General Terms & Conditions of Sales and Delivery
Status 1. February 2021
1. Validity of our General Terms and Conditions of Business
1.1 Our Terms and Conditions of Sale and Delivery apply exclusively. They also apply tofuture transactions entered into with the contracting party. The contractingparty’s general terms and conditions of business to the contrary or those thatdiffer from our Terms and Conditions of Sale and Delivery shall only be deemedan integral part of the contract provided we have expressly consented to thevalidity of such conditions in writing. Our General Terms and Conditions ofSale and Delivery shall only apply if the contracting party is an entrepreneur(Section 14 BGB (German Civil Code), a legal person under public law or specialpublic funds.
1.2 The contracting party shall be notified in writing of any amendments to our GeneralTerms and Conditions of Sale and Delivery. They shall be deemed approved if thecontracting party does not object to them in writing. We shall make specialreference to this consequence at the time of notification. The contractingparty is to send the objection to us within one month of notification of theamendment.
2. Bringing about the contract
The contracting party’s order is a bindingoffer. We may accept this offer at our discretion within 2 weeks by sending awritten order confirmation or by sending the ordered goods to the contractingparty within this period. Our offers are subject to change without notice andonly represent an invitation to the contracting party to place an order.
3. Prices, packaging
3.1 Unlessotherwise stated in the order confirmation, our prices are ex works and excludepackaging and freight. Our prices are net prices. The respective statutoryvalue added tax shall be charged separately.
3.2 In the case of contracts where the period between entering into the contract andthe delivery date (delivery period) is more than 4 months, we reserve the rightto increase the prices in accordance with the cost increases that have occurreddue to collective agreements or mate-rial price increases.
3.3 Packagingand freight costs shall be invoiced at cost price. Hire pallets shall remainour property and are to be returned in perfect condition with the followingdelivery. Returning equivalent and similar pallets is permissible. We shallinvoice the cost price if the return does not occur within one month followingdelivery.
3.4 The contracting party is entitled to return transport packaging of our deliveriesto our registered office. The packaging must be clean, free of foreign bodiesand sorted according to materials. Otherwise, we shall be entitled to chargethe contracting party for the additional cost incurred for disposal.
Our claims are to be settled without delay ordeduction, at the latest within thirty days following receipt of delivery.Timely receipt of payment by us within this period is authoritative. However,we are also entitled at any time, as part of current business relations, tomake a delivery in full or in part subject to advance payment only. We shallstate such a corresponding reservation at the latest upon confirmation oforder.
5. Retention rights, setting off
The contracting party shall only be entitled tosetting-off or retention rights insofar as its claim has become res judicata oris undisputed. The buyer’s counter rights shall not be affected in the case ofdelivery errors, in particular in accordance with section 10 of these GeneralTerms and Conditions of Sale and Delivery.
6. Delivery, passing of risk and defaultin delivery
6.1 The expected delivery date isagreed individually and is set out in our order confirmation. An agreeddelivery period shall be extended appropriately if the contracting party failsto provide in good time documents, records, materials or the like it is toprocure which are required to process the order.
6.2 Deliveries shall be made ex works. The delivery deadline shall be deemed met if the goodsleave our premises on the delivery date.
6.3 Wemay make reasonable and acceptable partial deliveries and invoice them separately,unless a special interest on the part of the contracting party is apparent in acomplete delivery.
6.4 The risk of accidental loss and accidental deterioration shall pass to the contractingparty up-on delivery of the goods to the forwarding agent, the carrier or theperson or institution otherwise designated to carry out the shipment or, in thecase of transport by our own employees, upon handover to them and departurefrom our premises. This also applies if we bear the shipping costs.
6.5 If it becomes apparent afterentering into the contract that our claims are at risk due to the contractingparty’s inability to pay, we may demand advance payment/advance performance ifthe contracting party does not make sufficient security available to us.
6.6 If we default in delivery, the contracting party must first set us a reasonabledeadline for sub-sequent performance. The deadline must be at least 14 days.Only once this period of grace has expired in vain shall the contracting partybe entitled to withdraw from the contract and claim damages.
6.7 Claims for damages by the contracting party due to delay in performance and claims fordamages instead of performance are limited to the order value. This shall notapply if we are guilty of intent or gross negligence or in the event of loss oflife, physical injury or detrimental effects on health. The above does notimply a change in the burden of proof to the detriment of the contractingparty.
