General Business Terms

I. General

  1. These General Business Terms apply to all offers, delivery contracts and other services provided by us, including future offers, delivery contracts and services.
  2. Any purchasing or business terms of the buyer which may be in contradiction of these General Business Terms will only apply in as far as they are recognised in writing by our management; it is insufficient to have a written recognition by our field service staff.
  3. All agreements must be set down in wiritng. This applies to secondary agreements and undertakings as well as to subsequent amendments to the contract.
  4. Rights and obligations of the buyer arising from this contract may not be transferred to third parties without our written approval.
  5. Should any of the stipulations of this contract be or become invalid in law, this does not affect the validity of the remaining stipulations of the contract.
  6. These General Business Terms are only valid in dealings with merchants, legal entities under public law and special funds under public law. At the latest, our General Business Terms are considered to take exclusive effect as of receipt of goods or services.

II. Offers, prices, transfer of risk

  1. Our offers are subject to change and only become valid with our written order acknowledgement.
  2. Information given in descriptions relating to the appearance, performance, weights, dimensions, drawings, consumption of operating materials, operating costs of the object of purchase and which is valid on closure of the contract is to be considered as non-binding and approximate; in addition, they require optimum operating conditions. This does not apply to characteristics of the object of purchase which are expressly guaranteed by us in writing. In as far as characters or numbers are used to designate the order or the object of purchase, this does not in itself impart any rights. We reserve the rights of title and copyright to price quotations, drawings and other documentation; they must not be made available to third parties.
  3. Unless otherwise stipulated, the price of the object of purchase is to be understood ex works excluding VAT at the rate applicable on the date of invoicing. Packaging and delivery costs and any additional services (e. g. acceptances, conveyances etc.) rendered by us at the customer`s request and which do not constitute part of the services to be rendered by us as defined in the written contract or our order acknowledgement will be invoiced separately. The prices quoted for confirmed orders cannot be reduced as a result of the customer placing follow-up orders. If the delivery date agreed upon for the merchandise ordered from us is more than four months
    after the closing of the contract, we reserve the right-to pass on to the customer in the form of an appropriate price increase any increase in our costs as the result of price increases made by our suppliers or other price increases.
  4. Unless otherwise stipulated in the order acknowledgement, delivery is "ex works", i.e. at Güglingen or one of our suppliers' warehouses. Should the purchaser request it, we can cover the delivery with transport insurance; the costs incurred will be borne by the purchaser.
  5. We dispatch all merchandise for the customer's account and risk. If, as the result of a special agreement, delivery is made freight-free, unloading is to be effected by the customer. If the merchandise is dispatched to the customer at his request, the risk of accidental loss and deterioration of the goods passes to the customer with delivery of the merchandise by us to the carrier, at the latest when the goods leave our works or the warehouse, irrespective of whether the goods are dispatched from the place of fulfilment or who bears the freight costs. If the goods are ready for dispatch but dispatch or acceptance of the goods is delayed for reasons beyond our control, the transfer of risk to the customer is considered to be accomplished when the latter receives confirmation that the goods are ready for delivery.
  6. Partial deliveries are permissible. With partial deliveries the risk transfers to the purchaser as per subparagraph 5.

III. Payment and delay in payment

  1. Unless otherwise stipulated in the order acknowledgement, payment of the purchase price and of any additional services falls due on receipt of the invoice. The buyer will be considered to be in arrears of payment at the latest 30 days after receipt of the invoice. This does not affect the seller`s statutory right to issue a reminder to the effect that the buyer is in arrears.
  2. In the case of an agreed date of payment or an agreement on partial payments, the entire sum, independent of the due dates of any bills of exchange, falls due immediately should any reasonable doubt arise as to the buyer`s ability to fulfil his financial obligations, in particular if the customer is more than 14 days in arrears with an instalment, if he suspends payments or if bankruptcy or composition proceedings are initiated against him.
  3. Payment instructions, cheques and bills of exchange will only be accepted in payment by special agreement; all collection and discounting costs to be borne by the buyer.
  4. The purchaser can only offset against our claims if the counter-claim of the purchaser is uncontested or if there is a legal title involved; retention rights can onlt be implemented only insofar as it refers to claims arising from the purchasing contract. 
  5. If payment in instalments has been agreed upon and the buyer is in arrears of payment of two successive instalments, we are entitled, after setting an appropriate deadline for payment, to withdraw from the contract or claim damages for non-fulfilment of the contract, while retaining our rights as defined in Section VI, item 5.
  6. Interest on arrears will be charged at a rate of 8 % p.a. above the currently valid basic interest rate. This interest will be charged at a higher or lower rate in the event that we can produce verification of paying a higher interest rate or the buyer of a lower interest rate.

