General Terms and Conditions
I. Area of applicationOur general terms and conditions apply only to merchants, corporate bodies under public law or special fund governed by public law. General terms and conditions of our contractual partners do not apply. This also applies if we do not contradict them in individual cases.
II. Prices and terms of payment1. Our prices are quoted ex works and exclude packaging and the current valid value-added tax.
2. Costs for packaging and transport are shown separately and have to be paid by the purchaser.
3. Payments are to be made free of charge to our paying office within 30 days after delivery date. If payment is received within 10 days from date of delivery, we grant a cash discount of 2%. This requires the settlement of all previously due and disputed invoices. No cash discount is granted for payments with a bill of exchange. In individual cases, we reserve the right to obtain creditworthiness information or to demand payment in advance.
4. If we do not receive the payment within the above-mentioned period, the purchaser is in default without the need for a reminder or a further period.
5. If the purchaser defaults on payment, we are entitled to charge interest at a rate of 8% above the respective base interest rate of the European Central Bank. We reserve the right to claim any further damage due to the delay.
6. If the purchaser defaults in payment, we are also entitled to demand advance payment for outstanding deliveries or, after the unsuccessful expiry of a reasonable period of grace set by us, to withdraw from the contract and to claim damages for breach of duty.
7. The purchaser can only add up those outstanding accounts which have been stated indisputable or legally binding.
III. Delivery and transfer of risk1. We are entitled to make partial deliveries as far as these are reasonable for the purchaser.
2. The risk of loss or the damage of our deliveries also passes to the customer if the delivery is made carriage free when the goods are handed over to the transport organization or when they are collected by the purchaser.
3. If the purchaser is responsible for the delays of the dispatch, the risk transfers to the purchaser as soon as we notify the purchaser that the goods are ready for dispatch.
IV. Default and impossibility1. The observance of agreed deadlines for our deliveries requires the timely receipt of all documents to be supplied by the purchaser including all necessary approvals and releases, in particular drawings, as well as the observance of the agreed terms of payment. If these requirements are not met in time, the delays will be prolonged by an adequate period; this does not apply if we are responsible for the delays. Our deliveries are under the reserve of an early enough and complete self-delivery.
2. We can invoice the purchaser for each commenced month storage charges amounting to 0.5%, maximum however total of 5% of the purchase price of the delivery items, if dispatch or delivery are delayed by the purchaser for more than one month after notification of the readiness of dispatch. The contracting parties are free to provide evidence of higher or lower storage costs.
3. If an agreed delivery time is not met due to our fault, the purchaser is entitled to withdraw from the contract after a reasonable period of grace. When exceeding the agreed delivery time with parts of the performance, the purchaser is entitled to withdraw from the entire contract, if partial fulfilment is of no interest for him. If we are in arrears when a delivery period is exceeded, the purchaser can also demand compensation for the damage caused by the delay. Compensation for damages is limited to 5% of the agreed price for that part of the total delivery that cannot be delivered in time or in accordance with the contract as a result of the delay. Claims for compensation by the purchaser going beyond this are excluded in all cases of late delivery, unless we are liable in cases of intent or gross negligence.
4. Events of force majeure or other circumstances, for which we are not responsible and which make delivery significantly more difficult or impossible for us, e.g. mobilization, war, riots, strikes or lockouts in our industry, regardless of whether these circumstances occur with us, a pre-supplier or sub-supplier, entitle us to appropriately delay the delivery for the duration of the hindrance or to withdraw from the contract in whole or in part because of the part that has not yet been fulfilled. Likewise, the purchaser can withdraw from the contract, as far as its accomplishment becomes unacceptable for him. We will inform the purchaser about each incident of non-availability of the performance and will refund in return already provided counter-performances by the purchaser without any delay in the event of withdrawal.
5. If the obligation to perform becomes impossible for us due to a reason for which we are responsible, the purchaser is entitled to claim damages due to breach of duty. The claim for damages of the purchaser, however, is limited to 10% of the value of that part of the delivery, which cannot be put into appropriate service due to the impossibility. This does not apply as far as we are imperatively liable in cases of intent, gross negligence or initial inability. The right of the purchaser to withdraw from the contract after unsuccessful expiry of a period of grace set by us remains unaffected.
V. Reservation of title1. The delivery items (reserved goods) remain our property until all claims against the purchaser arising from the business relationship have been settled. In the case of a current account, the security purpose of the retention of title also includes the determined balance.
2. During the existence of the reservation of title, the purchaser is prohibited from pledging or transferring ownership and resale is only permitted in the ordinary course of business and only under the condition that the reseller receives reimbursement from his customer or agrees to the reservation that ownership is only transferred to his customer if he has fulfilled his payment obligations entirely.
