General Terms and Conditions of Business and Delivery
§ 1 Scope of application
(1) The following general terms and conditions of business and delivery apply only to companies within the meaning of § 310 of the German Civil Code (BGB). All contracts, deliveries and other services, including consulting services, information and the like, shall be based on these terms and conditions.
These terms and conditions shall also apply to all future business relations, even if they are not expressly agreed again. We shall not be bound by the customer's terms and conditions even if we do not expressly object to them again after we have received them. We shall only be bound by terms and conditions other than our own if we expressly agree to them in writing.
§ 2 Content of the contract and scope of delivery
All offers are subject to confirmation. The following terms and conditions and the offer or the written order confirmation of the supplier are solely authoritative for the content of the contract and the scope of delivery. Ancillary agreements, amendments and assurances as well as guarantees require the written confirmation of the supplier in order to be valid. The Purchaser shall have no claim to delivery of further parts, work and operating materials unless this has been agreed in detail and expressly in writing.
2. if customary trade terms are agreed, the rules of interpretation of Incoterms 2000 and their supplements shall apply, unless otherwise specified below.
Documents such as illustrations, drawings, etc. as well as information on dimensions, weights and performance are only approximate unless they are expressly designated as binding. Guarantees shall only be assumed by the supplier in the event of a special agreement. A reference to DIN standards serves to describe the goods and does not constitute a guarantee.
4. the ownership and copyright of cost estimates, drawings and other documents shall remain with the supplier. Such documents may neither be reproduced nor made accessible to third parties without the consent of the supplier. The latter shall also apply to documents of the Purchaser which the latter has designated as confidential.
The delivery parts shall generally comply with the technical regulations applicable in the Federal Republic of Germany. The Purchaser shall bear the costs for tests and acceptance which go beyond the usual tests in the Supplier's works. Tests according to foreign standards and regulations which are to be carried out in the Supplier's country shall be carried out by acceptance companies authorised in the Federal Republic of Germany at the Purchaser's expense, unless the contract itself expressly provides otherwise.
§ 3 Prices and payment
Unless otherwise expressly agreed in the contract, the prices shall apply ex works, excluding packaging. In the event of changes in material prices and wages compared to the date of the offer, the prices may be adjusted accordingly, provided that there is a period of more than 4 months between the date of the offer and the date of delivery. Any cost estimates for packaging, loading, freight, installation and the like are non-binding. The costs actually incurred shall be charged to the customer.
2. in the case of export deliveries, all duties, fees, taxes, costs for technical inspections etc. incurred outside the Federal Republic of Germany shall be borne by the Purchaser; likewise the costs for any necessary legalisation of originating products, consulate invoices or similar.
3. payment is due without deduction no later than 30 days after the invoice date. A discount of 2 % is permissible within 10 days. A cash discount deduction is inadmissible insofar as purchase price claims are still unpaid due to older due invoices. Any discounts shall be deducted from the gross invoice amount. If the date of receipt of the invoice or the request for payment is uncertain, payment shall be made no later than 30 days after the due date and receipt of the consideration. We shall be entitled, despite any provisions of the customer to the contrary, to first set off the payment against the customer's older debts. If costs and/or interest have already been incurred, we shall be entitled to set off the payments first against the costs, then against the interest and finally against the principal claim. A payment shall only be deemed to have been made when we have unrestricted access to the payment amount. We reserve the right to accept cheques. They shall only be accepted on account of payment and shall only be deemed to be payment after they have been cashed.
4. in the case of domestic deliveries, the value added tax shall be invoiced additionally and shall be payable upon receipt of the invoice. The VAT rate valid at the time of invoicing shall apply.
In the event of late or deferred payment, annual interest of 8 % above the base interest rate pursuant to § 247 BGB shall be payable from the due date. This shall apply irrespective of whether the customer is in default or not.
(6) Delays in payment on the part of the Purchaser or knowledge of a significant deterioration in its financial circumstances shall entitle the Supplier to demand immediate payment in full or the provision of sufficient security. This shall apply without prejudice to the further rights of the supplier under these terms and conditions of delivery.
The Purchaser may only offset claims of the Supplier if the counterclaim of the Purchaser is undisputed or a legally binding title exists. The Purchaser may only assert a right of retention insofar as the right of retention is based on claims arising from the contract.
