The following terms and conditions shall apply exclusively. Any contrary or varying terms and conditions of the Purchaser are expressly excluded, unless the applicability of any such terms and conditions has been expressly accepted by us in writing. The following terms and conditions shall also apply in cases where we are aware of contrary or varying terms and conditions of the Purchaser and carry out an order without reservation. Any agreements made between us and the Purchaser in respect of the execution of this contract must be made in writing. As far as installation and maintenance are concerned, separate conditions shall apply, where these are carried out by us or in our name. Our terms and conditions shall only apply in dealings with entrepreneurs as defined in section 310 (1) of the German Civil Code [BGB].
Our offers are subject to change, and any quotes are non-binding. Any documentation included in an offer, such as pictures, drawings, information in respect of weights and measurements are only approximate unless they are expressly described as being binding. Any quotes, drawings, and other documentation remains our property and we retain the copyright thereto; these must not be made available to third parties. At our request any drawings or any other documentation provided by us must be returned to us.
As far as the scope of the delivery is concerned, the written order confirmation shall be decisive. The Purchaser shall bear the cost and the risk for deliveries. At the Purchaser’s request – and at the Purchaser’s expense – the consignment can be insured by the supplier against theft, breakages, fire and water damage, damage incurred during transport, and against other risks against which insurance can be taken out.
Any information regarding delivery times relate to the date of the goods are sent, and are merely of an informative nature, unless we have expressly confirmed a specific delivery date. The delivery time does not start to run until such time as the Purchaser has provided all of the documentation, permits and approvals to be provided by them, all technical questions have been resolved and any agreed part-payment has been received. We reserve the right to object on the basis of non-performance of the contract. Any delivery dates confirmed by us shall be adhered to if possible. Delays in delivery shall not give rise to any claims for a contractual penalty. In the event that we are late in performing our contractual obligations, a reasonable grace period shall be granted in the first instance. The only situation where no such additional grace period is required is in cases where special circumstances exist which would justify an immediate rescission of the contract, when the respective interests of both parties are weighed up. Otherwise the Purchaser shall only be entitled to withdraw from the contract after such additional grace period has expired unsuccessfully.
Any claims for damages resulting from the delay shall be limited to the amount of the contract value (own input, excluding disbursements and materials); the exception to this is where losses arise due to circumstances caused by us or our servants or agents in a manner that was either deliberate or grossly negligent, or where a delay for which we are responsible is the result of a culpable breach of an essential contractual obligation. In cases where a delay in delivery does not result from a deliberate breach of contract by us or one of our servants or agents, our liability for damages shall be limited to the foreseeable, typically occurring loss. In the cases set out in this paragraph the entitlement to delivery shall excluded.
In cases where delivery times cannot be adhered to as a result of circumstances beyond our control, such as, for example, natural catastrophes, war, unrest, interference from the authorities, energy deficiency or industrial action, either affecting ourselves directly or our suppliers, then this shall result in the obligations in respect of delivery and delivery times being suspended. In cases where such hindering circumstances last for more than 4 weeks, each Party shall be entitled to withdraw from the contract either wholly or in part, without this giving rise to any claim for damages for the other side. This shall also apply in situations where the circumstances set out above arise at a point in time when we are already late.
Where the sending of a consignment is delayed at the request of the Purchaser, and where we have set a reasonable period within which the goods need to be accepted, and this period has expired without this happening, then we shall be entitled to dispose of the goods differently, and to provide the delivery to the Purchaser within a reasonably extended time period.
We are entitled to make partial deliveries. Where a delivery is delayed without this being our fault, then we are entitled to store the goods at our discretion at the expense and risk of the Purchaser.
Where acceptance of the goods is delayed due to circumstances within the Purchaser’s control, then we shall be entitled to store the goods at the expense and risk of the Purchaser or to demand reimbursement of the costs in the event that we do not store the goods on our own premises. Any outsourced items shall be accepted by the Purchaser, without prejudice to the rights set out at section VII, even if they do show defects.