6.8 If delivery is delayed at the request of our contracting party or for reasons forwhich the contracting party is responsible, we shall be entitled to demand aflat rate storage fee of 0.5% of the net value of the goods for each month orpart thereof, but not more than 10% of the net order value. The contractingparty shall be entitled to furnish proof that no costs or only lower costs havebeen incurred. The flat rate storage fee shall then be reduced accordingly. Wereserve the right to prove higher costs or greater damage.
7. Foreign deliveries
In addition, the following applies to foreign deliveries:
7.1 Our price quotations exclude fees and the cost of procurement and certification of certificates of origin, consular factors, permits and the like. Unlessotherwise agreed, these fees and costs shall, at all times, be borne by the buyer.
7.2 Agreeddelivery periods shall be extended if this is due to export formalities.
7.3 Paymentis to be made in euros. Foreign bank charges shall be borne by the contractingparty.
7.4 If the contracting party does not open letters of credit within the agreed period,we shall have the right to withdraw from the contract without having to set aspecial grace period.
8. Cases of force majeure shall release us from our obligation to perform until the force majeure ceases to exist.
8.1 Cases of force majeure shall release us from our obligation to perform until theforce majeure ceases to exist. Delivery periods shall be extended and deliverydates postponed for the duration of the force majeure. This shall not apply ifwe are responsible for the performance hindrance. However, we shall not beresponsible for the force majeure even if it occurs at a time when we arealready in default. In the event of impossibility of an adequate supply withraw materials and supplies, the impossibility of procuring means of transport,strikes and lock-outs are equated with a case of force majeure. We shall informthe contracting party without delay of the occurrence of force majeure andextension of the delivery period or postponement of the delivery date.
8.2 If the performance hindrance in accordance with Section 8.1 lasts longer than sixweeks, both we and the contracting party may withdraw from the contract. Thecontracting party may also withdraw from the contract before this ifperformance at a later date would be of no interest to the contracting party.
9. Reservation of title
9.1 We reserve ownership of all goods delivered by us until all present and futureclaims arising from the purchase contract and the ongoing business relationshipbetween us and the contracting party have been settled, irrespective of thelegal basis. In the event of inclusion in a current account, the reservation oftitle shall apply to the respective balance. Taking back the goods does notconstitute a withdrawal from the contract. However, we shall be entitled totake back the goods in the event of a default in payment on the part of thebuyer. The goods shall be credited with the actual proceeds following deductionof the cost of utilizing and taking back the goods. Seizure of the object ofsale by us shall, at all times, constitute a withdrawal from the contract. Thecontracting party undertakes to insure our property against fire, water and theft.The claims against the insurance company are assigned to us.
9.2 Thecontracting party may process the goods in the ordinary course of business orresell them by way of agreement of an extended and expanded reservation oftitle. The contracting party is not entitled to otherwise dispose of the goods.The contracting party’s right to process and sell the goods shall cease toapply if it fails to honor its payment obligations to us, otherwise grosslybreaches the contracts entered into with us or suffers financial collapse.Cessation of payments, over-indebtedness, filing for insolvency proceedings andany other serious change in the financial circumstances of the contractingparty which may lead to a risk to our securities shall be deemed financialcollapse. The contracting party is to notify us in writing without delay if anapplication is filed for the institution of insolvency proceedings or in thecase of access by third parties (e.g. seizure) to the goods that are ourproperty.
9.3 Processingof the goods subject to reservation of title shall apply on hour behalf (Section950 BGB). If the contracting party processes goods for us and other suppliersat the same time, we shall be entitled to co-ownership in accordance withSection 947 f. BGB. If the contracting party combines or mixes our items withan item it owns in such a way that the contracting party’s item is to beregarded as the principal item, the customer hereby as-signs to us aco-ownership share in the main item in the proportion of the value of our itemto that of the principal item. Our co-ownership share shall remain in thepossession of the contracting party, which shall keep the item on our behalf.
9.4 The contracting party shall assign to us the claims and ancillary rights arisingfrom the resale in proportion to our share of ownership. The contracting partyis not entitled to agree on a prohibition of assignment. Partial payments madeby the customer of the contracting party to the contracting party shall bedeemed to have been initially set off against other claims of the contractingparty and shall only be deemed to have been set off against ours after theyhave been settled in full. The contracting party shall be entitled to collectthe assigned claims in the ordinary course of business. This authorizationshall lapse in the cases referred to in 9.2. In such cases, we are entitled todisclose the assignment to the contracting party’s customer. The contractingparty shall then undertake to co-operate in the collection of the claim.
