General Terms and Conditions of Sale and Delivery
1.1 These terms and conditions apply to all of our deliveries and other services providing the client is a contractor, a corporate body under public law or a public law entity with special funds (Section 310 I German Civil Code [BGB]).
1.2 Our terms and conditions apply exclusively and also if we execute the delivery or service without any reservation whilst being aware of opposing or deviant terms and conditions of the client. Such opposing or deviant terms and conditions are only binding for us if we have explicitly submitted our consent to their validity in writing.
1.3 Amendments to our terms and conditions respectively apply for the future after notification to the client, providing that he/she does not oppose the amendments in writing within one month of receipt of notification.
2. Contract Conclusion, Scope of Services
2.1. If the conclusion of the contract is confirmed by us (confirmation of order), the contract is regarded as concluded with the confirmed scope of services and in accordance with the confirmed terms and conditions providing that the client raises no objection in writing immediately after receipt of the order confirmation.
2.2 Such deviations to the agreed service are subject to changes that are reasonable in scope and nature.
2.3 Measurements, weights and similar information in the documents forming the basis for the order or order confirmation are only approximate unless explicitly referred to as binding.
2.4 We reserve all rights of ownership and copyrights to our own illustrations, drawings, calculations and other documents.
3.1 Our prices are exclusive of VAT valid at the time of delivery.
3.2 Unless specified otherwise in the order confirmation, our prices apply ‘ex factory’, excluding packaging and other shipping and transportation costs which will be charged separately.
3.3 If there are more than four months between the conclusion of the contract and the shipment, without there being a delay in delivery for which we are responsible, and our material or labour costs have increased since the conclusion of the contract, we are entitled to increase the price by a percentage supplement that corresponds to this increase. If the purchase price thus increases by more than 20%, the client is entitled to withdraw from the contract.
3.4 If we realise subsequent amendments requested by the client, we are entitled to invoice the client the additional costs thus incurred without an agreement to this effect.
4. Payment Date, Payment Terms
4.1 Unless otherwise agreed, the purchase price is due within 30 days from the invoice date without deduction.
4.2 Payment by bill of exchange or cheque requires our explicit written approval. Discount and other bill of exchange charges shall be charged to the client in all cases.
4.3 From the due date we will charge late payment interest of eight percentage points above the respective basic interest rate in accordance with Section 247 of the German Civil Code [BGB]. We have the right to provide proof of higher loss of interest. The client has the right to prove that the loss never existed or was significantly less.
4.4 In the event of payment arrears, we can make the execution of ongoing, and other, contracts with the client subject to simultaneous payment of the purchase price or simultaneous provision of an appropriate security. Subsequent to a demand notice and non-compliance with an adequate grace period indicated within, we are entitled to withdraw from individual or any other contracts concluded with the client providing we have not yet or only partially executed the contract or we are entitled to request compensation to replace the service without any requirement for further notification. In addition, we are entitled to call in all claims against the client and to liquidate our securities.
5. Set-Off and Retention
Set-off by the client is only permitted with undisputed or legally established claims; the exercising of a right of retention only due to undisputed or legally established counterclaims that are based on the same contractual relationship.
6. Delivery, Delivery Time
6.1 Partial deliveries are permitted.
6.2 If the goods are to be shipped, the risk of accidental perishing or accidental deterioration is transferred to the client with the delivery of the goods to the carrier; this also applies if the delivery to the carrier is not performed by us (direct shipping by our suppliers) or we use our own staff for the shipment.
6.3 Transport packaging, and all other forms of packaging, will not be taken back. The costs of the disposal of the packaging shall be borne by the client.
6.4 Transport insurance will only be taken out at the explicit request of the client, in his/her name and at his/her costs; the filing of an insurance claim is the responsibility of the client.
6.5 The commencement of the delivery time is subject to the clarification of all technical issues.
6.6 The delivery period shall be extended to an appropriate extent in case of the occurrence of unforeseen events beyond our control (e.g. force majeure, work stoppages, and disruptions of transport routes). The failure of timely delivery by a sub-supplier of us shall count as such an event, if we have concluded a delivery contract under which the client would have been able to be supplied without interruption (congruent supply transaction), and if we are not responsible for the non-delivery by the sub-supplier. We shall inform the client immediately in cases of such events. Should such events fundamentally complicate the delivery or make it impossible, and the hindrance not be merely temporary, we may withdraw completely or in part from the agreement. In this case, offsetting services already provided by the client shall be immediately reimbursed. Other legal rights of withdrawal and cancellation of us, as well as those of the client, shall otherwise remain unchanged.
