1. General provisions/Scope of Application
All commercial, legal or other relationships with our contracted partners (Customers) are governed solely by these General Terms and Conditions insofar as we have indicated as such when entering into the respective contract. Opposing or deviating terms and conditions will not be recognised by us, even if we have not explicitly contradicted them. This also applies to any Customer’s letter of confirmation or similar declarations, measures or actions intended to imply the validity of other general terms and conditions.
If the contracted partner is not a Customer, our General Terms of Purchase apply. The term Customer also includes our sales and distribution partners.
2. Conclusion of Contract
2.1
Our offers are non-binding. We reserve the right to make reasonable changes to their design, technology, form, colour and/or weight.
2.2
Orders are not accepted until we have confirmed them in writing. We are bound by verbal ancillary agreements only if their contents have been explicitly confirmed by us in writing.
2.3
Part deliveries are permissible insofar as they are reasonable for the Customer. If there are any points to consider in this respect, the Customer must inform us explicitly in writing before the contract is concluded. Otherwise the Customer cannot later rely on such points.
3. Prices, despatch, payment conditions and invoicing
3.1
Our prices are ex works and do not include statutory sales tax at the rate valid at the time. Freight, transport and despatch costs are to be met by the Customer.
3.2
Our prices are based on the cost factors relevant at the time the quote is provided or at the time the order is confirmed. If these cost factors change between the time of the conclusion of the contract and the time of delivery of the goods, we reserve the right to change the price in proportion to the increased costs, provided delivery is scheduled for more than four months after the conclusion of the contract.
3.3
The Customer must pay, in addition to the price agreed, all necessary ancillary costs such as, for example, travel and transport costs. Insofar as the Customer requests us to undertake despatch of the goods on his behalf, this is to be treated separately and without any despatch risk being transferred to us. Freight, transport and despatch costs are to be borne by the Customer.
3.4
All payments are due immediately on presentation of our invoice and within eight days of receipt of our invoice. Discounts are provided only if explicitly agreed in writing at the time of the conclusion of the contract.
If the agreed payment terms are not adhered to, the Customer is liable for interest on the invoice amount at a rate of nine percentage points over the base rate valid at the time and is also liable for a charge of five euros (€5.00) for every warning issued; this does not exclude the application of a higher rate of interest or the payment of compensation on other legal grounds.
3.5
The Customer can offset payment only against claims that are undisputed or established in law and which arise from the same contractual relationship. This provision also applies to the right to refuse or otherwise withhold payment.
3.6
If after we have provided a quote or sent confirmation of an order our customer’s economic circumstances change in such a way as to call into question his ability to pay, we reserve the right to withhold the delivery or make it contingent on the advance payment of an appropriate security. If our Customer does not comply with a request for the payment of a security within an appropriate period we reserve the right to withdraw from the contract; in such a case we are entitled to demand payment of the price agreed for the order minus the costs saved as a result of the withdrawal. The right to further compensation is not hereby excluded.
4. Retention of title
4.1
The items we deliver (Goods Subject to Retention of Title) remain our property up until the satisfaction of all the Customer’s obligations to us arising from the commercial relationship between us. The Customer is obliged to store all Goods Subject to Retention of Title separately until our invoice has been settled in full, provided that to do so does not contravene contractual agreements.
Insofar as the combined value of security interests to which we are entitled exceeds the amount of all secured claims by more than ten per cent we will release an appropriate share of the security interests at the Customer’s request. The supplier has the right to choose which of the various security interests to release.
4.2
For as long as the Retention of Title is in force, the Customer is forbidden to sell, pledge or assign as security the Goods Subject to Retention of Title without our permission. Permission shall be granted if all claims against the purchaser are assigned to us by way of security, there is no prior assignment of these claims to third parties, and an approximate view of the situation does not reveal any risk to us that our claims against the Customer and/or the purchaser will not be met.
In the case of attachments, seizures or other orders or interference by third parties the Customer must inform the supplier immediately.
4.3
If the customer is in breach of his obligations, in particular with regard to payment, we are entitled, after the expiry of an appropriate period in which the Customer is given the opportunity to fulfil his obligations, to take back the goods and to withdraw from the agreement. This does not affect statutory provisions regarding the dispensability of a deadline. The Customer is obliged to give up the goods without recourse to a claim for trespass.
The withdrawal or assertion of the retention of title or the pledging by us of the Goods Subject to Retention of Title does not imply any withdrawal from the contract unless expressly stated by the supplier.
5. Delivery periods
5.1
The delivery periods and deadlines stated by us are approximates unless we have explicitly agreed in writing to binding delivery periods and deadlines.
5.2
Adherence to delivery periods requires the timely submission by the Customer of all the necessary documents, permissions and approvals, in particular the submission of plans and technical documents, and adherence to payment terms and other contractual obligations. Failure to meet these conditions in a timely manner will result in a corresponding increase in delivery periods. This does not apply if the delay is attributable to us.
