General Business Terms
General terms and conditions
As of 03/ 2014
1. These General Terms and Conditions apply to all - including future - contracts with companies, legal entities under public law and public investment funds for deliveries and other services and also apply even if they are not mentioned in later contracts. The buyer’s purchasing terms do not commit us even if we do not explicitly oppose them again after receipt.
2. Our offers are not binding. Agreements, in particular subsidiary oral agreements, approvals, guarantees and other assurances of our sales employees are only binding after our written confirmation. The written form is also provided by transmission via fax or email.
3. The newest version of INCOTERMS is definitive when interpreting such trading clauses as “EXW”, “FOB” and “CIF”. Customs charges, fees and public deductions for export deliveries are not included in the agreed prices. Additional or modified services that the client subsequently requests are charged separately.
1. Our prices are understood, if nothing further is agreed, as ex works excluding packaging plus any statutory value-added tax.
2. If the goods are delivered with packaging, we charge the packaging at production cost; within the framework of the statutory provisions, we will take back the packaging we have delivered if it is returned by the buyer within a reasonable period without charging for freight.
III. Payment and offsetting
1. The payment must be made - without deduction - such that we can access the amount on the date it is due. If nothing further has been agreed, our invoices are due for payment 14 days from the invoice date. Payment must be provided such that the amount required to cover the invoice is available at the latest on the due date. The buyer is in default at the latest 10 days after our receivable becomes due without requiring a reminder.
2. The discount periods granted start on the invoice date. An agreed discount only ever refers to the invoice value excluding freight and requires the complete payment of all buyer liabilities due at the time of the discount.
3. Invoices for amounts below EUR 50.00 and for assemblies, repairs, moulds and tool cost shares are due for immediate payment and are payable net.
4. Counter-claims disputed by us or not yet legally enforceable do not permit the buyer to either retain or offset payments.
5. If the payment deadline is exceeded, at the latest on default, we are permitted to charge interest at the amount of the relevant bank rates for overdrafts, as a minimum the statutory default interest rates. The assertion of further default claims is reserved.
6. If, after concluding the contract, it becomes clear that our payment claim is at risk due to the lack of ability of the buyer to perform or other circumstances occur that lead to a conclusion of a significant worsening of the ability to perform, we can refuse the agreed services on account and exercise the rights from Section 321 of the German Civil Code (BGB). In such cases, we can invoice for all as yet unlapsed claims from the current business relationship with the buyer. It is also considered a lack of ability by the buyer to perform if the buyer is in default of a significant amount (more than 10% of the due receivables) for at least three weeks, as is a significant downgrade to a trade credit insurance policy. If payments are in default, we are also entitled to request the return of the goods after the end of an appropriate subsequent period and prohibit the further sale or processing of the goods delivered.
IV. Delivery times
1. Delivery periods and deadlines are considered to have been complied with if the delivery item has left our business or has been notified as ready for delivery by the time they end.
2. Our delivery obligation is under the condition of correct, on-time self-delivery unless the incorrect or later self-delivery is for reasons for which we are responsible.
3. Force majeure events permit us to delay deliveries for the duration of the hindrance and an appropriate start-up period. This also applies if such events occur during a default. Currency or trading policy and other sovereign measures, strikes, lock-outs, operational faults for which we are not responsible, hindrances on transport routes, delays for imports/customs processing and all other circumstances for which are not responsible that significantly make deliveries or services more difficult or impossible are equivalent to force majeure. Here it is irrelevant whether the circumstances occur with us, the delivering plant or another sub-supplier. If, as a result of the stated events, the implementation is unreasonable for one of the contracting parties, it may withdraw from the agreement using an immediate written declaration. Contractual penalty regulations in the event of delayed deliveries and services for our goods are not part of the agreement.
V. Retention of title
1. All goods delivered remain owned by us (retained goods) until the fulfilment of all claims from the business relationship no matter the legal basis, including claims arising in future or conditional.
