§ 1 Application
(1) The terms and conditions set out below shall form part of the agreement concluded with us.
(2) Our General Terms and Conditions shall apply in accordance with the most recent version and to all subsequent transactions without any need of express reference thereto or agreement thereon at the conclusion of such transaction and shall also apply if we perform delivery despite our knowledge of differing or contrary terms.
(3) These terms and conditions shall only apply vis à vis merchants, governmental entities, or special governmental estates within the meaning of § 310 (1) BGB (German Civil Code).
(4) These terms and conditions apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
§ 2 Offers, Acceptance
(1) Our offers shall not be binding; in particular with reference to quantities, price and delivery time.
(2) Orders placed by the Buyer shall not be regarded as accepted before these have been confirmed by us in writing. If we should fail to confirm an agreement in writing which we have entered into verbally or in a telephone conversation, then our invoice shall be regarded as confirmation.
§ 3 Prices
(1) Our prices are ex works, exclusive of any statutory VAT which shall be payable at the date of delivery and exclusive costs of packaging and delivery, exept as otherwise expressly agreed upon.
(2) If, as a result of a change of law between the agreement date and the delivery date, additional or increased charges – in particular duties, levies, currency compensation payments, shall be payable, then we shall have the right to increase the purchase price accordingly. The same applys for examination fees by public aithorities or by later examination fees with the approval of products for specific applications.
§ 4 Payment
(1) Payment shall be made within 30 days strictly net, unless otherwise agreed, from date of invoice. New export customers are only supplied after payment is received, i. e. cash in advance.
(2) We shall accept promissory notes and cheques only upon specific arrangement and only on account of payment. Any fees for discount bills or promissory notes shall be at the expense of the Buyer and immediately payable.
(3) If the invoice amount shall not have been settled within 30 calendar days after the date of invoice or as at another due date, then we shall without the need to a separate warning notice have the right to recover default interest in a proven amount but in any event an amount equalling 8 % above the base rate of the European Central Bank.
(4) If the Buyer’s business shall be operated beyond the ordinary course of business which shall include, without limitation, acts of seizure or a situation where a protest in relation to promissory notes or cheques has been made, payments shall be delayed or even discontinued or judicial or out of court settlement or insolvency proceedings shall have been petitioned or opened or proceedings in accordance with the German insolvency Act shall have been petitioned, then we shall have the right to declare all our claims arising from the business relationship as immediately payable, even if we shall have accepted promissory notes or cheques. The same shall apply if the Buyer shall be in payment default towards us or other incidents shall surface which give rise to doubts about its creditworthiness. Moreover, we may in such event demand prepayments or a security deposit or rescind the agreement.
§ 5 Quantity, Quality, Labeling
(1) At all times, we shall have the right for custom-made products to supply 10 % more or less than the agreed amount.
(2) We shall have the right to reasonable delivery in installments.
§ 6 Shipment, Delivery
(1) The goods shall be transported uninsured and in any event at the risk of the Buyer. This shall also apply in cases of any delivery free of charge and regardless of which means of transport shall be used. Any transport insurance shall be provided only upon express demand of the Buyer. Any costs arising there from shall be at the expense of the Buyer only.
(2) The selection of the place of dispatch and the transport route and the means of transport shall, in the absence of any written arrangement dictating otherwise, be subject to our reasonable discretion and be without liability for the cheapest and fastest transport.
(3) If the Buyer provides the means of transport, then he shall be responsible for its availability on time. We shall immediately be informed of any delays. Any costs arising therefrom shall be at the expense of the Buyer.
(4) Our delivery obligation shall at all times be subject to timely and orderly receipt of the goods from our own suppliers.
(5) Unless otherwise expressly agreed in writing, any indicated time of delivery or unloading shall be non-binding.
(6) Any inability to supply as a result of force majeure or other unforeseen incidents outside our responsibility including, without limitation, strike, lock out, acts of public authorities, subsequent cease of export or import opportunities and our reservation of timely supply from our own supplies in accordance with subsection (5) above shall, for their duration and in accordance with their impact, relieve us from the obligation to comply with any agreed time for delivery and unloading. Further, the above inability to supply gives us the right to withdraw from the contract without giving the right to the Buyer to claim for indemnity or other rights.
(7) If any agreed time of delivery or unloading shall be exceeded and there shall be no incident referred to in subsection (6) above, then the Buyer must specify to us a reasonable cure period of minimum two weeks. If we shall fail to meet such deadline also, then the Buyer shall have the right to rescind the agreement but shall have not right to seek compensation for breach of contract or default unless in cases of wilful misconduct or gross negligence on our part.
§ 7 Duty of Inspection and Objection
(1) Upon delivery at the agreed destination or in the event of self supply upon taking possession, the Buyer shall immediately control the goods and conduct a quality check representatively on a spot check basis.
(2) The Buyer shall notify the defect directly upon receipt of the goods. If the Buyer fails to notify this defect the goods shall be deemed to be accepted unless it is a defect that was not visible during the control. Further, we refer to §§ 377 et seq. HGB (commercial code).
