General Terms and Conditions
I. Scope of application
(1) The following Terms of Delivery apply to all transactions with the purchaser, unless the purchaser is a consumer within the meaning of § 13 BGB [German Civil Code]. They thereby also apply to any future transactions of this kind, even if not expressly agreed upon once again.
(2) Our Terms of Delivery apply exclusively. Conflicting, supplementary or deviating terms of the purchaser will not be acknowledged by us, unless we have expressly agreed to their applicability in writing. Our Terms of Delivery shall also apply exclusively if we execute the contract without any reservation in full knowledge of the conflicting, supplementary or deviating terms of the purchaser.
(3) Unless otherwise specified in the contract or the present Terms of Delivery, the terms and definitions of INCOTERMS 2000 apply.
II. Changes and additions
It is assumed that, apart from the written individual agreements and the present Terms of Delivery, no oral agreements have been made.
III. Conclusion of contract / Object of agreement
(1) Our offers are subject to confirmation and are non-binding. Moreover, technical descriptions and other details in offers, brochures and other information are initially non-binding.
(2) We reserve the ownership rights and copyrights to any illustrations, drawings, calculations and other documents which we have provided to the purchaser. They must not be made available to third parties; this also applies to any information regarding our activities, performance and goods received since the commencement of contractual negotiations. Before passing anything on to third parties, the purchaser requires our explicit prior written consent.
(3) If the purchaser's order is to be qualified as an offer in accordance with § 145 BGB, we may accept such offer in writing within 14 business days (confirmation of order). The same applies in the case of the order deviating from our preceding offer. A contract is concluded upon written confirmation of order, however when we begin delivery or provision of the goods at the latest. The transmission via remote data transmission satisfies the written form requirement pursuant to this paragraph. It is assumed that the purchaser has received confirmation of order when we present proof our having sent said confirmation via remote data transmission via the presentation of a transmission report.
(4) Details within the meaning of Par. 1 as well as any official statements by us only become an integral component of the contract if this is expressly referred to in our confirmation of order in accordance with Par. 3.
(5) The object of the present contract is derived from the order and our confirmation of order. Details are derived from the functional specifications, insofar as a binding agreement in writing has been made with us regarding these specifications.
(6) We have the right to adjust specifications, types, quantities, dates and deadlines to the actual possibilities in our confirmation. Such modifications are deemed agreed if the purchaser does not object immediately following receipt of the confirmation of order in accordance with Par. 3, if the modification can be deemed reasonable for the purchaser taking into consideration the interests of both contractual parties and if agreement to the modification can be reasonably expected.
IV. Prices and terms of payment
(1) Our prices are quoted in Euro and, where applicable by law, plus VAT to be separately accounted for at the applicable legal rate as well as, in the case of delivery ex works Auenwald-Mittelbrüden, excluding packaging, transport, insurance and excluding any taxes, customs and duties payable pursuant to the applicable law. The purchaser undertakes to pay or to refund any taxes, customs or duties imposed on us. In the absence of a deviating agreement, any delivery charges to be invoiced are calculated in accordance with the price list which is in valid at the time in question.
(2) Deliveries within the Federal Republic of Germany are payable immediately net without deduction. The deduction of a discount requires special prior written agreement. In particular, the purchaser is not entitled to deduct any discount (a) on the grounds that we have delivered to the purchaser while granting a discount previously or (b) on the grounds that we do not object to a deduction of a discount not agreed upon. The preceding provisions regarding the deduction of a discount apply to other price reductions accordingly. Payments are deemed completed from the date on which the amount is freely available to us.
(3) Deliveries outside of the Federal Republic of Germany are payable net without deduction and are carried out against cash in advance or against documentary letter of credit at the purchaser's discretion. Any other forms of payment require a special prior written agreement. Any additional charges incurred on both sides due to such an agreement are to be borne by the purchaser. In the case of a deviation from Clause 1 due to a special written agreement, in the absence of a deviating agreement the terms of payment of Paragraph 2 apply.
