GENERAL TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT
1. Applicability of our General Terms and Conditions of Business
These terms of delivery shall apply to all business transactions with persons who, when entering into the contract, act in exercise of their commercial or independent professional activity (entrepreneurs) and to business transactions with legal persons under public law or special funds under public law.
Our terms of sale and delivery shall apply exclusively; they shall also apply to future business transactions with the contract partner.Terms of the contract partner that diverge from our terms of sale and delivery shall not be valid even if we do not expressly object to them. We shall be entitled to cancel the contract if our contract partner objects to the applicability of our terms of sale and delivery.
Any amendments to our General Terms and Conditions of Business shall be made known to the contract partner in writing.kk
They shall be deemed to have been approved if the contract partner does not object in writing. We shall make special reference to this consequence when notifying the contract partner of said amendments. We must receive the contract partner’s objection within one month of its receipt of the notification of amendments.
2. Formation of the Contract / Written Form
An order placed by the contract partner shall constitute a binding offer. We may, at our option, accept this offer within 2 weeks by sending a written order confirmation or by sending the contract partner the ordered goods within this period.
Our offers shall be subject to change and constitute merely an invitation to the contract partner to place an order.
The written form for which provision is made in these General Terms and Conditions of Business shall also always be deemed to have been upheld if the required declaration is made in a textual form that complies with Section 126b of the German Civil Code (e.g. via fax or e-mail).
3. Prices, Packaging
Unless otherwise stated in the order confirmation, our prices shall apply ex works exclusive of packaging, freight, assembly and insurance. Our prices shall be net prices. Any VAT shall be charged separately. The prices shall apply only to the respective order and shall not be binding for follow-on orders.
Packaging, freight and insurance costs, as well as assembly costs, shall be invoiced additionally. Packaging and freight costs shall be charged at cost price.
The contract partner shall be entitled to return the transport packaging from our deliveries to our place of business. The packaging must be clean, free of impurities and sorted by material. We shall otherwise be entitled to charge the contract partner for any additional costs incurred during disposal.
If we have taken over installation or assembly of the goods, the contract partner shall, in addition to the agreed remuneration, bear all costs occasioned by the assembly, particularly travel expenses, costs of transporting tools and personal luggage, as well as out-of-pocket expenses.
We shall be bound by the prices agreed for an order for four months from contract formation. If longer periods for providing the goods or rendering the service have been agreed, we shall be entitled, in the event of an increase in material or wage costs based on our original pricing, to make a pro rata surcharge for the cost increase that has occurred.
4. Payment / Discount / Default of Payment
Our receivables shall be paid without deduction immediately on receipt of delivery. Bills of exchange and cheques shall be accepted pending full discharge of the debt. Costs and out-of-pocket expenses shall be charged to the contract partner.
All payments must be made in EUR (€). Any foreign bank charges incurred shall be charged to the contract partner.
If the contract partner defaults on payment, we shall be entitled to demand annual arrears interest in the statutory amount of eight percentage points above the relevant base rate. We shall reserve the right to furnish proof of higher damage caused by default and to assert such, unless the contract partner proves that the delay in payment is beyond its control.
If the contract partner is obliged to make payment based on more than one delivery, payments shall be credited as follows:
payment shall first be made to the debt owing and, if there is more than one debt owing, to that debt which offers us less security. A payment that does not suffice to repay the entire debt shall be credited first against costs, then against interest and finally against the main payment. Any divergent repayment provision made by the contract partner shall be deemed to be invalid.
5. Set-Off / Rights of Retention
The contract partner shall only be entitled to set off against its own claims if its counterclaims are legally established, uncontested or acknowledged by us.
The contract partner shall be entitled to exercise a right of retention only in respect of claims that are legally established, uncontested or acknowledged by us. The contract partner may, in the event that parts of the goods or service have defects, only retain payment of remuneration in the amount that is equivalent to the reduction in value of the defective goods or service. We shall be entitled to forestall rights of retention – including the defence of an unfulfilled contract – by furnishing security, which may also be provided in the form of a bank guarantee. The security shall be deemed to have been furnished at the latest at the time the contract partner defaults on accepting the security.
