§ 1 Scope of application
(1) Our general terms and conditions of business are applicable for the delivery of goods and services to commercial persons, public-law legal entities and public-law special funds.
(2) Our general terms and conditions of business shall apply on an exclusive basis; we do not recognise Customers' terms and conditions of business that diverge from our terms and conditions of business unless we have expressly approved their validity. Our general terms and conditions of business also apply if we deliver goods and services on an unconditional basis while being aware of Customers' general terms and conditions of business that are contrary to, or diverge from, our general terms and conditions of business.
§ 2 Offer and conclusion of contract – offer document – prohibition on assignment
(1) The Customer's order shall represent a binding offer. Offers or cost proposals that we have previously issued shall not be binding.
(2) Verbal commitments by our representatives or other auxiliary personnel shall require our written confirmation.
(3) Information that we provide concerning the object of the goods or services (such as weights, measures, serviceability, load-carrying capacity, tolerances and technical data) and our presentations of the same (such as drawings and diagrams) shall be only approximately definitive unless utilisation for the contractually envisaged purpose necessitates a precise correspondence. They shall not comprise guaranteed product attributes, but instead descriptions or characterisations of the goods or services.
(4) Normal commercial differences, and differences which arise as the results of legal regulations, or which comprise technical improvements, and the replacement of components by components of equal value, are permissible to the extent that they do not have a detrimental impact on utilisation for the contractually intended purpose.
(5) We reserve the right of ownership and copyright to diagrams, drawings, calculations and other documents. The same shall also apply to written documents designated as confidential. The Customer shall require our express written approval before forwarding such items to third parties.
(6) The Customer's contractual claims shall be non-transferable without our written approval to the extent that they are not impacted by the provisions of § 354a of the German Commercial Code (HGB).
§ 3 Prices
(1) rices shall be applicable for the agreed scope of goods and services. Additional and special services shall be invoiced separately. Prices shall be on an ex-works basis plus packaging and statutory VAT, and, in the case of export deliveries, plus customs duties, fees and other public charges.
(2) If the delivery of goods and services is delayed by more than four months from the conclusion of the contract, and if costs for wages, materials, packaging materials, freight, taxes and other charges have risen in the meantime, the agreed price can be adjusted in line with the impact of the aforementioned cost factors. If the price changes accordingly by more than 5% compared with the contractually agreed price, the Customer shall have the right to withdraw from the contract if we insist on a price increase despite the Customer having announced its intention to withdraw from the contract.
§ 4 Payment terms
(1) Goods and services shall be payable with a 3% discount in the case of prepayment or cash on delivery, with a 2% discount within 10 days following the invoice date, and without a discount within 30 days following the invoice date. The granting of a discount presupposes that all invoices due earlier have been settled.
(2) The Customer is entitled to offsetting only if its counterclaims are determined to be legally effective, are uncontested, or are recognised by us.
(3) The Customer shall not enjoy the right to retention unless the Customer's counter-receivable derives from the same contractual relationship, and has been determined to be uncontested or legally effective.
(4) In the instance of statutorily permissible or contractually agreed discount payments or instalment payments, we can cancel the contractual relationship on an extraordinary basis and without notice if the Customer
a) is in default for two consecutive payment dates with the payment of the discount, or
b) is in default during a period that covers more than two payment dates with the rendering of a discount or of an instalment in an amount that is equivalent to the discount or the instalment for two due payment dates.
(5) If it is observed after the conclusion of the agreement that our claim to the purchase price is jeopardised by a lack of solvency on the part of the Customer (such as through an application to open insolvency proceedings), we shall be entitled according to statutory regulations to refuse service, and – if required, following the service of notice – to withdraw from the contract (§ 321 of the German Civil Code [BGB]).
In the case of agreements concerning the production of unacceptable objects (single-unit production), we can declare our withdrawal immediately; statutory regulations concerning the dispensability of the serving of notice shall be hereby unaffected.