IV. Prices, Shipping, Liability for damage during transport
Prices are ex works, including loading, but excluding packaging. The applicable statutory value added tax will be added to the price. The price calculation shall be based on the currently valid price lists at the time of the order being received.
With new customers we shall be entitled to make stipulate that the commencement of production is contingent on the receipt of an advance payment. Any special requests by the Purchaser (e.g. delivery to a different address than that of the Purchaser, speeded up delivery, special packaging, engaging a specific carrier) will be accommodated where possible. Any additional costs arising as a result of this shall be borne by the Purchaser. These shall be charged on the basis of the actual additional work, but in any event at a minimum of 3% of the invoice amount.
Where the sending of a consignment is delayed at the request of the Purchaser, then the Purchaser will be charged for the cost of storage at our premises, but in any event no less than 2% of the invoice amount per month, starting one month from notification that the consignment is ready to ship.
Where we have set a reasonable period for the goods to be accepted, and this period has expired without this happening, then we shall be entitled to dispose of the goods differently, and to provide the delivery to the Purchaser within a reasonably extended time period. In order for us to comply with the delivery times, it is a prerequisite that the Purchaser fulfill their contractual obligations. Partial deliveries shall be permissible; where a delivery is delayed without this being our fault, then we are entitled to store the goods at our discretion at the expense and risk of the Purchaser.
Unless there is any specific agreement to the contrary, payment shall be made net in cash or by transfer to one of our bank accounts, either within 14 days of the invoice date, with a 2% discount, or within 30 days of the invoice date. In the case of commissioned work payment shall be made net without delay upon receipt of the invoice. Payments shall be deemed to have been made on that day on which we have access to the money, and payments shall be allocated to the oldest debt due. No discount shall apply in respect of shipping costs.
As long as older invoices are due and unpaid, discounts are not permissible. In such a case any discounted amount paid shall be allocated as a payment on account and shall be applied to the oldest due invoices. Where we accept bills of exchange, the acceptance thereof as payment shall be subject to the usual qualification. Any discount and collection charges shall be paid by the Purchaser.
Cheques shall only be counted as payment upon their being cashed. Bills of exchange shall only be accepted after prior agreement and, in cases where payment would ordinarily qualify for a discount, without any discount being granted. Discount charges shall be charged separately and shall be payable immediately and without deductions. In the event of late payment – and without prejudice to any other rights we might have – we shall be entitled to charge late payment interest at a rate per annum of 9% above the then current base rate as defined in section 247 of the German Civil Code [BGB]. If the Purchaser is more than 10 days late with any payments due, then all outstanding invoices shall become payable immediately. In the event of cheques or bills of exchange not being honoured, in cases where payments are stopped or if proceedings for the settlement of debts are instituted, then all of our claims shall fall due immediately, even in cases where an extension had been agreed. The Purchaser shall only be entitled to offset such claims as are undisputed or which have been validly legally determined. Payments for our deliveries shall be due in EUROS, even if the invoice stipulates foreign currency amounts alongside the EURO amount, or, as the case may be, where only an amount in the foreign currency is listed. In the case of any foreign currency amounts that are sent to us in respect of a debt by way of bank transfers, cheques, bills of exchange, we shall credit the EURO amount realised from this. Partial deliveries shall always be deemed to be a completed transaction and are also subject to the above payment conditions.
VI. Retention of Title
The goods delivered shall remain our property until such time as all claims we are entitled to under the business relationship with the Purchaser have been satisfied (reserved goods). The title shall pass to the Purchaser once the Purchaser has satisfied all of their debts under the business relationship, including any account balances, as well as bills of exchange and cheques. The reserved goods shall be stored separately from the above goods, shall be marked at our request, and must be insured against fire damage. The Purchaser shall only be entitled to sell on the goods in the ordinary course of business against payment, otherwise only if the retention of title is notified and assigned, however the Purchaser shall not be entitled to dispose of the goods in any other manner, in particularly not using them as security, pledging the goods or further assignment. Partially paid purchases by the Purchaser which are financed by third parties shall not be deemed to be sales in the ordinary course of business against cash payment. By way of security the Purchaser hereby assigns their rights arising from any onward sale of the reserved goods to the amount of the value of the reserved goods, and undertakes to provide us with the names of any third-party debtors and the value of any such claims upon request.
