§1 General Provisions, Scope of Application
(1) Deliveries, services and quotations shall be provided on the basis of these General Terms and Conditions only. The former shall also apply to all future business relations, even if they are not specifically agreed upon each time. At the latest at the time of receipt of the goods or services these General Terms and Provisions shall be deemed accepted. Any counter confirmation made by the buyer making reference to the latter‘s General Terms and Conditions is herewith expressly rejected.
(2) In the event of consignment transactions, the Sales and Delivery Terms and Conditions of the respective manufacturers/suppliers shall apply exclusively.
(3) For any provisions deviating from these General Terms and Conditions to be effective, they shall require the written confirmation of the seller.
§2 Quotations and Closing of the Contract
(1) All of our quotations shall be subject to prior sale and non-binding. Acceptance declarations and purchase orders shall be made in writing or via telefax prior to their being rendered legally binding. The same shall apply to all additions, modifications or ancillary agreements.
(2) Product specific performance data, such as dimensions or weights, shall be binding only upon express written agreement.
(3) Our sales staff is not authorized to make any verbal ancillary agreements or verbal commitments, which extend beyond the contents of the written contract.
§3 Prices, Payment Terms
(1) List prices and prices offered in quotations shall be subject to change. The prices in effect on the date of delivery shall apply.
(2) Unless agreements to the contrary have been made, minimal quantities shall be subject to a minimum volume charge.
(3) Unless otherwise stipulated in the order confirmation, our prices shall be understood ex factory, excluding shipping, insurance and packaging costs, which shall be billed separately.
(4) Applicable value added tax is not included in our prices; it shall be added separately in the amount required by law on the day of billing.
(5) Unless other agreements have been made, our invoices shall be payable net without any deductions within 30 days after the date of invoice.
(6) Our business domicile shall be the place of fulfillment for all payments.
(7) Cash discount rights granted shall be contingent upon the buyer’s having paid all invoices due at an earlier date.
(8) Checks or re-discountable bank drafts shall be accepted for the purpose of fulfillment only. Any costs incurred shall be for the account of the buyer.
(9) The buyer shall have the right to set off counter receivables only if the former are undisputed, have been accepted by us or have been found finally due by a court of law.
(10) In the event of default on payments we shall have the right to charge interest at the rate of 5 % p.a. above the pertinent German Federal Bank prime rate. We shall have the right to demand higher compensation for said default if we can document the incurrence of same to the buyer.
(11) In the event that misgivings pertaining to buyer’s solvency should arise, we reserve the right to impose the following alternative rights: deferral of contractual services, advance payments, rendering of collateral, rescission from the contract. We shall in particular have the right, to make the remaining balance due for immediate payment. This shall be without prejudice to further statutory entitlements.
§4 Delivery Obligations, Transfer of Risks
(1) Partial deliveries or services by us shall be permitted.
(2) Shipping shall be performed at buyer’s risk, even if prepaid delivery has been agreed upon.
(3) Our delivery obligations shall be fulfilled as soon as the products leave our plant or warehouse and are handed over to the freight forwarder, whereby the risk shall transfer to the buyer as soon as the products have been handed over to the transportation provider or have left our plant or warehouse for the purpose of being shipped. If shipping is rendered impossible for reasons beyond our control, the risk shall transfer to the buyer upon notification of readiness to ship.
(4) We reserve the right to determine the shipping method and transportation provider at our discretion. The buyer shall bear all costs and risks for any other transportation arrangements demanded by the former.
(5) Delivery dates or deadlines, which may be agreed upon bindingly or non-bindingly, shall be subject to having been made in writing and shall be contingent upon proper and timely self delivery from our suppliers. Any delays we are not responsible for shall extend the delivery time automatically and accordingly. This shall apply in particular in the event of incidents of force majeure at our or our supplier’s end, and in the event of government agency interference, strikes and lock outs, energy and raw materials bottlenecks as well as all other unforeseeable events that have an adverse impact on deliveries.
(6) In the event that the encumbrance of deliveries should persist for more than three months, the buyer shall, upon setting a reasonable remedial deadline, have the right to rescind from the contract as to the pending portion of the agreement.
(7) If the delivery time is extended or the seller is released from seller’s obligations, the buyer shall not be in a position to construe damage compensation entitlements from the former.
(8) In the event that we should be liable for the non-compliance with bindingly confirmed deadlines and dates, the buyer shall be entitled to late performance compensation in the amount of 0.5% for each completed week of default, however, only to a maximum of 5 % of the invoice amount for the goods and services affected by the delay. Any further entitlements shall be excluded unless the delay is the result of at least gross neglect.
(9) The seller shall have the right to make claims based on the aforementioned circumstances only if seller promptly notifies the buyer of their occurrence.
(1) Deliveries shall be made including packaging in consideration of the provisions of §3 No. 3.
(2) Any packaging made available expressly on a loaner basis shall be returned to the seller by the buyer immediately, freight prepaid.
(3) Unless otherwise agreed upon, we shall choose the mode of packaging and transportation at our discretion.
