General Terms and Conditions of Sale and Delivery
§ 1 Application
(1) These general terms and conditions of sale and delivery shall apply exclusively for all goods and services supplied or provided. Differing or contrary terms shall not apply except if expressly agreed upon by us in writing.
(2) These general terms and conditions of sale and delivery shall also govern all future transactions with a contracting party and shall also apply if we perform delivery or services despite our knowledge of differing or contrary terms. The buyer shall agree to our terms and conditions of sale and delivery as part of the contract even if the buyer has given or confirmed his order according to his own general terms and conditions of business and we did not expressly object to them.
(3) These general terms and conditions of sale and delivery form an integral part of all contracts with any contracting party.
(4) These general terms and conditions of sale and delivery shall only apply if the buyer is a commercial party, a public law entity or a special public law estate within the meaning of sec 310 sub-section (1) of the BGB (German Civil Code).
§ 2 Offers, Orders
(1) Our offers shall not be binding, in particular with reference to quantities, price and delivery time.
(2) Orders placed by the buyer shall not be regarded as accepted before these have been confirmed by us.
(3) Any side agreements as well as changes or supplements to the contract shall only be effective if we have confirmed them in writing.
§ 3 Prices, Payment
(1) Prices are in Euro and ex works, plus the respective statutory VAT and inclusively of costs for packaging, unless expressly agreed upon otherwise.
(2) The purchase price is due and payable net within 30 days from the date of the invoice if there is no other payment-term agreed on in written. The issue of a bill of exchange is subject to our prior consent and is in any case only made on account of performance.
(3) From the due date default interest in the amount of 6 % above the respective base interest rate p. a. shall accrue. We reserve all rights to claim further damages for delay.
(4) In case the agreed prices are based on our list prices and delivery shall take place more than four months after the contract date our list prices at the time of delivery shall apply. We shall be entitled to pass on all increases of freight costs, shipping expenses, insurance premiums etc. as well as all new duties, charges, taxes etc. which become applicable after the contract date and which result in a direct or indirect price increase to the buyer.
§ 4 Offset, Retainer
The buyer shall be entitled to offset only insofar as the buyer’s counterclaims are acknowledged, undisputed or assessed in a legally binding judgment. The buyer is entitled to claim rights of retention only to the extent such rights are based on the same contractual relationship.
§ 5 Delivery
(1) Time limits and deadlines for deliveries and services prospected by us are always approximate, unless a fixed deadline or a fixed date is expressly confirmed or agreed upon. In case shipment has been agreed, delivery periods and delivery dates refer to the time of handing over to the forwarder, carrier or any other third party commissioned with the transport.
(2) Our delivery obligation shall at all times be subject to timely and orderly receipt of the goods from our own suppliers.
(3) Delivery is conditioned upon timely and proper performance of all duties by the buyer. The defence of non-performance of the contract (Einrede des nicht erfüllten Vertrags) is reserved.
(4) In case of default of acceptance or other culpable breach of duties to cooperate by the buyer we are entitled to claim any resulting damage, including but not limited to, additional expenses, if any. Further damages are reserved. In this case, the risk of accidental loss or accidental damage to the goods passes to the buyer at the time of such default or other breach of duty to cooperate.
(5) We are only entitled to partial deliveries if the partial delivery is usable for the buyer within the scope of the contractual intended purpose, the delivery of the remaining ordered goods is ensured and the buyer incurs no significant additional expenditure or additional costs, unless we have expressed our willingness to takeover these costs.
§ 6 Duty to Inspection and Objection
(1) The buyer has to check whether the delivered goods are suitable for their intended purpose.
(2) Upon delivery at the agreed destination or, in case of collection by himself, upon taking possession, the buyer shall immediately check and record any objections thereto, if any, on the delivery note or consignment note and/or the acknowledgement of receipt and conduct a quality check representatively on a spot check basis.
(3) In case of a notice of defect the notification shall be made by no later than the expiry of the fifth working day on which the delivery of the goods at the agreed destination took place or on which possession of the goods has been taken. After the expiration of this term the goods shall be regarded as approved. The detailed notice shall be delivered to us within the aforementioned period of time in writing. The notice must clearly specify the nature and extent of the alleged defect. The buyer agrees to make available for inspection the objected goods at the place of inspection; such inspection may be done by us or any expert we may have designated.