5.3
If the failure to adhere to delivery periods is attributable to force majeure such as mobilisation, war, insurgency or similar events such as industrial strikes or lock-outs, the delivery periods will increase proportionately. The same provision applies if our suppliers fail to supply us on time or as required.
5.4
In the case of a delay in delivery that is attributable to us the Customer is bound to grant us an appropriate grace period. If this grace period is granted and we fail to adhere to it for reasons attributable to us, our customer is entitled to rescind the contract. Any further claims to compensation are excluded insofar as is permissible. If the delay is attributable to default by our suppliers, we reserve the right to instruct the Customer to liquidate his damages based on the assignment of the claims due to us in this respect from this third party.
5.5
The Customer shall on request inform us within an appropriate period whether he intends to withdraw from the agreement on the grounds of a delay in delivery or whether he wishes the delivery to be completed.
6. Transfer of risk/receipt of goods
6.1
Risk is transferred to the Customer when we have taken the Goods Subject to Retention of Title from our factory and stored them separately from our other goods ready for despatch, freight or transport. This provision is not affected by any assumption of freight, transport or despatch. Any claims brought by the Customer for loss arising from freight, transport or despatch are limited to liability claims against the relevant carrier.
6.2
The Customer is bound to accept our goods. He is not entitled to refuse to take delivery of consignments on the grounds of insignificant defects. Every unquestioned usage of the goods ordered constitutes unconditional acceptance.
7. Liability
7.1
The guarantee period is 24 months. It starts upon the acceptance of the ordered goods.
The extent of any liability is, insofar as permissible, limited to the cover provided by our liability insurance. We are not obliged to take out liability insurance whose cover exceeds the liability risk customary for the market. If the Customer requires a higher level of cover, he must arrange this himself at his own expense. If he fails to do so, he will be liable for any resulting insurance shortfall.
7.2
For material defects, our liability is as follows:
All parts or goods with a demonstrable material defect are to be repaired or redelivered or replaced (as determined by the supplier) free of charge and within the guarantee period, insofar as the cause of the defect already existed at the time of receipt but was unrecognised at the time and insofar as the material defect has been caused by us.
Liability for wearing and replaceable parts and for instances of misuse or wrongful use of the goods by the Customer or a third party is excluded. The same provision applies for indirect, collateral or consequential loss suffered by the Customer as a result of manufacturing breakdowns, interruptions to operations or lost income.
7.3
Claims against the guarantee expire twelve months after the start of the statutory limitation period. The same provision applies for rescission and reduction. This period does not apply where longer statutory periods are prescribed under §§ 438 par. 1 no. 2 (Construction Work and Related Materials), 479 par. 1 (Right of Recourse) and 634a par. 1 no. 2 (Construction Defects) of Germany’s Civil Code [Bürgerliches Gesetzbuch – BGB] or in the case of malice, fraudulent concealment of a fault or failure to adhere to a quality guarantee. This does not affect statutory regulations regarding the suspension, interruption and recommencement of time periods.
7.4
The Customer is to notify us of any defects immediately and in writing. Failure to do so will result in the application of § 377 of Germany’s Commercial Code [Handelsgesetzbuch – HGB].
7.5
Having provided notice of any defects, the Customer is entitled to withhold payments to an extent that is proportionate to the material defects that have arisen. The Customer is entitled to withhold payments only when notice has been given of a defect that is not in dispute.
The Customer is not entitled to withhold payment if the claims for defects have become statute-barred. If the notice of a defect proves to be unjustified, we are entitled to seek recovery of the costs incurred by us as a result of or in connection with the notice of defect.
7.6
We are to be guaranteed an appropriate period in which to rectify the matter. The term ‘appropriate period’ is to be defined with regard to customary delivery times of our suppliers or customary manufacturing and delivery periods.
7.7
Defect claims are not valid where they involve only insignificant deviation from the agreed characteristics, only insignificant impairment of usability, natural wear and tear, or damage incurred after the transfer of risk as a result of incorrect or negligent handling, excessive usage, unsuitable tools, defective construction work or unsuitable construction ground or as a result of special external influences not provided for in the contract or as a result of software defects that cannot be reproduced. No claims for defects can be made in the case of unsuitable alterations or repair work undertaken by the Customer or a third party or for the consequences thereof.
7.8
Claims brought by the Customer for expenses necessarily incurred during the process of rectification, especially transport, road, labour and materials costs, are excluded insofar as the expenses arise because the item in question has subsequently been delivered to a location other than the Customer’s premises, unless this delivery accords with the intended use of the item.
7.9
Recourse claims brought against us by the Customer under § 478 BGB (Recourse of Company) are valid only insofar as the Customer has not reached any agreements with his customer that go beyond statutory claims for defects.