(4) Should the costs for material, consumables, wages and salary which form the basis for our calculation change following the conclusion of contract, the right to a corresponding price adjustment remains reserved.
(5) The purchaser has a right to offsetting or retention only on the grounds of undisputed or legally established claims or interests.
(6) In the case of delayed or deferred payment, we are entitled to charge banking interest, however interest of at least 8% above the base rate in accordance with § 247 BGB. In addition, we are entitled to withhold all deliveries or services until full payment has been taken place.
(7) If, following the conclusion of contract, it becomes apparent that our claim for payment is at risk due to the insufficient financial capacity of the purchaser, or if the purchaser defaults with regard to the payment of the purchase price from previous orders, we have the right to refuse delivery until the purchaser effects payment or has provided a security for the payment. The purchaser may not deduce any rights from the legitimate refusal of performance. If the payment or provision of security does not take place within 12 business days following a request to this effect, we are entitled to withdraw from the contract and to claim damages in place of the performance.
V. Performance and cooperation duties
(1) With respect to the content and scope of our obligation to perform, our written confirmation of order, if applicable in connection with the corresponding functional specifications if such specifications have been accepted by us in writing, is authoritative.
(2) The purchaser has the right to request changes to the object of contract in accordance with No. III. /5. Clause 1 provided that he accepts any cost overruns and exceedances of delivery dates caused thereby. In any case, any changes to the undertaking are deemed agreed upon only as soon as and only if a written modification agreement to this effect has been concluded.
(3) If partial deliveries are deemed reasonable for the purchaser and if these do not in the end affect the scheduled scope of performance and the agreed period of performance, partial deliveries may be made and invoiced.
(4) The agreement on periods or dates for performance is always subject to the cooperation of the purchaser according to contract. The fulfillment of our obligation to perform is based upon the prerequisite that any advance performances to be rendered by the purchaser have been fulfilled. As long as this is not the case, we may withhold our performance. The purchaser may not derive any rights from such legitimate withholding. The provisions of this paragraph in particular also apply when the purchaser defaults with regard to the payment for a prior performance.
(5) If we ourselves are not supplied correctly or on time despite having placed sufficient orders with reliable suppliers, we are released from our obligation to perform and may withdraw from the contract immediately.
VI. Delay of performance / Impairment of performance and its consequences
(1) If an agreed period or date cannot be fulfilled due to temporary impediments of performance which we are not responsible for (e. g. force majeure, natural disasters, general lack of energy and raw materials, industrial disputes, insurmountable traffic disruption) either on our part or on the part of our suppliers, a reasonable extension of the delivery period or a postponement of the date of delivery ensues. In such case, we will inform the purchaser immediately. Should the impeding circumstances still continue one month following the expiry of the agreed period for performance, either party may withdraw from the contract in writing. Further claims due to the exceedance of the period for performance for reasons that are not our responsibility are excluded.
(2) In case of default the compensation for default of the purchaser is limited to a maximum of 5 % of the performance value. Moreover, the purchaser may grant us a reasonable period of grace in writing, which must be at least 15 business days. Following the ineffectual expiry of such period, the purchaser may withdraw from the contract in writing. The compensation in place of performance is limited to the foreseeable damage typical for the type of contract. The preceding provisions apply accordingly if we – without being entitled to do so – carry out only partial performance.
(3) Claims of the purchaser due to the exclusion of the obligation to perform or due to an impediment to performance upon conclusion of contract are limited to the foreseeable damage or expenditure typical for that type of contract. The same applies if our performance is merely a partial performance.
(4) In the cases of Par. 2 and 3, legal liability remains unaffected (a) for damages resulting from injury to life, body or health being due to a violation of duty which we are responsible for, (b) for damages resulting from the violation of material contract duties which we are responsible for, and (c) for other damages if the violation of duty is based upon intent or gross negligence. A contractual duty is deemed material if its fulfillment is essential to enable the proper execution of the present contract and the other contractual party may routinely rely on its observance. Clauses 1 and 2 apply accordingly for a violation of duty by our legal representatives, organs, executives or other vicarious agents.
