General Terms of Delivery and Payment
Area of validity
1. These sales terms apply to companies, legal public persons and public assets. Our supply and services are conducted exclusively on the basis of the following terms. Terms and conditions of the partner which are not expressly acknowledged by us are not valid. Other terms of the buyer in an order also have no validity if we do not expressly contest them.
2. The contractual partners will confirm individual verbal agreements immediately in writing.
3. Orders first become binding with our order confirmation.
4. The details and illustrations in brochures and catalogues are industry standard approximate values, unless they are specifically termed binding by us. Agreements or other declarations are only binding if they are submitted or confirmed by us in writing.
Long term and call contracts, price adjustments
5. Internet orders are first considered to be accepted on confirmation.
6. For deliveries which are carried out 3 months or later after the contract has been signed and for long term contracts (contracts with a duration of more than 3 months as well as contracts without a fixed term) each contractual partner is entitled to require a suitable adjustment to the price if a significant change of the wage, materials or power costs has arisen.
7. If a binding order amount has not been agreed, we will base our calculations on the anticipated non-binding order amount of a partner for a specific period of time (planned amount). If the partner orders less than the planned amount we are entitled to increase the price per piece accordingly by a suitable amount. If he orders more than the planned amount we reduce the price per piece if the partner has informed us of the increased requirement at least 3 months prior to the order delivery.
8. For supply contracts which are on call, binding amounts have to be communicated to us, if not otherwise agreed, at least 2 months prior to the delivery date by call. Additional costs which are caused by a later request or subsequent changes to the request regarding time or amount by our partner, are charged to him; this is based on our calculation.
9. Our offers are subject to alteration. All agreements, including those of our external sales staff, first become legally binding on written confirmation.
10. Each contractual partner will only use all documents and knowledge received within the business relationship (including samples, models and data) for the mutually pursued objectives and will retain confidentiality towards third parties to the same extent as if they were his own documents, if the other contractual partner defines them as confidential or has a clear interest in their non-disclosure. This obligation begins from the initial receipt of the documents or knowledge and ends 36 months after the end of the business relationship.
11. The obligation does not apply for documents and knowledge which are generally known or already known to the contractual partner on receipt, without him being obliged to nondisclosure, or subsequently are provided by a third party with the appropriate authorisation or is developed by the recipient contractual partner without the use of confidential documents or knowledge of the other contractual partner.
Diagrams and descriptions
12. If one contractual partner provides the other with diagrams or technical documents relating to the goods to be supplied or their manufacture, these remain the property of the contractual partner providing them.
Samples and manufacturing means
13. The production costs for samples and manufacturing means (tools, moulds, templates etc.) are invoiced separately from the goods to be delivered, if not agreed otherwise.
14. The costs for maintenance and appropriate storage and the risks of damage or destruction of the means of manufacturing are our responsibility.
15. If the partner interrupts or terminates the cooperation during the manufacturing time of the samples or the manufacturing means, he bears the responsibility for all costs arising up to that point.
16. Even if paid for by the partner, the means of manufacture remains our property, at least until the supply contract is processed. According to this the partner is entitled to requested the manufacturing means if there is mutual agreement on the point in time of handover and the partner has fully met his contractual obligations.
17. We store the means of manufacturing at no charge for 3 years after the last delivery to our partner. After this time we request in writing from our partner that he states how they should be used within 6 weeks. Our storage obligation ends if there is no statement after these 6 weeks or no new order is placed.
18. Customer specific manufacturing means can only be used by us for supply to third parties on written approval of our partner.
19. By paying for part of the cost of tools the ordering party does not acquire rights to the tools.
20. Our prices are in Euros excluding VAT, packaging, freight, postage and insurance.
Terms of payment
21. The buyer carries the costs of payment transaction.
22. If we have without doubt delivered defect goods, our partner is nevertheless obliged to make payment for the portion of the delivery which is not defective, unless the part delivery is not of interest for him. The partner can only enforce rights of retention or settlement with legally binding or undisputed contesting claims.
23. If payment targets are exceeded, we are entitled to charge interest rates at the level at which the bank charges us for current account credit, but at least at eight percentage points above the valid base interest rate of the European Central Bank. We reserve the right to provide proof of higher damages.
24. In the event of payment default we can cease to fulfill our obligations after written notification to the partner until receipt of payment.
25. Bills of exchange and cheques are only accepted on agreement and only to the extent of fulfillment and under the precondition of discountability. Discount charges are invoiced based on the due date of the invoice amount. There is no guarantee for the timely submission of the bill of exchange and cheque and for contesting a bill of exchange.
