I Basis of the Agreement
1. The following General Conditions of Sale apply to merchants. In relation to consumers, these General Conditions of Sale apply only with the following restrictions and only insofar as they do not contradict any mandatory regulations of the §§ 305 ff. BGB (Bürgerliches Gesetzbuch).
2. Deliveries and services shall exclusively be handled on the basis of the offer of the Seller - if applicable, according to the results of a modified offer as a result of contract negotiations- and/or this offer respectively the acceptance of the related or confirming order confirmation of the Seller.
Unless otherwise expressly specified, all delivery- and/or performance specifications belonging to the offer of the Seller – material- and quality descriptions as well as measurements and weights – are only approximately decisive and only within the normal tolerance range for the industry.
3. Any conditions of the Seller deviating from these GTC shall be rejected and considered invalid; the Seller is only committed to those conditions only if expressly warranted in writing by him, even if those deviating conditions are expressively referred to in the order. If, in exceptional cases, other buying conditions are agreed, these conditions only apply insofar as they relate to contractual items not regulated in the Terms and Conditions of the Seller.
4. All agreements made by the Seller and the Purchaser with respect to the Contract or Contract performance shall be ineffective, unless confirmed in writing by the Seller.
5. In the absence of any different express written agreement, the quotations of the vendor are subject to change.
6. The Seller has the right to employ third parties, so-called vicarious agents, for the fulfilment of contractual obligations.
II. Prices and Payment Conditions
1. The agreed prices are valid plus the respectively applicable VAT, for deliveries ex distribution centre of the Seller including packaging, but excluding carrier- and warehouse charges, transport insurance and other forwarding expenses.
In the case of call-orders which execution time takes more than four month, the Seller reserves the right to charge a proportional amount in addition to the agreed prices subsequently, corresponding to the changed cost factors.
2. The invoices of the Seller are to be paid within 30 days after the invoicing date, cash without deductions; when paid within 10 days after the invoicing date, the Seller grants a discount of 2 %.
Bills of exchange and cheques are only accepted by the Seller if specifically agreed and only free of charge for the Seller, subject to their eligibility for discount with valuable date of the day on which the Seller may dispose of the countervalue. When accepting bills of exchange or checks the Seller gives no guarantee that submission or protests will be made promptly.
3. In the case of default in payment by the Purchaser, the Seller may charge, notwithstanding the assertion of further claims for compensation, interests to the amount of the appropriate statutory rate of his own liabilities to banks, however at least 8 percentage points above the base rate of the European Central Bank; for consumers, these shall be 5 percentage points above the base rate of the European Central Bank. The Purchaser is entitled to prove whether or not the supplier has sustained no or a moderate loss from the non-performance.
If the Purchaser is partially or totally in arrears with his payment for a delivery, all claims of the Seller against the Purchaser, including the trade receivables regardless of the maturity of any bills of exchange, will be due for immediate payment; future deliveries will only be made against payment in advance.
4. The rights of retention and to refuse performance of the Purchaser regarding payment claims of the Seller, which are not based on malicious or grossly negligent breach of duty by the Seller or his legal representatives or agents, are excluded insofar as these counterclaims are not determined undisputed or legally binding. The exclusion shall not apply as long as the Seller, in the case of already paid deficient partial deliveries or performances with corresponding replacement deliveries or -performances, does not deliver in advance, regarding other payment obligations of the Purchaser.
5. The Seller is only entitled to offset the claims to payment with counterclaims in the case of counterclaims that are uncontested or determined to be legally valid.
6. In the case that the Seller receives information after the contract has been concluded, that the Purchaser might not get a credit for the according sum, the Seller is entitled to receive the goods back and to demand pre-payment or the provision of a security; claims for damages due to non-fulfilment or non-performance remain reserved.
In the case that a fact is disclosed which excludes the creditworthiness of the Purchaser based on secured knowledge, all open claims against the Purchaser at this point are immediately due, and all extension agreements become invalid.
III. Terms of Delivery
1. The agreed terms of delivery begins with the receipt of the order confirmation by the Purchaser, not, however, before the presentation of the documents to be provided by the Purchaser, permissions, and particularly delivery- and service specifications nor before the receipt of any deposit that has been agreed upon.
2. Partial deliveries or -services are permissible.
3. Any delays beyond the control of the Seller will entail an appropriate extension to delivery dates and deadlines; particularly insofar as such delays occur during default that has already taken place. The Seller will inform the Purchaser immediately about circumstances of the mentioned kind.