VII. Place of performance / Passing of risk / Acceptance / Dispatch
(1) In the absence of a deviating agreement, delivery ex works Auenwald is agreed upon. Delivery is carried out at the risk and for the account of the purchaser. This also applies in the case of partial deliveries and returns. Insofar as acceptance is required, such acceptance is decisive with regard to the passing of risk. Acceptance must take place on the agreed date, alternatively after we have indicated readiness for acceptance. The purchaser may refuse acceptance only if a significant defect is present.
(2) If dispatch or acceptance is delayed for reasons which we are not responsible for, the risk is passed on to the purchaser on the day of our indication of the readiness to dispatch or accept. The same applies if the purchaser defaults with regard to acceptance.
(3) If the purchaser defaults with regard to the release orders, acceptance or collection of the goods or if he is responsible for or wishes for a delay in dispatch or delivery, we are entitled to claim compensation for the damage resulting thereof including any additional expenditures (e. g. storage costs). For this we charge a cost lump sum of 0.5% a month of the net price to be invoiced for the goods according to No. IV./1., however up to a maximum of 5% of the net price to be invoiced for the goods, starting upon the expiry of the period of delivery or – in the absence of a period of delivery – upon indication of readiness for dispatch of the goods. The cost lump sum is incurred regardless of whether we store the goods on our premises or with third parties. We are at liberty to provide evidence of greater damage and to assert further or other claims; however, the cost lump sum is to be outset against any further monetary claims.
(4) Any insurance benefits received within the framework of our insurance protection which is in place for the relevant case will be passed on to the purchaser, provided that the purchaser has provided compensation to us beforehand. However, we are not obliged to conclude or maintain an insurance policy. If the purchaser requests so in writing, we will examine if and in how far items provided by him and/or our goods are covered by existing liability insurances or will insure the goods against the risks stated by him in writing at his expense.
(5) Unless otherwise agreed, the choice of the means and route of transport is at our discretion, without our being responsible for choosing the quickest or cheapest alternative.
(6) Transport and disposable packaging will not be taken back.
VIII. Liability for defects
(1) Our liability for defects is based on the prerequisite of the purchaser having properly fulfilled his obligations regarding due diligence and notification of defects in accordance with §§ 377, 381 Par. 2 HGB [Code of Commercial Law], moreover requiring that (a) the notification of defects is done in writing and (b) we are notified of any visible defects immediately, however within 8 days of delivery of the goods at the latest. The same applies with respect to any other services performed by us.
(2) The purchaser may not derive any rights from defects which do not or do not substantially affect the value or suitability of the goods with regard to the agreed, assumed or common utilization, unless the defect is the result of an intentional or grossly negligent violation of duty or results in injury to life, body or health. Clause 1 applies to deficient installation manuals accordingly.
(3) Not covered by our liability for defects are defects based on improper use, storage, operation or maintenance, on inappropriate modification of our goods, the utilization of unsuitable parts or equipment or the like. The same applies to regular consumption and wear and tear.
(4) If the goods are affected by a defect at the time of the passing of risk, we are initially entitled and obliged to provide supplementary performance. Such supplementary performance is carried out by way of rework or replacement at our discretion. Subject to Clause 7, we will bear the expenditures required for the purpose of supplementary performance, in particular the transport, infrastructure, labor and material costs, insofar as these expenditures do not increase due to the goods being transported to a location other than the place of business of the purchaser following delivery and insofar as we are not required to effect performance at said other location. Replaced parts become our property. In the case of rework, we can, at our discretion, perform the rework (a) at the purchaser's premises or (b) at one of our plants. If a rework is carried out at one of our plants, the purchaser must transport the goods to the plant named by us. The costs for transporting the defective goods to the plant named by us are to be borne by the purchaser, while the costs of return transport of the reworked goods to the purchaser are borne by us.
