Gen­er­al terms and conditions

Gen­er­al terms and con­di­tions of Deliv­ery and Payment

Area of Application

1. The fol­low­ing Gen­er­al Terms and Con­di­tions of Deliv­ery and Pay­ment apply to all con­tracts with com­pan­ies, leg­al entit­ies under pub­lic law and pub­lic-law spe­cial funds for deliv­er­ies and oth­er ser­vices, includ­ing con­tracts for work and ser­vices, con­sultancy agree­ments, con­tract work and the deliv­ery of fun­gible and non-fun­gible items. The Buyer’s terms and con­di­tions of pur­chase have no applic­a­tion whatsoever.

2. Verbal agree­ments, ancil­lary agree­ments, pledges, guar­an­tees and oth­er assur­ances giv­en by our employ­ees become bind­ing only upon our writ­ten confirmation.

3. Our quo­ta­tions are without oblig­a­tion. Orders become bind­ing only upon our con­firm­a­tion of order.

4. The data and illus­tra­tions con­tained in our bro­chures and cata­logues are the usu­al approx­im­ate val­ues used in the trade, unless we have expressly described them as binding.

Prices

5. Unless oth­er­wise agreed, our prices apply ex works exclud­ing pack­aging, freight, post­age, insur­ance and value-added tax. Unless oth­er­wise agreed, our val­id price list at the time of enter­ing into the con­tract applies.

6. If the goods are delivered in a pack­aged state, we charge the pack­aging at cost; we take back any pack­aging we have delivered with­in the frame­work of the stat­utory pro­vi­sions, if the Buy­er returns the same to us car­riage paid with­in a reas­on­able peri­od of time.

7. If pub­lic charges, wages, mater­i­al or energy costs or oth­er third-party charges included in the agreed price under­go a change more than two months after enter­ing into the con­tract, or come into being for the first time, we are entitled to modi­fy the price to this extent.

Terms of Payment

8. Pay­ments must be made in accord­ance with the dates and dis­counts spe­cified in the invoices from the date of the invoice, oth­er­wise net imme­di­ately. Dis­count refers always to the invoice value exclus­ive of freight and pre­sup­poses that the Buy­er has settled all liab­il­it­ies due at the time of tak­ing the dis­count. The amount must be at our dis­pos­al on the due date.

9. In the event of late pay­ments we are entitled to charge default interest of 8 per­cent­age points above the rel­ev­ant base interest rate of the ECB.

10. Bills of exchange are accep­ted only by agree­ment and sub­ject to their dis­count­ab­il­ity. The Buy­er pays dis­count and col­lec­tion charges.

11. If it becomes obvi­ous, after con­clu­sion of the Con­tract, that our claim to pay­ment is in danger due to the Buyer’s lack of solvency, or if the Buy­er is in default with a quite con­sid­er­able amount or if oth­er cir­cum­stances occur which allow us to con­clude a major deteri­or­a­tion in the solvency of the Buy­er (e.g. con­sid­er­able reduc­tion of the lim­it of the Buy­er with our trade cred­it insur­ance, so that no cov­er exists for the order), we hold the rights under sec. 321 Ger­man Civil Code (BGB). We are entitled to call due all receiv­ables not yet pay­able that have aris­en from the ongo­ing busi­ness rela­tions and to require the imme­di­ate hon­our­ing of bills of exchange for their return.

12. The Buy­er has rights of reten­tion and set-off only to the extent that the Buyer’s counter-claims are undis­puted or judi­cially con­firmed as final and non-appealable.

Call-up Orders

13. For call-up orders, we are entitled to man­u­fac­ture or arrange for the man­u­fac­ture of the total order quant­ity at one time. In the absence of any oth­er agree­ments, call-up dates and quant­it­ies are sub­ject to our deliv­ery and man­u­fac­tur­ing cap­ab­il­it­ies. How­ever, we must be noti­fied of call-up at least one month before the deliv­ery date. If the goods are not called up in con­form­ity with the con­tract, we are entitled to charge them as delivered after a reas­on­able peri­od of time or with­draw from the contract.

Delivery

14. Unless oth­er­wise agreed, we deliv­er “ex works”. Adher­ence to deliv­ery peri­ods and dates is decided by our noti­fic­a­tion of read­i­ness for ship­ment or col­lec­tion. If ship­ment or accept­ance of the goods is delayed for reas­ons for which the Buy­er is respons­ible, the Buy­er will be charged for the costs incurred by the delay.