§ 5 Performance and performance period – liability in the case of default – representation obligation
(1) We are entitled to partial deliveries if
- the partial delivery can be used by the Customer as part of the contractual purpose,
- the delivery of the remaining ordered goods is certain, and
- such deliveries do not generate significant additional expense or additional costs for the Customer (unless the Customer declares that it is prepared to adopt such costs).
(2) In the case of call-orders excluding agreements concerning duration, production sizes and acceptance dates, we can demand a binding determination of such parameters at the latest three months after the order has been confirmed. If the Customer fails to fulfil such a demand within three weeks after receipt, we are entitled to set a two-week follow-up deadline, and to withdraw from the agreement once it has expired, to refuse the delivery, and to demand compensation for losses.
(3) We will inform the Customer in good time if, for reasons that we deem unjustifiable, and despite having ordered properly, we fail to receive goods or services from our sub-suppliers or sub-contractors, or we receive them incorrectly, fail to receive them on time, or we fail to receive them due to force majeure. In such instances, we shall be entitled to postpone the delivery of goods or services by the duration of the impediment, or to wholly or partially withdraw from the agreement due to the unfulfilled part of the agreement, to the extent that we have fulfilled our aforementioned duty of information, and we have not adopted the purchasing or manufacturing risk. Force majeure shall be deemed to comprise strikes, lockouts, official interventions, shortages of energy and raw materials, transportation bottlenecks for which we are not responsible, impediments to operations for which we are not responsible such as due to fire, water and machine damage, and all other impediments for which we are objectively viewed to not be responsible.
(4) If a period or deadline has been agreed on a binding basis for the delivery of goods and services, or if the period or deadline that has been agreed for the delivery of goods and services is exceeded by more than four weeks due to events pursuant to § 5 Paragraph 3, or if, in the case of a non-binding delivery date, it is objectively unreasonable for the Customer to maintain the agreement, the Customer shall be entitled to withdraw from the agreement due to the as yet unfulfilled part of the agreement. Further rights on the part of the Customer, particularly loss compensation claims, shall not exist in such an instance.
(5) If our performance is delayed, then our liability for the compensation of the loss incurred due to the delay shall be limited to 5% of the contract price in the instance of basic negligence. Further claims on the part of the Customer shall be hereby unaffected.
(6) To the extent that the item to be delivered is determined according to generic features, we shall be liable to compensate for losses only if we fail to prove that we are not responsible for subsequent satisfaction, the delay in delivery, or the defectiveness of the item. The provisions of § 8 shall apply additionally.
§ 6 Satisfaction, transfer of risk, acceptance, delayed acceptance
(1) Delivery shall occur ex-works, which shall also be the place of performance. At the Customer's request and costs, the goods shall be sent to another named place of delivery (sales shipment). To the extent that nothing else is agreed, we shall be entitled to determine the type of shipment ourselves (in particular, transportation company, transportation route, packaging).
(2) The risk of chance loss and chance deterioration of the goods shall transfer to the Customer at the latest when the goods are transferred to the Customer. In the case of sales shipments, however, the risk of chance loss and chance deterioration of the goods, and the risk of delay, shall transfer as soon as the goods have been delivered to the shipping agent, freight company, or any other person or institution mandated to conduct the shipment. To the extent that an acceptance has been agreed, such acceptance shall be decisive for the transfer of risk. German statutory regulations relating to contracts for work and services shall otherwise agree correspondingly for an agreed acceptance. If the Customer delays in acceptance, it shall be equivalent to transfer and/or acceptance.
(3) If the Customer is in default in accepting, or if the Customer omits an act of cooperation, or if our delivery is delayed for other reasons for which the Customer is responsible, we shall be entitled to compensation for the resultant loss including additional expenses (such as warehousing costs). For this we shall invoice a lump-sum compensation amount equivalent to 0.25% of the invoicing amount for the warehoused items for each elapsed week commencing with the delivery deadline, or – if there is no delivery deadline – with the announcement that the goods are ready to be shipped. Proof of a higher level of loss and our statutory claims (in particular, the compensation of additional expenses, appropriate reimbursement, cancellation) shall be hereby unaffected; the lump-sum amount shall be offset against any further-reaching monetary claims, however. The Customer shall be permitted to prove that we have incurred no loss, or only a significantly lower loss, then the aforementioned lump-sum amount.