4. In any case of delayed deliveries and services for which the Seller is responsible, the Purchaser shall grant an appropriate grace period. In the case that the Seller has not given notice of readiness to perform the service after this additional period, the Purchaser is entitled to withdraw from the contract regarding the part of the delivery or service which has not been fulfilled at this time, or for the case that the vicarious agents of the Seller are guilty of intent or gross negligence regarding the delay, the Purchaser may claim compensation instead of delivery regarding this part of the delivery or service; should be Purchaser be able to prove that the partial performance is of no interest to him, the Purchaser shall have the mentioned rights regarding the complete contract or agreement.
5. Delays in delivery or performance for which the Purchaser is responsible shall not affect agreed payment obligations and payment periods.
6. In the case of call orders, the Seller is after half a year, authorized to deliver even without the request of the Purchaser.
IV. Transfer of Risk, Commissioning and Acceptance
1. All risks associated with the goods delivered shall be transferred to the Purchaser upon the delivery of said goods to the forwarder; this also applies in the case of freight free deliveries.
The forwarder, the means of transport and the transport route are chosen by the Seller with own due diligence, unless the Purchaser does not give any other instructions before the expiry of the delivery period.
2. The risks associated with any services under the contract shall be transferred to the Purchaser upon acceptance or upon the commencement of the use of such services by the Purchaser.
V. Reservation of Proprietary Rights to Goods, Tools and Moulds
1. The title to all goods delivered by the Seller to the Purchaser under the contract shall remain vested in the Seller until all payments due and owing under the contract have been paid.
2. Treatment or processing of goods subject to retention of title by the Purchaser, to which he is entitled within the limits of his normal business without this giving rise to any obligations on the part of Seller. In the case of processing, connecting, mixing or blending the conditional item with other products not belonging to us, the Seller acquires co-ownership of the new goods in the ratio of the invoice value (invoice amount including value added tax) of the conditional item to the other goods, the Purchaser shall hold the new item resulting from this processing for the supplier with the due care of a responsible businessman.
3. Subject to any notice to the contrary given by the Seller to the Purchaser for any reason for which the Purchaser may be liable, the Purchaser shall have the right to sell these goods during the ordinary course of the Purchaser's business operations. To make provision for any such disposal, the Purchaser hereby assigns to the Seller the Purchaser's title to payment for any goods so sold by the Purchaser; in the event of any such disposal of any goods the title to which the Seller is entitled in part, said assignment shall be limited to a part of any such Purchaser's title to payment equal to the value of the product or machinery delivered under the contract involved in such disposal. The agreement of a prohibition of assignment regarding the purchase price claim is explicitly forbidden.
4. The assignment according to Clause 3 is subject to the condition that the Purchaser is entitled to the collection of the assigned purchase price, insofar as and as long as he properly fulfil his payment obligations towards the Seller and if a serious deterioration in financial circumstances does not occur, about which the buyer shall inform the Seller immediately. When requested by the Seller, the Purchaser will provide him with all documents and information necessary for the enforcement of the due purchase price claim; after the occurrence of the circumstances defined under Clause 1, the Seller is entitled to inform the Purchaser about the assignment.
5. The Seller undertakes to release the securities to which we are entitled pursuant to the above provisions to the extent that the realizable value of said securities in the event of their utilization exceeds the amount of the receivables they secure by more than 10 %.
6. The Purchaser does not have the right to pledge or assign as security the goods to which title is reserved; he must notify the Purchaser of any impoundments or other interventions by third parties and shall submit to the Seller all documents which may be needed by the Seller to defend its title to said goods.
7. Tools and moulds etc., which the Seller manufactures or has manufactured to fulfil his contractual obligations, or on behalf of the Purchaser, remain his property, even if the Purchaser bears the manufacturing costs wholly or partially.
VI. Purchaser's Rights in Case of Defects
1. With the exclusion of any further claims, the Purchaser is entitled, in the case of wholly or partially defective deliveries or performances , to demand replacement delivery/performance or rectification of the defect, a replacement delivery, however, shall only be performed against the return of the defective goods on a pari passu basis; the right of the Purchaser to demand a reduction in price only after definite failure of the supplementary performance or to withdraw from the contract remains unaffected. For construction works, the right of the Purchaser to withdraw from the contract is excluded in the case of the definite failure of the supplementary performance.
2. For the execution of the rectification or replacement delivery or service, the Seller shall be granted a reasonable period; otherwise, he is deemed to be free of his obligations regarding the defects.
3. Defect claims of the Purchaser – with the exception of those claims for which the following number VII is valid – shall expire by limitation after a period of one year after the date the risk in the goods passes to the Purchaser; this is not valid for the delivery of goods according to § 438 para. 1 section 2 b). In contractual relationships with consumers, these expiration periods apply according to the legal requirements.
