Delivery and Payment Conditions
As at: 05/2015
1) General Delivery and Payment Conditions
a) The present General Delivery and Payment Conditions (hereinafter referred to as “Delivery Conditions”) apply to all offers and contracts for deliveries that we as a seller provide for a buyer (hereinafter referred to as “Purchaser”).
b) The goods and services (performance of a contract) are subject to the fact that their fulfilment does not contradict any national or international regulations, in particular export control regulations and embargoes or other sanctions. The contractual parties undertake to provide all information and documents that are required for the export/transfer/import. Delays due to export testing or approval procedures suspend deadlines and delivery times. If the required approvals are not granted, the contract with respect to the affected parts is to be considered as not concluded. Claims for damages to this extent and due to the aforementioned exceeding of deadlines are excluded.
c) These Delivery Conditions apply exclusively. We do not recognise any of Purchaser's conditions deviating or contrary to these Delivery Conditions, unless we have provided our express written consent. Even if we execute the delivery without reservation in knowledge of Purchaser's deviating or conflicting conditions, this does not constitute their acceptance - our Delivery Conditions are also valid in this case.
d) Our Delivery Conditions shall also apply as a framework agreement to all future delivery contracts for the same Purchaser, without the need for us to again refer to them in each individual case.
e) The individual agreements made separately with Purchaser (including ancillary agreements, supplements and amendments) shall take precedence over these terms. A written contract or our written confirmation is required for the content of such individual agreements.
f) Legally relevant declarations and notifications which are to be delivered to us by Purchaser after the conclusion of the contract, such as the setting of deadlines, reminders and rescission notices require the written form.
g) Our Delivery Conditions only apply to companies, legal entities of public law and public special funds pursuant to Sec. 310 para. 1 BGB [German civil code].
Our offers are not binding. Dimensions, weights, illustrations and drawings and other documents belonging to the offers are only approximate unless they are expressly designated as binding.
3) Confirmation of the order
a) Submitted orders are only legally binding with our written confirmation.
b) Objections to our order confirmations are to be made immediately in writing, or at the latest within a week.
a) The prices are ex works, unless otherwise agreed. VAT will be additionally calculated.
b) Our price lists are based on the labour, material and overhead costs currently valid at the time of the order confirmation. If the delivery takes place more than four months after the conclusion of the contract, we are then entitled to apply the updated price list applicable at that point.
c) We reserve the right to charge a minor quantity surcharge for orders under €100.00, provided that this is equitable.
5) Delivery time
a) The delivery deadline is to be deemed as met if the goods have left our warehouse, left the factory or the readiness for dispatch has been communicated to Purchaser before its expiry.
b) Upon the occurrence of labour disputes and unforeseen hindrances which are beyond our control, the delivery period shall be extended accordingly. This applies even if the hindrances have arisen during an already existing delay.
c) Should Purchaser incur loss or damage due to a delay for which we are responsible, especially with regards to a delivery deadline agreed with us, Purchaser is entitled to claim compensation. In the case of slight negligence, this amounts to 0.5% for each full week exceeding the deadline, however, a maximum of 5% of the net amount of remuneration for that delivery which has not been delivered on time due to the delay. Notwithstanding clause 11, further claims for damages arising from a delay due to slight negligence are excluded.
d) If a delivery is delayed due to circumstances for which Purchaser is not responsible, it will be charged for the storage costs incurred from third parties and, for storage with us, 0.5% of the invoice amount per month from the 14th day from the date of notification of readiness for dispatch. The contractual parties shall reserve the right to prove a lower or higher amount of damages in each case.
e) We are entitled to otherwise dispose of the goods after the granting of a fruitless extension period and to provide Purchaser a reasonable deadline extension.
f) Compliance with the deadline is conditional on the fulfilment of Purchaser's obligations under the contract.
g) If we ourselves do not receive supplies despite having placed congruent orders with our suppliers or manufacturers, the delivery period shall be extended accordingly. We will immediately inform the customer in this case about the unavailability of the delivery.
a) The product will be packaged at our discretion and in the customary manner in the absence of specific written instructions from Purchaser. Packaging is charged at cost price.
b) The unopposed acceptance of the goods by the carrier or freight forwarder applies as proof of correct packaging.
c) The repossession and remuneration of packaging material is to only take place with a written agreement.
