General Terms and Conditions

General Terms and Conditions

 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 (German Civil Code).

2.   Deliveries and services shall be provided on the basis of the Seller's offer - possibly modified according to the result of a contract award negotiation - and/or the Seller's order confirmation, at least in text form, which refers to this offer or negotiation result or confirms the Buyer's order.

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 terms and conditions of purchase of the buyer which deviate from the terms and conditions of the seller are excluded; even if they are referred to in the purchase order, they shall only bind the seller if they are expressly confirmed in writing. In the event of an exceptional agreement of the Buyer's terms and conditions of purchase, the Seller's terms and conditions shall also apply insofar as they relate to items not regulated therein..

4.   All agreements made upon conclusion and in the course of the contract require confirmation by the seller in text form to be effective.

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 shall pay interest at the interest rate of its own bank liabilities, but at least 9 percentage points above the base interest rate of the European Central Bank; for consumers, the default interest rate shall be 5 percentage points above the base interest rate of the European Central Bank. The Buyer shall be entitled to prove that the Seller has not incurred any damage or only a significantly lower damage caused by default, if the Seller charges more than the statutory default interest.         

If the Buyer is in default with the payment of a delivery in whole or in part, all claims of the Seller against the Buyer - including the claims for goods on which the acceptance is based, irrespective of the due date of any bills of exchange - shall become due for payment immediately; the delivery of further goods shall then only be effected against advance payment

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. Periods of delivery and performance

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.

      In all other respects, the Seller's promise of delivery/service shall be subject to the proviso that the Seller itself is supplied in good time. Delays in delivery and performance due to force majeure and other events beyond the Seller's control, which may lead to a disruption in self-supply, shall be subject to the provisions set forth in Section VIII 3.

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.

3.   If, by way of exception, temporary storage of finished goods has been expressly agreed or storage becomes necessary due to delay in acceptance/acceptance, the Seller shall only be liable for intent and gross negligence. He is not obliged to insure the goods to be stored. In the event of delay in acceptance/acceptance, the Seller shall be entitled to store the goods at the risk and for the account of the Buyer at a commercial storage company. For storage on the Seller's business premises, the Seller may charge 0.5% of the invoice amount per month, but at least € 50.00 for the first and a further € 35.00 from each subsequent full cubic metre of goods per month. The above provisions shall also apply in the event that dispatch is delayed at the request of the buyer for more than 2 weeks beyond the notified readiness for dispatch.

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.   To the exclusion of any further claims, the buyer is entitled to demand subsequent performance in the form of repair or - at the seller's option - replacement delivery, but only concurrently with return of the defective goods; the buyer's right to demand a reduction in price or to withdraw from the contract in the event of final failure of the subsequent performance remains unaffected In the case of construction work, however, the right of the purchaser to withdraw from the contract in the event of the final failure of subsequent performance is excluded.

2.   The Seller shall be granted a reasonable period of time to carry out the repair or replacement delivery or service; otherwise the Seller shall be released from his obligations to remedy defects.

3.   The Buyer's claims for defects - with the exception of claims for damages due to defects, for which the following Section VII. 4. applies - shall become statute-barred one year after the transfer of risk to the Buyer, unless the Seller has assumed a guarantee for the quality of the items to be delivered or has fraudulently concealed a defect and the claims for defects are affected thereby; this shall not apply in the case of the delivery of items within the meaning of § 438 para. 1 item 2 b) BGB. In cases of §§ 438 para. 1 number 2, 634a para. 1 number 2 BGB, on the other hand, the statutory period of limitation remains in force. In relation to consumers, the statute of limitations is based on the statutory provisions.

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 contractual and legal liability of the seller and his vicarious agents for all damages, such as those due to culpa in contrahendo, defectiveness of the goods (including any consequential damages resulting therefrom), delay, other breaches of duty or from tort is excluded, unless the seller has given a guarantee for the quality of the contractual items to be delivered or has fraudulently concealed a defect or has issued a so-called "warranty". Cardinal obligations are such obligations whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely.     

Furthermore, this exclusion of liability shall not apply to

- the liability for damages resulting from injury to life, body or health, which is based on an intentional or negligent breach of duty by the seller or one of his legal representatives or vicarious agents, or

- the liability for other damages, which are based on an intentional or grossly negligent breach of duty by the seller or one of his legal representatives or vicarious agents or       

- the mandatory strict liability prescribed by law, e.g. under the Product Liability Act.

2.   The above provision shall also apply if the buyer demands compensation for useless expenses instead of a claim for compensation for the damage instead of performance.

With the exception of liability for deliberately caused damages or the mandatory strict liability, e.g. according to the product liability law, the liability of the seller - no matter on what legal grounds - is limited or restricted in type and scope to the foreseeable damage typically arising in transactions of this type; with regard to the violation of cardinal obligations (see above), however, this only applies in the case of slight negligence.

4.   All claims for damages of the buyer against the seller and his vicarious agents and assistants, which are not excluded according to the above, shall become time-barred within 2 years; the same shall apply accordingly if the buyer demands compensation for useless expenses instead of a claim for damages instead of performance. Deviating from this, however, claims for damages due to violation of the obligation of subsequent performance based on a defect shall become statute-barred within the period pursuant to the above Section VI. 3. The period of limitation for contractual claims for damages based on a defect shall commence with the transfer of risk to the Buyer, for all other claims with the end of the year in which the claim arose and the Buyer becomes aware of the circumstances justifying the claim or should have become aware of them without gross negligence after the occurrence of damage and the party causing the damage. In the case of claims due to intentional damage or in cases of mandatory statutory liability without fault, e.g. under the Product Liability Act, the limitation period shall be governed by the statutory provisions.

5.   The limitation period in the case of a delivery recourse according to §§ 445a, 445b BGB remains unaffected.

VIII. Suspension of contractual obligations

1.   Events and circumstances, the occurrence or 1. Events and circumstances, the occurrence or prevention of which lie outside the sphere of influence of the contractual partners (these shall include not only natural phenomena, acts of government, strikes and lock-outs, but also all impediments to performance for which the contractual partners are not responsible, in particular transport, traffic and operational disruptions - including such impediments and impediments to performance at all for suppliers and subcontractors -, as well as bottlenecks, defects and other delays in the procurement of raw materials), shall release the contractual partners from their contractual obligations to the extent and for the duration of their existence.

2.   If events or circumstances of the kind described in clause 1 lead to a significant increase in the seller's purchase or procurement costs, the seller may demand an appropriate price increase from the buyer, even in the case of a fixed price agreement, by providing evidence of the increase. If the buyer does not agree to such a price increase within a reasonable period of time to be set by the seller, the seller shall be entitled to withdraw from the unfulfilled part of the contract.

3.   If, due to the events or circumstances described in clause 1, the seller is finally unable to fulfil his obligation to deliver or provide services within a reasonable period of time to be set by the buyer, the buyer shall be entitled to withdraw from the unfulfilled part of the contract to the exclusion of further claims. Subject to the same conditions, the Seller shall be entitled to withdraw from the contract if his efforts to restore his readiness to deliver or perform, which he remains obliged to do, have been unsuccessful within 6 months of the occurrence of the impediment; in the event that he does not receive deliveries from one of the Seller's suppliers, this shall only apply if the Seller has taken all reasonable precautions to ensure that the transaction is covered in good time and his supplier has not delivered to him for reasons for which he is not responsible.

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 Circumstance

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.

As of April, 2020

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