valid as and from April 2014
I. Offer and contract conclusion
- Our offers are always non-binding. The contract shall be considered concluded on receipt of and subject to the contents of our acknowledgement of order, insofar as the Customer does not immediately contest the acknowledgement of orderin text form.
- We reserve all property and trademark rights over the documents, illustrations and drawings forming part of the offer. They may not be disclosed to third parties and are to be returned to us at any time without delay on request or in the event of non-placement of the order. The Customer's documents may be disclosed to third parties for the purpose of placing subcontracts.
- All deliveries and services are provided exclusively subject to the terms of business and delivery below. Any terms of business to the contrary on the Customer's part shall only be considered agreed subject to our written confirmation. Any commercial usages shall only be effective subject to written agreement. The Incoterms 2010 shall apply to the contents of international trade clauses.
II. Quality and scope of delivery
- Product requirements and specifications are determined based on the contractual agreements, our technical catalogues and special conditions as well as any additionally existing safety, accident prevention and other provisions of the Federal Republic of Germany. Different provisions based on product law of other States shall only affect the level of quality and scope of service if compliance therewith has been expressly agreed in writing. In case of non-compliance with the German provisions, the goods shall nevertheless be considered according to contract if the provisions under public law of the pur haser and/or recipient country are fulfilled.
- Our product descriptions, advertising claims, information in the contract, catalogues or other documents and likewise statements made in connection with conclusion of the contract do not represent any guarantee of the characteristics or durability of the goods. Rather, acceptance of a guarantee of any kind requires being in writing and is to be expressly designated as such. Waiving of this requirement for the written form is only possible in writing.
- Our goods and services shall not be considered in breach of contract if excesses or shortfalls in quantity amounting to up to 10% of the ordered goods are delivered. We are entitled to make partial deliveries to the Customer up to a reasonable extent.
- So-called outturn samples are only provided subject to express agreement and against a corresponding charge. We take outturn samples as a matter of principle from mass production on start-up. These samples are to be inspected by the Customer immediately. Complaints are to be submitted without delay in writing. Changes that are based on a design modification desired by the Customer and which are no longer consistent with submitted drawings, specimens or other samples shall only be made against a separate charge and based on a written work order. The same applies accordingly in case of requested manufacture of samples before mass production begins. The documents forming part of the offer correspond to approximate values customary in the branch of business, insofar as these have not been designated as binding by us.
III. Reservation of property rights
- All delivered objects shall remain our property (title retention goods) until fulfilment of all claims, including in particular the respective balance claim, to which we are entitled regardless of their legal grounds. This shall also apply even if payments have been made in respect of specifically designated claims.
- Treatment and processing of the title retention goods are performed for us as a manufacturer in the sense of § 950 BGB (German Civil Code), without commitment on our part. In case of processing, combination and mixing of the title retention goods with other objects by the Customer, we shall be entitled to coownership over the new item proportionately to the value of the title retention goods in relation to the value of the other goods employed at the time of processing. If our property expires by combination or mixing, the Customer shall already now assign the property rights over the new item to which the Customer is entitled based on the scope of the invoice value of the title retention goods and shall store the latter for us free of charge. The subsequently arising co-ownership rights shall be considered title retention goods under item 1.
- The Customer may alienate the title retention goods solely in the ordinary course of business subject to the Customer's normal terms of business and provided the Customer is not in arrears, provided that the claims arising from resale in addition to ancillary rights are assigned to us to the extent resulting from the paragraphs below. The Customer is not entitled to any other disposals.
- If title retention goods are alienated together with other goods not supplied by us, assignment of the claims arising from resale shall only apply up to the amount of our invoice value of the respectively alienated title retention goods. In the event of alienation of goods over which we hold co-ownership shares according to item 2, assignment of the claim shall apply up to the amount of these co-ownership shares.
- If the title retention goods are used by the Customer for fulfilment of a works contract or works supply contract, items 3 and 4 shall apply accordingly to the claims arising from this contract.
- The Customer is entitled to collect claims arising from the alienation according to items 3 and 4 until revocation by us, which is permissible at any time. If the value of the existing securities exceeds the secured claims by more than 15%, we will release securities in an appropriate amount according to our choice.
- If the cheque/bill of exchange procedure is agreed (IV item 7), the ownership of the goods shall only be transferred to the Customer once the bill of exchange has been honoured and we have been exempted from bill liability.