15. Part deliv­er­ies of a reas­on­able extent are admiss­ible and we can invoice the same separately.

16. Excess or short deliv­er­ies are admiss­ible with­in a tol­er­ance range of up to 10% per­cent of the total order quant­ity; the aggreg­ate price changes to the same extent.

17. The Buy­er must take over goods noti­fied as ready for ship­ment without delay. Oth­er­wise we are entitled to ship the goods at our dis­cre­tion or store them at the expense and risk of the Buyer.

18. In the absence of any spe­cial agree­ment, we select the mode of trans­port and the trans­port route.

19. Even if we are respons­ible for deliv­ery, the risk for all trans­ac­tions, also for post-paid and free deliv­er­ies, passes to the Buy­er when the goods are handed over to the rail­way, the trans­port com­pany or the freight­for­ward­er or, how­ever, at the latest upon leav­ing the ware­house or fact­ory. The Buy­er has the duty and the costs of unload­ing. We arrange insur­ance only on the instruc­tions and at the expense of the Buyer.

20. Our deliv­ery oblig­a­tion is sub­ject to our cor­rect and timely sup­ply by our own sup­pli­ers, unless we are at fault for the incor­rect or delayed delivery.

21. Deliv­ery peri­ods are exten­ded by a reas­on­able extent in the event of labour dis­putes, in par­tic­u­lar strikes and lock­outs and in the event of the occur­rence of unfore­seen obstruc­tions which are bey­ond our con­trol, provided that such  obstruc­tions have veri­fi­ably had con­sid­er­able influ­ence on the man­u­fac­ture or deliv­ery of the goods. The same applies if the cir­cum­stances affect our own sup­pli­ers. These pro­vi­sions apply mutatis mutandis to deliv­ery dates. If per­form­ance of the con­tract becomes unreas­on­able for one of the parties, that party may with­draw from the con­tract to that extent.

Reser­va­tion of Title

22. We reserve title to the goods delivered until their pay­ment (reserved-title goods), i.e. until the sat­is­fac­tion of all – includ­ing con­di­tion­al – claims arising from the busi­ness rela­tions, regard­less of the basis in law.

23. The Buy­er may sell the reserved-title goods only in the usu­al course of busi­ness sub­ject to its usu­al terms of busi­ness and provided that the Buy­er is not in default on con­di­tion that the receiv­ables arising from the resale pass to us. The Buy­er has no right to dis­pose of the reserved-title goods in any oth­er manner.

24. In the event of a breach of duty by the Buy­er, in par­tic­u­lar default in pay­ment, we are entitled, after a reas­on­able exten­sion of time allowed to the Buy­er for per­form­ance has expired without issue, to with­draw from the con­tract and recov­er the goods; this does not affect the stat­utory pro­vi­sions regard­ing the pos­sib­il­ity of dis­pens­ing with such a dead­line. The Buy­er is obliged to sur­render the goods delivered.

25. The receiv­ables of the Buy­er from the resale or leas­ing of the reserved­title goods are already now assigned to us as secur­ity. The Buyer’s right to col­lect the receiv­ables from the resale is extin­guished in the event of our revoc­a­tion there­of, which is pos­sible no later than at the time of pay­mente fault by the Buyer.

26. Work­ing and pro­cessing of the reserved-title goods occurs on our behalf as man­u­fac­turer as defined in sec. 950 Ger­man Civil Code (BGB) without incur­ring any oblig­a­tion on our part. These pro­cessed goods are deemed to be reserved-title goods. If the Buy­er pro­cesses, com­bines or mixes the reserved-title goods with oth­er goods, we acquire co-own­er­ship in the new thing in the same rela­tion as the invoice value of the reserved-title goods to the invoice value of the oth­er goods used. If our title is extin­guished by pro­cessing, com­bin­ing or mix­ing, the Buy­er already now assigns to us any rights of own­er­ship accru­ing to him in the new thing to the amount of the invoice value of the reserved-title goods and keeps them safe on our behalf. The rights of co-own­er­ship thereby cre­ated are deemed to be reserved-title goods.

