General Terms and Conditions
1. General information
1.1 Our business terms apply to all current and future contracts and other legal relations of the parties.
1.2 Business terms of our partners shall only become part of the contract if they correspond with our business terms or we have expressly recognised the conditions of the contractual partner in writing.
2. Conclusion of the contract
2.1 Offers and prices are without obligation until our written order confirmation.
2.2 Contracts are concluded with our order confirmation forms. Verbal (also by telephone) negotiations and agreements including collateral agreements require our written confirmation.
2.3 Orders are deemed as accepted by us if they have been confirmed in writing or the delivery/service was performed.
2.4 Block orders are possible and a period of allocation to be stipulated. Rescheduling within the framework of the placed are only permitted by mutual consent. In addition, no orders are deleted.
3. Scope of the delivery obligation
The delivery is also deemed as per contract with a shortfall in delivery of up to 10% of the goods value or an excess delivery up to 5% of the goods value with corresponding adjustment of the price to the actually delivered quantity.
4. Interruption of delivery
4.1 In case of force majeure, industrial dispute measures and other interferences to operation beyond the control of a party, which have lasted or are expected to last longer than one week, the delivery period or acceptance period is extended without any further ado by the duration of the impediment, however no longer than by 5 weeks plus a follow-up delivery period. The extension shall only apply if the other party is immediately informed of the reason for the impediment, as soon as it can be seen that the afore-mentioned period cannot be observed.
4.2 If delivery is not made in time the other contractual party can cancel the contract. It must however announce this in writing at least two weeks before exercising the right of cancellation.
4.3 If the other contractual party was not immediately informed upon request that the goods will not be delivered or accepted in time and if the impediment lasted longer than 5 weeks, the other contractual party can cancel the contract immediately.
4.4 Claims for damages are excluded if the respective contractual party has satisfied its responsibilities according to Subclause.1-3.
5. Follow-up delivery period
5.1 After expiry of the delivery period a follow-up delivery period of 20 days shall begin without declaration. After expiry of the follow-up delivery period the buyer can cancel the contract in writing with the exclusion of claims for damages. The cancellation from the contract shall not apply if the buyer declares to the seller during the follow-up delivery period that he insists upon satisfaction of the contract. The seller is however released from the delivery obligation if the buyer does not make a statement following an enquiry from the seller within the follow-up delivery period whether he insists on satisfaction of the contract.
5.2 If the buyer wishes to claim damages instead of the service he must give the seller a 6-week-deadline with the threat that he shall refuse the performance after expiry of the deadline. The deadline shall apply from the date upon which the buyer’s notification is sent by registered letter. This provision only applies in the event of Subclause 1 Sentence 2 instead of the cancellation listed therein if the notification of the deadline by the buyer is received by the seller within the follow-up delivery period. Claims of the buyer owing to delayed delivery are excluded before expiry of the follow-up delivery period.
6. Prices, passing of risk, packaging, shipment
6.1 Our prices are ex works net plus the respective value added tax, which is invoiced separately.
6.2 The delivery is made ex works, the risk passes to the buyer when the goods are handed over to the freight forwarder. The goods are packaged by us ready for transport at the costs of the buyer.
Insofar as the buyer has not given any other written notification no later than 30 days before the agreed delivery date, we shall commission one of the customary freight forwarding companies with the shipment at the costs of the buyer. We shall only take out separate insurance for breakages and damages in transport at the express wish of the buyer and it his costs.
7. Duty for examination and complaint
7.1 The buyer must inspect our delivery for completeness and absence of defects immediately after receipt. Complaints are to be reported in writing within two weeks after receipt of the goods or provision of the service.
7.2 If the buyer fails to make the notification the goods or service are deemed as approved unless it concerns a defect, which was not visible in the inspection. If such a defect is detected at a later date subsequent notification must be sent immediately after discovery; otherwise the goods or service is/are also deemed as approved in consideration of this defect.
7.3 All complaints of obvious defects are excluded after cutting or otherwise commenced processing of the goods delivered by us.
8. Warranty, liability
8.1 In case of defects to purchased objects we are entitled and obliged, under the exclusion of further claims, however irrespective of Subclause 8.2, to subsequently improve or redeliver the purchased object at our choice. If the subsequent improvement or delivery fails, i.e. it is seriously and finally refused, unreasonably delayed, attempted in vain or it is impossible, the buyer can at his choice rescind the contract or reduce the purchase price. Subclause 10.3 remains unaffected.
8.2 Not affected are the rights of the buyer in case of absence of warranted qualities. Assurances require a written form to be valid.
8.3 All contractual and statutory claims for compensation against us and our vicarious agents are excluded insofar as such claims are based on simple negligence and they are not a result of the breach of essential contractual obligations.
8.4 We assume no liability for damages which were not suffered directly to the objects delivered by us. All liability for indirect damages or follow-up damages, in particular for missed profits, is excluded.