- The Customer shall undertake to inform us immediately of third-party foreclosure proceedings regarding the title retention goods or the claims assigned to us or regarding any other securities, with surrender of the documents required for an intervention. This shall also apply to impairments of any other kind.
- In the event of default of payment by the Customer, we shall be entitled, even without exercising right of withdrawal and without granting a period of grace, to demand and enforce provisional return of the title retention goods at the Customer's expense, insofar as the production process in the Customer's plant is not lastingly disturbed as a result. The Customer shall therefore undertake to provide us tangible evidence of the stock of the title retention goods at any time on request and allow us access to the Customer's plant.
- If the Customer's head office is not located in the Federal Republic of Germany and the legal validity of the above reservation of property rights is dependent either in whole or in part on special registration or any other requirements, the Customer shall undertake to inform us thereof and fulfil these requirements immediately. If reservation of property rights in the recipient country is not permissible, the purchaser shall undertake to provide security of equivalent value.
IV. Prices and terms of payment
- Unless otherwise agreed, prices are listed net cash ex works, excluding the costs for freight and packaging, plus Value Added Tax.
- The prices are valid for four months as and from the day of contract conclusion. In case of a delivery period exceeding four months, we shall be entitled to pass on to the Customer any increases in costs in the intervening period by corresponding price increases, insofar as the circumstances responsible for the price increase are beyond our control.
- Invoices are payable on receipt without any discount. A cash discount is only permissible subject toexpress agreement.
- The Customer shall be considered in default of payment if the Customer fails to pay in spite of a reminder after the due date or within 30 days following the due date and receipt of an invoice or a comparable balance of account. In the event of default of payment by the Customer, we shall be entitled to claim 8% interest in excess of the last prime rate announced by the German Federal Bank. We reserve the right to assert further damages.
- Persistent failure to comply with the terms of payment or circumstances of which we become aware after contract conclusion and that are liable to reduce the Customer's creditworthiness shall render all our claims due for immediate payment. This shall furthermore entitle us to make any outstanding deliveries solely on advance payment and to withdraw from the contract after an appropriate period of grace or demand compensation for damages in lieu of service.
- The Customer shall only be entitled to set off or withhold payments insofar as the latter are recognised by us as existent and due or are determined to be legally valid.
V. Tool costs
Generally, only shares of the tool costs are invoiced, independently of the value of the goods. The Customer shall not acquire any claim to purchase and transfer of said tools through payment of shares in tool costs. These tools shall remain our property. We shall undertake to keep the tools for the Customer for a period of one year after the last contractual delivery. If the Customer informs us before expiry of this period that orders will be placed within a further year, the storage period shall be extended by another year. After this period and in the absence of repeat orders, we shall be entitled to dispose freely of these tools. We reserve the right to invoice the tool costs arising for work orders cancelled during the development stage or in the ramp-up period. Before sample release, the costs accruing for the first set of tools will be invoiced in this case and after sample release, based on the scheduled monthly requirements, the costs accruing for the entire scope of the serial tools, special devices and gauges.
VI. Delayed delivery
- Agreed delivery periods shall begin as soon as the Customer has fulfilled all the duties incumbent on the latter. They are subject to the proviso of correct and prompt self-delivery.
- Delayed delivery shall not entitle the Customer to legal remedies of any kind until the Customer has granted us an appropriate period of grace in writing.
- We shall only bear the consequences of delayed delivery if at fault and only provided that this is not attributable to force majeure, strikes, lack of suitable means of transport or public services and armed conflicts in addition to other circumstances outside our scope of business. The same shall apply to fire, accidental explosions, industrial disputes and other disturbances in company operations that cannot be controlled by us by use of reasonable means. The Customer shall however retain the right in any case to withdraw from the contract according to the legal provisions.
- If the Customer withdraws from the contract and is entitled to compensation for damages arising to the Customer as a result of the delay, the total amount of the compensation including crediting of any flat-rate compensation for damages or claims arising from contractual penalty is limited to a maximum of 20% of the purchase price in respect of which the Customer has withdrawn from the contract. The limitation shall increase appropriately if and insofar as the Customer has drawn attention to a greater liability risk in text form prior to contract conclusion. This limitation shall not apply in case of deliberate action or gross negligence.