7) Shipping and transfer of risk
a) The risk is transferred to Purchaser with the handing over of the goods to the shipper, carrier or collector, or, during transport with our means of transport, at the latest when leaving our warehouse or the manufacturer's premises.
b) Upon Purchaser's request, the cargo will be insured by us against breakage, transport, fire and water damage at it's own expense.
c) If delivery is delayed due to circumstances for which we are not responsible, then the risk is transferred to Purchaser from the day of readiness for dispatch. We are obliged to insure the goods against damage upon request of Purchaser. The costs are to be borne by Purchaser.
d) Delivered objects are to be revived by Purchaser without prejudice to the rights of clauses 10) and 11) and provided that they show no significant defects.
Partial deliveries in reasonable amounts are permitted.
8) Payment conditions
a) Unless otherwise agreed, payment is to be made in cash, without any deductions, at the supplier's payment point, namely:
• 1/3 prepayment upon receipt of order confirmation.
• 1/3 as soon as Purchaser is informed that the main parts are ready.
• The remainder within a further month.
b) Purchaser only has a set-off and/or right of retention due to counter-claims which are legally established, uncontested or legally pending in proceedings.
c) Upon failure to comply with the terms of payment or if we become aware after the contract conclusion that the payment claim is at risk due to Purchaser's inability to pay, we are entitled to only process outstanding deliveries and services against advance payment or securities. After a reasonable grace period we are entitled to rescind the contract or to demand damages for non-performance.
9) Retention of title
a) We retain title to all goods until full payment has been received for all receivables we are entitled to and future receivables from the business relationship with Purchaser.
b) Purchaser is entitled to process the goods in the ordinary course of business and to sell them under the following provisions:
It is us, and not Purchaser that acquires the ownership of the new item through the processing of the reserved goods, pursuant to 950 BGB. The processing is to be performed for us by Purchaser without any obligation arising on our part. If the reserved goods are processed with other items which do not belong to us, we shall acquire joint ownership of the new item in the proportion of the reserved goods value to the other processed items. The new item is to be kept by Purchaser free of charge.
Purchaser's claims from the resale of the reserved goods are already now assigned to us, irrespective of whether the reserved goods are resold without or after processing. The assigned receivables only serve as our security in the amount of the value of goods sold in each case. In the event that the reserved goods are sold together with other goods not belonging to us, whether it is before or after processing, the assignment of Purchaser's receivables shall only apply to the amount of the value of reserved goods which are the subject of the purchase agreement with the other goods.
Purchaser is authorised to collect the assigned receivables on our behalf. This authorisation can be revoked by us at any time if Purchaser does not comply with its contractual obligation to pay us. Upon our request, Purchaser is to declare the assignment to the third-party debtor.
The last purchase price agreed between us and Purchaser shall apply as the value of the reserved goods in the foregoing provisions. If the value of the securities given to us exceeds our claims by more than 20%, we shall release the corresponding securities at our own discretion and upon request from Purchaser.
Purchaser is not entitled to pledge the reserved goods to third parties or to transfer them as a security. It is obliged to inform us immediately of any seizure by third parties.
c) If there is a deterioration in the financial circumstances of Purchaser or the acceptor of a bill (e.g., because judicial or extrajudicial settlement proceedings or bankruptcy proceedings are opened over Purchaser's assets), the receivables from the current value of all goods deliveries including ongoing and not yet due bills of exchange become immediately due for payment. Upon our request, our property is to be returned immediately when the above-mentioned conditions arise.
d) We are entitled to insure the delivered goods against fire, water and other damage at the expense of Purchaser, unless Purchaser can provide us with evidence of the conclusion of the appropriate insurance.
10) Liability for defects
a) All parts selected at our reasonable discretion which show a defect within 12 months of delivery due to a situation prior to the transfer of risk shall be repaired or newly delivered free of charge. The identification of such defects must be immediately reported to us in writing.
b) Warranty claims expire 12 months after delivery. The period mentioned in sentence 1 shall not apply if it relates to defective buildings or items for construction work and such caused the defect. In deviation from sentence 1, the statutory deadlines shall also apply in the event of entrepreneurial recourse pursuant to Sec. 478, 479 BGB and in the cases of any claims by Purchaser in accordance with clause of these Delivery Conditions.
c) We accept no liability for damage caused by natural wear.
