General Terms and Conditions of Delivery and Payment
as at November 2014
1. These General Terms and Conditions of Delivery and Payment (hereinafter referred to as the “Terms and Conditions”) apply exclusively for all current and future sales and deliveries and related transactions between us and the customer. These Terms and Conditions therefore also apply to all future business relationships, even if they are not explicitly agreed again.
2. Customers in the meaning of these Terms and Conditions are exclusively companies. A company is any natural or legal person or a partnership with legal capacity which when concluding a legal transaction with us acts in performance of its commercial or independent professional activities. A consumer, on the other hand, is any natural person who concludes a legal transaction for a purpose which can be attributed neither to his/her commercial nor independent professional activities.
3. We do not acknowledge any terms and conditions of the customer which are contrary to or deviate from these Terms and Conditions. Our Terms and Conditions shall also apply if we carry out the delivery to the customer without any reservations despite being aware of terms and conditions of the customer which are contradictory to or deviate from these Terms and Conditions. Any arrangements that differ from these Terms and Conditions shall only apply with our explicit written consent.
II. Offers and the conclusion of the contract
1. Offers of any kind or form made by us are only requests to the customer to submit an offer. An offer for the conclusion of a contract in the meaning of these Terms and Conditions is the written (letter, e-mail or fax) or oral order of the customer. The customer shall be bound by its order for fourteen days.
2. A contract shall arise through our acceptance of the order by way of a written order confirmation. The scope of the delivery shall be determined by our written order confirmation.
3. The documents provided by us, as well as images, drawings or weight or dimension data, are only decisive if they are explicitly marked by us as being binding. We retain the ownership title and copyrights to any samples, cost estimates, drawings and similar information of a physical or intangible nature, including in electronic form, which must not be made available to third parties.
III. Scope of the delivery
We reserve the right to make design and form changes during the delivery period which are attributable to improvements in technology or requirements of the legislator, provided that the delivered goods are not substantially altered and the changes are reasonable for the customer.
IV. Delivery period
1. The delivery period is stated in the written arrangements between the parties. Compliance with it by us is subject to the condition that all business and technical issues between the parties are clarified and the customer has fulfilled all its obligations, such as obtaining the necessary official certificates or approvals or making an advance payment. If this is not the case, the delivery period shall be extended appropriately. This does not apply if we are responsible for the delay.
2. Compliance with the delivery period is subject to the condition that we are correctly and punctually supplied by our own suppliers, if we have concluded a congruent covering transaction with a supplier and are not responsible for the non-delivery or late delivery by the supplier. We shall promptly inform the customer in the event of non-delivery or late delivery by one of our suppliers. We shall also promptly inform the customer of the expected new delivery period. If we can no longer expect to be supplied by our own suppliers (e.g. due to breach of contract by our supplier, its insolvency or the destruction of its production facilities) or if the goods are not available even after the end of the new delivery period, we shall have the right to rescind the contract and shall promptly refund the customer’s counterperformances.
3. The time limit for delivery will be deemed to have been met if, by the end of that period, notice has been given that the goods are ready to be shipped or the subject of the delivery has left the plant or the customer has been notified that the goods are ready to be shipped. If an acceptance is to be carried out, except in the case of justified refusal of acceptance the acceptance date shall be decisive or alternatively the notification of readiness to accept.
4. The delivery deadline shall be reasonably extended in the event of measures related to industrial disputes, particularly strikes and lock-outs, or in the event of unforeseen impediments for which we are not responsible, for example operational disruptions, delays in the delivery of key materials, if such impediments demonstrably have a significant effect on the delivery of the subject of the delivery. This shall also apply if these circumstances arise at subsuppliers. The delivery period shall be extended by the duration of such measures and impediments. We shall promptly notify the customer of the beginning and end of such circumstances.
5. If the dispatch or acceptance of the subject of the delivery is delayed for reasons for which the customer is responsible, it shall be charged the costs incurred due to the delay.
6. Claims for compensation of the customer for losses due to delay or impossibility, including claims that arose before a declaration of rescission due to a delay, can only be asserted within the framework of the provisions of section IX of these Terms and Conditions.