6. Right to Withhold Performance in the Event of Deterioration in Financial Situation
If, after we have entered into the contract, it becomes evident that our claim to payment of the purchase price is endangered owing to the contract partner’s lack of ability to pay, we shall be entitled to assert a right to withhold performance in respect of delivery of the goods and to demand advance payment. This shall apply, in particular, if insolvency proceedings are instituted against the contract partner, the contract partner defaults on payment of receivables due from other contractual relationships, surrendered bills of exchange or cheques are not paid or the limit set by a credit insurer has been exceeded or would be exceeded by the intended delivery.
The right to withhold performance shall not apply if the contract partner effects payment or provides sufficient security herefor in the form of a bank guarantee.
We may set the contract partner a reasonable period in which to make the payment or provide the security, with such period not exceeding ten days. If this period elapses without success, we shall be entitled to cancel the contract and to demand damages.
7. Delivery, Transfer of Risk, Late Delivery
The delivery date shall be based on our order confirmation. In other respects, periods or dates for delivery and performance shall only be binding if we have confirmed them in writing. The delivery period shall be extended commensurately if the contract partner fails to supply in a timely manner the documents which are to be provided by it and are required for execution of the order.
Deliveries shall be made ex works. The delivery period shall be deemed to have been complied with if the goods leave our plant on the delivery date, we provide, within the period, notification that the goods are ready for dispatch or agree, with the contract partner, a date for delivery or performance.
We may make appropriate and reasonable partial deliveries and bill them separately, unless the contract partner’s particular interest in one overall delivery is apparent.
The risk of accidental destruction and accidental deterioration shall pass to the contract partner on delivery of the goods to the forwarding agent, the freight carrier or person or entity otherwise designated to execute the shipment, or, in the event that transportation is carried out by our own employees, on surrender of the goods to said employees and departure from our plant. This shall also apply if, exceptionally, we bear the shipment costs. If the shipment is delayed for reasons beyond our control, the risk shall be transferred on notification of readiness for dispatch.
If delivery is delayed due to the occurrence of events that could not be avoided by us and were not foreseeable when the contract was entered into (e.g. force majeure, insufficient supply of raw and auxiliary materials or energy, other business disruptions, impossibility of procuring means of transport, industrial disputes, official interventions etc.), the delivery period shall be extended by the duration of the impediment to performance, but by no more than two months plus a reasonable start-up time of at least one week from removal of the impediment to performance. If, for the aforementioned reasons, delivery becomes impossible, we shall be released from the obligation to deliver.
We shall notify the contract partner immediately of any foreseeable extension of the delivery period or of the definitive impossibility of performance and, in the event of impossibility, reimburse any considerations that have already been received.
We shall only be deemed to be in default if the contract partner has first set us a reasonable period, of at least 14 days, for fulfilment of our contractual obligations, unless we have previously refused to provide performance definitively and in earnest. The requirement of the period for fulfilment shall also apply in the event of calendar-based specification of the period for performance pursuant to Section 286 (2) 1 and 2 of the German Civil Code. Only after said grace period has elapsed without success shall the contract partner be entitled to cancel the contract and to demand damages.
The contract partner’s claims for damages due to delayed performance and claims for damages in lieu of performance shall be limited to the value of the overall delivery. This shall not apply if we or our vicarious agents are held culpable of wilful intent or gross negligence or in the event of injury to life, limb or health. The provisions in this paragraph shall not imply any change in the burden of proof to the detriment of the contract partner.
If delivery is delayed at the instigation of our contract partner or for reasons for which it is responsible, we shall be entitled to demand warehouse charges in the amount of 0.5% of the gross value of the goods for each month or part thereof, unless the contract partner furnishes proof of smaller damage. In such cases, risk shall pass to the contract partner on the day on which the goods are made available and a corresponding shipping advice sent to the contract partner.
8. Quality of the Object of Sale
The quality that is customary for items of the same type and that the purchaser can expect according to the type of item shall be agreed. Characteristics of quality or of use intended under the contract that go beyond the aforementioned shall require express agreement in writing.
In the event of delivery of mass-produced articles, divergences from drawings, dimensions and weights such as are customary in the trade shall be permitted.
9. Liability for Material Defects
Obvious defects must be notified in writing no later than within one week of the day of delivery. Hidden defects must be notified in writing by the contract partner no later than one week after their discovery. The contract partner shall be obliged to provide us with a detailed written description of the defects to which it is objecting. If the notice of defects is not forthcoming or if it is late, the contract partner shall forfeit its claims due to any existing defects in the object of sale. Processing, undertaken by us, of any notification of defects, particularly our inspection of the goods subsequent to return by the contract partner shall, under no circumstances, imply waiver of the contract partner’s compliance with the obligation to give notification of defects.