2. The retained goods are processed for us as the manufacturer as defined by Section 950 of the German Civil Code (BGB) without this committing us. The processed goods are considered to be retained goods as defined by No. V/1. If the customer processes, connects or mixes the retained goods with other goods, we hold a share of ownership in the new item in the same ratio as the invoice value of the retained goods to the invoice value of the other goods used. If our ownership lapses as a result of the connection or mixing, the buyer even now transfers the ownership rights to which it is entitled in the new item or thing to the extent of the invoice value of the retained goods and holds it free of charge for us. The resulting joint ownership rights are considered retained goods as defined by No.
3. The buyer may sell the retained goods only in normal business operations at its normal business terms and as long as it is not in default as long as the receivables from the further sale are transferred to us according to No. V/4 to V/6. It is not entitled to use the retained goods in any other way.
4. The buyer’s receivables from the sale on of the retained goods are already assigned to us. They act as security in the same scope as the retained goods. If the retained goods are sold by the buyer together with other goods not sold by us, the claim from the sale is assigned to us only in the amount of the sale-on value of the relevant retained goods sold. On the sale of the goods in which we have a joint ownership share under No. V/2, the assignment of the receivable is in the amount of these joint ownership shares.
5. The buyer is entitled to collect receivables from the sale on until our permissible revocation at any time. If buyer payments are in default, we are also entitled to request the return of the goods after the end of an appropriate subsequent period and prohibit the further sale or processing of the goods delivered. The return is not withdrawal from the contract. At our request, the buyer is obliged to inform its recipients about the assignment to us - if we do not do this ourselves - and to provide us with the necessary documentation and information for collection.
6. The buyer must inform us without delay about pledging or other adverse effects by a third party.
7. If the value of all of the security to which we are entitled exceeds the total claims to be secured by more than 50%, we are obliged to release collateral of our choosing at the buyer's request.
VI. Execution of deliveries
1. With the handover of the goods to a forwarder or transport company, at the latest however on leaving the warehouse - for third-party transactions - or delivery plant, the risk for all transactions, including “carriage free” and “carriage paid” deliveries, is transferred to the buyer. The obligation and costs of unloading are to be borne by the buyer. We only provide insurance on request and at the expense of the buyer.
2. We are entitled to provide partial deliveries to a reasonable extent. For manufactured goods, supplementary and lower deliveries are permissible up to 10% of the concluded quantities.
3. For call-off orders we are entitled to manufacture - or permit to be manufactured - the whole agreed order quantity. Any change requests can no longer be taken into account after the order has been issued unless they have been explicitly agreed. If no fixed agreements have been made, call-off deadlines and quantities can only be complied with within the framework of our delivery and manufacturing possibilities. If the goods are not called off as per the contract, we are entitled to invoice them as delivered after the end of an appropriate subsequent period.
4. For conclusions with ongoing deliveries, call-offs and type assignments are to be provided for approximately equal monthly quantities. If call-offs are not assigned or collected in good time, we are entitled after setting a subsequent period in vain to assign them ourselves and deliver the goods or withdraw later from any part of the agreement and request damages in place of performance. At the end of the contract our inventories must be accepted.
VII. Liability for defects
1. The internal and external characteristics of the goods, in particular their characteristics, types and dimensions are determined by the agreed DIN and EN standards applicable when the contract was concluded; if there is no agreement they are decided according to custom and usual practice. References to standards and similar reference works and statements on characteristics, types, dimensions, weights and the ability to use goods, information on drawings, figures and statements in advertising media are not assurances or guarantees if they are not explicitly referred to as such in writing. This also applies to declarations of conformity and appropriate markings. The suitability and usage risks are the responsibility of the buyer.
2. If the goods are defective, the buyer is entitled to defect rights in line with the statutory provisions of the German Civil Code (BGB) with the restrictions that the choice of subsequent improvement and subsequent fulfilment is with us such that the minor (insignificant) defects only permit the buyer to lower the purchase price (reduction).