9.5 Atthe contracting party’s request, we undertake to release the securities towhich we are entitled in accordance with the above provisions at our discretionto the extent that their realizable value exceeds the claim to be secured bymore than 20%.
9.6 The following shall apply in addition to foreign deliveries: Insofar as the law ofanother country does not permit the reservation of title, but allows us as theseller to reserve other rights to the delivery item, we may exercise all rightsof this kind. The contracting party undertakes to co-operate in such measureson our part as we may wish to take to protect our title or, in lieu thereof,any other security interest in the delivery item.
10. Liability in the case of defects
10.1 If the contracting party is a merchant, Section 377 HGB (German Commercial Code)shall apply to the obligation to provide notification of defects. If thecontracting party is not a merchant, the following shall apply: The contractingparty shall notify us of obvious defects without delay, at the latest within 14days of receipt of the delivery/service. Timely dispatch of the notificationshall mean the deadline has been met if we receive the notification later. Ifthe notification is not made or not made in good time, the goods/services shallbe deemed to have been approved.
10.2 In the event of a material defect, weshall initially be entitled, at our discretion, to rectify the defect ordeliver a fault-free item (subsequent performance). In the event of subsequent performance,the contracting party undertakes to provide us with a detailed written descriptionof the defects for which it has made a complaint. In the event of subsequentperformance, we undertake to bear all expenses required for the purpose ofsubsequent performance, in particular transportation, travel, labor andmaterial costs. If the subsequent performance fails or is unreasonable for thecontracting party, it may with-draw from the contract or reduce theremuneration.
10.3 If our performance entails material defects, we shall only be liable for damagesif we are guilty of intent or gross negligence or if we have assumed aguarantee. This does not affect Section 11 of these General Terms andConditions of Sale and Delivery. This does not affect the contracting party’sright to withdraw from the contract, to reduce the purchase price or to demandreimbursement of expenses in the event of a material defect.
10.4 The limitation period for claims for defects shall be one year from delivery of theitem or, insofar as acceptance has been agreed or is prescribed by law, uponacceptance of the service. This does not apply in the case of a building or anitem which has been used for a building in accordance with its customary mannerof use and has brought about the defect in the building or item. This does notaffect Section 445b BGB.
10.5 The warranty for material defects is excluded in the case of contracts for thedelivery of used goods by us.
Our liability for any legal reason shall be limited to intent and grossnegligence. The limitation of liability shall not apply in the event of abreach of material contractual obligations, in the event of loss of life,physical injury of detrimental effects on health, product liability and othermandatory legal provisions and to the extent that reasonable and customaryinsurance cover is sufficient. Our liability for basic negligence is limited inthe event of a breach of material contractual obligations (cardinalobligations) to compensation for the foreseeable damage typical regarding thecontract. This does not affect further-reaching liability limitations in ourGeneral Terms and Conditions of Sale and Delivery.
12.Property rights, secrecy
12.1 Wereserve the property rights and copyrights to all samples, models, drawings,cost estimates, quotations, calculations and similar information of a physicalor non-physical nature, including in electronic form. Such information may notbe made available to third parties without our prior, written, con-sent. If thecontracting party receives such information in conjunction with the initiationof the contract, the contracting party undertakes to return it to us free ofcharge if the contract is not entered into.
12.2 Thecontracting party undertakes to make available only to third parties with our express,written, consent any information expressly designated by us as confidential, orfor which a requirement to maintain secrecy arises from the circumstances.Third parties within the meaning of these General Terms and Conditions of Saleand Delivery also include companies affiliated with the contracting partywithin the meaning of Section 15 AktG.
13.1 These General Terms and Conditions of Sale and Delivery and the contractual relationshipbetween us and the contracting party are subject to German law. German substantiveand formal law shall also be applicable if German law specifies theapplicability of foreign law. Application of the UN Convention on Contracts forthe International Sale of Goods is excluded.
13.2 Karlsruheshall be deemed the exclusive place of jurisdiction if the contracting party isa merchant. The same applies if the contracting party is an entrepreneur withinthe meaning of Section 14 BGB. However,we are also entitled in all cases to bring legal action at the place ofperformance for the delivery obligation according to these General Terms and Conditionsof Sale and Delivery or a prior individual agreement or at the contractingparty’s general place of jurisdiction. This does not affect overridingstatutory requirements, in particular in respect of exclusive jurisdictions.