Terms and Conditions
I. GOODS AND SERVICES
1. Our supplies and services are subject solely to our Terms and Conditions of business set out in the following. Any non-conformance to the said Terms and Conditions requires written confirmation from us. We will not acknowledge conflicting or supplementary terms and conditions of the Buyer, in particular exclusion of retention of title or prohibition of offsetting against counter-claims.
2. We reserve all rights, without restriction, to cost estimates, drawings and other documentation. They must not be made available to third parties without our consent. If we are not awarded the contract, our drawings and other documentation relating to quotations submitted must be returned to us immediately and in full on request.
3. We are entitled to engage third parties in performance of the supplies or services rendered.
II. PRICES
The price is quoted without discount and value added tax, ex works. Any additional services will be charged separately.
The price valid on the date of delivery shall apply.
III. RETENTION OF TITLE
1. Until all claims due to us arising from our business relationship with the Buyer have been satisfied, including any balancing claims, we will retain title to all goods supplied (i. e. they remain conditional commodities).
2. Where goods are subject to retention of title, the Buyer is prohibited from pledging them or assigning them by way of security. Resale is permitted only by resellers in the normal course of business and only subject to the condition that the reseller receives payment from its customer or imposes the reservation that title will only be transferred to the customer when the customer has fulfilled its payment obligations.
3. With regard to any resale, the Buyer shall, as from the date of the transaction with us, assign to us by way of security its claim in respect of the purchase price in the amount of the selling price charged to the Buyer, without need of any subsequent declaration to that effect. If the conditional commodity is resold together with other items without a unit price having been agreed for the conditional commodity, the Buyer shall assign to us by way of security the portion of the total claim corresponding to the price of the conditional commodity invoiced by us, in priority over the remaining claims. Where a justified interest can be credibly established, the Buyer must furnish us with the information necessary to assert our rights against the customer and disclose the necessary documentation.
The Buyer is authorised to collect the assigned claims arising from the resale until such authority is rescinded. In case of good cause, in particular in the event of payment default or for other reasons leading us to suspect that our payment claim is endangered, we are entitled to rescind the Buyer‘s collection authority. Moreover, after prior warning, and observing an appropriate period of notice, we may disclose the assignment by way of security, realize the assigned claims, and demand that the Buyer disclose the assignment by way of security to the customer.
4. The Buyer may process or reform the conditional commodity, or combine or join it with other items. The processing, reforming, combining or joining (collectively termed processing) shall be performed on our behalf. The Buyer shall hold the new item in its safe custody with due commercial diligence. The new item shall be classified as a conditional commodity. Where processed together with other items not belonging to us, we shall have joint title to the new item in the amount of the portion arising from the ratio of the value of the processed conditional commodity to the value of the remaining processed commodity at the time of processing. Where the Buyer acquires sole title to the new item, it shall grant us joint title to the new item resulting from the processing corresponding to the value of the processed conditional commodity proportionate to the value of the remaining processed commodity at the time of processing. In the event of resale of the new item, the Buyer shall assign to us by way of security its claim against the customer arising from the resale, with all ancillary rights, without need of further special declaration to that effect. The assignment shall, however, apply only in the amount corresponding to the value of the processed conditional commodity invoiced by us. The portion of the claim assigned to us shall be satisfied by priority. With regard to the authority to collect payment and the preconditions for rescinding the said authority, section III.3 applies accordingly. If the Buyer combines the conditional commodity with movable assets, it shall also assign to us by way of security its claim for remuneration for the said combining, with all ancillary rights, corresponding to the value of the combined conditional commodity proportionate to the value of the remaining combined commodities at the time of combining.
5. Pledges, confiscations and any other dispositions or interventions by third parties must be notified to us immediately.
6. Where the Buyer fails to fulfil its obligations, in particular in the event of payment default, we shall be entitled, on expiration of an appropriate additional period allowable to the Buyer, to cancel the contract and recover the goods in question; the Buyer shall be obliged to return the said goods. All outstanding discount/bonus payments shall be rendered null and void
IV. PAYMENT TERMS
1. Unless otherwise agreed or specified on the invoice, claims shall fall due immediately, and payment must be made no later than 30 days from date of invoice, without deduction.
2. The Buyer may only offset against claims which are undisputed or have been legally established.
3. If these conditions are infringed the full balance must be paid immediately. No cash discount will be granted where an overdue balance in our favor exists at the time of payment. Payments will be credited against the oldest outstanding debt and any ancillary costs. If the Buyer defaults on payment, we will charge late-payment interest at a rate of 9 % above the base interest rate of the European Central Bank p.a.
4. We are entitled to perform further supplies and services only against advance payment or provision of security if we are in possession of credible information leading us to suspect that the net asset position of the Buyer has materially deteriorated, in particular where the Buyer fails to settle our due claims. If the Buyer is not willing to do so, we may cancel outstanding orders.
V. DELIVERY
1. Delivery dates shall be non-binding to us. They will be specified by us in accordance with our best judgement and will be met as far as possible. No claims can be asserted for compensation arising from excusable non-performance or missing of the agreed delivery date, including on expiration of an allowable additional period.
2. In the event of force majeure, mobilization, civil unrest, war, legal lock-out, strike, shortage of raw materials, accident, fire, flood or other unforeseeable or unavoidable circumstances beyond our control, the delivery date shall be extended by the duration of the impairment plus an appropriate business resumption period. This shall apply accordingly where the said events occur in respect of one of our suppliers.