26. If it becomes clear after signing the contract that our payment claims are endangered by a lack of performance by the partner, we can refuse to supply the service and define a reasonable period for the partner by which he has to pay on a case by case basis for delivery or to provide sureties. In the event of refusal by the partner or if the period passes without success we are entitled to withdraw from the contract and claim damages.
27. Solely our details on weight and our weighing are the basis for the proof of delivery amounts.
28. If not otherwise agreed, we deliver "ex-factory" in accordance with your choice. The adherence to delivery schedule or the delivery period is based on the notification of the readiness to dispatch or collect by us.
29. The delivery period begins when we send the order confirmation and is extended within reason if the preconditions of force majeure (clause 60) apply.
30. Partial deliveries are allowed to a reasonable extent. They are invoiced separately.
31. Additional delivery arising from manufacturing within a tolerance range of 15 to 20 percent of the total volume of the order is allowed. The total price changes accordingly.
Dispatch and transfer of peril
32. The costs of returning goods are the responsibility of the buyer. Returns from Internet orders need to be approved.
33. Goods notified as being ready for dispatch have to be accepted by the partner within 4 work days. Otherwise we are entitled to send them of our own accord or to store them at the cost and risk of the partner. Delivered objects have to be accepted by the buyer, even if they show significant defects without affecting his rights with regards to any defects.
34. In the absence of any special agreement we select the transportation method and route.
35. On handing over to the railways, the forwarding agent or the freight agent or at the beginning of storage, but at the latest on leaving the factory, the peril is transferred to the partner, even if we have assumed responsibility for the delivery.
36. If we can identify that the goods cannot be delivered within the delivery period, we will immediately inform the partner in writing of the reasons for the delay and, where possible, the estimated time of delivery.
37. If the delivery is delayed through force majeure (clause 59) or by activities or lack of activities by the partner, an extension is agreed which is reasonable within the circumstances.
38. The partner is only entitled to withdraw from the contract if we have to represent the nonadherence to the delivery date and he has set us a reasonable extension period without success.
Reservation of ownership
39. We reserve the right to ownership of the delivered goods until fulfillment of all requirements arising from the business relationship with the partner.
40. The partner is entitled to sell these goods in a proper business transaction as long as he fulfills his obligations arising from the business relationship in a timely manner. He may not however use the reserved goods as deposit or security. He is obliged to secure our rights in the event of credit resale of the reserved goods.
41. In the event of violations of obligation by the partner, especially in the case of payment default we are entitled to withdrawal and return after an unsuccessful extension period of 10 days; the statutory conditions regarding the dispensability of a period remain intact. The partner is obliged to a handover without us informing him previously of the withdrawal. We are entitled to withdraw from the contract if insolvency proceedings are opened relating to the partner’s assets.
42. The partner already forfeits the rights to all demands and entitlements arising from the sale of or, if appropriate, rental of goods to the partner, where we have ownership rights. We herewith accept the forfeit.
43. Any processing or further development of the reserved goods is undertaken by the partner on our behalf. If the reserved goods are processed together with other objects not owned by us or inseparably mixed, we buy the co-ownership of the new goods in relation to the invoice value of the reserved goods to the other processed or mixed objects at the point in time of processing or mixing. If our goods are combined with other mobile objects to a unified product or inseparably mixed and the other good is considered the primary good the partner transfers partial co-ownership to us in as far as the other goods are owned by him. The partner keeps the property or coproperty on our behalf. Above and beyond this the same applies for the object arising from processing, combining or mixing as for the reserved goods.
44. The partner is obliged to inform us immediately of any third party execution measures on the reserved goods, on payment obligations made to us or on other securities, and to provide the necessary documentation for an intervention. This also applies for other types of restrictions.
45. If the value of the existing sureties exceeds the total amount of the secured claims by more than 20 percent we are obliged to release sureties if required by the partner after our selection.
46. In the case of special manufacture, the client is only entitled to withdraw from the contract if we have refused subsequent fulfillment.
47. The qualities of the goods are based exclusively on the agreed technical delivery stipulations. In the event that we have to deliver in accordance with diagrams, specifications, samples etc. of our partner, this partner accepts responsibility for the risk of suitability for the intended purpose.
48. For defects which arise from unsuitable or unprofessional use, deficient assembly and /or operation by the partner or third parties, usual wear and tear, defect or unprofessional handling, we do not accept liability. This also applies for the consequences of unprofessional modifications or modifications or repairs undertaken without our approval by the partner or a third party.
49. The lapse of claims relating to defects is based on legislation if no other agreements are met.
50. If we deliver on the basis of a purchasing agreement and a defect is identified on delivery of the goods to our partner, our partner is obliged to note the defects in the dispatch documents and to inform us in writing of the defects on the second day after delivery at the latest. If the acceptance of the goods or the checking of an initial sample has been agreed as basis for the payment being due, it is not possible for the partner to subsequently complain of defects that could have been identified at the inspection or on checking the initial sample.