27. The Buy­er is obliged to inform us of any judi­cial enforce­ment pro­ceed­ings by third parties on the reserved-title goods or on the receiv­ables assigned to us or oth­er secur­it­ies without delay and sup­ply us with the doc­u­ments required for inter­ven­tion. The same applies to any impair­ment of the reserved-title goods.

28. If the real­is­able value of the exist­ing secur­it­ies exceeds the value of the receiv­ables secured by more than 20% in aggreg­ate, we are obliged to release secur­it­ies to this extent at our dis­cre­tion if the Buy­er so requests.

Mater­i­al Defects

29. The prop­er­ties of the goods are determ­ined solely accord­ing to the agreed tech­nic­al deliv­ery pro­vi­sions. If we have to deliv­er accord­ing to the Buyer’s draw­ings, spe­cific­a­tions, samples, etc. the Buy­er assumes the risk of suit­ab­il­ity for the inten­ded pur­pose. Assur­ances or guar­an­tees must be expressly described as such in writing.

30. Mater­i­al defects must be repor­ted in writ­ing without delay, but no later than sev­en days after deliv­ery. Mater­i­al defects which could not have been dis­covered with­in this peri­od by even the most care­ful exam­in­a­tion, must be noti­fied in writ­ing without delay after their dis­cov­ery, how­ever, no later than sev­en days after their discovery.

31. If the accept­ance of the goods or an ini­tial-sample test has been agreed, the Buy­er can­not com­plain about any defects that the Buy­er could have dis­covered dur­ing this accept­ance or ini­tial-sample test. 32. The Buy­er can­not invoke defects in the goods if the Buy­er allows us no oppor­tun­ity to sat­is­fy ourselves of the defects, in par­tic­u­lar, or if the Buy­er does not make the goods com­plained of — or samples there­of — avail­able without delay.

33. We may, at our dis­cre­tion, elim­in­ate the defect or deliv­er fault-free goods.

34. We pay any expenses con­nec­ted with sub­sequent per­form­ance only if they are reas­on­able for us (with­in reas­on­able pro­por­tion) com­pared to the value of the goods without the defect and the import­ance of the defect. Excluded are costs of the Buy­er in con­nec­tion with the fit­ting and/or remov­al of the defect­ive item, for elim­in­a­tion of the defect by the Buy­er or for extra expenses incurred as a res­ult of the fact that the goods sold and delivered are loc­ated in a place oth­er than the agreed place of performance.

Liab­il­ity

35. We – and our exec­ut­ive staff and oth­er agents or employ­ees – are liable to com­pensate for dam­ages for a breach of con­trac­tu­al or non-con­trac­tu­al duties only in the event of intent or gross neg­li­gence, in which case liab­il­ity is lim­ited to the typ­ic­al con­trac­tu­al dam­ages fore­see­able at the time of con­clud­ing the con­tract; oth­er­wise, our liab­il­ity, also for defects and the con­sequences of defects, is excluded.

36. The afore­men­tioned lim­it­a­tions do not apply in the event of culp­able breach of essen­tial con­trac­tu­al duties; these include the duty to deliv­er punc­tu­ally and free of defects as well as duties of pro­tec­tion and care that are inten­ded to enable the Buy­er to use the delivered goods in con­form­ity with the con­tract. Moreover, these lim­it­a­tions do not apply in the event of culp­ably caused harm to life, phys­ic­al injury or harm to health or if, and to the extent to which, we have mali­ciously con­cealed defects or if we have giv­en a guar­an­tee for the char­ac­ter­ist­ics of the goods delivered or in the event of man­dat­ory liab­il­ity under the Ger­man Product-Liab­il­ity Act. This does not affect any addi­tion­al pro­vi­sions regard­ing the bur­den of proof.

37. If we are in default with a deliv­ery or oth­er ser­vice, the Buy­er may demand com­pens­a­tion for default dam­ages in addi­tion to per­form­ance as spe­cified in Art­icles 35 to 36, how­ever, lim­ited for slight neg­li­gence to a max­im­um of 10% of the agreed price for the per­form­ance in default. This does not affect the right of the Buy­er to claim com­pens­a­tion for dam­ages in lieu of per­form­ance as defined in Art­icles 35 to 36.