7.10
Claims for compensation brought by the Customer in respect of a material defects are excluded as far as is permissible, especially if the Customer or his customer has failed to carry out sufficient functional and product tests before installing or using the item ordered.
The aforementioned limitation does not apply in the event of fraudulent concealment of the defect or failure to adhere to the quality guarantee, or in the case of death or injury or impairment of health or liberty, or in the case of malice or gross negligence on the part of the supplier. The foregoing provisions do not entail any change to the burden of proof to the disadvantage of the Customer. Any further claims brought by the Customer in respect of material defects are excluded.
Any claims for compensation are subject to a limitation period of twelve months from the time of receipt. Product details do not in themselves constitute a quality agreement.
In the event of liability, we are to be guaranteed an appropriate period to rectify the defect in question. If in spite of repeated attempts the defect cannot be rectified, the Customer is entitled to rectify the defect at our expense or reduce the agreed remuneration accordingly, provided that as a result of the defect he has suffered a loss of market value in relation to the defective item. Any further claims are excluded.
8. Third-party property tights; confidentiality
8.1
The Customer guarantees that the manufacture and sale of goods that we produce and deliver in accordance with our Purchaser’s/Customer’s specifications, and especially any drawings, samples or models, do not infringe any third-party property rights.
8.2
If any third party invoking or claiming property rights prohibits us from the manufacture or supply of goods or services being prepared in accordance with the Customer’s specifications we reserve the right to withdraw from the contract without having to examine the legal situation and to the exclusion of all claims that might be brought by the Customer as a result. In such cases we are entitled to demand the agreed price minus the expenses spared as a result of the withdrawal. This provision does not exclude the possibility of further claims.
If any third party acting invoking or claiming property rights prohibits us from the manufacture or supply of goods or services being prepared in accordance with the Customer’s specifications, the Customer shall, without us being obliged to examine the legal situation, compensate us for all direct and indirect loss suffered as a result and exempt us from all direct and indirect claims for compensation that may be brought by third parties. The Customer shall provide appropriate security at our request and within an appropriate period of time.
8.3
All documents and information provided in connection with the contract are to be treated confidentially by the Customer or recipient and their use or application beyond the scope of the contract requires our prior consent in writing. This provision continues to apply after the ending of the contractual relationship.
We retain copyright over all the documents we provide, e.g. elaborations, drawings, calculations, programmes, tables and diagrams.
9. Impossibility; adjustments to contract
9.1
If supply is impossible, the Customer is entitled to demand compensation unless the impossibility is not attributable to us. Nonetheless the customer’s claim for compensation
shall be limited to ten per cent of the value of that part of the delivery that cannot be put into useful operation as a result of the impossibility. This limitation shall not apply in cases where liability is mandatory as a result of malice, gross negligence, death, injury or impairment of health; this does not involve a change to the burden of proof to the disadvantage of the customer. This provision does not affect the Customer’s right to withdraw.
9.2
Insofar as unforeseeable events significantly affect the commercial importance or content of items we supply or significantly influence our business operations the contract shall be revised appropriately and in good faith. If to do so would not be commercially feasible we reserve the right to withdraw from the contract.
10. Other compensation claims; statute of limitations
10.1
Compensation claims brought by the Customer on whatsoever legal grounds but especially on grounds of breach of contractual obligations and tortious liability are excluded insofar as is statutorily permissible.
This provision does not apply where liability is legally mandated, e.g. under Germany’s Product Liability Act [Produkthaftungsgesetz], in cases of malice, gross negligence, death, injury, impairment of health, or material breaches of contractual obligations. Claims for compensation on the grounds of material breach of contractual obligations are nonetheless limited to foreseeable damage typically occurring under this type of contract, provided that malice or gross negligence are not involved and that there is no liability for death, injury or impairment of health. The foregoing regulations do not involve a change to the burden of proof to the disadvantage of the Customer.
10.2
Insofar as the Customer has the right to bring claims for compensation this right expires at the end of the twelve-month statute of limitations as per 7.1. This provision also applies to Claims brought by the Customer in relation to measures taken to protect against loss (e.g. recall operations). For claims for compensation brought under the Produkthaftungsgesetz statutory limitation periods apply.
11. Place of jurisdiction and applicable law
11.1
The exclusive place of jurisdiction is our place of business. We nonetheless reserve the right to bring claims against the Customer at his place of business.
11.2
The legal relationships in the context of this contract are governed exclusively by German law with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the national provisions on the conflict of laws.
12. Other provisions
12.1
Even in the event that individual provisions of these General Terms and Conditions are found to be legally invalid this shall not affect the validity of their remaining parts. This provision does not apply if continued adherence to these General Terms and Conditions would constitute an unreasonable burden for either party. Invalid provisions are to be replaced by effective provisions that come as close as possible to their original commercial and legal intention.
12.2
Additions and/or amendments to the scope of supply and performance must be made in writing. The same provision applies to the modification of these General Terms and Conditions.