General Terms and Conditions
1. Validity and Scope of Our Terms and Conditions
1.1. All offers, orders and deliveries are subject to our GTC, as stated in the following. Agreement to the GTC is constituted by issuing an order, failure to object to our order confirmation or acceptance of our services. The GTC are specifically applicable to the entire future business relationship with the ordering party, until it is expressly revoked.
1.2. Terms and conditions that deviate from our GTC and clauses or agreements that contravene our GTC are only effective for us if we have expressly agreed to them in writing.
1.3. If there are deviations in our order confirmation as compared to the offer or the purchase order, our written order confirmation is authoritative if it has not been objected to within 10 days of the order confirmation being sent.
2. Scope of Delivery
2.1. Our offers are always non-binding. The scope of our obligations results from our written order confirmation. Documents, such as brochures, catalogs, drawings, diagrams, descriptions and technical data such as models and weight and dimensions, are non-binding unless we have recognized that they are binding in the order confirmation or elsewhere in writing.
2.2. Subsequent wishes for changes to the order confirmation from the ordering party shall only become part of the contract if we have confirmed them in writing. Changes to the subject of the contract may be undertaken by us as long as they do not result in technical deterioration.
2.3. We reserve our proprietary right and copyright to offers, plans, drawings and other documents, and these rights shall be retained in the event that changes to these documents are undertaken by the ordering party. These documents may only be made accessible to third parties or duplicated if we have issued prior written consent to this effect. If an order is not issued, these documents must be returned to us immediately upon request.
3.1. Upon sending of the notification that we are ready to deliver, the risk is transferred to the ordering party. Loading and dispatch occur at the ordering party’s own risk, even when it is executed by our own personnel. Insurance policies against breakage, transportation, water and fire damage and other insurable risks are only taken out following written instruction to do so and at the ordering party’s own cost. The packaging is calculated at cost price, returns are excluded.
3.2. Timely clarification of all technical and financial issues, timely submission of all documents required from the supplier and compliance with the agreed payment conditions constitute prerequisites for on-time delivery.
3.3. If an agreed delivery deadline is exceeded by more than 6 weeks, the ordering party is entitled to set a late delivery deadline of 2 months. If the delivery is not fulfilled by the time the late delivery deadline expires, the ordering party has the right to withdraw from the contract. The withdrawal must be declared in writing immediately after the set deadline expires. Claims for damages, irrespective of their legal grounds, particularly those due to late delivery or non-delivery, are excluded in any event. The right to withdraw from the contract is not granted if we are unable to meet the late delivery deadline through no fault of our own. If we are not responsible for non-compliance with a delivery deadline, we will be released from our delivery obligations for the period of our incapacity to deliver which is not caused through our own actions. If an incapacity to deliver which we are not responsible for lasts longer than three months, both parties to the contract have the right to withdraw from the contract. In all of these cases, claims for damages, irrespective of their legal grounds, are excluded.
3.4. If the delivery is not retrieved despite a notification that it is ready for delivery, we are entitled to store the goods at our own discretion at the cost and risk of the ordering party, or to have them held for the ordering party at their own costs. If the ordering party does not pick up a good or service that has been offered or delivered to them, we may set the ordering party a late deadline for retrieval of four weeks. Once this period has expired, we are entitled to withdraw from the contract and/or demand compensation for damages. These claims for damages shall be made without prejudice to our option to assert claims to a higher amount for damages which must be proved, at a flat rate of 15% of the agreed price. The ordering party is at liberty to prove that the damages that we incurred were actually of a lower value. If this should be the case, the agreed flat rate damage claim shall be reduced to the amount of the damage that was actually incurred.
4. Payment Conditions
4.1. The price is set in EUR. All changes in the exchange rate of a foreign currency in comparison to the EUR occurring after the date of order confirmation shall be at the cost of the ordering party.
4.2. The prices are applicable ex works, carriage forward, including loading in the factory, but excluding packaging, freight and customs charges. Payments are to be made to us without any deductions, i.e. without trade discounts or other reductions, and free of transaction charges, and a third of the invoice amount must be paid upon reception of our order confirmation, a third must be paid upon notification of readiness to dispatch and the remainder must be paid within 30 days, unless other agreements have been made in writing. In individual cases, we reserve the right to deliver and collect cash payment upon delivery.
