Our Terms and conditions
1. Area of applicability, general information
The General Terms and Conditions apply for all purchase contracts and contracts for labour and materials with a person acting at the time of signing the agreement in a corporate capacity or in a capacity as a self-employed professional (entrepreneur), as well as legal entities and special funds under public law. Deviating conditions on the part of the buyer shall not be recognised, even if the supplier has not expressly rejected them again after receipt by the supplier, or accepts the order without objection. Abweichende Bedingungen des Bestellers werden auch dann nicht anerkannt, wenn der Lieferer ihnen nicht nochmals nach Eingang bei ihm ausdrücklich widerspricht, oder den Auftrag ohne Widerspruch annimmt.
2. Price and payment
The agreed prices apply ex works, including loading in the plant, however they do not include packaging, unloading, freight, post and insurance for risks ex works. The buyer is only entitled to the right to withhold payments or to offset them with counter-claims, if his counter-claims are undisputed or are legally binding. In accordance with §§ 366 para. 2, 367 para. 1 of the German Commercial Code (BGB) the supplier shall be entitled to offset buyer’s payments, even if the buyer specifies a different allocation for the payment. The supplier shall be obligated to notify the buyer without delay if the supplier deviates from an express allocation specification of the buyer. If after signing of the contract it becomes evident that our claim for payment is in jeopardy due to the buyer’s inability to pay, we shall be entitled to the rights set forth in § 321 of the German Commercial Code (plea of uncertainty). In this case the supplier shall also be entitled to declare that all claims not subject to a statute of limitation arising from the ongoing business relationship with the buyer, are due and payable. In all other aspects the plea of uncertainty shall extend to all other outstanding goods and services arising from the business relationship with the buyer. An agreed discount shall always be based only on the invoice value excluding freight, with the prerequisite of complete payment of all of buyer’s obligations that are due and payable at the time of discounting.
3. Delivery time, delivery delay
The delivery time is stipulated in the agreements of the contracting parties. Supplier’s compliance with the delivery time shall be based on the prerequisite that all commercial and technical questions between the contracting parties have been clarified, and that the buyer has fulfilled all obligations for which the buyer is responsible, such as provision of the required government agency certifications or permits, presentation of letters of credit or payment of an advanced payment. Compliance with the delivery time shall be subject to correct and timely delivery to us on the part of our suppliers. The delivery time is complied with, if the delivery object has left the supplier’s plant or readiness for dispatch has been communicated before the delivery time elapses. If failure to comply with the delivery time is due to force majeure, labour disputes or other events that are beyond the supplier’s sphere of influence, then the delivery time shall be appropriately extended. The supplier shall notify the buyer of the beginning and end of such circumstances as soon as possible. If the supplier is delayed and the buyer thereby suffers damages, the buyer shall be entitled to demand flat-rate compensation for damages due to arrears. For each full week of default, the penalty shall be equal to 0.5% in total, however a maximum of 5% of the value of that part of the overall delivery that cannot be used on a timely basis as a consequence of the delay or cannot be used as stipulated in the contract. Other claims arising from delivery delay shall be determined exclusively in accordance with the “Liability” section of these Terms and Conditions.
4. Acceptance and transfer of risk
The risk shall be transferred to the buyer when the delivery object has been transferred to a freight forwarder or freight carrier, however at the latest when the delivery object leaves the warehouse, even if partial deliveries are executed or if the supplier has taken over additional services, such as the shipping costs or delivery and set-up. If dispatch or acceptance is delayed due to circumstances for which the supplier is not responsible, the risk shall be transferred to the buyer from the day that readiness for dispatch or acceptance was communicated. If on buyer’s request, the goods are stored, then the risk shall be transferred to the buyer on the date the goods are placed in storage.