The contract partner shall also be obliged to accept delivery in cases in which the goods have only minor defects.
In the event of a defect, we shall, at our option, initially be entitled to remedy the defect or to supply an object free of defects (supplementary performance pursuant to Section 439 (1) of the German Civil Code). We shall be obliged, in the event of supplementary performance, to bear all expenses required for the purpose of said supplementary performance, particularly transport, travel, labour and material costs, provided that said costs do not increase as a result of the goods being delivered to a location other than the place of performance.
We shall be allowed to refuse supplementary performance if it is only possible at disproportionate expense; this shall be the case, in particular, if
the expenses involved in remedying the defect are expected to exceed 100% of the market value of the object of sale;
the costs that we incur in providing the replacement exceed, in the event of subsequent delivery, 150% of the market value of the object of sale.
The contract partner’s other statutory rights (reduction in price, cancellation, damages or compensation for futile expenditure) shall remain unaffected.
Unless otherwise prescribed by law, the contract partner shall first be obliged to set us, in writing, a reasonable period for supplementary performance, before being able to assert other warranty rights. As a rule, we shall be granted a minimum period of three weeks for supplementary performance in the event of delivery of goods and ten working days in the event of delivery of spare parts; this shall not apply if a shorter period has been contractually agreed on an individual basis or a shorter period is mandatory, e.g. in urgent cases in which disproportionately great damage is imminent or operational safety endangered.
If the supplementary performance does not take place within this period, the customer shall be entitled to assert its statutory rights, i.e. to cancel the contract, to assert a reduction of the purchase price or, on the preconditions set forth in Item 11, to demand damages.
No grace period shall be required if we have refused supplementary performance definitively and in earnest, or supplementary per formance is impossible.
Cancellation of the contract shall be excluded if the object of sale has only minor defects. Minor defects shall be deemed to exist, in particular, if there are only insignificant differences from the contractually agreed quality and if there are only insignificant impairments of the usability of the goods intended under the contract.
Liability for defects shall be excluded
in the event of natural wear and tear of the object of sale,
in the event of defects or damage to the object of sale which arise, after transfer of risk, due to incorrect or negligent handling, excessive load or use of unsuitable operating materials,
in the event of defects or damage to the object of sale, which arise, after transfer of risk, due to special external influences which have not been contractually presupposed or
if the contract partner itself has carried out, or asked third parties to carry out, repair work without said work being absolutely essential.
The contract party may only demand damages in lieu of performance if delivery of the defective object implies a significant breach of duty.
Claims to compensation based on any concomitant damage that occurs independently of supplementary performance (loss of production, claims due to late delivery to the contract partner’s customers etc., pursuant to Section 280 of the German Civil Code) may only be asserted if a period for supplementary performance stipulated to us in writing has expired without results. In other respects, Item 11 shall apply to claims for damages.
The contract partner’s claims based on defects in the object of sale shall lapse within one year of the delivery of said object. If the contract partner wishes to cancel the contract or assert reduction in purchase price, said rights shall likewise be excluded one year from delivery of the object of sale. The curtailment of the warranty period shall not apply in the event of wilful intent or malice.
If the period for supplementary performance has expired without success, we shall have the right to request the customer, specifying a deadline of one month, to assert its remaining warranty rights in relation to us. If it fails to make said assertion within this period, warranty rights shall be excluded; this shall only apply if, when making the request with specification of deadline, we make express reference to this legal consequence.
Over and above the aforementioned warranty, we shall give no guarantee as to the quality of the object of sale supplied by us.
10. Liability for Damages and Futile Expenditure
Our liability for damages and for compensation for futile expenditure, on whatever legal grounds, shall be limited to gross negligence and wilful intent. This shall also apply to breaches of duty on the part of our statutory representatives and vicarious agents.
In the event of ordinary negligence, our liability, on whatever legal grounds, shall be limited to breach of material contractual obligations; the amount of any claim for damages shall be limited, in such cases, to compensation for typical foreseeable damages. The contract partner shall be obliged to inform us in writing, prior to formation of the contract, of particular risks, atypical possibilities of damages and unusual levels of damages. Liability for any consequential damages that go beyond this, lack of economic success, indirect damages, damages arising from third-party claims shall be excluded.