§ 4a Delivery period
(1) Unless expressly agreed otherwise in the contract, the delivery period shall commence on the date of the order confirmation, but not before all commercial and technical questions have been clarified, an agreed down payment has been received and the documents, approvals, etc. to be procured by the Purchaser have been provided or the necessary clearances have been obtained.
The delivery period shall be deemed to have been met if the delivery item has left the Supplier's works or notification of readiness for dispatch has been sent to the Purchaser by the time the delivery period expires. Partial deliveries are permissible.
The delivery period shall be extended appropriately in the event of operational disruptions and industrial disputes as well as the occurrence of unforeseeable obstacles over which the supplier has no influence. Unforeseeable hindrances also include delays in the delivery of essential building materials or production elements, insofar as it can be proven that such hindrances have a considerable influence on the completion or delivery of the delivery item and the supplier has placed an order in good time. The delivery period shall also be extended appropriately if such obstacles occur at sub-suppliers - provided that the order was placed in good time - or during a supplier's delay. The supplier shall not be responsible for them even if a delay already exists.
In the event of notification of a non-binding delivery date or a non-binding delivery period, the Purchaser may request the Supplier to deliver 30 days after expiry of the delivery date or delivery period. The Supplier shall be in default upon receipt of the request. If the Purchaser wishes to rescind the contract and/or claim damages in lieu of performance instead of asserting a claim for damages caused by delay, it must set the Supplier a reasonable deadline for delivery after the expiry of 20 days in accordance with sentence 1 of this Clause. In the event of slight negligence on the part of the Supplier, claims for damages shall be excluded. If, while the Supplier is in default, delivery becomes impossible by chance, the Supplier shall not be liable if damage would also have occurred in the event of timely performance or delivery.
If dispatch is delayed for more than 2 months after notification of readiness for dispatch for reasons for which the Supplier is not responsible, the Purchaser shall bear the corresponding storage costs incurred by the Supplier. They shall amount to at least 0.5 % of the invoice amount for the month at the Supplier's works. After the fruitless expiry of a reasonable period of grace granted, the Supplier may otherwise dispose of the delivery item and supply the Purchaser within a reasonably extended period.
6. compliance with the delivery period shall be subject to the timely fulfilment of the contractual obligations of the Purchaser under this or any other contract concluded with the Supplier.
§ 4b Framework agreements
(1) If the Purchaser terminates a framework agreement because the Purchaser does not agree with the Supplier on changes to the product design or because the Purchaser does not need the product or no longer needs it in the previous quantities for technical or commercial reasons, the Purchaser shall nevertheless be obliged to accept any residual quantities that may still be available from the Supplier at the conditions agreed in the framework agreement. The obligation to accept extends to the entire remaining quantity available at that time as well as to any raw material still available.
(2) If the Purchaser suspends a framework agreement for which amortisation of tooling costs was agreed for the reasons stated in item 1, the Supplier shall be entitled to invoice separately any unredeemed tooling cost portions after suspension of the agreement.
§ 5 Transfer of risk
(1) The risk shall pass to the Purchaser upon commencement of loading of the delivery parts at the Supplier's works.
2. if dispatch is delayed due to circumstances for which the supplier is not responsible, the transfer of risk shall take place on the date of the notification of readiness for dispatch.
(3) Clauses 1 and 2 of this section shall also apply in the case of partial deliveries or if the supplier undertakes other services, e.g. shipping. In this respect, the Incoterms shall only apply as a cost clause.
§ 6 Shipping and packaging
(1) Any dispatch by the Supplier shall be carried out at its best discretion, but without any obligation.
2. non-returnable packaging designated as such in the invoice or shipping documents will not be taken back. For other packaging received back carriage paid within a reasonable period of time, half of the invoiced price shall be reimbursed if the packaging is in perfect condition.
§ 7 Retention of title and security interests
The supplier retains ownership of the delivery item until all claims of the supplier against the purchaser arising from the business relationship, including future claims, also from contracts concluded at the same time or later, have been settled. This shall also apply if individual or all claims of the supplier have been included in a current invoice and the balance has been drawn and recognised. At the request of the Purchaser, the Supplier shall be obliged to waive the retention of title if the Purchaser has incontestably settled all claims in connection with the delivery item and has provided adequate security for the remaining claims arising from the ongoing business relationship. In the event of default of payment by the Purchaser, the Supplier may withdraw from the contract. The repossession of the delivery item as well as the seizure of the delivery item at the Purchaser's premises by the Supplier shall only constitute a rescission of the contract if the Supplier expressly declares this in writing. The further statutory claims of the Supplier shall remain unaffected. In the event of seizure or other interventions by third parties, the Purchaser shall notify the Supplier without delay.
