General Terms and Conditions
General Terms of Sale, Supply and Payment
§ 1 Scope
1. These General Terms and Conditions shall apply exclusively; terms of the buyer contrary to or deviating from our terms will not be accepted without our explicit written agreement thereto. Our Terms of Sale, Supply and Payment shall also apply if we complete the delivery for the buyer without reservations in absent knowledge of contrary or deviating terms of the buyer.
2. Our Terms of Sale, Supply and Payment shall also apply to all future business with the buyer.
§ 2 Quotes
1. Our quotes are understood to be subject to change in all parts.
2. We reserve property and copyrights to figures, drawings, calculations and other documents. Said documents may not be made accessible to third parties without our explicit written consent.
3. Unless agreed otherwise in the following, the relevant DIN standards shall apply to the contractual relationship in all technical matters.
§ 3 Prices and terms of payment
1. Unless provided otherwise in the contractual agreements, our prices apply “ex-factory” without packaging; the packaging will be invoiced separately.
2. All prices quoted by us are net prices; they are understood to be net prices subject to the value added tax in the statutory amount as at the invoicing date.
3. Unless agreed otherwise by contract, the buyer will be in default of payment at the latest 30 days as of the receipt of an invoice or payment request, unless a default of payment occurs at an earlier time due to a warning having been issued.
The buyer shall not be entitled to deduct discounts without a separate written agreement.
4. The buyer shall be entitled to rights to offsetting only if the buyer’s counterclaims have been found valid by final and absolute judgement, or if they are undisputed or acknowledged by us. In excess thereof, the buyer shall only be entitled to claim a right to withholding to the extent as its counterclaim is based on the same contractual relationship as the payment claim.
§ 4 Delivery and delivery period
1. The start of the agreed delivery period is conditional on the prior clarification of all technical questions. The fulfilment of agreed delivery periods or legitimately set delivery deadlines is dependent on our sub-suppliers’ timely delivery of the preliminary materials or purchased parts, which were ordered and are required for the fulfilment of the order (self-supply caveat). If we are not in the position to adhere to the agreed or set delivery dates, due to the supply by our sub-suppliers being late, we will not be in default if the preliminary materials were ordered on time and if we have also taken all acceptable efforts to ensure the timely supply of preliminary materials.
2. If we are delayed with our delivery for reasons outside of our responsibility, the buyer’s claims to compensation for default damage shall be limited to an amount of 0.5% of the delivery value for each completed week of delay, at most however to 5% of the delivery value. This limitation shall not apply if the delay is due to intent, gross negligence or breach of essential contract duties (so-called “cardinal duties”). We reserve the right to prove that no or a lesser damage has been caused to the buyer.
3. Both the buyer’s damage compensation claims for a delay in the delivery as well as damage compensation claims in lieu of performance, which exceeds the limits specified in para. 1 and 2, shall be excluded in all cases of delayed delivery, even after the expiration of a delivery deadline possibly set for us. This shall not apply insofar as a compulsory liability is established in cases of intent, gross negligence or for reasons of injury to life, body or health; a reversal of the burden of proof to the buyer’s disadvantage is not entailed thereby.
The buyer may withdraw from the contract within the scope of the legal regulations only insofar as the delay in delivery is within our responsibility.
4. The buyer is obligated to state within an appropriate period following our request, whether it intends to withdraw from the contract due to the delay in the delivery and/or demand damage compensation in lieu of performance or if it insists on the performance.
5. If the buyer is in delay with acceptance or violates its other obligations for cooperation, we shall be entitled to demand the payment for damages caused to us thereby, including any additional expenses. In that case, the risk of accidental loss or accidental deterioration of the object of purchase shall also transfer to the buyer at the time when it is delayed with the acceptance.
6. Unless agreed otherwise, we are entitled to provide partial performances. The buyer is not entitled to reject partial deliveries, unless these are unacceptable to it due to the nature of the contractual obligation or given the characteristics of the object or its purpose of use. Furthermore, excess or short deliveries respectively up to 10% of the ordered delivery volume shall be permitted; such excess or short deliveries cannot be claimed as a defect by the buyer.
§ 5 Transfer of risk
1. Unless provided otherwise in the contractual agreements, the delivery is agreed as “ex-factory”. This shall also apply if the object of purchase is shipped to a different address according to the buyer’s request. The risk will in that case transfer to the buyer upon the handover of the object of purchase to the transporter.
2. Insofar as the buyer requests, we will have the delivery covered under a transport insurance; the costs incurred for this purpose shall be borne by the buyer.
§ 6 Warranty for defects
1. The buyer’s rights to warranty are conditional on its due fulfilment of its obligations for inspection and notification of defects in accordance with § 377 HGB [German Commercial Code].
§ 377 HGB shall also apply accordingly if we render a genuine work performance for the buyer.
2. If a defect of the object of purpose is present, we shall foremost be given the opportunity for subsequent fulfilment according to § 439 BGB [German Civil Code].
3. If we are not willing or not able to provide subsequent fulfilment, or if such is delayed beyond appropriate periods for reasons within our responsibility, or if the subsequent fulfilment fails for other reasons, the buyer shall be entitled at its choice to withdraw from the contract or demand the reduction of the purchase price.
4. Unless provided otherwise in the following, further claims of the buyer – regardless of their legal reasons – shall be precluded. Therefore, we shall not be liable for damages that have not been caused directly on the object of delivery itself; in particular, we shall not be liable for lost profit or other financial damages of the buyer. We advise that there is no warranty for our products’ suitability for the use in the field of automobile manufacturing or aviation without an explicit guarantee commitment, which necessarily requires the written form for validity.