d) There is no warranty for damages which are caused by the following:
• Unsuitable or improper use
• Faulty installation or commissioning by Purchaser or third parties
• Faulty or negligent handling of the product, particularly in view of the present operating instructions
• Excessive stress
• Using unsuitable equipment and replacement materials.
e) Purchaser is to ensure the time and opportunity upon notification to carry out all repairs and replacement deliveries deemed necessary at our reasonable discretion; we are otherwise exempt from liability. Purchaser only has the right to remedy the defect itself or through third parties and request adequate compensation from us to recover costs in urgent cases of danger to operational safety, of which we are to be notified of immediately, or if we are in delay with the rectification of defects.
f) We will bare the costs arising from the repair or replacement of parts, provided that the complaint justifies the costs of the replacement part including shipment and reasonable costs for the removal and installation. Otherwise Purchaser shall bear the costs.
g) The liability for the resulting consequences is repealed should Purchaser or a third party make any changes or repair work improperly or without our prior consent.
h) Used goods are sold under the exclusion of liability for defects. This exclusion does not apply to claims under clause 11) of these Delivery Conditions.
i) Unless otherwise agreed, we will provide our deliveries domestically and free of industrial property rights and copyrights of third parties. If a corresponding infringement of property rights arises anyway, we will either acquire a corresponding right of use from the third party or modify the goods to the extent that a violation of property rights no longer exists. If this is not possible for us at the appropriate and reasonable conditions, both Purchaser and we are entitled to rescind the contract.
j) Here, in the presence of defects in title, the provisions of this clause 10) apply accordingly, whereby Purchaser's claims only exist if it informs us without delay of any third party claims asserted in writing, neither directly nor indirectly recognises an alleged infringing act, all defence possibilities remain at our disposal, the infringement is not based on the fact that Purchaser has changed the goods or has used them in non-contractual way or that the defect is due to an instruction from Purchaser.
11) Purchaser's right to rescission or reduction as well as our other liabilities
a) Purchaser can rescind the contract if the complete performance becomes impossible. The same applies to our inability. Purchaser may also rescind the contract if when ordering similar items the implementation of the entire quantity of one part of the delivery becomes impossible and it has a justified interest in rejecting a partial delivery. If this is not the case, Purchaser may reduce the consideration accordingly.
b) If there is a delay in performance within the meaning of clause 5) of these Delivery Conditions and Purchaser grants us when in default a reasonable grace period and this grace period is not complied with, Purchaser is entitled to rescind the contract.
c) If the inability arises during the default of acceptance or through the fault of Purchaser, it shall remain obligated to deliver its counter-performance.
d) Purchaser also has a right of rescission if we do not meet a reasonable extension set for us for the elimination of the defects. Purchaser's right of rescission also exists in other cases of our failure to repair or replace.
e) Further claims for compensation for damages of any kind, even those damages which have not occurred directly on the goods, only exist
• upon gross negligence or intent
• upon injury to life, limb or health
• upon a culpable breach of contractual obligations, provided that the fulfilment of the contractual purpose is jeopardised with regard to typical, foreseeable damages
• in the cases in which, under the Produkthaftungsgesetz [German product liability law] liability arises for faults in the goods which lead to personal injury or property damage to privately used items
• upon defects that were fraudulently concealed or whose absence we have guaranteed.
• Further claims for damages for the above are excluded.
12) Liability for additional obligations
If through our fault, the items delivered by Purchaser can not be used pursuant to the contract as a result of omitted or faulty execution proposals and advice before or after the conclusion of the contract or any other ancillary contractual obligations - in particular instructions for the operation and maintenance of the product, the provisions of clauses 10) and 11) of these Delivery Conditions shall apply accordingly under the exclusion of any other claims
13) Place of performance, jurisdiction and applicable law
a) Unless otherwise provided for in the contract or in these Delivery Conditions, our registered office is the place of performance for all claims arising from or in connection with the underlying contract.
b) The exclusive place of jurisdiction - also for summary proceedings based on documents and bills of exchange - when Purchaser is a merchant, a legal entity under public law or a public special fund, for both parties and for all present and future claims arising from the business relationship, is our headquarters or - at our discretion - the office of the branch which concluded the contract.
c) The law of the Federal Republic of Germany, excluding the CISG, applies for these Delivery Conditions and all legal relationships between us and Purchaser.