(4) We shall insure the shipment only at the Customer's express wish, and at its cost, against theft, breakage, transportation, fire and water damage, or other insurable risks.
§ 7 Liability for defects – limitation of actions
(1) The Customer must comply with the obligations of § 377 of the German Commercial Code (HGB). Effects noticeable on delivery must also be notified to the transportation company, allowing such faults to be accepted by the transportation company. Complaints about defects must include the best possible description of the defect. Complaints that are not submitted on time shall exclude any claim on the part of the Customer.
(2) The delivered goods shall be deemed to have been approved by the Customer in accordance with the contract once a start has been made to process, combine or mix them with other items. The same shall apply if the goods are dispatched onwards from the original place of destination. Our liability for violation of duty due to defects to objects shall be excluded to the extent that defects and related damages cannot be proved to be based on erroneous materials, erroneous construction, defective execution, or defective assembly instructions. In particular, warranty and liability shall be excluded for the consequences of erroneous utilisation (in particular, assembly not in accordance with the status of technology, or assembly contrary to the assembly instructions), or natural wear and tear to the products, excessive utilisation, or inappropriate operating resources, as well as the consequences of physical, chemical or electrical influences that fail to correspond with the envisaged, average, standard influences.
(3) Claims on the part of the Customer due to expenses required for the purpose of subsequent fulfilment, in particular, transportation, labour and materials costs shall be excluded, to the extent that the expenses increase because the goods we deliver are subsequently forwarded to a location other than the Customer's site, unless such forwarding corresponds to the utilisation of the goods in accordance with their determined purpose.
(4) Any recourse claims against us on the part of the Customer in the instance that the goods are re-sold shall exist only to the extent that the Customer has not entered into any agreement with the buyer that extend beyond statutory defect claims.
(5) The period for barring by limitation for defect claims shall amount to 12 months. This shall not apply in the case of construction agreements, in the case of items that are utilised for a construction work in accordance with their normal utilisation, and which have caused its defectiveness, in the case of claims due to injury to life, body and health, and in the case of at least grossly negligent infringements of duty by us or by one of our legal representatives or ancillary agents. Unaffected by this shall also remain statutory special regulations for the restitution of third party property (§ 438 I Number 1 of the German Civil Code [BGB]), in the case of fraudulent intent on the part of the seller (§ 438 III of the German Civil Code [BGB]), and for claims in supplier recourse in the case of end-delivery to a consumer (§ 479 of the German Civil Code [BGB]). The period for barring by limitation for defect claims shall commence for the delivery part with the transfer of risk, and for assembly services with successful acceptance, or with acceptance deemed to have been concluded.
§ 8 Liability for losses
(1) We shall be liable for losses on an unrestricted basis deriving from infringements of contractual duty, as well as from criminal or civil offence
a) in the instance of intent,
b) in the instance of culpable injury to live, body or health,
c) in the case of defects that we fraudulently fail to disclose, or whose absence we have guaranteed,
d) in the case of defects to the delivery object to the extent that the liability applies pursuant to the German Product Liability Act for damage to persons or items relating to privately utilised objects.
(2) In the instance of the culpable infringement of significant contractual duties, we shall also be liable in the instance of basic negligence with a limitation, however, to the losses that we have predicted at the conclusion of the agreement as potential consequences of a contractual infringement, or which we should have predicted in compliance with due commercial care, and which are typically expected when the delivery object is utilised in accordance with its proper purpose. Significant contractual duties shall comprise such duties that protect the Customer's essential contractual legal positions, which the agreement should grant to the Customer pursuant to the agreement's content and purpose, and such obligations whose satisfaction renders the proper fulfilment of the agreement possible in the first instance, and in whose compliance the Customer generally has confidence, and may have confidence.