(5) If the supplementary performance fails, the purchaser is entitled, under the legal prerequisites as well as the additional prerequisites of the following Clause 2, to either withdraw from the contract or demand a reduction of the sales price at his discretion. The setting of the deadline as well as the execution of the right of withdrawal or reduction each requires a written statement.
(6) Unless otherwise specified below (Par. 7 to 11), any further claims by the purchaser - for whatever legal reason - are excluded. Any liability based on warranty or due to fraudulent intent remains unaffected by this.
(7) With regard to damages resulting from the injury of life, body or health, we are liable in accordance with the legal provisions provided that we are responsible for said violation of duty.
(8) With regard to damages other than those mentioned in Par. 7, we are liable in accordance with the legal provisions provided that we are responsible for the violation of duty and a material contractual obligation in accordance with No. VI. / 4. Clause 2 was violated. In the case of the violation of non-essential contractual obligations we are liable in accordance with the legal provisions if we have intentionally caused such violation or have caused it due to gross negligence.
(9) Liability for damage to property and financial losses caused by slight negligence is limited to the damage that is typical for the type of contract and foreseeable. In particular, indirect damage and consequential damage are excluded via this limitation of liability, unless these damages are typical for the type of contract and foreseeable.
(10) The preceding Par. 7 to 9 apply accordingly to a violation of duty that we are responsible for by our legal representatives, organs, executives or other vicarious agents.
(11) The statutory and customary legal regulations regarding the burden of proof remain unaffected by the preceding provisions.
(12) Claims due to defects become time-barred subject to §§ 438 Par. 1 No. 2 (buildings, building materials and building components), 479 (supplier's recourse), 634a Par. 1 No. 2 (buildings) BGB one year following the legal begin of the statute of limitations, unless (a) damage in accordance with Par. 7 is present, (b) a material contractual duty in accordance with No. VI. / 4. Clause 2 was violated or (c) another contractual obligation was violated either with intent or by gross negligence. The acceptance of a works is deemed completed 15 days following notification of completion at the latest. If a "final acceptance" is scheduled for the delivery of goods, the statute of limitations does not commence until such final acceptance; it is deemed completed if the purchaser does not perform the final acceptance within a reasonable period of time as specified by us. Any claims based on warranty, fraudulent intent, unlawful acts or product liability laws remain unaffected.
(13) In cases in which the purchaser asserts any recourse claims towards us in accordance with § 478 Par. 1, 2 or 5 (supplier's recourse) BGB, the preceding Par. 2 to 12 are not applicable.
IX. Other liability for damages
(1) Unless otherwise specified below (Par. 2 and 3), the provisions of No. VIII. /6. to 11 are applicable accordingly with regard to any other claims for damages, irrespective of the legal reason. Therefore, they apply in particular to our liability based on tort or the violation of a precontractual obligation.
(2) The provision of Par. 1 does not apply to claims based on the product liability law.
(3) Insofar as liability on our part is limited or excluded, this also applies to the personal liability of our workers, employees, representatives and agents.
X. General statute of limitations
Claims subject to the regular statute of limitations of three years become time-barred two years following their incurrence, however upon the acknowledgement of the incurrence of the claim by the purchaser at the earliest. Claims based on warranty, fraudulent intent or product liability laws remain unaffected. Clause 1 does not apply to liability based on the injury of life, body or health and does not apply to liability based on intentional or grossly negligent acts.
XI. Reservation of title
(1) The title to the goods delivered by us remains reserved until all our receivables towards the purchaser resulting from the business relationship including any receivables arising in the future from contracts concluded simultaneously or later have been settled. This also applies if receivables are transferred into an open account and the balance has been calculated and acknowledged. The purchaser is obliged to treat the delivered goods with care and to insure them against the usual risks (fire, flood, storm, theft) on our behalf. If maintenance and inspection work is required, the purchaser must perform these in good time at his own expense.