§ 7 Passing of Risk, Shipment
(1) If the buyer demands shipment of the goods the risk of accidental loss or accidental damage to the goods passes to the buyer upon dispatch.
(2) The goods shall be transported insured up to the hand-over point determined by the agreed incoterms.
(3) The selection of the place of dispatch and the transport route and the means of transport shall, in the absence of any written agreement to the contrary, be subject to our reasonable discretion and be without liability for the cheapest and fastest transport.
(4) If the buyer provides the means of transport, then the buyer shall be responsible for the availability on time. We shall immediately be informed of any delays, if any. Any costs arising therefrom shall be at the expense of the buyer.
(5) Any inability to supply as a result of force majeure or other unforeseen incidents outside our responsibility including, without limitation, strike, lock out, acts of public authorities, subsequent cease of export or import possibilities shall, for their duration and the extent of their impact, relieve us from the obligation to comply with any agreed time for delivery and unloading. We may also withdraw from the contract without any claims of damages or other claims on the side of the buyer.
§ 8 Retention of Title
(1) We retain title to the goods until receipt of all payments in full. In case of breach of contract by the buyer including default in payment, we are entitled to take possession of the goods.
(2) The buyer may resell goods subject to the above retention of title in the course of his regular business. For this case, the buyer, however, already hereby assigns all claims arising out of such resale, irrespective whether the goods have been processed or not, to us. We already hereby accept such assignment. Notwithstanding our right to claim direct payment the buyer shall remain to be entitled to receive payment on the assigned claims. In this connection, we agree to not demand payment on the assigned claims so long and insofar as the buyer complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(3) With respect to the buyer’s right to process the goods delivered the limitations set out in the before-mentioned subsection 2 above shall apply accordingly.
(4) In case the goods in which we have retained title shall be inseparably assembled or mixed with goods that are third party property, we shall acquire co-title in the new goods of the mixed stock. The extent of title shall follow from the proportion of the invoice value of the goods delivered by us under retention of title in relation to the invoice value of the other goods.
(5) Insofar as the above securities exceed the secured claims by more than 10 %, we are obligated, upon our choice, to release such securities upon the buyer’s request.
§ 9 Warranty
(1) Precondition for any warranty claim of the purchaser is the purchaser’s full compliance with all requirements regarding inspection and objection established by sec 377 of the HGB (German Commercial Code) and this contract.
(2) Warranty claims can only be claimed within a period of twelve months after the transfer of risk.
(3) In case of defects in the delivered goods, in the first place we are obliged and entitled to repair or replace the goods in accordance with our choice made within a reasonable period of time. In the case of failure, i.e. the impossibility, unreasonableness, refusal or inappropriate delay of the repair or replacement, the buyer may withdraw from the contract or reduce the purchase price appropriately.
§ 10 Liability
(1) In case of intent or gross negligence on our part or by our agents or assistants in performance (Erfüllungsgehilfen) we are liable in accordance with statutory law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage.
(2) Our liability for culpable damage to life, body or health as well as our liability under the Produkthaftungsgesetz (German Product Liability Act) shall remain unaffected.
(3) Any liability not expressly provided for above shall be excluded.
§ 11 Applicable law, Jurisdiction, Final Provisions
(1) This contract shall be governed by and construed in accordance with the laws of the Federal Republic of Germany.
(2) Place of performance shall be Kirchberg (Hunsrück). If the buyer is a commercial party, a public law entity or a special public law estate, we can file complaints at our general place of jurisdiction and actions can only be filed against us in that venue. If the buyer is located abroad, we shall be entitled at our choice to file complaints against the buyer at the buyer’s registered seat abroad.
(3) The invalidity of any provision of these general terms and conditions of sale and delivery shall not affect the validity of the other provisions. Invalid provisions shall be deemed to be replaced by such valid provisions that shall be suitable to achieve the economic purpose of the ceased provision to the greatest extent possible.