3. The regulations of the German Commercial Code (HGB) apply to checking the goods and notifying defects with the following condition: Material defects on the goods must be notified in writing without delay.
4. We only accept expenses relating to subsequent fulfilment if in the individual case, in particular with regard to the item's purchase price, they are reasonable and under no circumstances exceed 150% of the item’s value. The buyer's costs relating to the assembly and/or removal of the defective item, sorting costs, costs for self-removal of a defect and additional costs resulting from the purchase and delivered goods being located at a location other than the agreement fulfilment location are excluded.
5. If the buyer does not give us the opportunity to convince ourselves of the defects, in particular if it does not provide us with the rejected goods or samples on request, it cannot claim the goods are defective.
6. Other claims are excluded under the condition in No. VIII. This applies in particular to claims for damages that were not incurred on the goods themselves (subsequent defect damages).
7. An unjustified request to resolve defects permits us to claim damages if the buyer could have recognised with a very careful check that there was no material defect.
8. The limitation period for claims for damages is 12 months, starting from when the risk is transferred. This does not apply if the purchased item is normally used for a building and caused the defect.
VIII. General limitation of liability and lapsing
1. We are liable under the statutory provisions if the client asserts claims for damages that are based on deliberate acts or gross negligence, including the deliberate acts or gross negligence of our representatives or vicarious agents. If no deliberate contractual infringement is asserted, the liability for damages is limited to predictable, typically occurring damages.
2. We are liable under the statutory provisions if we culpably infringe a key contractual duty; even in this case the liability for damages is limited to predictable, typically occurring damages. A significant contractual obligation occurs if the infringement is for a duty on which the customer has and should have relied upon.
3. Liability due to the culpable injury to life, limb or health remains unaffected; this also applies to compulsory liability under the German Product Liability Act.
4. If nothing further is regulated in Numbers 1 to 3 stated above, liability is excluded.
1. We retain the ownership and copyrights to cost estimates, drafts, drawings and other documents; they may only be made accessible to third parties with our approval. Drawings and other documents that belong to estimates remain our property, may not be passed to third parties and must be returned on request. The contractor is obliged to treat all commercial and technical details and the prices of appointment as a business secret.
2. If we deliver items according to drawings, models, samples or other documents provided by the buyer, they accept the liability for not infringing the copyrights of third parties. If third parties prohibit us, whilst referring to protection rights, from the manufacture and delivery of such items, we are entitled - without checking the legal situation - to this extent to stop all other activity and, if the buyer is culpable, to assert damages. The buyer is also obliged to indemnify us for all claims by third parties associated with this without delay.
X. Test parts, moulds, tools
1. If the buyer must provide parts to implement the order, they are to be delivered in good time, free of charge and without defects with the agreed or otherwise appropriate additional quantity and with carriage paid to the production site. If this does not occur, the costs and other consequences caused by this are to be borne by the buyer.
2. The production of trial parts including the costs for moulds and tools are to be borne by the buyer.
3. Our liability for tools, moulds and other production devices provided by the buyer is restricted to exercising the same care as for our own items. The costs of maintenance and care are to be borne by the buyer. Our storage obligation - notwithstanding the buyer’s ownership rights - lapses at the latest two years after the last production from the mould or tool.
XI. Place of fulfilment, court of jurisdiction, applicable law
1. The place of fulfilment for our deliveries is our plant. The court of jurisdiction is the one responsible for our head office. We can also lodge lawsuits at the buyer’s court of jurisdiction.
2. German law excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods dated 11.4.1980 applies exclusively to all legal relationships between us and the buyer.
XII. Authoritative version
In cases of doubt, the German version of these General Sales Terms is authoritative.
XIII. Return costs on executing the revocation right
You bear the direct costs for returning the goods. The cost for goods that must be sent by forwarder is around EUR 11 to 50 per item.
XIV. Value reimbursement obligation on executing the revocation right
You must only pay for the loss of value of the items if this loss of value can be traced to unnecessary handling of them to verify the nature, characteristics and functioning of the articles.