1 General conclusion of contract
1. Our deliveries, performances and quotations will be made exclusively on the basis of these terms and conditions.
These accordingly also apply to all future business relations even if they are not explicitly agreed again or if we fail to refer to these. These terms and conditions are considered accepted at the latest at the time the goods or services are accepted. We hereby object to counter confirmations by the buyer in which reference is made to buyer's conditions of sale or standard terms and conditions.
2. Deviations from these standard terms and conditions apply only if we explicitly approved of them in writing.
2 Quotations and conclusion of contract
1. Our quotations are subject to change and non-committal. We must approve in writing any declarations of acceptance and all orders in order for these to be legally effective; telefaxes and e-mails shall also be considered to be such written approval. This applies also to amendments, modifications or ancillary agreements.
2. Drawing, images, dimensions, weights or other specification data shall be binding only if explicitly agreed upon in writing.
3. Our employees are not authorized to make any ancillary oral agreements or oral assurances extending over and beyond the contents of the written contract.
3 Prices
1. The prices stated in our written order confirmation plus the applicable legal VAT shall be decisive. Additional deliveries and services shall be invoiced in addition.
2. The costs for the acceptance inspections staged at our facility are not included the prices. The material and personnel costs for such acceptance inspection will be itemized separately. Apart from that, all prices in inner-German transactions are net ex works and encompass packaging, loading and freight charges.
3. We will charge the prices agreed at conclusion of the contract, which are based upon the cost factors applicable at that particular time. Should these cost factors (e.g. for raw materials, wages, and energy) change in the time between conclusion of contract and delivery, we are authorized to adapt the price accordingly.
4 Delivery, performance deadlines
1. The times and deadlines we state are non-committal unless explicitly agreed differently in writing.
2. Delivery periods to which we have committed ourselves commence at the time the buyer receives our confirmation of order, however not before all details of the order have been fully clarified and/or we have received all documentation or materials, approvals, releases and/or advance payment to be provided by the buyer. In the event such obligations or duties to be provided by the buyer have not been met, any agreed delivery periods or deadlines become non-committal to us.
3. Agreed periods and deadlines relate to the time of completion at our plant; the periods or deadlines shall be considered met at the time notification of the readiness for shipment is made.
4. We shall not be liable for delays in delivery and performance due to Vis Majeure and due to events which make it very difficult or impossible for us to deliver - this shall also encompass belated difficulties to procure material, interruption of operations, strike, lock-outs, shortage of staff or means of transportation, regulatory ordinances, etc., even if experienced by our suppliers or their subsuppliers; this shall apply also if periods and deadlines have been bindingly agreed. These events entitle us to postpone delivery or performance for the period of obstruction plus an appropriate start-up period or to withdraw entirely or partially from the part of contract not yet fulfilled.
5. If the obstruction lasts more than three months, the buyer after expiration of an appropriate grace period is entitled to withdraw from the part of contract not yet fulfilled unless the product at issue has been completed and the buyer has been notified of the readiness to deliver prior to expiration of the grace period. If the delivery and/or performance are extended or if we are released from our obligation, the buyer is not entitled thereof to any claims to compensation for damages.
We may appeal to such circumstances only if we immediately notify the buyer.
6. If we are responsible for non-compliance with bindingly agreed deadlines due to intentional or grossly negligent conduct, the buyer is entitled to compensation for damages he verifiably suffered due to our delay, however only up to an amount of 0.5 % of the invoice value of the deliveries and services affected by the delay for each full week of delay with a ceiling amount of 5%. Any further claims, in particular claims to compensation for damages, are excluded unless we acted at least grossly negligent.
7. We are at all times entitled to make partial deliveries or to provide partial services.
5 Passage of risk and acceptance
1. Risk passes to the buyer at the latest at the time the material is transferred to the forwarding company or haulage contractor;
this applies also in the event of partial delivery
2. If shipment is delayed or impossible and we are not responsible for such delay or impossibility, the risk passes to the buyer at the time he is notified that the material is ready for shipment.
3. The buyer must immediately collect or call off the goods we report as ready for shipment. In other case, we are entitled to store the goods at the buyer's risk and cost. The buyer will bear any additional costs associated with storage, for example for a new coat of paint, if required. The buyer will accept delivered goods, even if in the presence of insignificant defects, irrespective of his rights defined in the following § 6.
4. Items or products which must be registered or for which the orderer has stipulated formal acceptance will be accepted at the supplier plant. In other case, the items shall be considered delivered as requested at the time the goods leave the plant.
5. The content of any test certificates shall not be considered promised characteristic/quality.
6 Defects and warranties
1. The hauling contractor and our company will immediately be notified about any obvious transport damages.
2. The warranty period begins at the delivery date.
3. The buyer must immediately notify us in writing about any defects, however no later than one week after the delivery item is received. We will immediately be notified in writing about any defects which were found later and which were not to be found in spite of immediate inspection within this period of time.
4. The seller is obligated at his own discretion to rework all such parts at no cost to the buyer or to make replacement delivery after return of such defective parts which verifiably within the warranty period due to a circumstance arising prior to passage of risk are unusable or feature considerably impaired usability; seller is also entitled to refund the reduction in value. If replacement delivery and rework are impossible or fail, the buyer may request reduction of the purchase price or withdrawal from contract.
5. If we perform any rework, the warranty period is extended solely by the duration of such successful rework. We are not liable for improper repair or modification work done by buyer or any third party or any consequences resulting thereof. In such case, the warranty expires.
6. Only our direct buyer is entitled to any warranty claims against us; these rights may not be transferred.
7. The above clauses exclusively regulate warranty rights for our products and services; other warranty rights and claims to compensation for damages shall not apply.