38. Con­trac­tu­al claims against us accru­ing to the Buy­er from or in con­nec­tion with the deliv­ery of goods become time-barred one year after deliv­ery of the goods. This peri­od also applies to goods which were used for a build­ing struc­ture in  accord­ance with their usu­al pur­pose and which have caused its defect­ive nature, unless this use or pur­pose was agreed in writ­ing. This does not affect our liab­il­ity for breaches of duty arising from intent or gross neg­li­gence, any culp­ably caused harm to life, phys­ic­al injury or harm to health and the time-bar­ring of stat­utory rights of recourse (secs. 478, 479 Ger­man Civil Code (BGB)).

Draw­ings and Descriptions

39. We reserve all title and copy­right to cost estim­ates, drafts, draw­ings and oth­er doc­u­ments; they may be made avail­able to third parties only with our agree­ment. Draw­ings and oth­er doc­u­ments form­ing part of quo­ta­tions must be returned on request.

Means of Man­u­fac­ture (Samples, Tools, Moulds)

40. Unless oth­er­wise agreed, the man­u­fac­tur­ing costs for means of pro­duc­tion (samples, tools, moulds, tem­plates) will be charged sep­ar­ately to the Buy­er. The same applies to any means of pro­duc­tion that must be replaced due to wear and tear.

41. Our liab­il­ity for means of pro­duc­tion is lim­ited to our own usu­al care. The Buy­er pays the costs of main­ten­ance, stor­age and care.

42. If the Buy­er sus­pends or ends cooper­a­tion with us dur­ing the peri­od of man­u­fac­ture of the means of pro­duc­tion, all man­u­fac­tur­ing costs incurred up until that point in time are at the Buyer’s expense.

43. The means of pro­duc­tion remain in our pos­ses­sion, even if the Buy­er has paid for the same, at least until com­ple­tion of the sup­ply order. There­after the Buy­er is entitled to demand receipt of the means of pro­duc­tion if the Buy­er has ful­filled all oblig­a­tions arising from the busi­ness relations.

44. We store the means of pro­duc­tion for up to one year from the date of the last deliv­ery to the Buy­er. The duty of stor­age ends if the Buy­er has not asked for the sur­render of the means of pro­duc­tion, des­pite hav­ing been set a peri­od of one month in writ­ing, and the Buy­er has also not placed
any new order.

45. If we have delivered goods accord­ing to the Buyer’s draw­ings, spe­cific­a­tions, samples or oth­er doc­u­ments, the Buy­er guar­an­tees that pro­pri­et­ary rights of third parties have not been breached. If third parties pro­hib­it us from man­u­fac­tur­ing and deliv­er­ing such items by invok­ing pro­pri­et­ary rights, we are entitled, without being obliged to exam­ine the leg­al pos­i­tion, to cease all fur­ther work and to claim com­pens­a­tion for dam­ages in the event of our hav­ing to rep­res­ent the Buy­er. The Buy­er also under­takes to indem­ni­fy us without delay against all claims of third parties in con­nec­tion with the same.

Con­fid­en­ti­al­ity

46. The Buy­er will use all doc­u­ments (also includ­ing designs, mod­els and data) and know­ledge that the Buy­er gains from the busi­ness rela­tions only for the jointly pur­sued pur­poses and keep the same secret with the same degree of care as for the Buyer’s own doc­u­ments and know­ledge if we describe the same as con­fid­en­tial or have an obvi­ous interest in their secrecy. This oblig­a­tion begins with the first-time receipt of the doc­u­ments or know­ledge and ends 36 months after the end of the busi­ness relations.

47. The afore­men­tioned oblig­a­tion does not apply to doc­u­ments and know­ledge that are gen­er­al know­ledge or which were already known to the Buy­er at the time of receipt without the Buy­er being obliged to secrecy or which were con­veyed there­after by a third party entitled to pass on the same or which were developed by the Buy­er without using any doc­u­ments or know­ledge that were to be kept secret. Place of Per­form­ance, Place of Jur­is­dic­tion, Gov­ern­ing Law

48. Place of per­form­ance, includ­ing for the duties of the Buy­er, is our registered office.

49. Place of jur­is­dic­tion is our registered office. We are also entitled to bring an action before the court at the registered office of the Buyer.

50. This Con­tract is gov­erned by Ger­man law and excludes applic­a­tion of the UN Con­ven­tion on Con­tracts for the Inter­na­tion­al Sale of Goods (CISG).