3. Over or under delivery up to 10% compared with the volume ordered is permitted.
4. The seller is entitled for partial deliveries at all times.
VI. TRANSFER OF RISK
The risk shall be transferred to the Buyer, including in respect of freight pre-paid supplies:
1. in cases of supply, when the ready to-ship consignment has been shipped or collected.
2. If receipt or acceptance of the goods or services is delayed, the risk shall be transferred to the Buyer, unless the said delay is beyond the control of the Buyer or its authorized representative. The additional costs incurred will be charged.
VII. RECEPTION AND INCOMING INSPECTION
1. Deliveries must be accepted by the Buyer even if they contain minor defects.
2. Part-deliveries are permitted, provided they are reasonable to the Buyer’s needs.
3. On receipt of goods the Buyer must note apparent shortages and any damage in transit immediately on the shipping documents.
4. Apparent defects in the goods must be notified to us within seven days of receipt of goods. Concealed defects must be notified within seven days of their occurrence. The above periods are exclusion periods. If they are not observed, no claims in accordance with section VIIl. can be asserted in respect of the defects in question.
VIII. LIABILITY FOR DEFECTS (WARRANTY OF QUALITY)
1. Supplies or services rendered which exhibit faults within the period of warranty – irrespective of time in operation - caused by defects existent at the time of transfer of risk will be made good by us free of charge within an appropriate period of time either by repair or resupply, according to our choice. If the making good fails, the Buyer may cancel the contract or reduce payment. The Buyer may not demand compensation for any unavailing expenses incurred.
2. Defects must be notified to us immediately in writing.
3. Claims in respect of defects shall expire after 24 months, counted as from the transfer of risk.
4. The period of warranty does not apply for wearing parts
5. In the event of claims regarding defects, the Buyer may only retain payments appropriately proportionate to the defects occurring, and subject to the condition that it submits claims only in respect of defects which are indisputable in nature. If unjustified claims in respect of defects are made, we shall be entitled to claim compensation from the Buyer for any expenses incurred.
6. Claims in respect of defects shall not be allowable in the event of minor non-conformance to agreed characteristics; minor impairment of usability; natural wear and tear; damage occurring after transfer of risk as a result of faulty or negligent treatment; excessive stressing; use of unsuitable service products; external influences not specified in the contract. If the Buyer or any third party carries out improper modifications or repairs, no claims in respect of defects shall be allowable in connection with such work or with consequences arising from it.
7. Where the costs of making good, in particular the costs of transportation, labor and materials, are increased by virtue of the delivered goods having to be moved to a location other than the Buyer’s delivery point, such costs shall be borne by the Buyer, unless the relocation of the goods is in keeping with their designated use.
8. Rights of recourse of the Buyer against us shall exist only to the extent that the Buyer has made no agreements with its customer above and beyond the statutory claims in respect of defects. Claims of the Buyer for compensation in respect of the expenses incurred for the purposes of making good in relation to its customers shall be excluded where the said expenses are increased by virtue of the making good having to be carried out somewhere other than the originally agreed delivery location.
9. Any further claims, or claims other than those set out in section VIII., of the Buyer against us and our agents in performance in respect of defects shall be excluded, notwithstanding limited claims for damages in accordance with section IX.
IX. LIABILITY FOR DAMAGES
1. Claims of the Buyer for damages, on whatever legal basis, in particular in respect of infringement of obligations or tortious acts, shall be excluded. This does not apply to liability in case of intent or gross negligence; in respect of injury to life, limb or health; in respect of warranted characteristics of the goods or services; in respect of malicious concealment of a defect; or in respect of culpable infringement of cardinal obligations endangering the intended purpose of the contract.
2. In the event of culpable but non-intentional or grossly negligent infringement of cardinal obligations, grossly negligent infringement of obligations on the part of our employees or authorised representatives, and with regard to the provision of a guarantee by us not expressly in respect of warranted characteristics of the goods or services rendered, compensation for damages shall be limited to the foreseeable loss typical to such contracts. Claims of the Buyer for damages pursuant to section IX.2. shall expire no later than two years from the date on which the Buyer becomes aware of the damage or, failing any such awareness, from the date of the event causing the damage.
3. This section IX. also applies to claims for damages of the Buyer against our employees or authorized representatives.
X. JURISDICTION AND APPLICABLE LAW
1. Sole jurisdiction in respect of all disputes arising directly or indirectly from the contractual relationship lies with the courts at the location of our registered office.
2. The contractual relationship is subject to German law. The UN Convention on Contracts for the International Sale of Goods is not applicable.
XI. BINDING NATURE OF THE CONTRACT
If individual provisions of the contract should prove legally ineffective, the remaining provisions shall remain binding.
XII. DELIVERIES ABROAD
1. Deliveries abroad are usually made on an ‘ex works’ basis. All costs associated with cross-border transactions, such as customs duties, taxes, inspection fees and other costs, shall be charged to the Buyer.
2. Shipments and services (the fulfilment of contract) shall be under the proviso that fulfilment is not being restricted by any national or international regulations, particularly export control regulations and embargoes or any other restrictions. The contract partners shall obligate themselves to provide all information and documentation needed for the export/ domestic shipment/ import. Delays caused by export checks or licensing procedures shall override any lead times or deadlines stipulated. If any required licenses for certain items cannot be obtained, the contract shall be considered as not concluded regarding the items in question; because of this and of above mentioned transgression of deadlines, any claims for damages shall be excluded.
Status: January 2019