2. treatment and processing shall be carried out on behalf of the supplier, but without obligating him. If delivery items of the supplier are combined with other items to form a new uniform item and if the other item is to be regarded as the main item, it shall be deemed to be agreed that the purchaser shall transfer co-ownership to the supplier in the amount of the invoice value on a pro rata basis and shall keep the item in safe custody for the supplier. The Purchaser shall be entitled to resell the delivery item in the ordinary course of business, but only subject to retention of title. Upon conclusion of the contract with the supplier, he shall assign to the supplier all claims in the amount of the invoice value (plus interest and ancillary claims) accruing to him from the resale of the delivery item to the purchaser. The customer may neither pledge the delivery item nor assign it as security.
Insofar as the law to which the delivery item is subject does not permit retention of title, but allows the supplier to reserve other rights to the delivery item, the supplier may exercise all rights of this kind. The Purchaser shall be obliged to cooperate in any measures the Supplier wishes to take to protect its title or any other right to the delivery item in lieu thereof.
§ 8 Notice of defects
1. without prejudice to his rights under § 9, the customer may not refuse to accept delivery in the case of insignificant defects which do not prevent use.
The customer is obliged to check all delivery items immediately after receipt for correctness, completeness and recognisable freedom from defects.
Complaints must be made directly to the supplier in writing, namely those due to incomplete or incorrect delivery or due to recognisable defects immediately, at the latest 14 days after arrival of the delivery at the place of destination; those due to defects not initially recognisable immediately after their discovery. In the event of failure to notify the supplier in good time, the purchaser's warranty claims shall lapse.
§ 9 Warranty
The agreed quality of the delivered item results from the supplier's product description. The information provided by the supplier on the object of delivery and performance in catalogues, brochures and price lists are merely descriptions, markings or reference values, unless otherwise stated in the order confirmation. Minor, insignificant deviations from the catalogue specifications or goods previously delivered shall not be deemed to be defects. The exclusion of deviations customary in the industry requires express written agreement.
Claims against the Supplier shall become statute-barred within one year from the commencement of the statutory limitation period, unless the Supplier is liable due to intent or fraudulent concealment of a known defect or injury to life, limb and health of the Purchaser. Liability under the Product Liability Act shall remain unaffected. In the case of slightly negligent breaches of duty, the Supplier's liability shall be limited to the foreseeable average damage typical for the type of goods. This shall also apply in the case of slightly negligent breaches of duty by the Supplier's legal representatives or vicarious agents. Liability is excluded in the event of negligent breach of immaterial contractual obligations. The Supplier shall only be liable for damage not occurring to the delivery item itself - irrespective of the legal grounds - in the event of intent, gross negligence on the part of the owner or the organs or executive employees; in the event of culpable injury to life, limb or health; in the event of defects as well as other circumstances which he has fraudulently concealed; or in the event of defects the absence of which he has guaranteed, insofar as he has given a guarantee for the quality or any other guarantee. The Supplier's liability for any costs incurred for the removal and installation of motor, air, rail or watercraft parts (in particular costs for recalls, etc.) is expressly excluded.
The Purchaser shall itself check whether the goods ordered from the Supplier are suitable for the purposes for which it intends to use them. Unsuitable goods shall only constitute a defect if the Supplier has confirmed the suitability to the Purchaser in writing.
The delivery of a defect-free item (replacement delivery) shall always be made concurrently with the handover of the defective item. The Supplier shall be entitled to refuse the replacement delivery if the Purchaser has already used the defective item on a sustained basis or for a longer period of time. If the Purchaser can nevertheless demand a replacement delivery, the Supplier shall be entitled to claim compensation for the use made of the defective item by the Purchaser and to refuse subsequent performance until payment of the respective usage fee.
The costs incurred in connection with the subsequent delivery, in particular travel, transport and labour costs, shall be borne by the Supplier, unless the Purchaser has taken the goods to a place other than the place where its registered office was located at the time of conclusion of the contract. Increased costs of repair or replacement resulting from the fact that the item is taken outside the territory of the Federal Republic of Germany shall be borne by the Purchaser. The supplier shall only bear the costs that would have been incurred if the part had remained in the Federal Republic of Germany.
