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| General terms and conditions |
Applied to:
1. Persons who exercise their commercial or self-employed professional activities during the closing of the agreement (entrepreneurs);
2. Legal entities of public law or a separate assets governed by public law
I. General
1. These conditions as well as possible separate contractual agreements are the basis for all deliveries of goods and services. Deviating purchasing conditions of the purchaser (buyer) do not become part of the agreement contract by accepting the order. An agreement is established if no other agreement exists - if the seller issues the order confirmation.
2. The seller reserves his ownership and intellectual property rights for samples, estimates, drawings, etc., physical and nonphysical information - also in an electronic format; they must not be made available to third parties. The seller is obligated to make information, which has been marked as confidential by the buyer, only available to third parties after a written agreement by the buyer.
II. Place of fulfillment, delivery and acceptance
1. Place of fulfillment for all services of the delivery agreement is the location of the commercial branch office of the seller.
2. The delivery of the goods is ex-domestic-factory. The buyer accepts the shipping and handling costs. The buyer can determine the freight forwarder. The goods will be shipped uninsured. A delivery announcement can be agreed.
3. The shipping cost ex-factory will be invoiced for deliveries ex-foreign-warehouse.
4. Packaging cost for special packagings will be paid by the buyer.
5. Sorted and, for combinations, sales conforming partial deliveries are permitted assumed they are acceptable to the buyer and are announced in advance. Unsorted partial deliveries are only permitted after approval by the buyer.
6. The transfer of perils to the buyer is made once the delivered goods have left the factory. This principle also applies for partial deliveries or if the seller has assumed additional services such as shipping cost or delivery and installation. The acceptance is determining for the transfer of perils assumed formal acceptance is performed. It must be executed immediately on the acceptance date or after the announcement of the seller about acceptance readiness. The buyer cannot decline acceptance due to the presence of a non-essential deficiency.
7. The transfer of perils to the buyer is made on the day of the announcement of the shipment or acceptance readiness if the shipment or the acceptance is delayed due to circumstances that are not the responsibility of the seller.
III. Delivery time, delivery delays
1. The delivery time is part of the agreement between the contract parties. Adherence to the delivery time assumes that all commercial and technical questions are clarified between the contract parties and that the buyer has completed all obligations. The delivery time will be extended accordingly if the above is not the case and assumed that the seller is not responsible for the delay.
2. The seller has the right to issue an arrears invoice or to cancel the agreement completely and request compensation if the shipment or the acceptance has not been performed in the time due to failures by the buyer.
3. The delivery time will be extended accordingly if the noncompliance is due to an act of God, strikes or other events that are outside the influence area of the seller. The seller will inform the buyer as soon as possible about the start and the end of such events.
4. The buyer can cancel the agreement without further deadline if the seller cannot deliver the entire services before transfer of perils. The buyer can also cancel the agreement if the delivery of a part becomes impossible for a specific order and if he has a justified interest in the cancellation of a partial delivery. If this is not the case, the buyer must pay the agreement price pro-rated for the partial delivery. The same applies for inabilities of the seller. Chapter VII.2. of these terms and conditions apply in general.
5. The buyer has the obligation for quid pro quo if the impossibility or the inability happens during the acceptance delay or if the buyer is solely or mostly responsible for these circumstances.
6. The buyer has the right to request a lump-sum delay compensation if the seller is responsible for a delay and the buyer incurs damages. The damages are 0.5% for each four week of the delay, however, a maximum of 5% of the value of that part of the total delivery, which cannot be used in time or in accordance with the agreement due to the delay.
The buyer has the right to cancel the agreement in accordance with the legal regulations if the buyer gives the seller under consideration of the legal exceptions - after the due date a reasonable deadline for the delivery of the service and if this deadline is not met.
Other claims due to late deliveries are exclusively handled in accordance with chapter VII.2. of these terms and conditions.
IV. Prices and payments
1. By absence of a different agreement, the prices are ex-factory including loading at the factory but without unloading. The sales tax at the legal level will be added to the prices.
2. By absence of a different agreement, the payment must be made onto the account of the seller without any deductions.
3. The pricelist valid on the day of the delivery determines the price for immediate delivery of the goods, otherwise the price listed in the order confirmation is valid. The seller reserves the right to change catalogue prices or pricelists added to catalogues. The prices are valid at the time of the printing of the catalogues or the pricelists.
4. The invoices of the seller are approved if they are not disputed within the week after their receipt. This is not applicable if the reason for the complaint cannot be determined within one week, even after careful investigation by the buyer. In cases like this, the complaint must be made immediately after the reason for the complaint is identified.