§6 Information, Instructions
(1) Information and instructions as to the processing and application options of products distributed by us, as well as technical consultations and other information, shall be given based on our best ability; however, such information shall be providing non-bindingly and under exclusion of any and all liabilities.
(2) The buyer shall undertake to inspect the products for their appropriateness for buyer’s purposes at buyer’s end.
(3) In the event of delivery of type conform products; the information provided shall be congruent with average values. They are subject to deviations within standard tolerances.
§7 Retention of Title Provisions
(1) We shall retain title to all deliveries until all entitlements we hold against the buyer are fulfilled, even if specifically designated entitlements or receivables have been met. In the event of open account billing, the retained title shall be used as collateral for our open accounts receivable due by the buyer. In the event that payment of the purchase price dues by check-bank draft procedure has been agreed upon with the buyer, the title retention shall also encompass the payment of the draft we have accepted by the buyer and shall not be rendered void once the received check has been credited to our account.
(2) In the event of buyer’s contract breaching conduct, we shall have the right to seize the deliveries made. The seizure shall not result in a rescission from the contract unless we have made an express declaration to that effect in writing. The attachment of the purchase object by us shall always go hand in hand with our rescission from the contract. Upon seizure of the delivery we shall have the right to liquidate same and shall be required to credit the revenues generated to the receivables of the buyer minus reasonable liquidation expenditures.
(3) The buyer shall notify us of any third party attachments or other interferences immediately in writing. The intervention expenses shall be for the account of the buyer.
(4) The buyer shall have the right to resell the purchase object within the scope of normal business transactions; however, buyer herewith assigns to us all receivables up to the final invoice amount (incl. applicable VAT), which buyer generates from the resale from buyer’s customers or third parties; regardless of whether the purchase object was sold without having been or after having been processed. The buyer shall be authorized to collect said receivables even after the assignment. This shall be without prejudice to our entitlement to collect receivables directly. We shall, however, undertake not collect the receivables directly as long as the buyer continues to meet the obligation to pay from the revenues generated, does not default on timely payment and does not become the object of an application to start bankruptcy or settlement procedures or seize to make payments. However, if any of the aforementioned should occur, we shall have the right to demand that the buyer discloses to us the assigned receivables and related debtors, provides us with all information required to collect these receivables, surrenders to us the respective documents and notifies the debtors (third parties) of the assignment.
(5) The buyer shall not be permitted to make other assignments.
(6) Processing or conversions of the goods by the buyer shall always be made on our behalf. In the event that the goods are processed along with other goods that do not belong to us, we shall acquire co-title to the new object at the ratio of the value of the goods to the other processed goods at the time of processing. Incidentally, the same provisions that apply to goods delivered under title retention shall apply to the object resulting from processing.
(7) In the event that the delivered goods are blended with other goods that do not belong to us in such a manner that they can no longer be severed, we shall acquire co-title to the new object at the ratio of the value of the goods to the other blended goods at the time of their blending. If blending is done in such a manner that the object of the buyer must be considered the main object, it shall be deemed agreed upon that the buyer assigns to us the pro-rated co-title. The buyer shall subsequently keep in buyer’s custody the thus created sole property or co-property on our behalf.
(8) We shall undertake to release the collateral we are entitled to upon buyer’s request if the value of the collateral exceeds the receivable to be securitized by more than 20 %; the selection of the collateral to be released shall be at our discretion.
§8 Warranty for Deficiencies
(1) The warranty entitlements of the buyer shall be contingent upon the former’s compliance with the claim filing and examination obligations pursuant to §§ 377, 378 HGB (German Trade Law). The buyer shall be required to file claims immediately, however, no later than 10 days after receipt of the goods and in writing.
(2) In the event of justified claims for deficiencies of accepted quantity discrepancies, we shall have the right to choose whether to make substitute or pro-rated substitute deliveries or issue credit notes. Any costs incurred for substitute deliveries shall be borne by us unless same are increased by the fact that the goods have been relocated to another place than the fulfillment location.
(3) Any further entitlements of the buyer, unless provided differently below, shall be excluded, regardless of their legal grounds.
§9 Overall Liability
(1) Any more expansive liability than the liability required by § 8 shall be excluded regardless of the legal grounds, unless the cause of the damages was either intent or gross neglect.
(2) In the event that as a result of negligence we should breach a cardinal contractual obligation, our reimbursement obligation shall be limited to the damages foreseeable at the time the contract was executed.
(3) In the event that our liability should be excluded, this shall also apply to the personal liability of our salaried employees, hourly employees, workforce, representatives and agents.
§10 Governing Law, Place of Jurisdiction, Severability
(1) These General Terms and Conditions and the entire legal relationship between our company and the buyer shall be governed solely by German law.
(2) In the event that the buyer is a fully vested commercial agent, legal entity of public law or public law special legal entity, our business domicile shall be the place of jurisdiction; however, we shall have the right to file suit against the buyer at buyer’s business domicile as well.