8.5 This shall have no effect on our statutory obligations from applicable product liability law.
8.6 Insofar as the object of the order is the processing of materials, which the buyer provides, we assume no warranty whatsoever, for whether the materials are suitable for the envisaged processing. The buyer has the burden to prove that an occurred defect is not a result of the unsuitability of the material. A test report of an independent institute is to be submitted in this respect.
9. Terms of payment
9.1 Our invoices are due and payable within 10 days with 4 % cash discount or 30 days net. All other agreements must be made in writing. A cash discount deduction is however excluded if other receivables due at the time of payment have not yet been settled. Payments are always used to settle the oldest due debt items plus the thus accrued interest on default. In case of payment after the due date interest on default will be charged in the amount of 8 percentage points over the base lending rate. In case of new customer we request advance payment.
9.2 If the buyer is in default of payment, our total receivable against the buyer shall be due and payable immediately irrespective of agreed payment dates. In case of default of payment by the buyer we are further entitled to withhold further deliveries to the buyer.
9.3 In case misgivings are determined against the solvency or creditworthiness of the buyer after the contract is concluded, which mean that our payment claims appear at risk, we are entitled to demand advance payment, payment step by step or security through an absolute, irrevocable and unconditional guarantee of a major German bank. If the buyer does not satisfy this request despite setting a deadline with threat of rescission we can cancel the contract with the exclusion of claims for compensation by the buyer.
9.4 The buyer can, in particular in case of complaints of defects, only offset a claim against our claims or exercise a right of retention if his claim is undisputed or has been declared final and absolute.
10. Reservation of title, extended reservation of title
10.1 Until full payment of all of our claims as well as the claims incurred from other legal entitlements (such as e.g. claims under exchange law) the goods shall remain our property.
10.2 The buyer is entitled to process and sell the goods taking into account the following provisions.
10.3 Insofar as the goods are processed or converted by the buyer, we are deemed manufacturer within the meaning of § 950 BGB [German Civil Code] and acquire the property to the interim or end products. The buyer or processor is only the keeper.
10.4 If the reserved goods are combined or processed with other items which do not belong to us, we acquire the co-ownership to the new object as a ratio of the value of the reserved goods to the other items.
10.5 The goods may only be sold in customary and proper business transactions and only be sold if claims from resales have not previously been assigned to third parties. The buyer hereby now already assigns to us in advance the claims to which he is entitled from the resale also insofar as our goods have been combined or processed with other items. In this case the assigned claims only serve for our security in the amount of the value of the respective sold reserved goods. We shall not collect the assigned claims as long as the buyer satisfies his payment obligations.
10.6 The buyer is however obliged to name us the third party debtor upon request and inform him of the assignment. He is entitled to personally collect the claims as long as he does not receive any other instructions from us. He must remit the amounts he collects to us immediately insofar as our claims are due.
10.7 We undertake to release the assigned claims at our choice insofar as they exceed our claims to be secured by more than 20%.
10.8 Pledging or collateral assignment of the reserved goods or the assigned claims is not permitted.
10.9 The buyer must inform us of any accesses of third parties to the goods delivered under reservation of title or to the assigned claims immediately.
10.10 If we take goods back owing to our reservation of title a credit note will be issued for 80% of the delivery price with goods, which were delivered by us in the past 4 months and for 50% of the delivery price with goods which were delivered by us in the past 6 months. With older goods a credit is issued for 20-30% depending on the age and condition of the goods.
11. Place of performance, place of jurisdiction, applicable law
11.1 Place of performance for deliveries and other services is D-95671 Bärnau.
11.2 The registered seat of our company is the exclusive place of jurisdiction for all current and future claims from the business relationship with merchants. This also applies in the event of claims from bills of exchange and cheques. However, we can take action against the buyer at his registered seat.
11.3 The law of the Federal Republic of Germany applies. The validity of the Convention of the United Nations concerning the international sales of goods of 11.04.1980 is excluded.
12. Overseas transactions
12.1 The goods delivered by us shall only pass to the property of the buyer when all of our due purchase price claims against the buyer have been paid.
12.2 If an agreement acc. Subclause 11.1 is not permitted according to the law of the buyer’s state, we are entitled to all other rights, which we can reserve to the goods delivered by us according to the law of the buyer’s state.
12.3 Costs for legal prosecution incurred to us in the buyer’s country through the justified exercising of our rights to reservation of title or the extra-judicial or judicial assertion of our other contractual rights are also to be reimbursed by the buyer to the customary incurred extent if such claim for reimbursement is not envisaged by law in his country at all or not in this amount.
13. Partial invalidity
The invalidity of individual provisions shall have no effect on the validity of the contract on the whole. Invalid provisions shall be replaced by legally admissible regulations which shall satisfy or as far as possible satisfy the intended commercial intention.
Status: January 2007