General Terms and Conditions
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§ 1 Scope of application and definition of terms
1. These Terms and Conditions of Business shall exclusively apply to all current and future
Business relations, in which the Seller is commissioned with the manufacture of goods, sells such
goods, or provides any other types of services. These then apply to all future business relationships, even if they are not expressly agreed upon again. These conditions are regarded as accepted at the latest with the acceptance of the goods or the service. Herewith of a counterconfirmation of the Buyer with reference to his own general terms of business or purchase conditions is contradicted.
2. All agreements entered into between the Seller and the Buyer for the purpose of implementing this contract must be recorded in writing.
§ 2 Placement of Order / Conclusion of Contract
1.All the Seller´s offers are free and non-binding. Declarations of acceptance and all orders require written confirmation or confirmation by telex from the seller in order to take legal effect.
2. Dimensions, illustrations, drafts/drawings, KW data and other performance data are only binding in terms of execution if this is expressly confirmed in writing.
3. Sales staff employed by the Seller are not authorised to make verbal additional agreements or offer verbal assurances which go beyond the scope if the written contract.
§ 3 Prices
The prices specified in the confirmation of order of the Seller are determining plus the respective legal value added tax.
Additional deliveries and services shall be calculated separately.
§ 4 Delivery / Delivery Dates
1. Delivery periods or deadlines whether binding or non-binding require written agreement.
2. The Seller is not responsible even in case of binding agreements for delays in delivery and service
due to force majeure and other unforeseen events which impede the delivery considerably or render impossible the delivery by the Seller. In particular these events include strikes, lock-out or governmental orders etc. even if these circumstances occur at the Seller’s suppliers and their suppliers. Under these circumstances the Seller shall be entitled to extend the delivery period by the duration of the hindrances plus a reasonable period or to withdraw in part or completely from the contract part which has not been fulfilled yet.
3. Should the hindrances last more than three months the Buyer shall be entitled to withdraw from the contract part which has not been fulfilled yet, but only after expiry of a grace period. If delivery is extended or delivery and performance become permanently impossible due to the aforementioned occurrences, the Seller shall also have the right to withdraw from the contract. In such case, damage claims by the Buyer shall be excluded. The mentioned terms are only valid if the Seller immediately informs the buyer of the delay in delivery.
4. Further claims for compensation only exist if the delay in delivery was caused intentionally or by major negligence by the Seller.
5. Partial shipments and performance are permitted at any time.
6. To carry out delivery and performance all liabilities have to be met properly and in time by the Buyer.
7. If the Buyer is at fault of non-acceptance of the purchased goods, the Seller may claim a compensation for non-acceptance. The Seller reserves the right to claim further damages. In case of default of acceptance the Buyer bares the risk of a possible damage or loss of the goods.
§ 5 Passage of Risks
1. Delivery and shipment are ex works and at the Buyer´s risk. As soon as any courier service delivers the order items to the Buyer , all risks and responsibilities pass on to the Buyer. Where shipment is delayed or omitted for causes not attributable to us, the risk shall pass to the Buyer on the date of our notice that the goods are ready for shipment.
§ 6 Warranty for Defects of Quality
1. Any defect shall be reported to us forthwith upon discovery in written form. Hidden defects must be notified without delay after their discovery. In both cases claims on the basis of defects as to quality shall become time-barred 12 months after the risk was passed
on to the Buyer. The foregoing provisions shall not apply to the extent that longer limitation periods are mandatorily prescribed by statute pursuant to § 438(1) No. 2 of the German Civil Code (Bürgerliches Gesetzbuch, or “BGB” – Physical Structures and Physical Objects used for Physical Structures), § 479 (1) BGB (Recourse Claim), and § 634a (1) BGB (Construction Defects).
2. If the goods are defective the Seller is obliged to subsequent satisfaction whereupon the Buyer´s written order of initial samples dictates the quality and dispatch which has to be expected. If such subsequent satisfaction fails or does not take place within an adequate period the Buyer may withdraw from the contract or reduce the purchase price. The Buyer may only claim further compensation of damages on the conditions set out in § 10. If required Spare parts have to be returned to the Seller at no cost to the Seller.
3. No warranty shall be accepted specifically in the case of improper use, misuse, or improper treatment or neglect carried out by Purchaser or third parties. Improper rework carried out by the Buyer or a third party releases us of any liability for the resulting consequences. This does not apply if the Buyer acts in order to avoid any extraordinary defects or if the rectification of the defect by the Seller is delayed. In this case the Buyer is entitled to rectify the defect after informing the Seller and may claim compensation at reasonable costs.
4. The consequences of normal wear and tear are excluded from this warranty.
§ 7 Retention of Title
1. The Seller retains title to the delivered goods until all claims arising from the business relationship with the Buyer
have been satisfied, including ancillary claims, claims for compensation of damages and payment of cheques and bills of exchange. The retention of title continues even if certain individual claims are included in a current account and the balance has been struck and acknowledged. The Seller shall undertake to release the security that he holds at the Buyer´s request in so far as the value thereof exceeds the claims to be secured by more than 20%.
2. The goods remain the property of the Seller; processing or reshaping will always be performed for the Seller as manufacturer, but without any obligation. If the (co-)ownership of the Seller lapses by mingling of the product, it is now agreed in advance that the Buyers (co-)ownership of the combined object shall be assigned to the Seller proportionally (in proportion to the invoice value). In such cases, the Buyer must at no charge keep in safe custody the goods in the Seller´s ownership or co-ownership, which are likewise to be considered goods subject to retention of title.