Until further notice the Purchaser shall only be entitled to assert any such assigned claim for the purchase price for as long as they comply with their obligations towards us. Any costs incurred in collecting any assigned claims for the purchase price shall be borne by the Purchaser. Where the value of the security exceeds the amount of our claims by more than 20% in total, then the Purchaser shall be entitled to have the security assigned back to them upon request. Where the Purchaser connects the delivered goods with real estate or with moveable goods, then they shall hereby already assign any claims they may have arising out of any such installation, including all ancillary accounts. This assignment shall be limited in amount to that part of the respective claim, which corresponds to the purchase price of the goods the Purchaser purchased from us, plus an additional 10%. In the case of an onward sale the Purchaser undertakes to similarly bind their customer as per the above provision for the case of any connection and installation of the delivered goods with other items by the customer. Until further notice the Purchaser shall be entitled to assert any such claims assigned to us.
We must be notified immediately in the case of any loss, damage, distraint, or interferences by third parties in respect of the reserved goods, or seizure of the assigned claims. In the event of seizure of the reserved goods, the Purchaser must immediately send us the bailiff’s return and a statement in lieu of an oath, confirming that the goods seized are identical to the goods delivered by us. Where any assigned claims are seized, the seizure order and transfer order must be sent to us immediately. Any costs arising from any interventions shall be borne by the Purchaser. Where insolvency or settlement proceedings are commenced, where payments are stopped, in the case of a moratorium, late payment or any other situation that endangers the performance of the contract, we shall be entitled to withdraw the right of disposal over the goods from the Purchaser and demand their surrender, without any buyer being entitled to a right of retention, unless such right arises from the same individual contract which gives rise to our right to demand that the goods be returned. Any costs of the return of goods shall be borne by the Purchaser. We shall be entitled to sell any such returned reserved goods either by way of auction or privately and to set off the profits against the outstanding claims. Moreover, in cases of delay, we shall be entitled to withdraw from the contract either wholly or in part, with the Purchaser being liable for any costs and depreciation of the goods, if any. Where the customer is more than 10 days late with their payment, or where there financial position deteriorates significantly, we shall be entitled to demand the return of any goods which remain our property.
Where we choose to exercise this right, this shall only constitute a rescission of the contract if we expressly declare that to be the case, without prejudice to any other mandatory statutory provisions. In the case of an ongoing business relationship the Purchaser shall, by way of security, grant us a chattel mortgage up to the value of the respective total outstanding balance over any goods in their possession, which were delivered by us and paid. This shall also apply in respect of any goods, where title passed to the Purchaser following a previous, complete settlement of their account. Where the value of the security exceeds the amount of our claims by more than 20% in total, then the Purchaser shall be entitled to have the security assigned back to them upon request. Consigned goods shall remain our absolute property. Any such goods may only be disposed with our prior consent. Payment shall fall due immediately after sale; any value date agreed at the time of placement shall be abrogated at that point.
VII. Properties of the Goods, Liability for Defects, Damages
The product shall have the essential properties set out in our offer and drawings.
We shall be liable for defects on the following conditions:
1. the Purchaser must inspect the goods immediately upon arrival and check for any defects and check the properties and condition of the goods. Obvious defects must be raised within one week by way of a written notice.
2. Any claims arising from hidden defects which could not be discovered during the initial inspection can only be brought against us if the complaint in respect of that defect is received by us within 12 months from receipt of the goods. This provision shall not apply in cases where any such hidden defect results from circumstances which was caused either by us or one of our servants or agents, either deliberately or in a grossly negligent manner, where the breach of an obligation resulted in the life, body or health of another being damaged, or where longer periods are stipulated as per section 479 of the German Civil Code [BGB].
