General Terms of Business
I. General Remarks, Area of Application
1. All of our business relations with our customers (hereinafter: "Buyers"), in particular sales, services, delivery of works and services, are governed solely by our conditions as set forth in the following.
2. Purchase conditions of the buyer are binding for us only if we explicitly recognize them in writing; this requirement applies in every case, even when we unconditionally render the service to the Buyer with knowledge of the Buyer's General Business Terms.
3. Divergent agreements entered into in the individual case, along with collateral agreements, assurances and other declarations of agreement, take priority over these Conditions. A written contract and/or our written confirmation is determinative for establishing the contents of such agreements.
4. Divergent agreements, collateral agreements, assurances and other declarations of agreement with employees who are not authorized to represent the company take effect only if confirmed by us in writing.
II. Conclusion of Contract
1. Our offers are subject to change without notice and non-binding. This also applies when documents have been given to the Buyer such as catalogues, technical documentation, cost estimates, illustrations, drawings, dimensional and weight figures, etc. to which we retain the rights of ownership and copyright.
2. An order submitted by the Buyer for goods is regarded as a binding contractual offer. We have the right to accept this contractual offer within a period of 2 weeks, beginning with our receipt of the order, unless a longer period for acceptance is determined by the order..
3. This acceptance takes the form of a written confirmation of the order. Provided that no dissent arises between the order placement and the confirmation of order, the latter constitutes a new order.
III. Prices; Conditions of Payment
1. Listed prices and prices in offers are subject to change without notice; our valid prices are those on the day of delivery of the goods; be it noted that these are determined to the best of our judgement and confine themselves to prices which have become normal on the market.
2. The prices are to be understood without packaging plus the respectively prevailing value-added tax prescribed by law.
3. Our invoices are to be paid in full within 30 days after they have been received provided no other agreements have been reached. A discount is given only under the condition that all other outstanding invoices have been paid. If payment is rendered in instalments, the right to subtract a discount applies only for the final instalment; if payment is made by means of a bank draft, subtraction of a discount is not permitted.
4. The Buyer is in arrears at the end of 30 days after receiving the invoice provided that no earlier date of arrears has been agreed on. During the period of arrears, interest is to be charged on the price owed at the interest rate established by law for arrears. In dealings with merchants, our right to claim a business interest after the due date (§ 353 of the German Commercial Code) remains intact. We reserve the right to claim penalty interest if the state of arrears continues.
5. If it becomes recognizable after entry into the agreement that our claim to the purchase price is endangered by a lack of ability to perform on the Buyer's part (e.g. through a request for opening of insolvency proceedings), we have the right to withdraw from the agreement after fulfilment of the legal provisions governing refusal to perform and - if applicable - after expiration of an appropriately determined deadline; this does not affect the validity of legal provisions regarding the lack of need to set a time limit. After this withdrawal, the Buyer has the obligation to give back the goods, and to do so according to the provisions of the German Insolvency Act (InsO) in case of insolvency. The same is true in the case of a violation of obligation on the Buyer's part, in particular in case of delay of payment.
6. The Buyer has rights of offsetting or withholding only to the extent that his claims are found to be indisputable or to have force of law. In case of faults related to delivery, the Buyer's counterclaims retain full validity.
IV. Retention of Title
1. The goods sold remain our property until all of our open claims arising from the business relationship have been met. Should the realizable value of all warranty rights in our favour exceed the sum of all secured claims by more than 10 %, we will, at the wish of the Buyer, make available a corresponding share of the warranty rights; we have the right in doing so to choose from among different warranty rights.
2. Retailers may sell our conditional commodities in their own name as part of normal business transactions under the condition that the retailer receives payment from his customer or makes it conditional that ownership pass to the customer only when the latter has met his obligation of payment. The Buyer now assigns the claims from retail sales to us, and we accept this assignment.
3. If the conditional commodity delivered by us is processed or combined with goods owned by others, we are entitled to a fraction of ownership of the new item equivalent to the invoiceable value of our goods in proportion to the value of the new item at the time of such processing or combining. To this extent the new item is to be regarded as a conditional commodity. The provision concerning waiver of claims in No. 2 above also applies for this item. However, the waiver applies only up to the amount of our invoicing value for the processed, combined, or mixed conditional commodity. In relation to the purchaser, the Buyer is to retain ownership until the former has rendered payment of the purchase price in full. The Buyer has the right to retract the waiver only as long as he regularly fulfils his obligations of payment toward us.
4. Prior to full payment of the secured claim, goods covered by Retention of Title may neither be pawned to third parties nor transferred as security. The Buyer is to inform us immediately in writing if and to what extent goods belonging to us are accessed by third parties.