VII. Material defects and defects of title, liability
The possible applications and conditions for use of our goods can be gathered from the technical catalogues in addition to the special terms. If the Customer fails to observe these, we are unable to accept any guarantee or liability for damages. This shall also apply to damages arising as a result of unsuitable or improper use, incorrect installation and/or commissioning by the Customer or third parties, normal wear and tear, defective or negligent treatment, unsuitable equipment, substitute materials and chemical, electrochemical or electrical influences, insofar as not attributable to any fault on our part:
- Material defects
- The Customer shall undertake to inspect delivered goods with actual availability.The inspection is to be limited to random samples insofar as such inspection can only be performed with use of or damage to the goods.Lacks of conformity are to be reported to us with precise description of the nature and scope of the goods affected by the defect.The notification of defects is to be made in writing and is to be submitted within 10 working days as and from actual availability of the goods to the Customer.Defects that cannot be detected within this period even by careful inspection are to be argued in writing immediately after discovery, with immediate cessation of any processing but 1 year at the latest after delivery of the goods.
- (Supplementary performance) If the goods or our service fail to comply with the contract, we shall fulfil the latter by eliminating the defect or by delivering flawless goods, at our option.If this improvement proves unsuccessful or the newly delivered item also fails to comply with the contract, the Customer shall have the option of a right to withdraw from the contract or a reduction (decrease) in the purchase price.
- Defects of title
- No encumbrances with third-party rights on the goods sold by us are known; more specifically, no commercial third party property rights opposing sale in the recipient country are known.
- With regard to the products manufactured by us, we shall only be liable for infringement of patents, brands and trademark rights that exist in the Federal Republic of Germany and only to the extent that we will support the Customer in the extra-judicial and judicial disputes with the copyright holder, reimburse the defence costs arising to the former and release the Customer from the claims for damages on the part of the copyright holder awarded by final court judgement or recognised by us.
- We shall be liable according to the statutory provisions for damages attributable to a culpably committed breach of duty on our part, on the part of a legal representative or on the part of an agent of vicarious liability, subject to any different individual agreements or agreements contained in these terms of business.
- If the damage is based on slightly negligent breach of duty, the claim for damages shall be limited in terms of amount to the typical damages foreseeable at the time of contract conclusion in addition to the coverage level of our corporate liability insurance.The limitation of liability shall not apply to damages resulting from injury to life, limb or health and to claims under the product liability act.The Customer shall undertake to draw the vendor's attention on contract conclusion to such circumstances that may lead to a risk of damages and which are not immediately foreseeable on our part.
- Subject to agreements to the contrary the individual case, we shall not be liable for consequential damages or indirect damages, such as for example production stoppage, loss of profit, loss of use and loss of contracts.This exclusion shall not apply in the event of culpable breach of essential contractual obligations and in case of deliberate action or gross negligence and in case of culpable injury to life, limb or health.
- Limitation period
Claims on the part of the Customer owing to breach of duty committed by us shall fall under the statute of limitations, including any tortiously substantiated claims, one year after delivery of the goods. The statutory periods shall apply to claims arising from deliberate action or malicious behaviour in addition to those under the product liability act. These shall also apply to delivery items that have been used in accordance with their usual purpose for a building and which have caused the latter's defectiveness.
- The place of performance for all duties on the part of the Customer and vendor is Meinerzhagen.
- The place of jurisdiction is the competent court for our head office. Each contractual partner shall also be entitled to sue the other party at the latter's general place of jurisdiction.
- In case of international legal relationships, we are also entitled to invoke a court of arbitration instead of recourse to the ordinary courts, insofar as enforcement of titles handed down by German jurisdiction is not guaranteed in the Customer's country. The parties shall immediately reach an agreement by common accord on the arbitrator and the arbitral proceedings. If an agreement is not reached within 14 days after a party has issued a proposal in text form, the proceedings shall be conducted with three arbitrators based on the provisions of the Code of Civil Procedure of the Federal Republic of Germany. The place of arbitration shall be Meinerzhagen; the proceedings shall be held in German.
- The German text of the contract and the domestic Law of the Federal Republic of Germany, particularly the provisions of the German Civil Code/German Commercial Code (BGB/HGB) shall be decisive. The provisions of the Vienna UN Convention on Contracts for the International Sale of Good of 11th April 1980 (UN sales convention) are excluded.
Should a provision or several provisions of this contract prove invalid or should the contract contain a loophole, the validity of the remaining provisions shall not be affected as a result. In these cases, the contractual partners shall consent on a legally valid substitute regulation which most closely approximates the commercial result of the invalid regulation.