5. Retention of title
All delivered goods shall remain our property (reserved goods) until the satisfaction of all claims, in particular also the respective balance claims, to which we are entitled within the framework of the business relationship (balance reservation) and the claims which are unilaterally established by the liquidator by way of the choice of fulfilment. This shall also apply to any claims arising or incurred in the future, e.g. as a result of changes in acceptance, and also where payments are effected for special designated claims. This balance reservation shall cease to exist with payment of all claims open at the time of the payment and that are affected by this balance reservation. Retention of title shall also continue to exist as long as supplier’s claims against the buyer are still open and/or at the so-called check cover / bill of exchange cover, the given bills of exchange or checks are not completely honoured. Processing and manufacturing of the reserved goods shall be executed for the supplier as manufacturer as stipulated in § 950 of the German Commercial Code without obligating the supplier. The processed and manufactured goods shall be considered reserved goods as stipulated above. With the processing, combination, commingling of the goods subject to reservation with other goods by the buyer, the supplier shall be entitled to co-ownership in the new goods in the ratio of the invoice value of the reserved goods compared to the invoice value of the other goods used. Should the supplier’s ownership be dissolved by combination, commingling or processing, then the buyer shall transfer to the supplier at this point in time the ownership rights to which the buyer is entitled in the new product or object, to the extent of the invoice value of the reserved goods and shall keep the new product or object safe for the supplier, free of charge. The supplier’s rights of co-ownership are deemed to be reserved goods as stipulated above. The buyer shall be entitled to sell the reserved goods in normal business transactions under normal business conditions as long as the buyer is not in default of payment, with the prerequisite that claims from the resale are transferred to the supplier. The buyer shall not be entitled to dispose of the reserved goods in any other manner. The claims from the resale of the reserved goods, together with all securities that the buyer acquires for the claim shall be transferred to the supplier at this point in time. These claims shall serve as security in the same scope as the reserved goods. If the reserved goods are sold by the buyer together with other goods not sold by the supplier, the claim arising from the resale shall be assigned to the supplier in the proportion of the invoice value of the reserved goods to the invoice value of the other goods sold. In the event of the sale of goods in which the supplier has joint ownership shares after processing and manufacturing, combination, commingling of reserved goods as stipulated above, a share corresponding to the joint ownership share shall be assigned to the supplier. If the buyer uses the reserved goods to fulfil a contract for work and labour, the claim arising from the contract for work and labour shall be assigned to us in advance to the same extent. The buyer shall be entitled to collect the claims arising from the resale. This right to collect claims shall expire if revoked by the supplier, at the latest if there is default of payment, failure to honour a bill of exchange or the commencement of insolvency proceedings. The supplier shall only make use of the right of revocation, if after signing of the contract it becomes evident, that the supplier’s claim for payment arising from this contract or from other contracts with the buyer is in jeopardy due to the buyer’s inability to make payment. On the supplier’s request, the buyer shall be obligated to notify the buyer’s customers immediately of the assignment to the supplier and to provide the supplier with the documents required for collection. An assignment of claims arising from the resale is not permitted unless it involves an assignment by way of the real factoring that is reported to the supplier and in which the factoring proceeds exceed the value of the secured claim. With the crediting of the factoring proceeds, the supplier’s claim shall become due and payable immediately. The buyer shall notify the supplier immediately of any attachment or any other impairment by third parties. The buyer shall bear all costs that must be incurred to remove access to or for return transport of the reserved goods, unless they are replaced by third parties. Should the buyer be in arrears with payment or should the buyer fail to honour a bill of exchange, the supplier shall be entitled to take back the reserved goods, and to enter the buyer’s premises if necessary for this purpose. The same shall apply, if after signing of the contract it becomes evident that the supplier’s claim for payment arising from this contract or from other contracts with the buyer is in jeopardy due to the buyers inability to make payment. The taking back of goods shall not constitute a withdrawal from the contract. The provisions of the insolvency code shall remain unaffected. If the invoice value of the existing securities exceeds the secured claims including ancillary costs (interest, costs incurred, etc.) by more than 50%, then the supplier shall be obligated to release the securities of the supplier’s choice, on buyer’s request.