§ 8 Warranty
(1) A cancellation of the contract, in whole or in part, is possible as long as the order has not been processed. We do not accept any responsibility for cancellation requests which are not received in due time. The Buyer is obligated to accept the order if the cancellation is submitted late.
In individual cases, fair consideration will be given to requests for retroactive cancellation or the exchange of defect-free consignments. We reserve the right to charge lump-sum compensation for expenses in the amount of 10 % of the net order value in such cases. Exchanges or return deliveries are subject to our prior agreement and may not be shipped freight forward.
If the Buyer, contrary to agreement, returns the goods freight forward, he shall be obligated to bear the costs billed to him by our company to cover the expenses. The costs in this case shall comprise the remuneration which is due and lump-sum compensation for expenses in the amount of 10 % of the net order value.
(2) In case the defects are not remedied within a reasonable time or if the repairs fail to remedy the defects, the Buyer is entitled to reduce the purchase price or to withdraw from the contract.
(3) The right of the Purchaser to bring actions arising out of defects shall in all cases be in lapse 1 year after the date of delivery.
(4) The warranty obligation does not refer to natural wear and tear nor to damage occurring after the transfer of risk due to improper or unsuitable handling, excessive stressing, unsuitable operating material, and chemical, electrochemical or electrical influences of a nature not provided for according to the contract. On improper alterations or repairs or maintenance carried out by the Purchaser or third parties our warranty obligations and liability for consequences caused thereby are rendered void.
(5) Our retreated units are thoroughly checked before they are sold. Anyhow, we are not liable for any material deficiency.
§ 9 Liability
Otherwise we are liable according to legal rules as far as we have culpably infringed a constitutive contract obligation; in this case however the liability for indemnity is limited to the predictable, typically incurred damage. The liability due to culpable injury of life, body or health remains unaffected. The same is valid for the compulsory liability according to the product liability rule. Any liability not expressly provided for above shall be disclaimed.
§ 10 Retention of Title
(1) We shall retain full title of the goods that have been delivered until the Buyer has discharged all claims arising from the business relationship which shall include any account balance and claims from refinancing or reverse promissory note.
(2) The Buyer shall have the right to dispose of the goods delivered by us within the ordinary course of business and shall be authorised to collect any receivables arising from the resale of goods. The authority granted hereunder shall cease in the cases referred to in §4 (4) above. Moreover, we may withdraw the sales authority of the Buyer through written notice if it shall be in breach of any obligation owed to us and shall in particular be in payment default or we shall become aware of other incidents that give rise to doubts about its creditworthiness.
(3) The Buyer’s right to process the goods delivered shall also be subject to the limitations set out in sub-section (2) above. The Buyer shall not acquire title to the fully or partly processed goods; the processing shall be free of charge for our benefit as Manufacturer in the sense of § 950 BGB (German Civil Code). If we should, for whatever reason, lose our rights under the retention of title, then it is hereby agreed between us and the Buyer that we shall acquire title upon processing of the goods and the Buyer shall remain custodian of the goods which shall be free of charge.
(4) If the goods in which we have retained title shall be inseparably assembled or mixed with goods that are third party property, then we shall acquire co-title in the new goods or the mixed stock. The proportion of title shall follow from the proportion of the invoice value of the goods delivered by us under retention of title and the invoice value of the other goods.
(5) Goods in which we shall acquire sole or co-title in accordance with subsection (3) and (4) shall, the same as with regard to the goods delivered under retention of the title according to subsection (1) above, be regarded as goods delivered under retention of title for the purposes of the following paragraphs.
(6) The Buyer hereby assigns to us all claims arising from the resale of the goods delivered under retention of title. Such claims shall also include claims against the bank which, within the scope of such sale, shall have issued or confirmed a letter of credit for the benefit of the Buyer (=reseller). We hereby accept such assignment. If the goods delivered under retention of title shall be a processed good or a mixed stock, where, in addition to the goods delivered by us, only such goods exist that are either the Buyer’s property or a third party property as a result of a (simple) retention of title, then the Buyer shall assign all of the claim arising from the resale. In the other case, i. e. in the event of a conflict between pre-assignment claims by other suppliers, we shall be entitled to receive any resale proceeds on a pro rata basis which shall be determined in proportion to the invoice value of our goods and the other processed or mixed goods.
(7) Insofar as the above securities exceed the secured claim by more than 10%, we are obligated, upon our election, to release such securities upon the purchaser’s request. § 11 Final Provisions (1) This contract shall be governed by the laws of the Federal Republic of Germany excluding the Convention on Contracts for the International Sale of Goods.
(2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract are at the first instance courts in Villingen-Schwenningen / Germany.
(3) The invalidity of any provision of these general terms and conditions shall not affect the validity of the other provisions. Invalid provisions shall be deemed to be replaced by such valid provisions that shall be suitable to implement the economic purpose of the deleted provision to the greatest extent possible.