The foregoing disclaimer of liability shall not apply insofar as the damage is caused by intent or gross negligence, and also not in cases of injury to life, body or health. It shall furthermore not apply if we have given a guarantee for the properties of the object or its durability. The foregoing disclaimer of liability shall moreover not apply in cases of such damages, which were caused by culpable breaches of essential contractual duties (so-called “cardinal duties”); in such a case, our liability shall be limited, unless intent or gross negligence is present or we have given guarantees, to the amount of the foreseeable damage typical for the contract.
5. We point out that no insurance for the costs of recalls has been concluded by us. If the buyer requests such an insurance, a separate agreement will be required. The costs for this purpose shall be borne by the buyer.
6. The buyer’s warranty claims for defects will become time-barred within twelve months. This shall not apply insofar as the law according to § 438 para. 1, no. 2 BGB (buildings and objects for buildings), § 479 para. 1 BGB (recourse claims) and § 634a para. 1, no. 2 BGB (building defects) prescribes longer time limits.
§ 7 Joint liability
1. Any further liability for damage compensation and compensation of expenses than provided in § 4 or § 6 shall excluded regardless of the legal nature of the claim asserted. This provision shall not apply to claims, which are brought against us according to §§ 1 and 4 Product Liability Act. The liability exclusion shall likewise not apply in cases of intent, gross negligence, injury to life, body or health, or in case of breaches of essential contractual duties (so-called “cardinal duties”).
The damage compensation claim based on a breach of essential contractual duties however shall be limited to the foreseeable damage typical for the contract, unless intent or gross negligence is present or if the liability arises due to injury to life, body or health. A reversal of the burden of proof to the buyer’s disadvantage is not entailed thereby.
2. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our workers, staff, employees, representatives and vicarious agents.
§ 8 Reservation of title
1. We reserve the title to the object of purchase until the complete settlement of the purchase price including the incidental charges (freight, packaging, etc.) In the event the buyer acts contrary to the contract, in particular in the case of default of payment, we shall be entitled to withdraw from the purchase agreement and retrieve the object of purchase. We shall also be authorised to retrieve the object of purchase for the purpose of selling it; the sales proceeds remaining after the deduction of appropriate costs for the sale shall be deducted from the buyer’s liabilities.
2. The buyer is obligated to treat the object of purchase with care. The buyer shall conclude appropriate insurance cover at its own cost for damages to the object of purchase caused by fire, water and theft in the amount of the object’s replacement value. Maintenance and service work shall be performed on time by the buyer at its own cost to the required extent.
3. The buyer is obligated to inform us immediately in writing of any attachments or other interference by third parties. In such a case, the buyer will be obligated furthermore to support us to full extent in asserting our rights in and out of court and in particular, to make the required documents available to us.
4. The buyer is entitled to resell the object of purchase in the ordinary course of business; however, it hereby assigns to us on the present day already any claims, which it derives against its own buyers or third parties from a resale, in the amount of the final invoice (including value added tax). This assignment is independent of whether the object of purchase is resold without or after further processing. We hereby accept this assignment.
The buyer shall remain entitled to collect the payment claim within the scope of the ordinary course of business. This entitlement shall expire if the buyer does not fulfil its payment obligations by means of the collected proceeds or if it defaults on payment. The entitlement shall furthermore expire if an application for opening insolvency proceedings over the buyer’s assets is filed or if the buyer suspends its payments.
In those cases, we shall be entitled to collect the assigned claim on our own. The buyer shall be obligated to provide us all information required for collecting payments and to provide the related documents to us. Moreover, the buyer shall be obligated in that case to notify the debtors (third parties) of the assignment.
5. The object of purchase by the buyer shall be processed or modified on our behalf in all cases. If the object of purchase is processed along with other objects that not in our property,
we shall attain rights to co-ownership of the new object in the proportion of value of the object of purchase relative to the value of the other processed objects at the time of the processing. For the rest, the same provisions shall apply to the object created by the processing as apply to the object of purchase delivered on the reservation of title.
6. If the object of purchase is combined inseparably with other objects that are not in our property, we will attain rights to co-ownership of the new object in the proportion of the value of the object of purchase relative to the other combined objects at the time of the combination. If a combination takes place in such a way that the object of the buyer has to be regarded as the main object, it shall be deemed agreed that the buyer transfers to us a proportionate right of co-ownership. The buyer shall hold the exclusive ownership or co-ownership created in this way on our behalf.
7. We undertake to release the collateral that is in our entitlement upon the buyer’s request to the extent as the recoverable value of our collateral exceeds the claim to be collateralised by more than 20%; the choice of the collateral to be released is at our discretion.
§ 9 Place of fulfilment, applicable law and place of jurisdiction
1. Unless agreed otherwise by contract, the place of fulfilment is our Company’s place of registration.
2. All business relations with us shall be governed exclusively by the law of the Federal Republic of Germany. The applicability of the CISG (UN Convention on Contracts for the International Sale of Goods) is excluded.
3. Insofar as the buyer is a business owner, the courts of the Federal Republic of Germany shall be competent internationally for any legal disputes.
The place of jurisdiction in all cases is the place of our Company’s registration. However, we are entitled to file suit against the buyer at its place of general jurisdiction. This provision on the competent jurisdiction shall also apply to lawsuits serving the assertion of claims concerning payments of bills of exchange and cheques.