5. The invoices must be paid on the date listed in the invoice or on the date agreed upon. The payment must be made within 30 days after issue of the invoice without deduction if no special conditions exist or if no other agreements were made.
6. The seller has the right for the immediate payment of all receivables against the buyer if circumstances come to his attention which question the credit worthiness of the buyer, especially if he does not redeem a check or if he suspends payment. In this case, the seller also has the right to request at his choice prepayment or security deposits or to cancel the agreement.
7. Default interest of 8% annually above the base lending rate will be charged for payments made after the due date. Payments are only made after the seller has access to the amount. The right to refuse checks or notes is reserved. Discount or note charges will be paid by the buyer and must be paid immediately. The seller is not liable for timely presentation. The receipt day for check payments is the day on which the amount is irrevocably credited to the account of the seller. The seller has the right to charge payments initially to older debts of the seller and will inform the buyer about the allocation method. This applies also in case the buyer has different terms and conditions. The seller has the right to allocate the payment initially to the cost, then to the interest and at the end to the main service if cost and interest have already been incurred.
8. The buyer has the right to retain payments or to balance them against counter claims only if his counter claims are undisputed or legally binding.
V. Retention of title
1. The seller retains the ownership of the goods until all receivables from delivery of goods based on the entire business relationship including additional receivables, claims for damages and redemption of checks and notes are completely paid. The ownership is also retained if individual receivables of the seller are included in a current invoice and if the balance is made and accepted.
2. The seller does not incur any obligations if the goods retained will be combined, mixed or processed to a new mobile item. In accordance with §§ 947 ff. BGB, the buyer does not obtained ownership of the new item by combining, mixing or processing. The seller obtains a co-ownership for the new item at a ratio of the billing value of his retained goods to the total value if combining, mixing or processing has taken place with the items that belonged to the seller.
3. If a centrally coordinating authority, which assumes the del credere, is assigned for the processing of the business between seller and buyer, the seller transfers the ownership to a centrally coordinating authority once the goods are shipped with the condition precedent of the purchase price payment by the centrally coordinating authority. The buyer is only released after payment by the centrally coordinating authority.
4. The seller has the right for resale and processing only if the following conditions are met.
5. The seller can resell or process the retained goods only as part of orderly business operations and assumed that his asset situation has not permanently deteriorated.
6. The seller hereby releases the receivables with all additional rights from the resale of the retained goods including possible balance receivables - to the seller.
The seller is entitled to the purchase price receivables pro-rated to the value of his rights in the goods if the goods were combined, mixed or processed and if the seller has obtained co-ownership in the amount of his billing value.
The buyer transfers the factoring rights to the seller and transfers his sales proceeds pro-rated to the rights of the seller in the goods to the seller if the buyer has sold the receivables as part of real factoring. The buyer is obligated to inform the factoring company about the transfer if he is more than 10 days late in paying an invoice or if his asset situation has significantly deteriorated. The seller accepts this transfer.
7. The buyer has the right to collect the factored receivables as long as he meets his payment obligations. The obligation right expires after late payments by the buyer or if the asset situation of the buyer significantly deteriorates. In this case, the buyer authorizes the seller to inform the clients about the transfer and to collect the receivables himself.
The seller must provide the required information for the assertion of the transferred receivables and he must improve the review of the information. On request, the buyer must provide to the seller a detailed list of the receivables he is entitled to including names and address of the clients, amount of the individual receivables, invoice date, etc.
8. If the value of the securities provided to the seller exceeds all receivables by more than 10%, then the seller is obligated to release securities on the request of the buyer at buyers option.
9. Pledgings or security transfers of the retained goods or the factored receivables are not permitted. The seller must be informed immediately about garnishments including information about the garnishment creditor.
10. A contract cancellation occurs if the seller declares this explicitly and if the seller takes the delivered goods back to execute his ownership claims. The seller can satisfy his claims through the sale of the retained goods that he took back.
11. The buyer stores the retained goods for the seller without charge. He must insure the goods at a normal level against customary dangers such as fire, theft and water. The seller hereby transfers his compensation claims against insurance companies or other indemnifiables, which he is entitled to due to damages of the dangers listed above, to the seller in the amount of the invoice value of the goods. The seller accepts the transfer.
VI. Notice of defects, defect claims
The seller provides warranty for material defects and defects of title as follows by excluding additional claims - subject to provisions in chapter VII:
Material defects
1. Notice of defects must be sent to the seller within 12 days after receipt of the goods.
2. Any complaint about open defects is excluded after the delivered goods have been cut or processed in other ways.
3. Small deviations of quality, color, width, weight, finish or patterns that cannot be avoided technically cannot be rejected. This also applies to usual commercial deviations, except if the seller agreed in writing to a delivery in accordance with a sample.
