I. Generalities – Scope of application
(1) Our delivery conditions apply exclusively for our deliveries and services, we will not accept any contrary or deviating conditions of the buyer, unless their validity were explicitely accepted by us in writing. Our delivery conditions are always applicable, even if we make delivery or render service to the buyer without any reserve, being aware of the contrary or deviating conditions of the buyer.
(2) All agreements made between ourselves and the buyer for the purpose of fulfilling this contract are stipulated in writing in this contract.
(3) Our delivery conditions apply only towards companies covered by § 310 par. 1 BGB (Civil code)
II. Quotation – Documents required
(1) Is the order qualified as offer according to §145 BDB, we may accept it within a period of 2 weeks.
(2) The specifications of the subject to be delivered or the service to be renedered like material, dimensions, tolerances etc are defined – if not otherwise agreed upon – according to the figures, drawings, weight and size data in our catalogue or, in lack thereof, according to the respective DIN standards.
(3) We reserve the rights of property and copyright on figures, drawings, calculations and other documents, even for those written and electronic documents that are marked as “confidential”. Before handing over such documents to third parties the buyer will have to ask for our explicit written agreement.
III. Prices – Payment conditions
(1) If not otherwise stated in our order confirmation our prices are to be understood “ex works”, loading in the factory included, packing, however, excluded as it will be charged separately.
(2) The legal VAT is not included in our prices and will be mentioned in the invoice in the legal percentage valid at the invoice date.
(3) Discount may be deducted only upon special written agreement.
(4) We reserve the right to change our prices accordingly if upon fulfilment of this contract reductions or increases in costs will arise especially due to wage settlements or changes in raw material prices, evidence whereof will be given to the buyer upon request.
(5) If not otherwise stated in our order confirmation the purchase price respectively labour cost will be due for payment net (without deduction) wit hin 30 days from the date of invoice. The legal rules apply for any consequences of delayed p ayment.
(6) Compensation rights are only due to the buyer if his counter-claims are absolutely established, uncontested or admitted by ourselves. The same applies for rights of retention, unless the counter-claim is in reciprocal relation to our claim.
IV. Time of delivery
(1) The time of delivery mentioned is subject to the settlement of all technical questions as well as to the submission of all documents, permits and approvals to be provided by the buyer.
(2) The observance of our delivery and performance obligation is furthermore subject to the due and timely fulfilment of the buyer’s obligation. The plea of non-fulfilled contract remains reserved.
(3) The delivery time will be reasonably extended in case of measures to be taken with regard to labour fights especially like strike or lock-out as well as in case of unexpected events byond the will of the supplier as far as such obstacles are capable of being proved to affect the completion or delivery of the subject in question to an essential extent.This applies also, if such circumstances arise with subsuppliers. The above mentioned circumstances must not be answered for by the supplier even if they occur during an already existing delivery delay. The supplier will inform the buyer immediately on the beginning and on the end of such obstacles. The same applies for not-in- time self-supply.
(4) The delivery time is maintained if the subject to be delivered has left the factory by its expiry or if the readyness for shipment has been announced within this delay. If acceptance is required the date of acceptance– except for justified refusal of acceptance – is the decisive one, temporarily also the announcement to be ready for accepting the shipment.
(5) If the buyer delays the acceptance or if he infringes in a guilty manner other obligations to cooperate, we are entitled to claim for indemnity of the damages caused, including possible extra charges. Further claims and right are reserved.
(6) If the conditions of par. (5) are given, the risk of accidental loss or a accidental deterioration of the subject bought will devolve upon the buyer at the time he entered into default of acceptance or debtor’s default.
(7) We are liable according to the statutory regulations, as far as the contract basis is a time bargain as per §286 Par.2 No.4 BGB or §376 HGB. We will be liable according to the statutory regulations, as well, if the buyer is entitled to plead that his interest in further fulfilment of the contract does no longer exist because of a default of delivery for which we are responsible.
(8) We will be liable furthermore according to the statutory regulations, if the default of delivery i s due to a deliberate or grossly negligent infringement of the contract for which we are responsible; any fault of our representatives or agents in the discharge of obligations is to be attributed to ourselves. As far as the default of delivery is not due to a deliberate infringement of the contract in our responsibility, our liability to pay damages is limited to the typical damage to be foreseen.
(9) We will be liable too according to the statutory regulations, as far as the default of delivery in our responsibility is due to the culpable infringement of an essential contractual obligation; the liability to pay indemnities being limited in this case to the typical damage to be foreseen.
(10) Partial shipments are on principle admissible if the subject to be delivered may be determined in quantity units. The rights of the buyer because of default in delivery are limited to the not delivered partial quantity. This is not applicable if the buyer has no interest in the partial shipment.
(11) For the rest we are liable in case of delayed deliveries for every full week delayed within the frame of a lump-sum indemnity for late delivery in the amount of 1% of the delivery value up to a maximum of 10% of the delivery value.
(12) Further legal claims and rights of the buyer remain reserved.
V. Passage of the risk – Packing charges
(1) As far as not otherwise indicated in the orderconfirmation the delivery condition agreed upon is “ex works”. If acceptance is required this will be decisive for the passage of the risk. Acceptance has to be made immediately at the due date or temporarily upon announcement of the buyer that the goods are ready for acceptance.
