These Terms and Conditions of Sale govern all present and future contracts, deliveries and other services (hereinafter: "Service") concluded with and provided to enterprises, even if the Terms are not expressly referenced. Our Terms apply exclusively. We are not bound by the Buyer's terms and conditions even if we do not expressly object to them again upon receipt. They do not become part of the contract even if the order is accepted or filled without reservation.
2. Formation of contract
Our offers are non-binding unless expressly stated otherwise. We can accept the customer's purchase orders within 15 business days. There is no contract until we confirm the order or start providing the Service, whichever comes first, even if the order is placed orally. We are not bound by any agreements, including, without limitation, oral side agreements and representations made by our sales staff, until we confirm them in writing.
Obvious mistakes or printing, spelling, arithmetical or costing errors are not binding and do not give grounds for claims. We extend no contractual guarantees ["Garantie"] except those we explicitly identify as such in writing.
The scope and subject matter of the Service is exclusively governed by the order confirmation or, if the order is filled immediately, the delivery note. If the order confirmation or delivery note contains changes to the customer's purchase order, the customer is deemed to have consented to them if he accepts the Service without reservation and does not object in writing immediately. If the customer changes or adds to an already confirmed order, we are entitled to adjust prices and extend Service deadlines.
Information, samples, specimens or illustrations in catalogs, price lists or other advertising materials are approximations only (e.g. weights, dimensions, values in use, allowable loads, tolerances or technical data) unless exact conformity is necessary for the Service to be used for the contracted purpose. Any reference to technical standards is only a description of our Service, not a guarantee of certain characteristics.
3. Prices, payment
Our list prices apply, as they may change from time to time. Unless otherwise agreed, the prices are ex works and do not include value-added tax or additional services such as packaging, loading, freight charges, unloading, transportation insurance, assembly, customs, installation, implementation, introduction, training, maintenance, out-of-pocket expenses, travel costs or other expenditures.
Unless otherwise agreed, invoices are due immediately without discounts.
In determining timeliness, payment is deemed to be made when our account is credited. Cash discounts are only allowed with our express written permission. The agreed cash discount will be deducted from the pre-tax invoice amount after deducting rebates, freight costs and other expenses.
We can demand advance payment and/or exercise a right of retention with respect to further performance in the event of a default in payment or reasonable doubt as to the customer's ability to perform. This also applies if our trade credit insurer refuses to insure the customer's receivable. A default in payment automatically voids any rebates, cash discounts and other concessions, and default interest will become due pursuant to German Civil Code (BGB) § 288.
The customer has no right of retention or set-off except where based on the same contractual relationship.
If the agreed Service deadline is more than four months after the contract conclusion, we reserve the right to reasonably adjust our prices with one month's prior notice if costs increase or decrease after the contract conclusion for reasons including, but not limited to, the conclusion of collective bargaining agreements, changes in production costs, or changes in market prices for comparable products. We will provide evidence of the factors that led to the increase at the customer's request. The customer can rescind the contract if the price rises more than 20 %.
If a customer located outside the Federal Republic of Germany (foreign territory buyer) or its authorized agent collects Services from us and transports or ships them to the foreign territory, the customer must provide us with the proof required for tax purposes (proof of export). If this proof is not provided, the customer will have to pay the value-added tax required in the Federal Republic of Germany on the invoice amount for the delivery.
4. Delivery, passage of risk
The Service is performed and the documents prepared in accordance with ICC Incoterms® 2010. The UCP 600 (Uniform Customs and Practice for Documentary Credits issued by the ICC Paris) apply.
We are allowed to provide the Service early, in parts, or in amounts that exceed or fall short of the contracted amounts as long as this is not unreasonable.
We will ship at the customer's risk and expense without guaranteeing that the cheapest method will be used. Unless the customer's place of business is stipulated as the place of performance for the delivery, the delivery deadline is deemed to be met as long as the carrier picks up the shipment for shipping by the deadline. We assume no liability for any delays caused by the carrier. We will insure the Service and/or shipping at the customer's prior instructions and expense.
If the Service has to be accepted, risk will pass upon acceptance. The acceptance must be performed without undue delay after issuance of the ready-to-accept notice. The customer may not refuse acceptance due to an insignificant defect.