3. The Buyer is entitled to sell or process the goods subject to retention of title within the ordinary course of business unless he is not in default. The Buyer is not entitled to pledge or transfer as security any goods being subject to retention of title. In case the goods subject to retention of title are resold the Buyer herewith already assigns his claims and other rights based of such sale or legal foundation (insurance, unlawful act) on retention of title to the Seller. At the Seller’s revocable request, the Buyer is obliged to collect the claims of the Seller´s invoices transferred to the Seller in his (the Buyer´s) own name. The Buyers´s permission to collect claims cannot be revoked as long as the Buyer meets his payment obligation.
4. In case of access to goods subject to retention of title by third parties, referring to pledge in particular, the buyer shall point to the Seller´s ownership and inform the Seller immediately so that the Seller is able to make use of his ownership. If the third party in question is unable to reimburse the Seller for the costs of legal proceedings against him, whether in our out of court, the Buyer shall be liable for any resulting loss incurred by the Seller.
5. In case of the Buyer´s behaviour contrary to contract, default of payment in particular, the Seller is entitled to recover the goods subject to retention of title or demand as necessary the transfer of the Buyer´s rights vis-à-vis a third party. The Seller´s reclaiming or attachment of goods subject to retention of title does not constitute rescission of the contract.
§ 8 Payment Terms
1. Unless otherwise agreed the Seller´s claims are due immediately and without any deduction. Despite the Buyer´s prevailing terms and conditions the Seller is entitled to use incoming payments for satisfaction of the oldest invoice and will inform the Buyer about the method of allocation. In case that there already exist costs and interest the Seller is entitled to use the current payment for the time being in the following sequence of order: costs, interest, principal claim.
2. Payment is deemed effected in due time if the money transfer order is timeously received by the customer’s bank with the customer’s account showing sufficient cover. In case of cheques payment is deemed effected when the cheque is cashed.
3. In the case of default, the Seller is entitled to charge an overall interest in the amount of 5 percentage points above the base interest rate defined by the German discount rate transition law (Diskontueberleitungsgesetz). Irrespective of this the Seller may claim further damages or other compensation.
4. If the Seller becomes aware of a substantial worsening of the customer’s financial situation or if the customer has furnished incorrect or incomplete information about his creditworthiness (e. g. if a cheque cannot be cashed or payment is defaulted) he is entitled to make any claims due and payable even if he accepted cheques. The Seller is furthermore entitled to request advance payments or securities.
5. The Buyer is only entitled to offsetting, retention or reduction, also if notices of defect or counterclaims are enforced, if the counterclaims have been stipulated as legally valid or these are indisputable. However, the Buyer is also entitled to retention on account of counterclaims from the same contractual relationship.
6. The Seller is entitled to terminate the contractual relationship without notice or assert a right of retention to the services incumbent upon it if the Buyer is in arrears with payment and if the Seller has reminded the Buyer giving a deadline for payment and has warned the Buyer of the possible consequences of termination and the asserting of a right of retention.
§ 7 Change of Design
1. The Seller reserves the right to make changes in the structural design at any time; however, he shall not be obliged to make such changes in products that have already been delivered.
§ 10 Limitation of Liability
1. In all cases deviating from the above mentioned terms in which the Supplier is under the obligation of recompensation for damages or expenses because of contractual or legal claims, the Supplier is only liable insofar as he, his executives or persons employed in performing an obligation for the Supplier can be charged with intent, gross negligence or critical or physical injury or impairment of health. Liability independent of fault according to the product liability law as well as liability for fulfilment of a quality warranty are not affected. Liability for culpable breach of essential contractual obligations is not affected either; liability is, however, limited to the foreseeable damage arising from this type of contract except for the cases in S 1. Shifting the burden of proof to the disadvantage of the Orderer is not connected with the regulations above.
2. It must be observed that stricter legal requirements apply in the event of customized fabrication. Constructive changes of the goods by the business partner or a third party are only allowed if they are in correspondence with the special safety-related requirements and if the COE of the user of these terms and conditions has given written permission in advance. For this purpose, the Buyer has to make available a changed construction and the design drawings on demand. If constructive changes are made without written permission and resulting in damages for a third party, for which the Seller / user of the terms and conditions is responsible, the business partner is obliged to indemnify the Seller inter partes from all claims of third parties.
3. In case of contact via internet website of the Seller, applies as follows: with the decision 312 O 85/98 – “Haftung für Links” (Liability for links) the Landgericht (LG) Hamburg has made clear, that operators of a website may be also responsible for the content of external links.
This can only be avoided, according to the LG, by an explicit declaration that the operator dissociates himself from the contents of these links. As the Seller has no influence on design and contents of linked pages, he herewith distances himself expressedly from all contents of all linked pages and does not adopt their contents as his own. This statement applies to all linked pages on this website.
§ 11 Applicable law, Legal Domicile, Severability, Other
1. Solely the laws of the Federal Republic of Germany shall apply for these Terms and Conditions and all legal relationships between the Seller and Buyer.
2. Provided the Seller is a registered merchant as defined in the German Commercial Code, a legal entity or a special trust under public law, the principal place of business shall be the exclusive place of jurisdiction for any and all rights and duties arising from the contractual relationship.
3. The Seller shall be entitled to store customer data within legal requirements, specifically the German Data Protection Act, process them internally if required by business operations.
4. In the event of a provision in these business conditions or a provision in the context of other agreements proving to be or becoming ineffective, the effectiveness of all other provision or agreements remains unaffected.