The limitation period for a claim against the Supplier shall not be suspended by negotiations conducted between the Purchaser and representatives of the Supplier. In any event, negotiations on claims against the Supplier shall be deemed to have been refused with immediate effect if the negotiations are broken off or not continued. This clause does not reverse the burden of proof.
7. liability for the consequences arising from any improper modification and/or repair work carried out by the Purchaser or third parties without the prior approval of the Supplier shall be excluded.
8. in the case of delivery of installation plans, conversion drawings and installation plans, the supplier shall only assume a guarantee for the correctness of the dimensions of his own part of the delivery.
9. information provided by the supplier on the properties of its products shall correspond to the results of the supplier's measurements and calculations.
(10) The Supplier shall not be liable if defects are due to measures or designs expressly requested by the Purchaser or occur in materials or products supplied by the Purchaser itself.
The supplier shall in no case be liable for wearing parts and normal wear and tear, nor for defects caused by: improper or negligent storage, handling and use, assembly or commissioning of the delivery items by the customer or third parties; use of unsuitable materials, unsuitable installation conditions, etc.; unusual effects of any kind on the delivery item, e.g. through vibrations, introduction of foreign bodies, chemical, electronic, electro-chemical influences and other circumstances after the transfer of risk.Unusual effects of any kind on the delivery item, e.g. through vibrations, the introduction of foreign bodies, chemical, electronic, electro-chemical influences and other circumstances occurring after the transfer of risk, insofar as they are not caused through the fault of the supplier.
(12) If the goods have already been delivered to an end consumer, the Purchaser shall in principle only be entitled to assert those claims for defects against the Supplier which his customer has asserted against him. This shall not apply if the goods were taken back on the basis of goodwill arrangements agreed with the Supplier. Furthermore, the Purchaser shall not be entitled to rescind the contract vis-à-vis the Supplier if he had to take back the goods because he did not properly fulfil his obligation of subsequent performance, in particular because he culpably allowed a deadline set for him for subsequent performance to expire fruitlessly. The Supplier shall only be obliged to reimburse the expenses pursuant to section 439 para. 2 BGB (German Civil Code) if the Purchaser has notified the Supplier without undue delay and in writing of a request for subsequent performance by its customer, has notified the Supplier of the intended type of subsequent performance and the approximate costs involved and the Supplier has not objected without undue delay. The Purchaser shall be obliged to comply with the Supplier's suggestions concerning a more favourable variant of subsequent performance.
§ 10 Withdrawal from the contract by the supplier
1. the supplier may withdraw from the contract in whole or in part if unforeseen events change the economic significance of the contract or the relationship between performance and counter-performance so significantly or also impair the supplier's operations so significantly that performance of the contract becomes unreasonable for the supplier.
2. the supplier may refuse further performance of the contract and demand reimbursement of costs if it is foreseeable that the purchaser will not fulfil his contractual obligations, in particular to make the agreed payments, or will not fulfil them in due time due to a deterioration in his financial circumstances or due to the influence of higher authorities, in particular those affecting the transfer of payments, or if the services will not benefit the supplier at his place of business.
§ 11 Partial ineffectiveness
(1) Should any provision of these terms and conditions and the other agreements made be or become invalid, this shall not affect the validity of the remainder of the contract. The contracting parties are obliged to replace the ineffective provision with a provision that comes as close as possible to it in terms of economic success.
§ 12 Applicable law
(1) Unless otherwise agreed, the law of the Federal Republic of Germany shall apply exclusively. The application of the Uniform Law on the International Sale of Goods within the meaning of the Hague Convention on the International Sale of Goods is excluded.
§ 13 Review of the content of these terms and conditions
(1) When reviewing the appropriateness of these terms and conditions, it must be taken into account that the supplier almost exclusively supplies merchants within the meaning of Section 310 of the German Civil Code (BGB) and that the supplier is also only supplied by sub-suppliers on the basis of comparable terms and conditions of delivery.
§ 14 Jurisdiction
The place of jurisdiction is the registered office of the supplier. The supplier shall also be entitled to bring an action at the registered office of the main or branch office of the customer.