4.3. Checks, bills of exchange and payment orders are only accepted by us as conditional, and not actual, payment. Renewal and endorsement are also not considered to be actual payment. Any discount charges or collection charges and other auxiliary costs shall be borne by the payer. We are entitled to issue an addendum stating the court of jurisdiction on the ordering party’s accepted bills and own bills of exchange.
4.4. In deviation from these conditions and/or in deviation from the order confirmation, we may demand advance payment or a guarantee (deposit of payment or securities with the statutory depository agent; surety bond of a bank approved as a tax and customs guarantor) if we become aware of circumstances that are sufficient to reduce the ordering party’s solvency after the order confirmation has been sent. The same applies in the event of non-compliance with the aforementioned payment conditions. Both of these instances shall also result in all of our receivables becoming due and permit us to only deliver outstanding orders once prepayment has been received and to withdraw from the contract following an appropriate payment deadline, or to claim damages for non-fulfillment if the delivery is refused.
4.5. Orders for which fixed prices have not been expressly agreed shall be calculated at the valid list price plus VAT, with potential surcharge, on the days of delivery. If the cost factors (e.g. standard wages and other costs) upon which the offer prices are based change between submission of the offer and notification that the goods are ready to be delivered, we are entitled to adjust the agreed prices.
4.6. If the payment deadlines in accordance with Item 4.2. are not complied with, and if the obligations resulting from our reservation of title are not met, furthermore if the payments are ceased, or if judicial or extrajudicial proceedings for settlement or insolvency are initiated on the ordering party’s assets, then the ordering party shall be held in default following a reminder to this effect. The outstanding remainder of the debt shall then become due for immediate payment, even if checks, bills of exchange or payment orders with later payment dates are still current. If payment is not made on time, we are entitled to charge default interest from the due date in the amount of the relevant current account interest for our corporate bank, and this also applies if payment has been deferred, without prejudice to our further rights to withdrawal or claims for damages.
4.7. If the ordering party does not immediately pay the remainder of the debt which is due in accordance with Item 4.6., we are entitled to demand that the ordering party returns the delivered goods. The ordering party does not have a right of retention. All costs resulting from the return of the
delivered items to us shall be borne by the ordering party. We are entitled to recover the value, to the best possible extent, of the repossessed delivered goods, including accessories, by sale on the open market, without prejudice to the payment obligations of the ordering party. Offsetting via any counterclaims asserted against our claims is excluded, unless the counterclaim is undisputed by us or has been ruled in a final judgment by a court of the Federal Republic of Germany. Counterclaims brought by the ordering party must be asserted in separate proceedings. Notices of defects, transportation damage, delays in delivery due to longer transportation times through no fault of our own shall, on no account, justify postponement of payment.
5. Reservation of Title
5.1. All delivered goods shall remain our property (reserved goods) until all receivables have been paid, in particular including the relevant outstanding balance that we are due within the scope of the business relationship we hold with the relevant ordering party. This also applies for future and contingent receivables.
5.2. Adapting and processing reserved goods shall be executed in accordance with Section 950 of the BGB for us as a manufacturer, without any liability on our part. The adapted and processed goods shall be defined as reserved goods under Item 5.1.
5.3. If the ordering party or a third party processes, connects or mixes reserved goods with other goods, we are entitled to common ownership of the new item, in this ratio: the invoice value of the reserved goods to the invoice value of the other goods used. Should our ownership expire due to connection, mixing or processing, then the ordering party shall transfer their proprietary and/or expectant rights to the new inventory or the item in the proportion of the invoice value of the reserved goods to the invoice value of the other goods used and shall disclaim them free of charge for us. In accordance with Item 5.1, our common ownership rights are considered reserved goods.
5.4. The ordering party may only resell reserved goods within the normal course of business and under their normal terms and conditions, for as long as they are not in arrears, provided that the ordering party has reserved ownership and the receivables from reselling under Items 5.5 and 5.6 are transferred to us. The ordering party is not entitled to other forms of disposal of the reserved goods. Reselling also includes the use of the reserved goods in order to fulfill works contracts and work delivery contracts.
5.5. The ordering party has already ceded their receivables resulting from the reselling of the reserved goods to us.
We accept the cession. Thus, the receivables serve as a security in the same scope as the reserved goods under Item 5.1.