IV. Delivery, delay in delivery and delay in acceptance

  1. Unless otherwise agreed in writing, delivery dates and delivery periods stipulated by us are without obligation. Delivery dates named by us, even where agreed upon formally, are subject to our receiving complete and correct delivery from our suppliers, unless we ourselves are responsible for the failure to deliver correctly or punctually; the right to partial deliveries is reserved. The delivery period begins with the date of posting of our order acknowledgement, but not before the buyer has provided all necessary documentation, permits and releases and not before receipt of any deposit or initial payment agreed upon. The delivery period is considered as
    met if the goods in question have left our works or the customer has been notified that the goods are ready for delivery before expiry of the delivery period.
  2. Furthermore, the delivery period will not be deemed to begin before all technical and commercial details with regard to the processing of the order have been clarified.
  3. If we fail to deliver punctually for reasons for which we can be held legally responsible, the buyer is entitled to claim damages from us for costs which he is proven to have incurred, to the max. amount per calendar week of 1% of the value of that part of the delivery which could not be put into operation due to delays in production of objects forming part of the delivery, such damages being limited to a maximum of 5 % of the value of that part of the delivery which could not be put to the intended use.
  4. The buyer's right to withdraw from the contract because of late delivery or to claim damages for non-fulfilment of our contractual obligations can only be exercised after the expiry of an appropriate extension of the delivery period, to be granted by the buyer after our failure to deliver within the fixed period; a reasonable extension period is considered to be up to 60 days. Under no circumstances will we pay damages above and beyond the value of losses which can typically be expected in the case in question. The buyer's claim to damages is limited to 20% of the value of the delivery, unless the delay in delivery was caused by gross negligence on the part of our
    staff or management.
  5. Under no circumstances will we pay damages above and beyond the value of losses which can typically be expected in the case in question.
  6. The fulfilment of the obligation to deliver entered into by us is only possible if the buyer also fulfils his obligations correctly and punctually. We reserve the right to suspend work on the order or to refuse to deliver the goods, despite acceptance being provided, if we have reasonable doubt as to the buyer's ability to fulfil his financial obligations. In this case, we are entitled to make continuation of work on this order or the delivery of the goods ordered dependent on the buyer
    providing suitable securities to cover our claim.
  7. In the event of acts of God or disruptions in production at our company or that of our suppliers, for example as a result of unrest, strikes or lockouts, and due to which we are temporarily and through no fault of our own prevented from delivering the goods on the date or within the period agreed upon, the periods and deadlines stipulated in the contract will be extended by the duration of the disruptions caused by these aforementioned circumstances. The customer will be duly notified of any such circumstances.
  8. Should the reasons named under subparagraph 7 render delivery impossible, we are absolved of our obligation to deliver and the customer is not entitled to file for damages or non-fulfilment of the contract against us.
  9. If delivery is delayed as a result of culpable action by the buyer or for reasons for which the buyer can be held responsible, the latter bears the costs incurred as a result of the delay (such as storage costs etc.).
  10. The manufacturer reserves the right to make alterations in the design, form, colour and range of delivery during the delivery period, providing that the goods are not changed significantly and the alterations are such as the buyer can be reasonably expected to accept. This does not apply in cases where we have expressly guaranteed in writing to deliver merchandise of a specific characteristic.
  11. If the purchaser places orders based on particular measurement units (m2 / m) and if, because of our pack sizes, we are only able to make a delivery by sending out slightly more of the purchased material, the purchaser is obligated to pay for this slight increase in quantity resulting from the pack sizes. A slightly greater quantity is defined as a delivery of up to 20% more than ordered. In the event of it only being possible to process the order by delivering more than 20% above the quantity ordered, we will notify the purchaser / customer accordingly.

