GENERAL TERMS OF
BUSINESS
I. General
- Our contracts are, without exception, based on the
following terms and conditions. By placing an order, the contract partner will
acknowledge our terms.
- We hereby contradict any conflicting terms. Such terms
shall only apply if there is a written agreement as to their validity. No terms
of the contract partner shall become part of any contract even if we do not
contradict such terms again and perform contractually owed deliveries/services
without reservation.
- Our terms of business shall also apply to any and all
future transactions with the contract partner.
- Our terms of business are available for inspection in our
business premises. Copies can also be requested at any time and will be
supplied free of charge.
II. Conclusion and content of contract
- No contract shall be deemed to be concluded until our
written order confirmation has been issued or delivery of agreed services has
been effected. However, we undertake to inform customers in writing and without
delay in the event that we should choose to decline an order.
- Our offers are made without obligation. The contract
partner shall be bound to honor his offer(s) for a maximum of one month.
- Any and all agreements made at conclusion of contract
shall be put down in writing; any agreements other than those put down in
writing shall not be deemed to have been entered into. The requirement of
written form shall also apply to any additional agreements, assurances, or
subsequent changes, including cancellation of contract.
III. Prices and payments
- Prices quoted represent the value of goods and/or
services exclusive of any cash discounts or other price reductions. They also
do not include loading, packing or freight costs nor the cost of any insurances
that are only to be taken out on the basis of any special agreements, nor
applicable VAT.
- All payments shall be made in “€” and free
of any deductions on receipt of invoice or any other accounting document served
by personal or mail delivery.
- Default interest will be charged at 5% or, for
transactions where consumers are not involved, at 8% p.a. above the basic rate
currently applicable at the time of transaction as published in the German
Federal Gazette. In addition to the relevant legal provisions, we shall be
entitled to claim a higher interest rate in the event that we provide evidence
of a higher burden, unless the contract partner is able to prove that no damage
in terms of interest due to default has been incurred at all or that such
damage is far lower in amount.
- Orders for payment of money as well as checks or bills of
exchange will only be accepted as conditional payment, with any and all
discount and collecting charges taken into account.
- The contract partner shall only be entitled to set
uncontested, recognized, or legally ascertained counterclaims off against our
claims.
- Also, any right of retention may only be exercised with
respect to uncontested, recognised, or legally ascertained counterclaims, and
only in the event that such right of retention relates to one and the same
contractual relationship.
IV. Delivery and delay in delivery
- The commencement of any lead time stated by us shall be
subject to the prior final clarification of all technical issues. The
fulfillment of our obligation to perform delivery shall be subject to the prior
timely and appropriate fulfillment of the contract partner’s
obligations.
- We hereby reserve the right to cancel a contract in the
event that we do not ourselves receive delivery of goods ordered from a third
party in a timely and correct manner.
- Delivery dates and lead times can be agreed on a binding
or non-binding basis and shall be stated in writing. Lead times shall commence
upon conclusion of contract. In the event that any subsequent changes of
contract are agreed, a new delivery date or lead time shall be agreed at the
same time if necessary.
- Delivery dates shall be deemed to have been met if by the
date of expiry the items to be delivered have left our premises or notification
of readiness for dispatch has been sent.
- Six (6) weeks after exceeding a non-binding delivery date
or a non-binding delivery period, the other contracting party may call upon us
in writing to deliver within an appropriate period of time. We will only be in
default upon this notice of demand for delivery. This shall not apply if the
aforementioned additional period is inappropriately long. In such case, an
appropriately long additional period shall apply.
- f a delay in delivery at our end is due to slight
negligence, we shall not be held liable in any way unless damage is caused to
life, limb, or health.
- By way of precaution, we limit our liability arising out
of or in connection with any delay in delivery due to slight negligence to such
damage as is typically foreseeable.
- In the event of force majeure, riot, strike, lockout as
well as substantial operational disturbances beyond our control, the dates and
deadlines mentioned in this provision shall be changed by a period of time
reflecting the duration of the circumstances being the cause of performance
disturbances, plus a reasonable restart period.
V. Passing of risk, delivery, inspection,
obligation to give notice of defects
- rrespective of any obligations to assemble or fit goods
delivered, risk shall pass to the customer when goods are handed over to the
shipping agent, at the latest, however, when the goods leave our premises. When
goods are ready for dispatch, the risk in them shall pass to the contract
partner one week after notification of readiness for dispatch has been
received, unless the shipment of the goods has been effected by us. In the
event of a delay in dispatch or acceptance due to circumstances for which the
contract partner is responsible, the risk in the goods shall pass upon the
sending of a notification of readiness for dispatch. We shall in no case be
obligated to take out any insurance unless the contract partner particularly
requests us to do so in writing, with such insurance being contracted to the
extent specified by the contract partner and at the expense of the same.
- The contract partner shall be obligated to inspect goods
received in order to check for any defects (even in the event that such goods
are intended for resale) and to send written notification of any defects
without delay, at the latest, however, within ten (10) working days.
- If so demanded, the customer shall participate in drawing
up an acceptance and function record.
VI. Warranty
- n the event of not only irrelevant defects in quality or
title, we shall – in addition to the legal provisions on subsequent
performance – be entitled to do the following: We shall be given two
opportunities for subsequent improvement to remedy the defect. If, owing to the
nature of the piece of goods or to the nature of the defect in question, or as
a result of any other circumstances, it turns out that subsequent improvement
has not yet failed, we shall be entitled to proceed with further subsequent
improvement if this is reasonably acceptable to the contract partner.
- If subsequent improvement fails, the contract partner
shall be entitled to demand a reduction in the purchase price or choose to
rescind the contract and claim damages in accordance with the relevant legal
provisions.
- The period of limitation shall be twelve (12) months.