(2) Transport packing and all other packing materials as per the packing regulations will not be taken back with the exception of palletts. The buyer is obliged to arrange for the disposal of the packing material at his own expense
(3) If required by the buyer we will cover the delivery by a transport insurance; the costs arising will have to be borne by the buyer:
VI. Liability for material defects
(1) Claims for indemnity of material defects of thebuyer are subject to his due fulfilment of any obligation with regard to examination and notification of such material defects as per §377 HGB.
(2) If a defect of the delivered subject is on handwe are entitled to choose between our subsequent performance by means of remedy of the defect or by supplying a new unobjectionable subject. In case of remedy we will bear only the necessary costs up to the amount of the purchase price respectively of the labour costs.
(3) If the subsequent performance fails the buyer is entitled to demand rescission or reduction.
(4) We are liable according to the statutory regulations in case the buyer claims damages that are based upon deliberation or gross negligence, including deliberation or gross negligence of our representatives or agents in the discharge of an obligation. As far as no deliberate infringement of the contract is attributed to ourselves, the liability for compensation will be limited to the typical damage to be foreseen.
(5) The liability for culpable harm of life, body or health remains unaffected; this applies also to the stringent responsibility according to products’ liability.
(6) If not otherwise stipulated above, any liability will be excluded.
(7) The statutory period of limitation covers 12 months from the passage of risk.
VII. Liability for secondary obligations
Also with regard to our liability in case of infringement of secondary obligations – excluding further claims and rights of the buyer – the rules of paragraph VI wil l be applicable.
VIII. Liability for deficiency in title
(1) Claims of the buyer for deficiency in title are excluded as far a and to the extent that the deficiency is based on an instruction of the buyer or the buyer has modified or used the delivered subject in a non-contractual manner. If third parties establish rights on the delivered subject against the buyer he is in any case obliged, – to inform the supplier immediately as soon as third parties establish law breaking rights against the buyer, – to support the supplier reasonably in preventing those claims resp. to enable the supplier to take suitable modification measures, – not to recognize any infringements of law towards third parties. As to the rest the regulations of paragraph VI will be applicable accordingly to our liability for deficiency in title, as well.
(2) Should we be held responsible by third parties for infringement of law that will afterwards be referred to the buyer’s behaviour, the buyer is obliged to free us internally from such claim.
IX. Joint and several liability for damages
(1) Any further liability for damages exceeding paragraphs VI to VIII above is excluded – without regard to the legal nature of the claims established. This applies in particular to claims for damages resulting from fault upon conclusion of the contract, breach of duty or actions of tort claiming material damages according to §823 BGB. (2) A strict time limit of 18 months is applicablefor the limitation of all claims that are not subject to the limitation because of a material defect. It starts with the knowledge of the damage and the damaging person.
(3) As far as the liability for damages against ourselves is excluded or limited this will apply also with regard to the personal liability of our employees, workers, collaborators, representatives and agents in the discharge of obligations.
X. Title-retention clause
(1) We reserve our property rights on the delivered subject until all payments resulting from the contract will be received. In case of contrary behaviour of the buyer to the terms of the agreement, in particular for delayed payment, we are entitled to take back the delivered subject. This withdrawal is no rescission on our part from the contract unless we declared this explicitely in writing. Our distraining of the delivered subject upon the buyer is always to be understood as rescission of the contract. After having seized the delivered subject we are entitled to its exploitation, the proceeds of such exploitation being set off to the debts of the buyer – reasonable exploitation costs deducted.
(2) In case of destraint or other interventions of third parties the buyer has to inform us immediately in writing so that we may file suit as per §771 SPO. As far as the third party is not in a position to reimburse us for the judicial and extra-judicial costs of a suit as per §771 ZPO, the buyer will be liable for the loss in proceeds.
(3) The buyer is entitled to sell the delivered subject in the ordinary course of business; but he will already now assign to us all claims in the amount of the invoice total (VAT included) of our claims that will be caused by the resale against his customers or third parties independently of the fact whether the delivered subject has been resold without or upon retreatment. Even after the assignment the buyer will remain entitled to collect this claim, our power to collect the claim ourselves remaining untouched. We engage ourselves, however, not to collect the claim as long as the buyer comes up with his obligations to pay from the proceedings received, if he does not default with payment and in particular no bankruptcy petition is filed or suspension of payments is declared. If so, however, we may demand that the buyer makes known to us the assigned claims and the debtors thereof, as well as all data required for collection and that he hands over to us the respective papers and informs the debtors (third parties) on the assignment.
(4) The buyer will always treat and transform the delivered subject for us. If the delivered subject is is treated or assembled to other subjects which are not our property, we will gain the coownership in the new matter in the proportion of the value of the delivered subject (invoice total, including VAT) to the other transformed subjects at the time of transformation. For the matter created by treatment/transformation, by the way, the same applies as for the subject delivered under reservation.
(5) The buyer will also assign to us his claims to secure our claims against him, which may arise to a third party by combining the delivered subject with a real estate.
(6) We undertake to release the securities belonging to us on the buyer’s request as far as the realizable value of our securities will exceed by more than 10% the claims to be secured. It is our duty to choose the securities to be released.
XI. Jurisdiction – Place of performance
(1) If the buyer is a tradesman our company seat will be the place of jurisdiction; we are however also entitled to sue the buyer at his domicile court.
(2) The jurisdiction of the Federal Republic of Germany will be valid; the validity of UN trade law is excluded
(3) If not otherwise stated in the order confirmation our company seat will be the place of performance.