3. In the case of justified claims the Purchaser shall be entitled to choose between repair or replacement. However, we shall have the right to opt for the other kind of supplementary performance if the type of supplementary performance requested by the Purchaser would be unreasonably expensive. Where the supplementary performance fails, is refused or unreasonable, the Purchaser can choose to either rescind the contract, or to reduce the agreed payment amount.
4. Where the defect results from circumstances which were caused by us or one of our servants or agents either deliberately or in a grossly negligent manner, then the Purchaser shall be entitled to demand damages in respect of non-performance or reimbursement for useless outlay. Section 361 of the German Civil Code [BGB] shall remain unaffected.
5. The assertion of any further claims for damages, including in particular any consequential losses, shall be excluded. This shall not apply in cases where the damage results from circumstances that were caused by a deliberate or grossly negligent dereliction of duty on the part of ourselves or one of our servants or agents, where such a dereliction of duty culpably resulted in the death, bodily injury or detriment to the health of another, or where we culpably breached essential contractual obligations. Unless death, bodily injury or detriment to health occurred, or we can be held to have acted deliberately, any damages shall be limited to those foreseeable losses as would typically occur.
6. This shall not affect our liability pursuant to the German Product Liability Act [Produkthaftungsgesetz].
7. Defects of part of the goods delivered shall not give rise to a complaint in respect of the entire delivery, unless a partial delivery is of no interest to the Purchaser.
8. No warranty claims shall arise in cases where the extent of the variations is standard for the industry.
9. In the event that the defect of the goods results from the properties of the material used, we shall be entitled to assign our rights against the respective supplier to the Purchaser. In such a case our liability shall be like that of a guarantor, in the event that due to our fault there is not entitlement to claim against the supplier, or where any such claims are not enforceable.
10. As per the usual business practice deliveries of up to 10% more or less than agreed shall not give rise to complaint. We shall charge based on the actual quantity delivered.
11. No warranty is given for losses arising from any of the following reasons: unsuitable or inappropriate use, faulty assembly by the Purchaser or by third parties in spite of proper and clear assembly instructions, incorrect putting into service by the Purchaser or third parties, normal wear and tear, faulty or negligent treatment, inappropriate operating materials, replacement materials, chemical, electronic or electrical influences, unless these were caused by any fault of ourselves, improper alterations or maintenance work by third parties conducted without our prior permission.
12. In line with the company’s insurance policy, all claims shall be limited to a maximum of €2,000,000 (in words: two million Euros). Where a client anticipates that this amount would not be sufficient to cover potential damages, this needs to be raised and agreed prior to placing the order, and may incur additional costs in order to put in place an specific insurance policy with a higher value for that particular order. Any such additional agreement needs to be in the written form, ssatisfying the requirements of section 126 of the German Civil Code [BGB].
VIII. Place of Performance and Place of Jurisdiction
The Place of Performance for any deliveries and provisions of service as well as payments, including cheques and bills of exchange, shall be Delligsen. Where the party placing the order is a registered trader [Vollkaufmann], a legal person under public law [juristische Person des öffentlichen Rechts], or a separate fund under public law [öffentlichrechtliches Sondervermögen], the exclusive place of jurisdiction for any disputes arising between the parties, including any legal proceedings in respect of bills of exchange [Wechselprozess] or where a party relies entirely on documentary evidence [Urkundenprozess], shall be either the local court [Amtsgericht] Holzminden, or the local court [Amtsgericht] Hildesheim, depending on which court is substantively competent.
IX. Applicable Law
The relationship between the Parties shall be governed exclusively by the laws of the Federal Republic of Germany, excluding the UN Convention on Contracts for the International Sale of Goods (CISG).
X. Severability Clause
In the event that individual provisions of these Terms and Conditions should be invalid, this shall not affect the validity of the remaining provisions.
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