- The period of limitation for claims in connection with
used goods shall also be twelve (12) months.
VII. Exclusion of damages, limitation of
liability
- If our obligation to pay damages is based on an only
slightly negligent violation of substantial contractual duties, our liability
to pay damages, as well as that of our agents or subcontractors, shall be
limited to such foreseeable damage as is typical of the contract involved.
- f our obligation to pay damages is based on an only
slightly negligent violation of non-substantial secondary contractual duties,
we shall not be held liable for any damages whatsoever, nor shall our agents or
subcontractors.
- n all cases of liability for damages due to negligent
violation of duties, irrespective of the legal grounds, our liability for
damages shall be limited to such damage as is foreseeable by us.
- By way of precaution, we exclude our liability for
damages, as well as that of our agents or subcontractors, in cases where we are
culpable of any slightly negligent violation of a contractual duty if such
violation does not by its nature and consequence jeopardize the purpose of the
contract.
- n cases where we are held liable for claims arising from
product liability pursuant to Section 823 of the German Civil Code [BGB]
(liability in tort), we limit our liability, in addition to the above
provisions, to the amount of compensation to be paid by our liability insurer.
The amount insured will in each instance be based on the particular type of
damage, contract, or piece of goods involved. In the event that the insurance
policy does not provide full cover, or does not provide any cover at all, our
liability shall still remain limited to the sum insured. In cases where the
amount insured is not based on a specific type of damage, contract, or piece of
goods, our liability shall be limited to the amount of damages typically
arising from or in connection with the respective damage, contract, and/or
piece of goods.
- The provisions of the foregoing paragraphs, VII 1 –
5, shall not apply in the event of damage to life, limb, or health and/or
claims under the Product Liability Act.
VIII. Reservation of title
- We reserve the right to retain title and ownership of any
and all goods supplied until such time as full payment has been received in
accordance with the terms of the delivery contract concerned.
- In addition, we will retain title and ownership of goods
supplied until such time as any and all claims, including future ones, arising
from the business relationship have been settled. The contract partner shall be
obligated to store, free of charge, any and all goods delivered, exercising all
such due care as is customary for a responsible businessman.
- Any pledging of goods delivered under reservation of
title, or transfer of ownership thereof by way of security, shall not be
admissible under any circumstances. In the event of any form of distress,
seizure or other legal process initiated by a third party, we shall be notified
thereof without delay and shall be provided with any and all documents
necessary for filing an objection.
- Apart from the foregoing, the contract partner shall be
entitled to process and sell delivered goods in the course of his regular
business operation, as long as he is not in default. By entering into a
purchase contract with us, and effective as of the date of conclusion of the
same, the contract partner shall assign to us any and all of his claims against
his customers to which he is entitled on the basis of sales or any other legal
grounds, up to the amount of the invoiced value of the goods delivered under
reservation of title.
- If and when the contract partner defaults on payments,
files a petition for insolvency or bankruptcy or has such a petition filed
against him, as well as in the event of protest of a bill or a check, the
contract partner’s right to sell as well as his right to collect any
claims he has assigned to us shall cease to have effect. In such cases, the
contract partner shall be obligated to render account to us, without delay and
unasked, for the reserved goods in question as well as the corresponding claims
which have been assigned to us.
- The reservation of title shall remain effective even in
the event that individual claims have been included in a running account and
the balance has been struck and recognised, unless the account is
balanced.
- If the value of the securities granted exceeds our debt
claims by more than 20 %, we shall be obliged – at the request of the
party ordering – to transfer back such amount of securities in our
reasonable discretion insofar as the securities ceiling is exceeded.
- We shall be entitled to take back goods supplied subject
to reservation of ownership after sending reminders in connection with any of
the cases set forth in paragraph 5 of this clause, and in the event that the
contract partner is in arrears with a substantial part of his payments owed to
us. In the same way as an attachment, such taking back of goods by us shall not
represent a withdrawal from contract. The contract partner shall be obligated
to surrender the goods in question. Any right of retention shall be
excluded.
- Any amounts of money that the contract partner collects
and which relate to claims that have been assigned to us shall be administered
separately until such time as they are transferred to us, so as to avoid
setting such amounts off against balances in debit accounts.
- Any and all processing or transformation of goods
delivered which is performed by the contract partner shall always be deemed to
be made on our behalf. If such goods are processed together with any materials
that are not our property, we shall acquire co-ownership of the new product in
such proportion as reflects the value of the goods supplied by us in comparison
with said other materials at the time of processing. Irrespective of this, the
new product resulting from the above-described processing shall be subject to
the same reservations as the goods supplied by us.
- If any goods supplied by us are inseparably mixed with
materials that are not our property, we shall acquire co-ownership of the new
product in such proportion as reflects the value of the goods supplied by us in
comparison with such added materials at the time of mixing. If the mixing is
performed in such a way that the contract partner’s material is to be
regarded as the principal component of the resulting product, it shall be
deemed agreed that the contract partner transfers to us a proportional
co-ownership of such product. The contract partner shall be responsible for
providing safe custody on our behalf of our sole or joint property resulting
from any of the above-described processes.
IX. Governing law, place of jurisdiction
- Any and all contracts hereunder shall be subject to the
law of the Federal Republic of Germany, excluding application of the United
Nations Convention on Contracts for the International Sale of Goods
(CISG).
- The place of performance in respect of all mutual claims
arising from the contractual relationship hereunder shall be Neu-Ulm.
- The place of jurisdiction in respect of any and all
claims arising from the business relationship, including legal action based on
a dishonored check or bill of exchange, shall be our place of business if the
contract partner is a de facto trader. However, we shall also be entitled to
institute legal proceedings at the contract partner’s place of general
jurisdiction.
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