V. Acceptance

  1. The buyer is entitled to inspect the goods at the agreed place of acceptance within 8 days of receiving notification that the goods are ready for delivery, and is obliged to accept the goods within this period.
  2. Should the purchaser not fulfil their acceptance obligations quoted in subparagraph 1, the purchased goods will be considered to be accepted in the terms of the contract after the expiry of the 8th day after issuing the readiness notice; this is stated explicitly in the notice of readiness.
  3. If the buyer fails to fulfil his obligations, in particular his obligation to provide acceptance and take delivery of the goods, despite having been granted an appropriate extension by us in which to do so, or if the buyer refuses definitely and finally to accept or take delivery of the goods, or if the buyer is obviously not in a position to effect payment for the goods, we are entitled to withdraw from the contract or to claim damages for non-fulfilment of the contract. We are entitled to claim damages amounting to 15 % of the purchase price. The amount claimed may be higher if we can document that the losses incurred were more considerable or lower if the buyer
    can prove that the losses incurred were lower.
  4. In the event of us filing a claim for damages, we will claim 15% of the purchase price, unless higher losses have been incurred and can be documented, in particular in view of the high cost of redemption of the merchandise. This applies unless the customer can prove that the losses incurred by us were lower. In the event of a claim for damages, no extension need be granted if indications that the customer is unable to fulfil his financial obligations have appeared after the signing of the contract, for example if the customer is in arrears or has suspended payment, has filed for bankruptcy, in the event of security transfer of floating capital or if unfavourable reports
    are received from banks, credit institutions or credit insurance companies.

VI. Retention of title

  1. We retain the right of title to merchandise delivered by us until all our claims have been settled, irrespective of the legal reason, until all checks or bills of exchange accepted in payment have been honoured, even if the purchase price for specifically named items has been paid. In the event of open accounts, the goods to which we retain the title serve as a security for our accounts receivable. In particular, we retain right of title to the goods, until, for example, the buyer has released us from obligations incurred on his behalf with regard to endorsements of bills of exchange. We also retain the title to the merchandise for all claims subsequently arising
    against the buyer, for example for repairs, spare parts deliveries or arising from the ongoing business relationship.
  2. The buyer is under obligation to maintain the goods in good order during the period in which we retain title, to have all required servicing and maintenance work prescribed by the manufacturer effected immediately, with the exception of emergencies, by us or by a repair and maintenance facility approved by the manufacturer.
  3. The buyer is under obligation to insure the goods adequately and at his own cost against fire, water and theft at replaceable value.
  4. While we retain title to the goods, the buyer is entitled to hold and to make use of the said goods, provided that he fulfils his obligations as defined in this section and is not in arrears of payment. If the buyer is in arrears or fails to fulfil his obligations with regard to the retention of title, we are entitled to demand that the object of purchase is surrendered to us; the latter is obliged to hand over the object of purchase without delay and without any right of retention, unless such right arises form the purchase contract. If we have repossessed the goods from the buyer, we can, after giving appropriate notice¸ sell the goods on the free market for the best
    possible price, which will then be deducted from the purchase price owed to us. All costs for redemption and liquidation of the goods to be borne by the buyer. The liquidation costs, without verification, are 10 % of the liquidation yield, including VAT. They are to be assessed higher or lower if we can provide evidence of higher costs or if the purchaser can verify lower costs. The proceeds of the sale will be credited against the buyer's obligations after deduction of the costs and other claims in connection with the purchase contract.
  5. The purchaser is entitled to re-sell the purchased goods in a proper sales procedure; he is not entitled to a pledge or assignment as security. The buyer is under obligation to secure our rights on credit when reselling goods to which we retain right of title. However, the buyer assigns to us in advance all claims to the amount of the total sum of the invoice (incl. VAT) for resale to his customers or third parties, irrespective of whether the goods are sold before or after processing. We accept this assignment. The buyer retains the right to collect the amount even after assignment of the rights. This does not affect our right to collect the amount ourselves. However, we undertake not to collect the amount as long as the buyer continues to fulfil his obligations with regard to the proceeds of the sale, is not in arrears and in particular, as long as he has not filed for bankruptcy or composition or has suspended payment. If this is the case, however, we can demand that the buyer informs us of the claims he has assigned and supplies the names of the debtors and all other necessary information, hands over the necessary documents and informs his
    debtors (third parties) that he has assigned his rights to the claims in question. 
  6. Where third parties have regress to the goods, in particular in the case of garnishment of the goods or of a workshop exercising its right to foreclosure, the buyer is obliged to notify us immediately in writing and to inform the third party immediately of our retention of title. The buyer bears all costs for incurred for reversing the procedure and recovering the goods in as far as they are not forfeit to third parties.
  7. Processing or alteration of the goods by the buyer is always effected to our benefit, without incurment of any liability on our part in this connection. If the goods are processed with other objects not owned by us, we acquire part-ownership of the new object, to an extent depending on the value of the goods to which we retain the title relative to the other procesed objects at the time of processing. The same applies to the object arising from the processing as for the object of
    purchase to which we retain the title.
  8. We undertake to release the securities to which we are entitled at the request of the buyer in as far as the value of the securities pledged exceeds our claim by more than 20%.
  9. If the buyer sells the goods subject to retention of title or the joint property transferred to us in accordance with subparagraph 7, he will then relinquish the claim to the level of the invoice end-value (including VAT) on the buyer with all ancillary rights to the value of the secured claim to us for safety reasons.
  10. The buyer will notify us immediately of any foreclosure by third parties with regard to assigned claims, will provide all information necessary in order to avoid such measures and will make all relevant documents accessible.