Material defects in the goods must be reported without delay in writing, at the latest seven days after delivery. Material defects that cannot be detected even by the most careful examination within this period, must be reported in writing – with immediate suspension of the processing and manufacturing – immediately after discovery, at the latest before expiration of the agreed or legal period of limitation. After the buyer has accepted the goods in the manner agreed, notification of material defects that were identifiable in the agreed acceptance procedure shall be excluded. The supplier shall provide warranty for defects of quality and defects in title of the delivery under the exclusion of further claims – subject to liability (number 7), as follows: All parts that are shown to be defective prior to the transfer of risk shall, at the supplier’s discretion, be repaired or replaced. Replaced parts shall become the property of the supplier. The buyer, subject to agreement with the supplier, must give the supplier the necessary time and opportunity to execute all repairs and replacement deliveries; otherwise the supplier shall be released from the liability for the ensuing consequences. The supplier shall be responsible for the costs arising from the repair or replacement delivery and for the costs of the replacement item including shipping – if complaint is determined to be justified. More extensive expenditures in conjunction with the subsequent fulfilment shall only be the responsibility of the supplier, if in the specific case they are reasonable, particularly in the ratio to the purchase price of the goods. Expenditures that are incurred due to the fact that the sold goods have been brought to a location other than the registered office or branch of the buyer, shall not be the responsibility of the supplier unless this corresponds to contractual use. As provided by statutory regulations, the buyer shall have the right to withdraw from the contract if the supplier – with due consideration of the legal exceptions – fails to take action within a reasonable period of time granted by the buyer for repair or replacement due to a material defect. If only a negligible deficiency is apparent, the buyer shall only have the right to reduce the purchase price. Otherwise the right to reduce the contract price shall remain excluded. No warranty shall be assumed in the following cases in particular: Unsuitable or non-intended use, defective assembly or commissioning by the buyer or third parties, natural wear, faulty or negligent handling, improper maintenance, unsuitable operating materials, chemical, electrochemical or electrical influences – if they are not the supplier’s responsibility. If the buyer or a third party executes repairs improperly, there is no liability on the part of the supplier for the ensuing consequences. The same shall apply for changes to the delivery object made without the consent of the supplier.
If, due to the fault of the supplier, the delivery object cannot be used as a result of omission or faulty execution of suggestions and advice issued prior to or after conclusion of the contract, or through violation of any other ancillary obligations stipulated in the contract – in particular instructions on the proper operation and maintenance of the delivery object on the part of the buyer, then the provisions of the sections concerning warranty and the provisions of the following section, shall apply accordingly, to the exclusion of further claims on the part of the buyer. For damages that do not occur on the delivery object itself, the supplier shall be liable, regardless of the legal basis, only for intentional or grossly negligent acts by the owner, executive bodies or senior managers, as well as for culpable injury to life, body, health or for any defects that the supplier maliciously conceals or for defects, the absence of which the supplier has guaranteed, or if there is liability regarding physical injuries or material damage on privately used items under the German product liability law. In the event of culpable violation of essential contractual obligations, the supplier shall also be liable for gross negligence of non senior managers, and for simple negligence, in the latter case limited to reasonably foreseeable damages that are typical for this type of contract. Other damages shall be excluded.
8. Statute of limitation
All claims on the part of the buyer, irrespective of the legal grounds, shall become statute-barred after 12 months. The statutory limitation periods shall apply for intentional or fraudulent behaviour and for claims in accordance with the product liability law. They shall also apply for defects in a structure or for delivery objects that have been used for a structure in accordance with their customary manner of utilisation, and that have caused the structure to be defective.
9. Applicable law, place of jurisdiction
The law of the Federal Republic of Germany, applicable for the legal relationships of domestic parties, shall apply exclusively for all legal relationships between the supplier and the buyer. The place of jurisdiction shall be the court responsible for the supplier’s registered office. The supplier, however, is entitled to sue the buyer in the court responsible for the buyer’s place of business. Version: May 2013