4. For justified defect claims, the seller has at his option the right to rectify the defects or to deliver defect free replacement goods. In this case, the seller will pay the shipping cost. After coordination with the seller, the buyer has to give the seller enough time and opportunity to rectify the defects and make replacement deliveries as he sees fit; otherwise the seller is relieved from the liability and the resulting consequences. Only for urgent cases of danger for the plant safety or to prevent relatively large damages, the buyer has the right to remove the defects himself or through third parties and to request compensation for the required expenditures from the seller. The seller must be informed immediately in this case.
5. The buyer has a right to cancel the agreement in accordance with legal regulations if the seller under consideration of the legal exceptions - does not meet a reasonable deadline to rectify the defect or to make a replacement delivery due to a material defect. The buyer has only the right to a contract price reduction if a negligible defect was found. The right to reduce the contract price is not permitted for other cases.
Other claims are handled in accordance with chapter VII.2. of these terms and conditions.
6. Warranty is not provided for the following cases:
Inappropriate or improper use, erroneous installation by the buyer or third parties, natural wear and tear, erroneous or careless handling, chemical, electrochemical or electrical impact assumed they are not the responsibility of the seller.
7. The seller assumes no liability for the resulting consequences if the seller or a third party provides improper repair.
Defects of title
8. If the use of the delivered goods results in a domestic violation of commercial industrial or intellectual property rights, the seller on his own cost will provide the buyer the principal right for further use or he will modify the delivered goods in a manner acceptable to the seller so that no further industrial property right violation exists.
The buyer as well as the seller has the right to cancel the agreement if the above is not possible under reasonable conditions or under a reasonable deadline. In addition, the seller will release the buyer from undisputed or legally determined claims by the respective industrial property right owners.
9. Unless otherwise provided in chapter VII. 2., the obligations of the seller listed in chapter VI. 8. are terminatory with respect to industrial or intellectual property right violations.
They exist only if
- the buyer informs the seller immediately about claimed industrial or intellectual property violations,
- the buyer supports the seller with an appropriate effort in the defense against the claims or he enables the seller to implement the modification measures in accordance with chapter VI. 8.,
- the seller has the right to all defense measures including out of court settlements,
- the defect of title is not based on a directive of the seller and
- the infringement was not caused by a modification that the buyer made to the delivered goods or if the buyer used the delivered goods in manner not in accordance with the agreement.
VII. Liability
1. The regulations of the chapters VI. and VII.2. are applicable under exclusion of other claims of the buyer if the delivered goods cannot be used by the buyer in a contractual manner due to neglected or erroneous execution of the recommendations and consultations before and after the contract closing or by violations of other contractual obligations especially instructions for operation and maintenance of the delivered goods.
2. The seller for any legal reason - is liable for damages that are not caused by the delivered good itself only
a) for intention,
b) for gross negligence of the owner / the institutions or senior managers,
c) for culpable violation of life, body, health
d) for defects that were maliciously hidden or whose absence was guaranteed by him,
e) for defects of the delivered goods if liability exists in accordance with the product liability law for personal or material damages for privately used items.
For culpable violations of important contract obligations, the seller is also liable for gross negligence of employees that are not managers and for slight negligence, in the later case limited to the typical contract damages that can be foreseen. Other claims are excluded.
VIII. Statue of limitations
All claims of the buyer for any legal reasons have a statue of limitations of 12 months. The legal time limits are applicable for damage claims in accordance with chapter VII. 2. a - e. They are also applicable for damages of a building or for delivered goods that are used for a building in accordance with their usual application and which have caused damages.
IX. Software use
If software is part of the delivery scope, the buyer will receive a non-exclusive right to use the delivered software including its documentation. It will be made available for use with the delivery good it was designed for. Usage of the software on more than one system is prohibited.
The buyer may copy, adapt and translate the software or change it from object to source code only in accordance with the legal regulations ((§§ 69 a ff. UrhG). The buyer is obligated to not remove the manufacturers information especially copyright notes without explicit prior approval of the seller.
All other rights to the software and the documents including the copies remain with the seller or the software supplier. Issuing sub-licences is not permitted.
X. Applicable law, jurisdiction
1. The relevant laws of the Federal Republic of Germany for legal relationships between domestic parties are applicable for all legal relationships between the seller and the buyer. The convention of the United Nation about contracts for the international sale of goods dated April 11. 1980 is excluded.
2. The court responsible for the headquarter of the seller is the court of jurisdiction. However, the seller has the right to file a suit at the headquarter of the buyer.
Status: 01/2003
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