(3) We shall also be liable for losses that arise as the result of gross negligence. If contractual duties other than significant contractual duties are infringed, however, and legal interests other than life, body or health are affected, our liability in the instance of gross negligence shall also be limited to the losses that we have predicted at the conclusion of the agreement as the potential consequence of a contractual infringement, or which we should have predicted in compliance with due commercial care, and which are typically expected when the delivery object is utilised in accordance with its proper purpose.
(4) Further claims shall be excluded.
(5) A reversal of the onus of proof shall not be connected with the above provisions of paragraphs 1 to 3.
(6) The aforementioned exclusions of liability and restrictions of liability shall apply in the same scope to the benefit of our company's boards, legal representatives, employees and other vicarious agents.
§ 9 E Retention of title
(1) We shall retain ownership of the sold goods until the complete payment of all our current and future receivables arising from the agreement, and from a continuing business relationship (secured receivables).
(2) Before complete payment of the secured receivables, the goods that are subject to retention of title can neither be assigned to third parties, nor assigned as collateral. The buyer must inform us immediately in writing if and to the extent that third parties enjoy recourse to goods that belong to us. This shall also apply for impairments of any other type.Irrespective of this, the Customer must notify third parties in advance of the rights pertaining to the goods. The Customer shall bear the costs of any intervention by us to the extent that the third party is unable to reimburse such costs.
(3) The Customer shall be authorised to re-sell and/or to process goods subject to retention of title as part of proper business process. In such instances, the following supplementary provisions shall apply:
a) The retention of title shall cover the products arising as a result of processing, mixing or combination of our goods to their full value, whereby we shall be deemed to be the manufacturer. If third-party rights of ownership remain when third-party goods have been processed, mixed or combined, we shall acquire co-ownership in the ratio to the invoicing values of the processed, mixed or combined goods. The same shall otherwise apply for the generated product as for delivered goods subject to retention of title.
b) The Customer shall herewith assign as collateral to us all receivables due from third parties arising from the re-sale of goods or products, respectively to the level of any co-ownership interest that we hold pursuant to the above paragraph a). We shall accept such assignment. The Customer's duties mentioned in paragraph 2 shall apply also in view of the assigned receivables.
c) Along with us, the Customer shall be authorised to collect the receivable. We obligate ourselves not to collect the receivable to the extent that the Customer fulfils its payment obligations to us, does not default, no application has been made to open insolvency proceedings, and there is otherwise no defect relating to the Customer's solvency. If this is the case, we can demand that the Customer notifies us of the assigned receivables and their debtor, renders all information required for collection, submits the related documents, and communicates the assignment to the debtors (third parties).
d) If the realisable value of the collateral exceeds our receivables by more than 10%, we shall release collateral at our discretion and at the Customer's request.
§ 10 Industrial property rights
(1) If we are required to deliver according to the Customer's samples, drawings and models, the Customer should be liable for ensuring that we do not thereby infringe third-party industrial property rights. To the extent that a third party prohibits us from manufacturing and delivering items produced on the basis of the Customer's drawings, models and samples while making reference to industrial property rights to which it is entitled, we shall be entitled – without being obligated to examine the legal relationship – to discontinue the manufacturing and delivery, and to demand compensation for the expended costs under exclusion of all loss compensation claims on the part of the Customer.
(2) The Customer must compensate all direct and indirect losses that we incur as a result of the infringement of any industrial property rights and from the assertion of any industrial property rights by third parties. The Customer must pay on demand an appropriate advance payment relating to any litigation costs, and generally release us from such costs.
§ 11 Choice of law – place of jurisdiction
(1) The law of the Federal Republic of Germany shall apply with the exception of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) The exclusive place of jurisdiction shall be the relevant court for our business headquarters.