V. Delivery Deadline, Risks Borne
1. The delivery deadline will be individually agreed on or named by us upon acceptance of the order. In case of a delay in delivery, the Buyer is to set us an appropriate deadline.
2. Should we be unable to meet binding delivery deadlines for reasons beyond our control (non-availability of service), we will immediately inform the Buyer and simultaneously inform him of the probable new delivery deadline. If the service is not available even within the new delivery deadline period, we have the right to withdraw in part or in full from the agreement; we will immediately refund any payment already rendered. To be named in particular as a case of non-availability of service in this sense is a lack of prompt or correct delivery to ourselves by our own suppliers, provided that we have entered into a congruent covering transaction, that there is no fault of our own or our own suppliers, or we are not obligated to procurement in the individual case.
3. The rights of the Buyer according to the following provisions, in particular according to Section VII, remain valid in full..
4. Delivery takes place ex warehouse, which is also the place of fulfilment. If so wished by the Buyer, and at his cost, the goods will be sent to another destination (consignment purchase).
5. The risk of accidental destruction and accidental deterioration of the goods is assumed by the Buyer at the latest upon their transfer to him. In the case of a consignment purchase, however, this risk of accidental destruction and accidental deterioration of goods passes at the time of delivery to the carrier, shipper or other person or institution encharged with shipment. We are not liable for damage which occurs during shipment. The transfer is equally valid when the Buyer is in delay with accepting the goods.
6. Unless otherwise explicitly agreed, the goods are sent by us uninsured.
VI. Warranty Services
1. The basis of our liability for defects is above all the agreement entered into concerning the status of the goods. Should there be no agreement concerning the status, an assessment of whether a defect is present or not is to be carried out according to the provisions of the law (§ 434, Par. 1, Sentences 2 and 3 of the German Civil Code). We assume no liability for public statements of third parties.
2. Advisory services for our goods are based on many years of experience and intensive research work. Because of different requirements and individual conditions in the use of our goods, these advisory services are specifically tailored to the information given us by the Buyer. They do not release the Buyer from his own obligation to inspect our goods himself regarding their suitability for his purposes.
3. The claims of the Buyer regarding defects presume that he has met his legal obligations of inspection and registering complaints (§§ 377, 381 of the German Commercial Code). If a defect is found during or after the inspection, notification of this is to be given to us within 2 weeks in writing; sending the notification within the deadline period suffices for meeting the deadline.
4. Independently of the obligations of inspection and registering complaints according to Section VI, No. 3 above, the Buyer must notify us in writing of obvious defects (including errors or deficiencies in delivery) within 2 weeks of receiving delivery; sending the notification within the deadline period suffices for meeting the deadline.
5. If the Buyer neglects to carry out inspection and/or notify us of defects within the assigned period, all liability on our part for the non-notified defects is excluded.
6. If the delivered item is defective, the Buyer may demand a follow-up fulfilment consisting of repair or a replacement delivery as he wishes. If the Buyer makes no statement in this regard, we can set him an appropriate deadline in this regard. Our rights under § 439, Par. 3 of the German Civil Code remain fully in force.
7. The following are excluded from warranty replacement: natural wear and tear; damage due to improper or careless handling; excessive work loads; unsuitable operating resources; and failure to comply with operating instructions. The same applies for damage caused by changes or maintenance work carried out by the Buyer or by third parties not authorized by us.
8. Claims of the Buyer to compensation for damages exist only as provided by Section VII and are excluded in all other cases.
9. As an exception to § 438, Par. 1, No. 3 of the German Civil Code the general period of limitation for claims arising from material and legal deficiencies is one year from the time of delivery of the goods.
VII. General Liability
1. We are liable to render compensation for damages - no matter what the legal basis may be - in case of premeditation and gross negligence.
2. In the case of simple negligence we are liable only:
a) ) for damage to life, limb, or health;
b)for damage arising from violation of an essential contractual obligation, whereby in this case our liability is limited to replacement of the damage which could have been foreseen or is a typical occurrence.
3. The limitations of liability arising from No. 2 above do not apply to cases in which we have remained silent about a defect with intent to deceive or have assumed a guarantee for the status of the goods. The same is true for claims of the Buyer according to the German Product Liability Law.
VIII. Court of Jurisdiction; System of Law
1. Court of Jurisdiction is the registered place of business of our company. We can also bring charges against the Buyer as we choose in the court which is responsible at his registered place of business.
2. These General Terms of Sale and Delivery and the contractual relationship upon which they are based are governed by the law of the Federal Republic of Germany to the exclusion of the UN Convention on International Sale of Goods.