Terms
General Terms of delivery and payment
§1
General Information - Scope
Our terms and conditions of sale are exclusive; we do not recognise conflicting conditions or conditions of the client which diverge from our conditions of sale, unless we have recognised them in writing. Our conditions of sale also apply if we know of conflicting conditions or conditions of the client which diverge from our conditions of sale and carry out the delivery unconditionally. All agreements made between us and the client for the purpose of the execution of this contract are put in writing in this contract. Our conditions of sale apply only to contractors according to § 310 paragraph 1 BGB (German Civil Code). Our conditions of sale also apply to all future business with this client.
§2
Quotation – Quotation Documents
If the purchase order can be qualified as a quotation according to § 145 BGB we have the right to accept it within 2 (two) weeks. A quotation from us to the client in order to enter into a contract is without obligation. We reserve the proprietary rights and copyrights of the illustrations, drawings, calculations and other documents. This also applies to written documents which are marked as “confidential”. The clients needs our express written consent before passing them on to third parties.
§3
Prices and Terms and Conditions of Payment
Unless the acknowledgement of the order shows something different, our prices are “ex works”, exclusive of packaging which will be charged separately. We reserve the right to change our prices accordingly, if after conclusion of the contract, cost reductions or increases in costs arise, especially because of collective pay agreements. These will be proven to the client on demand. The legal Value Added Tax is not included in our prices. It will be shown separately in the invoice, according to the legally fixed percentage on the day of invoicing. Unless the acknowledgement of the order shows something different, the purchase price has to be paid net (without deductions) within 30 (thirty) days of the invoice date. The legal regulations regarding the consequences of default in payment apply. In case of cash payment or payment with cheque within 10 (ten) days of the invoice date 2% discount will be given on the net value of goods. Otherwise the deduction of discounts requires a separate written agreement. The client is only entitled to rights of set-off if his/her counterclaims have been determined by final judicial decision, are undisputed or have been recognised by us. Furthermore he/she is entitled to exercise his/her right to retention in so far as his/her counterclaims are based on the same contractual relationship.
§4
Delivery Period
The start of the delivery period indicated by us requires as a condition the clearing up of all technical questions. The observance of our delivery obligation requires further as a condition the timely and orderly fulfilment of the obligations of the client. The defence of non-performance remains reserved. If the client did not take delivery of the good(s) in due time or infringes other duties to cooperate, we have the right to ask for reimbursement of the damage arising from this, including possible additional expenditures. Other claims remain reserved. As far as the requirements of number 3) are met, the risk of loss or deterioration of the thing purchased has passed to the buyer at the point in time when he/she did not take delivery of the good or started being in debtor’s delay. We are liable according to the legal provisions as far as the underlying purchase contract is a transaction for delivery at a certain date according to § 286 paragraph 2 number 4 BGB or § 376 HGB (German Commercial Code). We are also liable according to the legal provisions, as far as, in consequence of a delay in delivery we are responsible for, the client has the right to claim that his interest in the performance of the contract does no longer exist. We are further liable according to the legal provisions as far as the delay in delivery is caused by an intentional or grossly negligent breach of contract for which we are responsible; a fault of our representative or vicarious agent is attributable to us. As far as the delay in delivery is not caused by an intentional breach of contract for which we are responsible, our liability for damages is limited to the foreseeable, typically occurring damage. We are also liable according to the legal provisions as far as the delay in delivery for which we are responsible is caused by the breach by fault of an essential contractual duty; however, in this case the liability for damages is limited to the foreseeable, typically occurring damage. Other legal claims and rights of the client remain reserved.
§5
Passing of Risk – Packaging Costs
As far as nothing different arises from the acknowledgement of the order, the delivery has been agreed “ex works”. Separate agreements apply to the tacking back of packaging. f the client wishes, we cover the delivery with a transport insurance; the costs incurred hereby are borne by the client.