7 Retention of title
1. We retain ownership rights to all delivered goods until all claims against the buyer to which we are entitled irrespective of their legal foundation, in particular including the respective current account balance claims, have been fulfilled. This applies also if payments are made to settle specifically designated claims.
2. In accordance with paragraph 950 of the German Civil Code [BGB], the reprocessing and reshaping of goods subject to retention of title shall always be regarded as performed on our behalf, but with no obligation on our part. If the buyer processes, combines or mixes the goods under retention of title with other goods, we are entitled to co-ownership of the new item in proportion of the invoice value of the goods under retention of title to the invoice value of the other used goods. If our co-ownership becomes null and void due to combining or mixing with other products, the buyer already now assigns to us his ownership rights in the new item which correspond to the amount of the invoice value of goods subject to retention of title. The buyer will safeguard the items on our behalf at no cost to us. The rights to co-ownership we incur shall be considered goods subject to retention of title.
3. The buyer may sell goods subject to retention of title only in the course of regular business transactions and only as long as buyer is not in arrears with payment to us. He may do so under the condition that the account receivable from resale acc. to section 5 passes to us. Installation in land and real estate or in installations linked to buildings or the use for fulfillment of other service contracts or contracts for work and materials by the buyer shall be deemed equivalent to resale.
4. The buyer already now assigns to us his accounts receivable from reselling the goods subject to retention of title, which shall also include fulfillment of other service contracts or contracts for work and materials. If the buyer sells goods subject to retention of title together with other items we did not deliver, the assignment of the accounts receivable from such selling shall be limited to the amount of the invoiced value of the sold goods subject to retention of title. If the buyer sells goods in which we have co-ownership as defined in section 2, the assignment of the accounts receivable shall apply in the amount of the co-ownership shares. The assigned accounts receivable shall apply for safeguarding in the same amount as the goods subject to retention of title.
5. The buyer is authorized to collect accounts receivable from reselling; we are authorized to revoke such authorization at any time. However, we will make use of such right to revoke only in the cases stated in II.3. The buyer is under no circumstances authorized to assign accounts receivable to third parties. Upon our request, he is immediately obligated to inform his customers about his assignment to our company and to make available to us the information and documentation required for collection.
6. If we claim retention of title, this shall only be understood as a withdrawal from the contract if we expressly state such in writing.
7. The buyer may not make any dispositions or allow any dispositions to be made as relates to the goods subject to retention of title which are not in compliance with the above clauses.
8. If the value of collateral including all offsetting options sustainably exceeds the value of secured claims by more than 10%, we are obligated, at buyer's request, to release such securities at buyer's selection
8 Payment
1. Unless agreed upon differently, our invoices are due for payment within 30 days net. The deadline periods stated above and all other deadline periods, in which we must have received the invoice payments, start at the invoice date. We are entitled to apply first payments by the buyer to older outstanding debts even if the buyer has other terms and conditions. If costs and interest have already been incurred, we are authorized to apply payments at first to the costs, then to the interest, and finally to the principal claim.
2. Payments shall be considered made only after we can dispose of the sum. Checks and properly taxed eligible bills will always be accepted only for processing. The buyer will bear and immediately pay any discount and bill charges.
3. In the event of delayed payment, we will charge interest in amount of 8% above the applicable European Central Bank base interest rate.
4. All our claims will be due for immediate payment irrespective of the term of discounted and credited bills of exchange if payment terms are not met or if we become aware of circumstances which are suited to cause doubts about the buyer's creditworthiness e.g. buyer discontinues payments, application for court composition or bankruptcy proceedings into buyer's assets, disclosure of circumstances (e.g. enforcement proceedings, bill protest, etc.), which indicate that the buyer is unable to meet his obligations.
5. Irrespective of any other rights, we are then also entitled to make any outstanding deliveries only against advance payment or to withdraw from the contract after an appropriate grace period has expired or to claim compensation for damages due to non-performance.
9 Liability
1. Any claims to compensation for damages due to impossibility of performance, positive violation of a contractual duty, culpa in contrahendo and from tort liability, are inadmissible both against us and our performing agents and vicarious agents unless caused by intentional or grossly negligent conduct. This applies also to claims to compensation for damages due to non-performance, however only to the extent as compensation for indirect or consequential damages is requested unless such liability is based upon an assurance intended to safeguard the buyer against the risk of such damages. Any liability is restricted to the damage foreseeable at the time the contract is concluded.
2. This limitation in liability shall apply particularly to our consultation in verbal, written or any other form. The buyer particularly shall not be released from his obligation to verify the suitability of the delivery item we produce for the intended use.
3. Legal regulations on the liability for defective products (product liability law) shall remain unaffected.
10 Applicable law, place of jurisdiction, partial invalidity
1. These standard terms and conditions and the entire legal relations between our company and the buyer shall be subject to the laws of the Federal Republic of Germany; the United Nations Convention on Contracts for the International Sale of Goods (CISG) in particular shall not apply.
2. If the buyer is a registered trader or a public-law legal entity, the AG Olpe (district court Olpe) shall exclusively be competent for such disputes arising from the contractual relationship which fall within the domain of a district court. The LG Siegen (regional court Siegen) shall exclusively be competent for such disputes arising from the contractual relationship which fall within the domain of a regional court. The exclusive competency of the AG Olpe and LG Siegen shall apply also if the buyer has no general place of jurisdiction in Germany.
3. If a clause of these standard terms and conditions or a clause in any other contractual agreement is or becomes legally ineffective, this shall not affect the validity of the remaining clauses or agreements.
The Germanversion of these Standard Terms and Conditions shall be solely authoritative;
the English version is for information purposes only.