The risk of accidental loss and deterioration passes to the customer no later than upon acceptance or handover to the carrier unless our contractual obligation exceptionally includes assembly and installation at the place of performance. If the acceptance or shipment is delayed due to circumstances beyond our control, risk will pass to the customer upon issuance of the ready-to-accept or ready-to-ship notice.
Service deadlines or other deadlines promised in written or oral form are only approximate unless we agree in writing to a fixed Service deadline. Service deadlines start running after receipt of the order confirmation, the full, complete and non-defective provision of customer-supplied materials, the resolution of all technical and commercial questions, and the receipt of any required advance payments.
We will comply with Service deadlines subject to timely delivery by our own suppliers. We are not liable for faults of our suppliers; any claims for damages against our suppliers will be assigned to the customer. After a non-binding Service deadline expires, the customer may only rescind the contract after he has fixed in writing an additional period of at least 30 days for us to perform our obligations and warns us that he will refuse performance if we do not perform within this additional period.
Force majeure events, government actions, and other circumstances for which we are not at fault – for example, strikes, operational upsets, inability to procure permits, difficulties in procuring materials, civil unrest, embargoes, travel warnings issued by the German Federal Foreign Office – that render our performance or that of our suppliers impracticable or impossible other than temporarily, exempt us from our obligation to perform for the duration of their effects. We are not liable for impossibility or delays due to such events. The customer may ask us to declare within 2 weeks whether we wish to rescind the contract or perform within a fair and reasonable period. We may rescind part or all of the contract if we cannot be reasonably expected to perform for the above reasons; this does not entitle the customer to damages. In this case, the customer is exempted from his obligation to render counter-performance. The customer may rescind the contract after fixing an additional reasonable period of time for us to perform our obligations if he can no longer be reasonably expected to accept the Service for the above reasons. We will provide notification of delays regardless of their cause.
The shipment associated with our Service must be unloaded immediately upon arriving at the customer's premises. If unloading is delayed by more than 2 hours, the customer will bear the costs for the time that the transport vehicle is parked (standing time). The customer will bear the costs for standing time of more than 48 hours if the shipment is exported and cleared through customs, or 24 hours if it is not cleared through customs.
The customer will grant us the following security until the settlement of all the claims (including any and all outstanding balances on running accounts) that the customer owes to us now or in the future on any legal grounds whatsoever; we will release the security at our option on request insofar as its value exceeds the claims by more than 20%:
- We retain title to the Service until all payments owed under the business relationship have been received. The following applies during the retention of title:
- The customer must keep the Service in good condition. The customer must insure the Service for our benefit at the customer's expense against theft, breakage, fire, water and other perils to the extent that the customer can be reasonably expected to do so. Proof of insurance must be presented on request. The Service may not be pledged or assigned as security.
- If third parties attempt to attach the Service, including, but not limited to, through debt enforcement procedures, the customer will inform the third party of our ownership interest and notify us immediately. The customer will reimburse us for the costs of our intervention if we cannot recover the costs from third parties.
If the customer installs the Service as a significant component of a third party's piece of land, the customer hereby assigns to us the proportionate value of his resultant claims against that third party, or against such other party as may be concerned. We hereby accept the assignment. In the event of the resale of a piece of land of which the Service has become a significant component, the customer hereby assigns the proportionate value of the resultant claims to us. We hereby accept the assignment.
If the customer is entitled to a security mortgage ["Sicherungshypothek"] under German Civil Code [BGB] § 648, this entitlement will be transferred to us in the indicated amount. If the Services become a significant component of a piece of land, we may, at our fair discretion, demand security in the form of a charge on this land in the amount of the outstanding claim.
We may rescind the contract and require the customer to immediately restore the Service to us or, if applicable, assign his rights of restoration against third parties if the customer breaches the contract by, without limitation, defaulting on payments. The customer has no right of retention in this case. This is without prejudice to claims for damages, including claims for compensation of lost profits. We can satisfy the debt owed by selling the repossessed Service by private contract.