7. Warranty for Defects
7.1 The goods are to be inspected immediately after delivery. Notice of defects, shortfalls and other deviations from the agreed service shall be given immediately after these are discovered. If the actual quantity delivered (number of units, weight) deviates from the quantity indicated in the document accompanying the goods, the client shall give notice of this upon receipt of the goods, and shall do so towards the last carrier in the case of shipment; otherwise surplus quantities shall be regarded as approved and the claim to subsequent delivery of missing quantities shall be excluded.
7.2 If the notification of defects is given in due time and substantiated, we will provide supplementary performance. At our discretion, we will either take back the defective goods and supply goods that are free of defects (replacement delivery) or we will rectify the defect (remedy). If subsequent delivery is unsuccessful, the client is entitled to either reduce the purchase price or withdraw from the contract at his/her discretion.
7.3 If a defect only reduces the value or suitability of the goods insignificantly, the client is not entitled to request supplementary performance or a reduced purchase price.
7.4 If additional materials or substances are provided by the client to execute the contract, we are not obliged to inspect these; we provide no guarantee for defects of goods due to defects in the additional materials or substances.
7.5 Subject to the provision given under the following Clause 8, any further claims lodged by the client are excluded regardless of the grounds.
7.6 Claims for defects lapse one year after delivery of the goods. This shall not affect the limitation period for recourse against the supplier (Sections 478, 479 of the German Civil Code [BGB]) remains unaffected.
8. Compensation and Reimbursement of Expenses
8.1 We are generally only liable for compensation and/or reimbursement of expenses if damages are based on breach of duty with intent or gross negligence or culpable violation of a fundamental contractual obligation that is committed either by us or our agents/vicarious agents. If a wilful breach of contract cannot be assumed, the liability for compensation is limited to the foreseeable, typically occurring damage.
8.2 The liability for culpable harm to life, body or health remains unaffected. This also applies to the mandatory liability in accordance with the Product Liability Act.
9. Retention of Title
9.1 Our deliveries are done solely under retention of title. The ownership of the goods delivered by us (hereinafter referred to as reserved goods) shall only be transferred to the client once he/she has fulfilled all of his/her obligations within the business relationship and all the obligations entered into by us under bill of exchange and cheque law at the client’s request have been fulfilled.
9.2 The client is obliged to handle the reserved goods with care; he/she is in particular obliged to insure these for the replacement value at his/her own cost against fire, water and theft damages. If maintenance and inspection work is required, the client shall execute these promptly at his/her own cost.
9.3 The client is only permitted to combine, mix, process or sell the reserved goods with other items in accordance with customary business practice. He/she is in particular not permitted to pledge or assign such goods by way of collateral.
9.4 The processing or alteration of reserved goods by the client will be continuously realised on our behalf, without generating any obligations for us. If the reserved goods are mixed or merged with other items – including reserved goods of other suppliers – so that they become inseparable, or connected to another item (principal object) so that it becomes a fundamental part thereof, it is agreed that the co-ownership of the entire quantity or the principal object shall be transferred to us in the ratio of the invoice value of the reserved goods to the value of the other items or the principal object at the time of the mixing or merging. The entire quantity or the principal object will be stored for us by the client with due diligence at no charge.
9.5 If the reserved goods become part of the sales contract, contract for work and services or any other contract of the client with a third party, based on which the third party is to obtain ownership of the goods, the client will now already assign his/her claims to the counterperformance amounting to the purchase price of the reserved goods plus a flat-rate supplement of 15% for interest and costs; we already accept this assignment now. The client is not permitted to agree a ban of assignment with his/her contractual partner and for his/her part to only deliver under retention of title; upon request he/she is obliged to name his/her contractual partner to us and to issue us with or hand over the information and documents required for the pursuance of our rights. The client himself/herself is authorised to collect this assigned claim irrespective of our authority to collect the claim ourselves; we will only revoke the authorisation and collect the claim ourselves if the client falls into arrears or suffers financial collapse (suspension of payments, application to open insolvency proceedings).
9.6 The client is obliged to notify us promptly of pledging and other access to the reserved goods, if applicable, by sending us a copy of the bailiff’s return.
9.7 If the value of our securities exceeds the total amount of our claims (including contingent claims under bill of exchange and cheque law) by more than 10%, we will release securities of our choice at the client’s request.
10. Place of Delivery, Jurisdiction
10.1 The place of delivery for all contractual obligations, including the payment obligation, is our business location.
10.2 Jurisdiction is our business location if the client is a businessman, corporate body under public law or a public law entity with special funds. However, we are entitled to sue the client at his/her general place of jurisdiction.
10.3 The law of the Federal Republic of Germany applies.