51. We must have the opportunity to identify the defect. If the partner does not fulfill this obligation or if he makes changes to goods without our authorisation which are featured in the complaint, he forfeits all claims.
52. In the case of defects which arise within 12 months of delivery/inspection we can choose to improve or replace the goods; we are also entitled to credit the invoiced amount instead of removing the defects. We do not grant guarantees for defects which do not or only to insignificantly restrict the use of our delivery as defined in the contract.
53. If we do not respond to a justified and timely complaint relating to defects in accordance with the contract within a reasonable period, the partner can set us a final date in writing by which we have to fulfill our guarantee obligations. Should this period end without success the partner can withdraw from the contract or make the necessary improvements himself or have them carried out by a third party at our risk and cost. In the event of subsequent fulfillment we assume responsibility for the necessary transport, way, work and materials costs to a reasonable extent, but up to a maximum value of the product to which the complaint relates. We will not assume responsibility for additional expenses arising from the fact the defective object is at a location other than the delivery location, unless that corresponds to the defined utilisation of the goods. The defect is removed by our own employees or by a subcontractor according to our choice. Costs for repair work contracted by the partner to third parties without our express approval will not be reimbursed. There is no provision for further entitlements, especially claims relating to compensation for damage, which is not on the delivered good itself. Complaints and delivery defects are only taken into account if they are communicated in writing immediately after receipt of the delivery.
54. If we have to deliver based on diagrams, models or samples of our partner, our partner guarantees us that the objects manufactured in accordance with his specifications do not violate commercial copyrights of third parties. In the event that a third party forbids us the production or delivery of the objects in reference to his protection rights, we are entitled, without previously checking the legal situation to cease production or delivery and to desire reimbursement of the arising costs from our partner. In the event that, from such a case, we incur damage from the violation or validation of protection rights by third parties, our partner has to provide us with compensation and/or to exempt us from the resulting damage. Our partner can only make reversion claims against us if the partner has not reached an agreement with his buyer which exceeds statutory claims in the event of defects. Furthermore clause 53 (last sentence) applies accordingly for the claims.
Other claims, liability
55. If no other agreements are met in the following, there can be no other and more extensive claims by the partner. This especially applies for claims for damage compensation due to violation of obligations from the debtor relationship and activities which are not permitted. We do not therefore accept liability for damage which has not arisen on the delivered goods. We especially do not accept liability for earnings forfeited or other damage to the partner’s assets.
56. The above named limitations of liability do not apply in the case of intention, gross negligence of our legal representatives or management or by culpable breach of significant contractual terms. In the event of culpable breach of significant contractual obligations we accept liability – except in cases of intent or gross negligence of our legal representatives or management – only for the contractually typical damage which can be predicted within reason.
57. Furthermore the limitation of liability does not apply in the cases where there is liability for damage to persons and property for privately used objects in the event of defects on the supplied goods according to product liability legislation. It also does not apply in the case of injury to life, body or health and if assured features are missing, if and to the extent that the assurances served to safeguard the partner against damage which did not arise on the delivered goods.
58. The extent to which our liability does not apply or is limited also applies for the personal liability of our staff and legal representatives and persons acting on or behalf.
59. Force majeure, industrial disputes, disturbances, local authority measures, missing deliveries from our suppliers and other unpredictable, unavoidable and serious events exempt the contractual partner for the duration of the problem and to the extent of its impact from the performance obligation. This also applies if these events occur at a point in time when the affected contractual partner is late, unless the tardiness is caused intentionally or through gross negligence. The contractual partners are obliged to immediately provide the required information where reasonable and to adjust their obligations to the best of their knowledge to address the changed circumstances.
Fulfillment location, court of jurisdiction and applicable law
60. If the order confirmation does not indicate otherwise, our company location is the location of fulfillment.
61. For all legal disputes, including those concerning a bill of exchange or cheque processes, our company location determines the court of jurisdiction. We are also entitled to take legal proceedings at the location of the partner. Otherwise the court of jurisdiction is based on German and/or EU law.
62. Solely the law of the Federal Republic of Germany and EU laws apply to the contractual relationship. The UN Agreement of April 11, 1980 on goods purchasing contracts (CISG – "Wiener Kaufrecht") cannot be applied. The fulfillment location is also based on German and/or EU law.
63. If contractual documents (e.g. proposal, order confirmation, additional agreements, correspondence etc.) are available in two languages, only the German version is valid in any interpretation issues.