price or rescind the contract according to the applicable legal regulations.
6.3 Claims of the Customer based on expenses required for the purpose of subsequent performance, in particular for costs of transport, travel, work and material are excluded as far as they regard increased expenses because the goods delivered by us were subsequently transferred to a place other than the Customer's establishment, unless such transfer was in line with their use according to contract. Parts that have been replaced pass into our ownership.
6.4 We are not liable for the quality of the goods delivered based on the design or the choice of material if the design or the material were specified by the Customer.
6.5 We are not liable for the infringement of protective rights of a third party with regard to goods delivered that were manufactured on the basis of drawings or other information of the Customer or for a utilization of the goods that is not foreseeable to us. In the same manner, we are not liable when the Customer makes changes in the goods delivered or combines them with other devices/equipment which leads to an infringement of protective rights of a third party.
6.6 Rights of recourse of the Customer against us exist only to the extent the Customer has not entered into agreements with his customers that go beyond the statutory claims based on defects (e.g. courtesy regulations).
6.7 As for the rest, our duty to pay damages and/or reimburse for futile expenses incurred within the meaning of Art. 284 BGB (German Civil Code) based on defects is governed by Section 7. of these Terms.
6.8 Any further claims or any claims other than the Customer's claims based on defects regulated under this Section 6. are excluded.
7. Claims for Damages
Unless otherwise provided for under these Terms, we are liable for damages and/or reimbursement for futile expenses incurred within the meaning of Art. 284 BGB (hereinafter referred to as "damages") for breach of contractual and extra-contractual duties - on whatever legal grounds -, in particular also for damages for positive breach of contract, for breach of duties in contract negotiations and for tortuous act, only subject to the following provisions:
7.1 We are liable in accordance with the legal provisions:
a. in case of intent, including intent of our representatives or vicarious agents;
b. in case of gross negligence, including gross negligence of our representatives or vicarious agents;
c. in case of culpable damage to life, body or health;
d. in case of defects fraudulently concealed by us or the absence of which has been guaranteed by us;
e. in case of defects in the goods delivered by us, to the extent liability for privately used articles is mandatory under the Product Liability Act;
f. beyond Items a. and b. above, in case of breach by simple negligence of such contractual duties the fulfilment of which enables proper performance of the contract and the observance of which was relied on and could be reasonably relied on by the Customer (essential contractual duties).
7.2 In the cases regulated under Subsection 7.1 Items b. and f., our liability for damages is limited to the foreseeable damage that may typically occur.
7.3 Unless otherwise provided for above, any further claims of the Customer and further liability for damages on our part are excluded.
7.5 To the extent our liability for damages is excluded or limited, that applies also to the personal liability for damages of our staff, representatives and/or vicarious agents.
All claims of the Customer - on whatever legal grounds – are limited to 12 months. Claims for damages according to Section 7. of these Terms, however, are subject to the statutory periods. The statutory periods apply also as far as the laws provide for longer periods of limitation according to Art. 438 Subsec. 1 No. 2 BGB (German Civil Code) (claims based on defects in a building and in a thing used for a building) as well as Art. 479 Subsec. 1 BGB (recourse claims in case of a delivery recourse).
8. Statute of Limitations
9. Severability Clause, Place of Performance, Place of Jurisdiction, Applicable Law
9.1 In case any provisions of these Terms and/or of further agreements made should be or become invalid, that shall not affect the validity of other parts of the Terms and/or of further agreements. The parties to the contract shall rather be obliged to replace the invalid provision by a regulation that comes as close as possible to its economic effect.
9.2 Unless anything different results from the confirmation of the order, our place of business shall be the place of performance.
9.3 Our place of business shall be the place of jurisdiction if the Customer is a merchant or does not have a general domestic place of jurisdiction or moves his place of residence or usual place of abode out of the country or if his place of residence or usual place of abode is not known at the time the action is brought. However, we are also entitled to have recourse to any other court having jurisdiction.
9.4 All legal relations between the Customer and us are exclusively governed by the laws of the Federal Republic of Germany. Application of the UN Sales Convention is excluded.