If the customer is a merchant, he must carefully inspect the received Service without unreasonable delay upon receipt. We must be notified of any defects in writing without unreasonable delay ("notice of defects"). Damages sustained in transit or during shipping must be documented vis-à-vis the carrier. German Commercial Code [HGB] § 377 applies in all other regards. If no notice is given, the Service is deemed to be free from defects and in conformity with the purchase order unless the defect was not detectable during the inspection. Notice of such defects must be given immediately after discovering them.
Any resale, installation or other use of an allegedly defective Service is deemed approval of performance as contracted, and to that extent precludes the possibility of claims for defects.
Any negotiation on our part regarding notices of defects does not constitute a waiver of the defense that the notices were late, unsubstantiated or otherwise insufficient. Damage reduction measures do not constitute an acknowledgement of defects.
We are entitled to deviate from the stipulated scope or quality due to the materials, or to modify the Service to reflect technical progress in terms of construction, design, dimensions, weight or color within the customary industry tolerances, provided (a) this does not restrict the usability of the Service for the contracted purpose, (b) no contractual guarantee exists, and (c) the customer can be reasonably expected to accept the change(s) and/or deviation(s) in light of an objective assessment of all circumstances.
The Service may only be used in the country for which it has been ordered. We do not guarantee compliance with any special regulations that apply to imports, exports or the customer's business, nor do we guarantee that any necessary permits or approvals have been obtained. Unless otherwise agreed, the customer bears the responsibility, liability and costs of any exports. With regard to exports, the customer agrees to comply with legal provisions (e.g. dual use), including, but not limited to, the provisions of German foreign trade law. We assume no liability for infringements of intellectual property rights outside our country of domicile except by separate written agreement.
If the Service is defective, we will discharge our obligation to remedy the defect by, at our option, repairing the defective Service or replacing it with a non-defective Service. We can refuse a type of remedy or the entire remedy if it is impracticable for us. The customer must give us the requisite time, opportunity and access to remedy the defect; otherwise, we are exempted from all liability for the resultant consequences.
If we decide to provide a replacement, we may stipulate that it can only be provided concurrently with the return of the defective Service. Replaced parts become our property.
We bear the expenses necessary to remedy the defect to the extent they have not been increased by transporting the Service to a location other than the place of performance. The customer bears any removal, installation or other costs.
If we fail to remedy the defect or refuse to perform either type of remedy, the customer may, after fixing a reasonable additional period for us to perform our obligations, rescind the contract, reduce the compensation and/or claim damages. The right to a price reduction is excluded unless the defect is merely insignificant, was concealed with the intent to deceive or relates to a contractual guarantee as to certain characteristics.
The customer is entitled to remedy the defect himself, or to have it remedied by third parties, and to demand reimbursement of the necessary expenses from us, solely in emergencies that jeopardize operating safety, or to avert unreasonably severe damage or loss, in which case we must be notified immediately.
If the customer or a third party performs a repair without first giving us an opportunity to remedy the defect, we will assume no liability for the resultant consequences. The same applies to any modifications made to the Service, the replacement of parts or the use of consumable materials that do not conform to the original specifications without our prior consent, unless the defect is not caused thereby.
We extend no warranty for inappropriate or improper use or repairs, improper assembly or placement into service by the customer or third parties, failure to follow processing guidelines or operation or installation manuals, natural wear and tear, improper or negligent handling or storage, improper preventive maintenance or care, inappropriate supplies or chemical, electrochemical, electrical or environmental influences, unless we are at fault.
The customer is liable for any unjustified notices of defects if the defect's cause lies within the customer's area of responsibility and the customer acted at least negligently in failing to recognize this fact. We will charge our current list prices for any expenses not attributable to us under our liability for defects.
We charge at least 10% of the delivery value or our actual incurred costs for voluntarily exchanging and restocking shipments. We can only take back shipments if the invoice or delivery note is presented and the shipment is in good condition and in the original packaging. Custom-made products and special-ordered parts cannot be exchanged.
The customer only has remedies over against us as set forth in German Civil Code [BGB] § 478 to the extent that the customer's agreements with the consumer do not go beyond the statutory claims for defects. The period of limitation is only tolled in accordance with German Civil Code [BGB] § 479 if the customer has demonstrably extended a warranty to his own customer.
The customer may not bring any claims that go beyond these Terms or are not governed by these Terms due to a defect.