VII. Returns

  1. Goods returns are fundamentally excluded.
  2. Should we accept a return, as an exception, we retain the right to issue a lump-sum invoice to cover the costs incurred (checking, re-stocking etc.) to the level of at least 20 % of the net sales price.

VIII. Warranty

  1. In the event of justified claims by the buyer under the terms of warranty, we will either remedy the fault by making repairsor supply a fault-free replacement for the faulty item, as we see fit. Where we supply a fault-free replacement for a faulty item, the buyer is obliged to return the
    faulty item to us.
  2. We retain the right to refuse to provide a replacement for faulty goods where this would only be possible at unreasonably high cost. When considering whether to effect repairs or provide a replacement, particular considerations are the value of the object in fault-free condition, the extent of the fault and the question of whether repairs can be effected without significant disadvantage to the buyer.
  3. If we decide to effect repairs, it remains at our discrection whether these are carried out at our place of business or that of the buyer. The buyer must consult us before repairing faults in the goods or having such faults repaired.
  4. When effecting repairs, we are entitled to repair all damage caused by the fault.
  5. The buyer is not entitled to withdraw from the contract if the fault only constitutes a minor loss in value or restriction in the serviceability of the goods.
  6. Under the terms of the warranty, we are liable only for publicly declared consistency characteristics / consistency statements. We assume no liability for statements made publicly by third parties concerning the characteristics of the object of purchase, in particular in advertising or rating of particular properties of the object.
  7. We assume no liability if
    1. the object of purchase has been handled incorrectly or subjected to unreasonable use, or
    2. the purchased goods have been repaired, serviced or processed previously in a company not authorised by us for support, or
    3. if parts are fitted to the purchased goods, whose use has not been approved by us or if the purchased goods have been modified in a way not approved by us, or
    4. if the purchaser has not followed the regulations concerning the processing, maintenance and care of the purchased goods (e.g. operating instructions), provided that it cannot be excluded that one of these conditions as become the cause of the fault.
  8. Natural wear and tear are excluded from the warranty.
  9. The buyer is under obligation to inspect the object of purchase immedately and thoroughly on receipt, where necessary to carry out random testing. Obvious defects must be reported to us immediately in writing, at the latest 8 days after receipt of the object of purchase. Failure to report such defects immediately will render claims under the warranty null and void. The object of purchase must be stored appropriately and returned to us if expressly requested by us.
  10. We advise our customers to the best of our knowledge and on the basis of our own insights, but without any obligation. Any information, transfer and application or use of the object of purchase is without obligation on our part unless otherwise expressly guaranteed in writing. Information provided by us does not exempt the buyer from the obligation to verify information for himself.
  11. From the beginning, the buyer bears the full burden of proof with regard to any claims made by him, in particular in connection with claims relating to faults existing at the moment of transfer of risk.
  12. Once processing or installation of the merchandise supplied has begun, notice of defect can only be served if it can be proved that the fault was already present before processing or installation of the merchandise suppied by us.
  13. The maximum warranty period as per § 438 section 1 No. 3 of the BGB (German Civil Code) is one year from delivery of the merchandise.
  14. In as far as delivery is effected in connection with the construction of a building, (§ 438 section 1 No. 2b BGB), the warranty period is reduced to 4 years, in the case of work performed on a plot to 2 years, where VOB (German Construction Contract Procedure) Part Bapplies for the buyer with respect to his client.
  15. In all other cases as per § 438 section 1 No. 2 of the BGB, the maximum warranty period is 4 years from delivery of the merchandise.