4. After his choice, the Seller is also entitled, in the case of delivery from external sources, to transfer any possible claims for defects to the Purchaser, according to Section 1, first sentence , which he has against the manufacturer or the previous supplier; when enforcing such claims, the Seller shall support the Purchaser. The regulation according to Section 1, second sentence, also applies to mutatis mutandis to the Seller.
5. Statutory obligations for inspection and reporting of complaints remain unaffected.
VII. Legal liability
1. The liability of the Seller and his legal representatives or agents for damages due to fault at conclusion of contract, defectiveness of goods, other breaches of duty or tort is excluded insofar as such damages
do not result from loss of life, bodily injury or damage to the health of a person based on a negligent breach of duty of the Seller or a deliberate or negligent breach of duty of his legal representatives or vicarious agents, a deliberate or negligent breach of duty from our side or our legal representatives or vicarious agents.
The above mentioned limitation also applies if the Purchaser demands reimbursement for useless expenditures instead of claiming compensation for damages in place of performance.
Apart from that, liability shall be limited to predictable and typically occurring damage according to such type of performance.
2. All claims for damages of the Purchaser against the Seller and his representatives or vicarious agents which are not excluded according to Section 1, shall become statute-barred within two year from acceptance or the complete rendering of the performance or goods.
3. The statute of limitations in the event of a delivery recourse according to §§ 478, 479 BGB remains unaffected.
VIII. Suspension of contractual obligations
1. Any event or circumstances beyond the reasonable control of the Seller or the Purchaser such as, without limitation of the generality of the foregoing, any act of God, any act of governments, princes or rulers, any strike or lockout or any event affecting the performance of the Contract for which the Seller or the Purchaser may not be liable such as, without limitation, any disruption of transportation or operations affecting the Seller or the Purchaser or any sub-contractor or any shortage or delay of any supplies of any materials which may be needed for the performance of the Contract shall operate to release the Seller and/or the Purchaser from the obligation to perform the Contract if and in as far and for as long as performance is affected thereby.
2. In the case that events or circumstances as described above under 1 lead to an increase of the procurement costs of the Seller, the Seller shall be authorized to increase his price if he is able to prove such increase of costs, even if a fixed price was agreed. If the Purchaser does not agree to such a price increase within a set period of time, the Purchaser is entitled to withdraw from the contract regarding the part of the contract that has not been fulfilled yet.
3. In the case that the Purchaser is not able to fulfil his contractual obligations due to events and conditions as described under Section 1 within a time period set by the Purchaser, the Purchaser is entitled to withdraw from the contract regarding the part of the contract that has not been fulfilled yet, under the exclusion of any further claims. Under the same preconditions, the Purchaser also the right to withdraw from the contract, in the case that his efforts to restore its ability to complete the performance of the Contract the Seller is obligated to undertake fail for a period of six (6) months commencing on the date on which any such event or circumstances occur.
IX. Premature termination of the contract
1. If the contractual relationship is prematurely terminated for any reason, before the Seller has fulfilled the order completely, all deliveries and/or services carried out up to that point have to be compensated as follows:
a) For deliveries and/or services based on a lumps sum the complete compensation has to be paid, if and insofar as the Seller has delivered the goods and/or services completely; otherwise, the full compensation has to be reduced according to the part of the delivery not yet fulfilled, which has to be estimated if need be.
b) For deliveries and/or services to which special compensation fees have been assigned and which are invoiced at cost, shall be compensated according to the current state of execution.
2. Any other claims of the Seller regarding the premature termination of the contract remain unaffected.
X. Changes in Circumstances
In the case that the technical, economic or legal conditions underlying individual provisions of the contract have changed considerably such that the implementation of the contract under the conditions hitherto agreed upon would constitute an undue hardship for one of the parties, especially if the reason is that the balance between performance and consideration is disturbed, the partner to the contract that suffers from the disadvantages of such changes, may demand a reasonable adjustment of the contract from the other partner.
XI. Place of Fulfilment and Place of Jurisdiction
1. Place of performance for deliveries, performance and payment is the registered office of the Seller. This also applies to the performances of the Seller, insofar as these are not necessarily to be delivered, e.g. project-related, at another place, which is then the place of performance.
2. The registered office of the Seller is agreed to be the court of jurisdiction, if the Seller is a merchant, legal entity of public law or of special fund under public law.
XII. Applicable Law
German law shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG). In the event of any conflict or inconsistency between the English and the German versions, the German original shall prevail.