Unless otherwise specified in these Terms, including the provisions set out below, we are liable for breaches of our contractual and non-contractual obligations as set out in the applicable laws.
We are liable to pay damages for willful misconduct and gross negligence regardless of legal grounds. We are only liable for simple negligence in cases of:
- damages resulting from injury to life, limb or health,
- damages resulting from the breach of a material contractual obligation (obligation whose satisfaction is essential to the proper performance of the contract and upon whose satisfaction the contracting party may and does consistently rely); in this case, however, our liability is limited to paying foreseeable, typical damages.
The liability limitations do not apply wherever we have concealed a defect with the intent to deceive or have extended a contractual guarantee regarding certain characteristics of the goods. The liability limitations do not apply to the customer's claims under the German Product Liability Act [ProdHaftG].
The customer can only rescind or terminate the contract for a breach of obligations that does not constitute a defect if we are responsible for the breach. The customer does not have the right to terminate the contract at any time for convenience (particularly pursuant to German Civil Code [BGB] § 651, § 649). The statutory requirements and legal consequences apply in all other regards.
Unless otherwise agreed upon, the limitation period for claims for defects expires one year from the time of handover/delivery unless the law prescribes longer periods, e.g. in case of fraud, willful misconduct, injury to life, limb and health, under the German Product Liability Act [ProdHaftG] or pursuant to German Civil Code [BGB] § 438(1)(2) (construction and construction materials) and § 634a(1)(2) (construction defects).
8. Liability Disclaimer and Limitation
Where liability is limited to the foreseeable damages or losses which are typical for the contract, our liability for each damage or loss occurrence is limited to EUR 100,000.00 for property damage and EUR 200,000.00 for other losses; the total liability for all such damages and losses within a given calendar year is limited to twice these amounts. This limitation does not, however, apply to the extent that losses are covered by general liability insurance.
9. Final provisions
These Terms also apply to the customer's affiliates within the meaning of German Companies Act [Aktiengesetz] § 15. The customer must bind his affiliates to observe these Terms.
Amendments and modifications hereto that are not based on an individual agreement must be made in written form (including fax). This also applies to a waiver of the written form requirement. If any provisions of these Terms are or become invalid, the validity of the remaining provisions will be unaffected thereby.
The customer may not assign to third parties any rights granted in this contract without our consent. German Commercial Code [HGB] § 354 a remains unaffected thereby.
We may use the customer (including his logo, brand) and the project as a reference as long as the customer does not object giving good cause.
The customer consents to our processing his data (communication details, responsible employees, nature and extent of the customer's purchase orders, etc.) for contract administration and execution.
We may also use the data to notify the customer about our products and services if they are typically used in connection with the products and services that the customer has purchased from us.
The German wording controls in cases of doubt if the contract or the Terms are drawn up in more than one language.
German law applies unless national law inevitably conflicts with it.
Unless otherwise agreed and irrespective of the agreed upon Incoterm, the place of our registered office is the place of performance, also with respect to warranty claims. The place of our registered office is the place of performance if the customer is a merchant or a legal public entity. We are, however, entitled to bring action against the customer at the court that has jurisdiction over the place of the customer's residence.
The Zurich Arbitration Court has jurisdiction over all legal disputes with customers outside the EU arising out of or in relation to the contract in accordance with the Swiss Rules of International Arbitration of the Swiss Chamber of Commerce. The Arbitration Court consists of one arbitrator if the amount in dispute is up to EUR 100,000.00 before taxes and of three arbitrators if the amount is greater. The seat of arbitration is Zurich, Switzerland. Arbitration proceedings are conducted in the contract language.
1.1 These General Conditions of Purchase shall apply for any and all business transactions (goods and services) with the Supplier. We do not agree with any opposing or deviating sales and delivery conditions stipulated by our suppliers unless we have explicitly agreed to such general sales and delivery conditions. Even if we have accepted or paid for goods and services, this does not imply that we have agreed to our suppliers’ general sales and delivery conditions.
1.2These General Conditions of Purchase also apply for future contractual relations with the Supplier, even if we do not expressly refer to them again.
1.3Our General Conditions of Purchase only apply to companies as defined by § 14 German Civil Code (BGB).