IX. General limitation of liability

  1. Liability for material damage is excluded where such damage is to be attributed to minor negligence with respect to a secondary obligation and where it does not constitute a threat to the contractual use. This applies in particular where the damage caused is covered by insurance taken out by the buyer.
  2. Irrespective of the reason for the claim, our duty of replacement is limited to the extent of damage to property and persons.
  3. Except in cases of intentional damage, our liability is limited to such damage as can typically be expected in ordinary business circumstances.
  4. In as far as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
  5. The buyer's claims for indemnity fall under the statue of limitations after one year from delivery of the merchandise. This does not apply in cases where we are accused of gross negligence or where we are held responsible for physical injury or damage to health or in the event of the loss of the life of the buyer.
  6. The existing limitations of libility do not apply to claims from the product liability law (§ 1, 4 Product Liability Law).

X. Special stipulations for orders executed from drawings, models etc.

  1. In as far as we deliver merchandise produced to our own drawings, samples and models, these drawings, samples and models form the basis for technical execution of the merchandise. However, we can assume no liability with regard to the intended use to which the merchanidse is put.
  2. We retain right of title to and copyright with regard to our drawings, samples and models. Under no circumstances may such documentation be made accessible to third parties. Press moulds and die-casting moulds remain our property.
  3. The manufacturing costs are advanced by the customer / buyer and credited to him to the amount of 5% of the value of the merchandise on the invoice for each running delivery until the full sum has been amortised. We undertake to use the moulds exclusively for the purposes of execution of the customer / buyer's order unless other use is expressly agreed upon.
  4. Where we deliver merchandise produced to the customer's samples, drawings or models, the customer is responsible for ensuring that we are not acting in violation of the property rights of third parties. If we are prevented, by a third party, based on a copyright that belongs to him, from manufacture and delivery of objects that are manufactured in accordance with drawings, models or samples from the purchaser, we are entitled, without having to check the legal situation, and with exclusion of all damages compensation claims by the purchaser / buyer, to cease manufacture and delivery and to demand compensation of the costs incurred.
  5. The buyer / customer will compensate us for any direct or indirect damage suffered as a result of the violation of industrial property rights and the assertion of such industrial property rights. In the event of legal proceedings, and on request, the buyer / customer will advance to us an appropriate sum for settlement of litigation costs.

XI. Place of performance and venue

  1. The law of the Federal Republic of Germany applies. The UN Sales Convention does not apply.
  2. The sole place of performance for all our obligations to the buyer arising from the contract, including warranty obligations, is the place of business of our company.
  3. The sole legal venue for any disputes arising from this contract - including disputes with regard to checques or bills of exchange - is the place of business of our company. This also applies where the customer has no general legal venue in Germany or does not reside in Germany, whether permanently or temporarily, at the time of instigating the proceedings.

 

 

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