5.6. If the reserved goods are resold together with other goods by the ordering party, the receivable from the reselling shall be ceded to us. The receivable shall be calculated using this ratio: the invoice value of the reserved goods to the invoice value of the other goods. When goods in which we have a share of common ownership in accordance with Item 5.3 are resold, we shall be
ceded a relevant proportion of the receivable corresponding to our share of the common ownership. We shall accept the cession.
5.7. The ordering party is entitled to collect receivables from the reselling unless we revoke the collection authorization, for example if there is significant depletion of assets or in the event of a default in payment on the part of the ordering party. Upon our request, the ordering party is obliged to inform their buyer of the cession to us immediately, if they have not already done so themselves, and must transfer the information and documents which are necessary for collection to us. The ordering party is, under no circumstances, authorized to cede the receivables, this also applies for all types of factoring transactions that the ordering party has not been authorized to execute under our collection authorization.
5.8. The ordering party must inform us immediately of any seizure or other distraint by third parties.
5.9. If the total value of the existing securities exceeds the secured receivables by over 10%, we are obliged
to release securities at our own discretion at the behest of the ordering party. The amount covered equals
110% of the outstanding balance. The value of the existing securities will be determined by taking the net purchase price and deducting a security markdown of 30%.
6. Warranty, Damage Compensation
6.1 The warranty claims from the ordering party and any compensation for damages payable by us shall be determined exclusively based on the following provisions.
6.2. The ordering party’s warranty claims in the event of inadequate performance are limited to rectification or, if we so wish, a replacement delivery. If we are not able to rectify the issue, the rectification cannot be performed within a reasonable deadline or we cannot provide an adequate replacement delivery, the ordering party is entitled to reduce the agreed payment correspondingly or, if they so wish, to rescind the contract. In any case, we have the option to survey the alleged inadequate elements for ourselves or to have them surveyed.
6.3. If the ordering party undertakes rectification measures or improvement measures without our agreement, this leads to the loss of all warranty claims against us, unless the ordering party can prove that their measures did not lead to the defects which are now being reported.
6.4. When submitting defects, the ordering party is only entitled to retention of our receivable insofar as our receivable does not exceed three times the probable costs incurred in remedying the defects. We are entitled to refuse to remedy the faults until the due amount has been paid.
6.5. After receiving the goods, the ordering party must immediately check them for defects and inform us of any defects
in writing within ten days of receiving the goods.
6.6. Claims for damage from the ordering party, whatever their legal grounds, whether they be claims for damages due to impossibility, defaulting, culpa in contrahendo, positive breach of contract, culpable breach of the rectification obligation and claims for damages for tort, are excluded unless we, one of our legal representatives or vicarious agents have brought about the damage deliberately or via gross negligence. A claim to damages due to our assured properties not being present is limited to defect damage, unless we have expressly assured liability for damage resulting from defects.
6.7. In the event that we must pay a damage claim, this damage claim is limited in amount to the damage that we were able to foresee upon conclusion of the contract.
6.8. The legal liability for bodily harm and under the German Product Liability Act remains unaffected by limitations of liability. The objection of contributory negligence may be raised by the entity applying the GTC.
7. Place of Performance, Court of Jurisdiction, Governing Law
7.1 The place of performance for all of the commitments resulting from the agreements made with us is our company headquarters.
7.2. The court of jurisdiction for all disputes in conjunction with our deliveries or services, and for any disputes on precontractual obligations or the conclusion of a contract and for disputes resulting from torts shall be the local and competent court for the area of our company headquarters, insofar as this is permitted by law. We are also at liberty to bring a legal dispute before the court which is the general court of jurisdiction for the ordering party if we so wish.
7.3. The law of the Federal Republic of Germany is the sole law that shall apply for our services and deliveries, and for any disputes which occur within this context.
7.4. If this text is redrafted in German or in another language, only the German text shall be binding.
8. General Conditions
8.1 Oral side agreements, assurance of properties or other assurances and subsequent changes to the contract are only valid if they have been confirmed by us in text form.
8.2. We are entitled to process and save the data which we receive on the ordering party in conjunction with the business relationship and also from third parties, in compliance with the relevant data protection provisions currently in force.
8.3. If one or several clauses of this GTC or any further agreements that may be made prove to be invalid or void, this shall not render the entire contract invalid. Rather, the rest of the contract shall remain valid in this instance. In the event that this occurs, the invalid, partly invalid or void clause shall be interpreted to the effect that it comes as close as possible to the economic purpose intended by the original clause, or replaced with a clause to this effect.