V. Prices and payment
1. Unless a special arrangement has been made, the prices should be understood as ex works and excluding packaging. The prices are subject to the addition of VAT in the current statutory amount.
2. Unless a special arrangement has been made, the purchase price and the other remuneration shall be payable immediately after the transfer of risk and the receipt of the invoice, without any deductions.
3. The retention of payments and setting off with counterclaims is only permitted if the counterclaims of the customer are undisputed or have been established with legally binding effect.
VI. Partial deliveries, acceptance and transfer of risk
1. Partial deliveries are permitted, provided that they are reasonable for the customer.
2. The risk shall transfer to the customer when the subject of the delivery leaves the plant, including if partial deliveries are made or if we have agreed to render other services, e.g. transportation and installation. If an acceptance is to be carried out, it shall be decisive for the transfer of risk. It must be carried out promptly at the scheduled time of acceptance or alternatively after the deliverer gives notification of readiness for acceptance. The customer will not be able to refuse acceptance if there is only an insignificant defect in the delivery.
3. If the shipment or the acceptance are delayed or do not occur due to circumstances for which the customer is responsible, the risk shall transfer to it at the moment when the goods are ready to be shipped. If the customer declares without justification that it will not accept the subject of the delivery, the risk of accidental loss or accidental deterioration of the subject of the delivery shall transfer to it at the moment of such refusal.
VII. Retention of ownership
1. We shall retain the ownership title to the delivered items until payment has been made in full. In the event of breach of contract by the customer, particularly a delay in making payment, or if an application has been submitted for the opening of insolvency proceedings concerning the customer’s assets, we shall have the right, within the framework of the statutory provisions, to rescind the contract and demand the return of the delivered goods. In such a situation, the customer shall bear the costs resulting from the delivered goods being taken back.
2. The assertion of retention of ownership by us shall not be deemed to constitute rescission of the contract, unless we have explicitly declared it in writing.
3. The customer shall have the right to resell the delivered goods in the normal course of business. However, it assigns to us already now all receivables, in the amount of the purchase price agreed between us and it (including VAT), that arise for it from the resale, irrespective of whether the delivered goods are resold without or after processing. The customer shall have the right to collect those receivables after their assignment. Our authorisation to collect the receivables ourselves is not affected by this. However, we undertake not to collect the receivables as long as the customer properly fulfils its payment obligations. Otherwise, we will be able to demand that the customer inform us of the assigned receivables and the debtors, provide us with all the information necessary to collect them and the relevant documents and notify the debtors of the assignment.
4. The processing or alteration of the goods by the customer shall always be carried out for us. If the delivered goods are processed with other items that do not belong to us, we shall acquire co-ownership to the new item in the ratio of the value of the delivered goods to the other processed items at the time of the processing.
5. If the delivered goods are inseparably combined with items that do not belong to us, we shall acquire co-ownership to the new item in the ratio of the value of the delivered goods to the other combined items. The customer shall safekeep the jointly owned goods for us.
6. The customer may neither pledge the delivered goods nor assign them as security. In the event of attachment or seizure or other interventions by third parties, the customer must immediately notify us thereof and provide us with all the information and documents necessary for us to exercise our rights. Enforcement officers and/or the third parties must be notified of our ownership.
1. If there is a defect in the delivered item, according to our choice we can either eliminate the defect by way of supplementary performance (repairs) or deliver a new defect-free item (supplementary delivery).
2. The customer must provide us with the necessary time and opportunity for the supplementary performance, following consultation with us, otherwise we shall be released from the liability for the resulting consequences. Only in urgent cases, where there is a threat to operational safety or to prevent disproportionately large losses, the customer will have the right to eliminate the defect itself or have it eliminated by third parties and demand compensation from us for the objectively necessary expenses. The customer must promptly notify us of such independent elimination of defects, if possible in advance.
3. If the supplementary performance fails or a reasonable time limit to be set by the customer for the supplementary performance has expired ineffectively or is dispensable in accordance with the provisions of law, the customer will be able to rescind the contract or reduce the agreed price under the contract. However, in the event of an insignificant defect there shall be no rescission right.