3. If the purchaser resells goods subject to retention of title, he hereby assigns to us his future claims from the resale towards his customers with all ancillary rights – including any balance claims from current accounts – as a precaution. If the reserved goods are resold together with other items without an individual price having been agreed for the reserved goods, the customer assigns to us that part of the total claim which corresponds to the price of the reserved goods invoiced by us, with priority over the remaining claim.
4. The purchaser is permitted to process, transform or combine the reserved goods with other items. The processing, transformation or connection is carried out for us. The purchaser keeps the new item for us with the care of a prudent businessman. The processed, transformed or connected item is considered as reserved goods.
5. In the case of processing, transformation or connection with other items that do not belong to us, we are entitled to co-ownership of the new item in the amount of the proportion of the value of the processed, transformed or connected reserved goods at the value of the other processed goods at the time of processing, transformation or combination. If the purchaser obtains sole ownership of the new item, the purchaser grants us co-ownership of the new item created by processing, transformation or combination in the ratio of the value of the processed, transformed or combined reserved goods to the other processed, transformed or combined goods at the time of processing, transformation or connection.
6. In the event of sale, the purchaser assigns to us as security his claims from the resale against his customers with all ancillary rights – including any balance claims from current accounts. However, the assignment only applies to the amount that corresponds to the value of the processed, transformed or combined reserved goods invoiced to us. The reserved share assigned to us is to be satisfied with priority.
7. In the event that the purchaser combines the goods subject to retention of title with real estate or movables, the purchaser assigns to us his claim, which he is entitled to as remuneration for the combination, with all ancillary rights – including any current account balance claims – as security in the amount of the ratio of the value of the combined goods subject to retention of title to the other connected goods at the time of connection.
8. If the value of all security rights to which we are entitled exceeds the amount of all secured claims by more than 20%, we will release a corresponding part of the security rights on the request of the customer.
9. Until our revocation the purchaser is authorized to collect the assigned claims from the resale. If there is an important reason, in particular default in payment, cessation of payments, opening of insolvency proceedings, protest of a bill of exchange or if there are comparable justified indications that suggest the purchaser’s insolvency, we are entitled to revoke the purchaser’s authorization to collect. In these cases, we can also disclose the assignment for security, utilize the assigned claims and demand that the purchaser discloses the assignment for security to the customer. The purchaser is obliged to provide us with the information and documents required to assert our rights from the assignment.
10. The purchaser must inform us immediately of seizures, confiscations or other dispositions or interventions by third parties.
11. In the event of culpable breaches of the purchaser against essential contractual obligations, in particular default in payment, we are entitled to take back the reserved goods after a reasonable period of grace has expired. The purchaser is obliged to surrender them. Taking back or asserting the retention of title or pledging the goods subject to retention of title by us does not constitute a withdrawal from the contract unless we have explicitly declared this. After prior warning, we are entitled to utilize the returned goods subject to retention of title and to satisfy ourselves from the proceeds of the outstanding claims.
VI. Defects and limitation of time1. Minor or customary deviations in quality do not constitute a material defect.
2. We do not assume any guarantee for the durability or quality of the goods ordered. This also applies to the submission of patterns and samples, references to technical standards or if we have advised the customer outside of the delivery.
3. Claims have to be asserted in written form without delay and under exact description of the delivery. For hidden defects a complaint is delayed after the expiry of 14 days on its identification. Claims arising from defects reported late are excluded.
4. We provide supplementary performance at our expense for justified claims received in due time. If the supplementary performance fails twice, the purchaser can either demand a reduction in payment (reduction) or withdraw from the contract.
5. Further claims of the purchaser from defects in the delivery towards us and our suppliers and agents are excluded. However, the purchaser’s claims under Section VII (liability) remain unaffected.
6. All claims for defects become time-barred within one year after delivery of the goods. This does not apply to other mandatory limitation periods for claims by the purchaser due to defects in construction and building materials and recourse by the purchaser.
VII. Liability1. Claims for damages and reimbursement of expenses by the purchaser, regardless of the legal basis, in particular due to contractual breaches of duty and tortious acts, are excluded. This does not apply insofar as we are mandatorily liable under the Product Liability Act and in the event of recourse by the customer, in cases of intent or gross negligence, in the event of injury to life, body and health, for the assumption of guarantees or the breach of essential contractual obligations. However, compensation for breach of essential contractual obligations is limited to the foreseeable damage that is typical for the contract, provided there is no intent or gross negligence.
2. A change of the burden of proof at the disadvantage of the purchaser is not associated with the above-mentioned regulations.
VIII. Applicable laws and court of jurisdiction1. German law applies exclusively to the contractual relationships, excluding the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CSIG).
2. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, including actions on checks and bills of exchange, is the registered office of our company. However, we are also entitled to sue the customer at one of the statutory places of jurisdiction. The German version of our General Terms and Conditions is binding.