2. Quotation / Conclusion of the Contract
2.1 We shall only be bound to our order if it is acknowledged by the Supplier in writing within a period of 7 days.
2.2 If the order confirmation varies from the order, especially concerning the price or the time of delivery, the Supplier has to advise us separately on it. These variations will only form a part of the contract if they are confirmed in writing.
3. Prices / Offsetting and Retention
3.1 The stipulated prices shall be binding fixed prices. Unless otherwise agreed in writing the price shall include delivery free to our address, including packing. Return of the packing material shall be made at the expense of the Supplier.
3.2 We shall be entitled to rights of offsetting and retention to the extent that is provided by law.
3.3 All prices are net prices excluding legal VAT.
4. Delivery Time
4.1 The stipulated dates and periods of delivery shall be binding and are to be strictly observed. The relevant date is the date of receipt of the goods at our premises or at the receiving office agreed upon or indicated by us..
4.2 As soon as the Supplier becomes aware of the possibility of delays in delivery, he shall immediately notify us thereof in writing, with a statement of the reasons and the probable duration of the delay. This shall not affect the responsibility of the Supplier to observe the stipulated date of delivery.
4.3 In case of a delay in delivery, we are entitled to the statutory claims. In addition, we are entitled to demand a contractual penalty of 1.0 % of the total value of the order for each finished week of the delay, up to a maximum of 5.0 % of the total value of the order. We reserve the right to assert claims for additional damages. We shall declare reservation of a contractual penalty at the latest upon receipt of the invoice which follows the delayed delivery.
5. Passing of Risk / Place of Fulfilment
5.1 The risk of complete or partly loss, damage or other deterioration of the goods is passed to us after acceptance of the goods at the receiving office.
5.2 Place of fulfilment for the Supplier’s deliveries and services shall be Birkenfeld-Gräfenhausen or the receiving office determined by us.
6. Claims as to Defect
6.1 The Supplier shall only ship goods that have been thoroughly checked and been authorised to be fit for shipping and, therefore, we shall not be required to perform a detailed incoming goods inspection at our premises. As far as it is appropriate for our regular course of business, we will check the received goods for variation in quality or quantity. Any notice of defects shall be timely insofar as such is received by the Supplier within 5 working days.
6.2 We shall be entitled to full extent to the legal claims based on defects..
6.3 Unless otherwise agreed, the period of limitation for defects of material and in title is 36 months, unless a longer period of limitation is provided for by law.
7. Industrial Property Rights
7.1 The Supplier assures that the delivered items do not infringe on any national or international industrial property rights and guarantees us complete freedom and authorisation under copyright law to use them and trade with them on the national and international market.
7.2 In the event of a claim made against us by a third party due to the infringement of national or international proprietary rights concerning the delivered goods, the Supplier will indemnify us from all claims and reimburse us for the damage arising as a result thereof.
Should a claim be made on us on the basis of the law on product liability (Produkthaftungsgesetz) or other regulations due to a product fault or if we incur damage in another way in connection with the delivery of a faulty product, in particular through necessary call-back, retrofitting, etc., the Supplier has to indemnify us therefrom an reimburse us for the damage insofar as the damage is the result of a fault in the consignment for which he is responsible. In cases of liability with fault this shall, however, only apply if the fault is attributable to the Supplier. If the cause of damage is within the Supplier’s area of responsibility, he shall bear the burden of proof in this respect. The Supplier shall, in these cases, bear all costs and expenses, including the costs of a possible prosecution. The Supplier undertakes to take out adequate product liability insurance.
9. Place of Performance, Court of Jurisdiction, Applicable Law
9.1 The place of performance for both parties concerning all obligations arising from the contract, in particular, for delivery and payment, shall be our place of business or the place of performance named by us.
9.2 The court of jurisdiction for both parties, insofar it relates to merchants, concerning all legal disputes arising from the contractual relationship as well as the origination thereof and its validity shall be the court responsible for our place of business. We may also, at our choice, issue proceedings against the Supplier at his place of jurisdiction.
9.3 The contractual relationship is subject to the laws of the Federal Republic of Germany. The „United Nations Convention on Contracts for the International Sale of Goods“ (CISG) is not applicable.
9.4 In case of discrepancies between the English version of these Purchase Conditions and the German version, the German version prevails.