(2) Until full payment has been carried out, the purchaser is always obliged to provide us with comprehensive information on the goods upon request. Insofar and as long as the reservation of title is in place, the purchaser must neither assign the goods delivered as a security nor pledge them without our written consent. The conclusion of financing agreements (such as leasing) which include the assignment of our reservation rights require our prior written consent, unless the contract obliges the financial institution to pay the share of the sales price due to us to us directly.
(3) The purchaser must immediately notify us in writing if (a) the goods are to be pledged by third parties or realized in any other form, (b) the goods are damaged or destroyed; (c) the goods are lost or change their owner or (d) the domestic business address of the purchaser or the location of the goods changes.
(4) If the purchaser acts in violation of the contract, particularly in the case of default in payment, we are – insofar as required by law, following the setting of a reasonable grace period where appropriate – (a) entitled to withdraw from the contract and/or (b) to redeem and realize the goods, and the purchaser is obliged to release the goods at his expense. For the purpose of redeeming the goods the purchaser hereby irrevocably permits us to enter his business and storage rooms unhindered and to take the goods with us.
(5) In the case of attachments and other interventions by third parties the purchaser must immediately and at his expense inform us in writing and must cooperate with regard to our intervention for the protection of our rights. The same applies if the purchaser experiences a dwindling of assets, in particular if an application for insolvency is filed with regard to his assets. The purchaser is liable alongside the third party for the judicial and extra-judicial costs of third-party proceedings in accordance with § 771 ZPO [code of civil procedure].
(6) The application for the initiation of insolvency proceedings regarding the purchaser's assets gives us the right to withdraw from the contract and to demand the immediate release of the goods.
(7) The purchaser is entitled to sell or to process the goods within ordinary transactions. He undertakes any processing on our behalf without any obligation on our part. In the case of the processing, connection or mixing of the reserved goods with other goods we automatically receive a joint ownership share with regard to the new goods, namely in case of processing at the ratio of the value (= gross invoice value including additional expenses and taxes) of the reserved goods towards the value of the new goods, in the case of connection or mixing at the ratio of the value of the reserved goods towards the other goods. As soon as our property disappears via mixing or connection, the purchaser shall transfer joint property to us pro rata.
(8) The purchaser hereby assigns to us any receivables arising towards a customer or towards third parties from the resale, including any ancillary rights and including any current account balance claims from the acceptance into current account relationships as a security, including for all other receivables from the business relationship. Following such assignment, the purchaser is authorized to collect the receivables assigned to us. We reserve the right to revoke the authorization for resale and collection as well as to collect the assigned receivables ourselves if the purchaser does not properly fulfill his contractual obligations towards us.
(1) The purchaser's rights are not assignable.
(2) These Terms of Delivery and the entire legal relationship with the purchaser are subject solely to the law of the Federal Republic of Germany under the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) and the disposable conflict rules of the IPR referring to a foreign law. Requirements and effects of the reservation of title in accordance with No. XI, however, are subject to the law applicable at the relevant location of the goods insofar as it renders the choice in favor of German law invalid or ineffective.
(3) Sole place of jurisdiction for any disputes shall be our registered office Auenwald-Mittelbrüden; however, we also have the right to take action against the purchaser at the latter's place of general jurisdiction.
(4) Should individual provisions be invalid or should the Terms of Delivery contain any loopholes, the validity of the remaining provisions remains unaffected. In place of the invalid provision such valid provision shall be deemed agreed upon which corresponds to the intent and purpose of the invalid provision. In the case of loopholes such provision shall be deemed agreed upon which corresponds to that which would have reasonably been agreed upon based on the intent and purpose of the Terms of Delivery had the parties taken the matter into consideration from the outset.
As at 12/2010