No limitations of liability shall apply to claims relating to injury of life, limb or health or to claims arising from the Produkthaftungsgesetz (German Product Liability Act) and other mandatory regulations that establish liability (Umwelthaftpflichtgesetz (German Environmental Liability Act) etc.).
If an object defined solely by its class is the subject of the sales contract, our liability shall also be determined, in this case, in accordance with the existing rules; liability independent of fault shall be excluded.
In addition, we shall also be liable, if, exceptionally, we have given guarantees, for fulfilling these guarantees to the agreed extent; guarantees shall require the written form and must be expressly designated as such.
11. Duties of Protection and Considerateness
Our contract partner shall, in the event of a breach of the duties of protection and considerateness pursuant to Section 241 (2) of the German Civil Code which are not directly related to delivery of the goods, and for which breach we are responsible, be entitled to assert claims for compensation and to exercise its right of cancellation only if we have previously been sent a warning letter in respect of the breach of duty. This shall not apply if we, our representatives or vicarious agents are held culpable of wilful intent or gross negligence, or in the context of injury to life, limb or health.
12. Retention of Title
We shall retain title to all goods supplied by us until such time as all, including future, receivables arising from the business relationship with the contract partner have been settled. In the event of allocation to an open account, the retention of title shall apply to the respective balance.
In the event of the contract partner’s culpable breach of contract, particularly in the event of its being in default of payment, we shall be entitled to take back the delivery item even without prior cancellation of the contract. The contract partner shall be obliged to surrender said item. The fact that we take back the goods shall not constitute cancellation of the contract unless we have expressly declared this in writing. The goods that have been taken back shall be credited with the actual proceeds after deduction of liquidation and take-back costs.
The contract partner shall notify us immediately in writing of any seizures or other third-party attacks, thereby enabling us to file an action pursuant to Section 771 of the Zivilprozessordnung (Code of Civil Procedure – ZPO). If the third party is unable to reimburse us for the judicial and extrajudicial costs of a legal action pursuant to Section 771 of the ZPO, the contract partner shall be liable for any costs incurred by us.
The contract partner shall be obliged to insure our property against fire, water, and theft. Claims against the insurance company shall be deemed to have been assigned to us.
The contract partner shall be entitled to sell on the delivery item in the ordinary course of business if, in the event of incomplete payment on the part of its customer, it, in turn, supplies the item subject to retention of title. The onward sale shall not be deemed to have been made in the ordinary course of business if the contract partner has agreed, with its customer, an effective prohibition on assignment; allocation to an open account shall, however, be permitted.
In the event of an onward sale, the contract partner shall hereby assign to us all receivables in the amount of the final invoice sum (including VAT) which arise to it from the onward sale, against its customers or against third parties, irrespective of whether the delivery item has been sold on without or after processing. The contract partner shall also be authorized to collect said receivables after their assignment. Our authority to collect the receivables ourselves shall be unaffected hereby; we shall, however, undertake not to collect the receivables as long as the contract partner duly complies with its payment obligations vis-à-vis us and is not in default of payment. In the event of any failure by the contract party in this regard, we may demand that it makes known to us the assigned receivables and their debtor, provides all information required for collection, surrenders the corresponding documents and informs the debtor (third party) of the assignment.
Any processing or reconstitution of the delivery item carried out by the contract partner shall always be undertaken on our behalf. If the delivery item is processed using other items that do not belong to us, we shall acquire co-ownership of the new object in the same proportion as that of the value of the delivery item to the other processed items at the time of processing. In other respects, the same shall apply to the object that is created by means of processing as to the goods subject to retention of title; the customer receivables acquired by the sale of the processed object shall be assigned to us in the amount of our co-ownership share.
If the delivery item is inseparably combined or mixed with other items that do not belong to us, we shall acquire co-ownership of the new object in the same proportion as that of the value of the delivery item to the other combined or mixed items at the time they are combined or mixed. If the combination or mixture is carried out in such a way that the object of the purchaser must be regarded as the main object, it shall be deemed to have been agreed that the contract partner transfers co-ownership to us proportionally. The contract partner shall hold the sole property or joint property in safe custody for us.