4. In particular, the customer shall not be entitled to any rights regarding defects in the following cases:
Improper or inappropriate use, defective installation or commissioning by the customer or third parties, natural wear and tear, incorrect or careless handling, incorrect maintenance, unsuitable operating materials, defective construction work, an unsuitable building site or chemical, electrochemical or electrical influences, if we are not responsible for them.
5. If the customer itself or a third party eliminates defects improperly, we shall not be liable for the resulting consequences. The same applies for changes made to the subject of the delivery without our prior consent.
Defects of title
6. If the use of the delivered goods leads to an infringement of intellectual property rights or copyrights in Germany, as a rule we shall, at our expense, secure for the customer the right of further use or modify the subject of the delivery in a manner reasonable for the customer such that the infringement of property rights no longer exists.
If this is not possible on economically reasonable terms or within a reasonable period of time, the customer shall have the right to rescind the contract. Under the above conditions, we shall also have a right to rescind the contract.
7. Furthermore, we shall indemnify the customer against claims of the relevant property rights holders which are undisputed or have been established legally binding.
8. Our obligations specified in section VIII.7 of these Terms and Conditions are exhaustive, subject to section IX hereof, in the event of property rights or copyright infringement.
9. They shall only exist if:
– the customer promptly notifies us of any asserted property rights or copyright infringements,
– the customer supports us to a reasonable extent in defending against the asserted claims and/or enables the supplier to carry out the modification measures in accordance with section VIII.7 of these Terms and Conditions,
– we retain the right to all defence measures, including out-of-court arrangements,
– the legal defect is not the result of an instruction issued by the customer, and
– the infringement of rights did not a result from the fact that the customer unilaterally altered the subject of the delivery or used it in breach of contract.
10. Agreements regarding quality/characteristics and availability of the subject of the delivery shall only constitute a guarantee if they are explicitly marked as such.
11. Claims of the customer for compensation for losses or needless expenses shall only exist in accordance with section IX of these Terms and Conditions and are otherwise excluded.
1. Claims for compensation for losses or expenses of the customer against us, our statutory representatives and/or vicarious agents or assistants (hereinafter referred to jointly as the “Supplier”), irrespective of the legal basis, particularly due to breach of the contractual relationship and/or stemming from impermissible action (hereinafter referred to as “claims for compensation”) are excluded.
2. This shall not apply in the event of wilful misconduct or gross negligence on the part of the Supplier and/or in the event of a breach of key contractual obligations. Key contractual obligations are obligations whose fulfilment makes it possible to correctly perform the contract at all and upon whose fulfilment the customer generally relies and can rely.
3. However, in the event of a breach of key contractual obligations which is not intentional or due to gross negligence, the scope of the liability shall be limited to compensation for the foreseeable losses under a typical contract.
4. The above limitations of liability shall not apply if the Supplier is subject to mandatory liability, for example under the German Product Liability Act (Produkthaftungsgesetz), for losses resulting from loss of life or injury to the body or health, in the event of claims due to fraudulent action of the Supplier or where a guarantee is provided for the quality/characteristics of the delivered goods.
X. Time limitation of claims
1. All claims of the customers against us, irrespective of the legal basis, shall expire by time limitation 12 months after the delivery of the goods to the customer. If an acceptance is to be carried out, the time limitation period shall begin upon acceptance. This does not affect special statutory provisions on claims for restitution of property of third parties (Article 438.1 No. 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB)), in the event of wilful deceit on the part of the Supplier (Article 438.3 BGB) or on claims regarding suppliers’ recourse in the case of final delivery to a consumer (Article 479 BGB).
2. The above time limitation period does not apply for claims for compensation for losses resulting from wilful misconduct or gross negligence or for claims for compensation for losses in the situations specified in section IX.4, in which the Supplier is subject to mandatory liability. In these situations, the statutory time limitation periods apply exclusively.
XI. Place of performance, place of jurisdiction and applicable law
1. The place of performance is Salzhausen.
2. All legal disputes resulting from the contractual relationship shall be conducted before the competent court for our registered office. However, we shall also have the right to take legal action at the location of the customer’s registered office.
3. German law applies exclusively, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Should one of the above provisions be or become ineffective, the effectiveness of the other provisions hereof shall not be affected.