§6
Responsibility for Defects
Defect claims of the client require that he/she has complied properly with the inquiry responsibilities and the requirement to give notice of defects immediately after the reception of goods according to § 377 HGB. If the thing purchased is faulty we have the choice to supplementary performance in form of a correction of the defects or to deliver a new thing free from defects. In the case of correction of the defects we have the responsibility to bear the costs of the necessary expenses for the correction of the defects, especially transport, travelling, labour and costs as far as they do not increase because the thing purchased has been moved to another place than the place of performance. If the supplementary performance does not succeed the client has the free choice of rescission or reduction. We are liable according to the legal provisions if the client claims damages which are caused by intent or gross negligence, including intent or gross negligence of our representatives or our vicarious agents. If we are not charged with intentional breach of contract, the liability for damages is limited to the foreseeable, typically occurring damage. We are liable according to the legal provisions if we have broken an essential contractual duty; however in this case the liability for damages is limited to the foreseeable, typically occurring damage. The liability because of culpable injury of life, body or health remains unaffected; this also applies to the mandatory liability according to the Product Liability Act. The liability is excluded if no diverging point has been agreed above. The limitation period for defect claims is 12 (twelve) month after the passing of risk. The limitation period in case of a delivery recourse according to §§ 478, 479 BGB remains unaffected.
§7
Total Liability
Liability for compensation other than defined in § 6 is excluded, irrespective of the legal nature of the claim put forward. This applies particularly to claims for damages because of fault during conclusion of the contract, other violations of duty or tortuous claims for compensation of damages to property according to § 823 BGB. The limitation according to number 7.1 also applies if the client asks for compensation of useless expenses instead of compensation of damages. As far as our liability for damages is excluded or limited this refers also to the personal liability for damages of our staff, employees, assistants, representatives and vicarious agents.
§8
Reservation of Ownership
We reserve our ownership of the thing purchased till all payments of the delivery contract have been received. If the conduct of the client is not in conformity with the contract we have the right to take the thing purchased back. By taking the thing purchased back we terminate the contract. After taking back the thing purchased we have the right to realise it. The proceeds of the realisation are to be credited against the liabilities of the client, deducting reasonable realisation costs. The client has the obligation to treat the thing purchased with care; he/she is especially responsible to insure it at his/her own cost against fire, water and theft at its value when new. If maintenance or servicing works are needed the client has to carry these out timely at his/her own costs. In case of seizure or other intervention of third parties the client has to give us immediately written notice in order for us to institute proceedings according to § 771 ZPO (Civil Action Code). If the third party can not reimburse us the expenses in and out of court of an action according to § 771 ZPO, the client is liable for the loss incurred by us. The client has the right to resell the thing purchased in the normal course of business; however he/she assigns already now all the debts to the amount of the final sum of the invoice (including VAT), which incur from the reselling to his/her employees or third parties, independent of a reselling of the thing purchased without or with processing. The client still has the right to call in these debts receivable after the transfer. Our right to call in these debts receivable ourselves remains unaffected. However we commit ourselves to not call in these debts as long as the client fulfils his/her financial obligations emanating from the proceeds received, does not delay payments and in particular has not made an petition to institute composition or insolvency proceedings or suspended payments. However, if this is the case we can demand that the client informs us about the ceded claims and their debtors, gives us all the information necessary for collecting, hands over all the respective documents and informs the debtors (third parties) about the cession. The processing or reconstruction of the thing purchased by the client is always carried out for us. If the thing purchased is processed together with other items not belonging to us, we acquire the co-ownership of the new thing in proportion of the value of our thing purchased (Total sum of the invoice including VAT) to the other processed items at the moment of processing. For the thing created by processing the same principles apply as for the thing purchased delivered with reservation. If the thing purchased is mixed together with other items not belonging to us and is not separable, we acquire the co-ownership of the new thing in proportion of the value of our thing purchased (Total sum of the invoice including VAT) to the other mixed items at the moment of mixing. If the mixing is carried out so that the thing of the client is the main thing it is understood that the client transfers to us the pro rata co-ownership. The client preserves the such arisen sole or co-ownership for us. The client also assigns to us the debt to secure our debts against him which arise from the relation of the thing purchased to a property of a third party. We commit ourselves to release the securities we are entitled to, if the client demands it, to the extent that the realisable value of our securities exceed the claims which need to be secured by more than 10%; it is incumbent to us to select the securities to be released.
§9
Jurisdiction, Place of Performance
If the client is a businessman the jurisdiction is our place of business; however, we also have the right to bring an action against the client at his residence jurisdiction. The law of the German Federal Republic applies; the UN-Convention on Contracts for the International Sale of Goods does not apply. As far as nothing different arises from the acknowledgement of the order, the place of performance is our place of business.