We undertake, at the request of the contract partner, to release the securities to which we are entitled, insofar as their value exceeds the receivables to be secured by more than 20%, providing said receivables have not yet been settled. A claim for return may not be asserted if and to the extent that a claim for release is in conflict therewith.
13. Tools and Moulds
We undertake to manufacture and supply the moulds and tools ordered from us in accordance with the agreed specification and state of the art.
The ordering party shall be obliged to inspect reference samples manufactured by us without delay and to inform us of the inspection result. If notification is not made within 10 days of receipt of the reference samples, the reference samples and the tool shall be deemed to be free of defects.
The price per tool quoted by us to our customer shall only ever be proportionate and we shall thereby automatically acquire coownership.
33 1/3% of the price quoted to the customer shall fall due on confirmation of the order, 33 1/3% on submission of the reference samples and 33 1/3% on defect-free acceptance of the tool no later than 30 days after initial sampling has taken place.
Any design changes shall require prices and delivery times to be re-agreed. Any costs incurred up to this point in time shall fall due and be reimbursed to us immediately.
If we manufacture in accordance with tools and moulds submitted to us by the ordering party, we shall not be responsible for manufacturing defects and any delayed delivery attributable to the condition of said tools and moulds.
If the ordering party fails to remedy said defect in the tool within 14 days and we are thereby unable to carry out complete execution of the delivery order placed with us, we shall be entitled to refuse delivery and to demand damages.
We shall be entitled to demand an annual flat fee of 8% of the tool price plus VAT for customer tools that remain with us. This flat fee shall serve to cover costs incurred by us for maintenance, care and insurance of the tool in question. We shall undertake maintenance and care of the tools in our possession, but such maintenance and care shall not cover:
Tool breakages and damage attributable to natural ageing of the tool.
We shall only be obliged to surrender customer tools if the aforementioned flat fee has previously been paid. We shall have a right to retain the tools until such time as the ordering party has complied, to the full extent, with all its contractual obligations in relation to us. We shall only be obliged to surrender tools which we co-own if the aforementioned flat fee has previously been paid and the other co-owner has acquired our co-ownership share through payment.
14. Limitation Period
If negotiations in respect of a claim are pending between us and the contract partner, the limitation period shall be suspended (Section 203 of the German Civil Code). The suspension of the period of limitation shall cease no later than six months after the last written declaration of one of the parties in connection with the negotiations in respect of the claim, unless one of the parties to the contract provides written notification of the end of the negotiation at an earlier point in time.
15. Property Rights / Confidentiality
The contract partner shall vouch that, in respect of the documents, items and such like submitted to us for the purposes of the delivery or performance, no third-party property rights are infringed. We shall inform the contract partner of any third-party rights known to us. The contract partner shall indemnify us against third-party claims and reimburse us for any loss incurred. If we are prohibited, by a third party, from carrying out performance, manufacture or delivery through invocation of a property right belonging to it, we shall, without examination of the legal position, be entitled to cease work and demand compensation for our expenditure. Submitted documents, items and such like which have not resulted in the order shall be returned on request against reimbursement of costs. Otherwise, we shall be entitled to destroy said documents and items three months after submission of the offer.
We reserve ownership rights and copyrights to all patterns, models, drawings, cost estimates, calculations and similar information, whether physical or non-physical in kind, including also in electronic form. Such information must not be made accessible to third parties. If the contract partner obtains such information in the context of the contract formation process, it shall be obliged to return said information to us free of charge if the contract does not materialize.
The contract partner shall be obliged to make information that is expressly designated by us as confidential or whose confidentiality arises from the circumstances accessible to third parties only with our express consent.
16. Final Provisions
These General Terms and Conditions of Business shall be governed by German law. Application of the UN Convention on the Sale of Goods shall be excluded.
If individual clauses in these General Terms and Conditions of Business become wholly or partially invalid, this shall not affect the validity of the other clauses or the other parts of said clauses; instead, the statutory provision shall apply.
The exclusive place of jurisdiction shall be Paderborn. We may also, at our option, sue the contract partner at its general place of jurisdiction or the place of jurisdiction competent for its principal place of business.
Place of performance, payment and fulfilment for all obligations arising from legal relationships with the contract partner shall be Brakel. Agreements in respect of cost bearing shall not imply any change to the aforementioned place of fulfilment.
The data required for processing the business transactions shall be stored centrally on our premises.