General terms and conditions

 

 

General terms and conditions

 

General terms of sale, delivery and payment

§ 1 General, scope

1. Only the terms and conditions below shall apply for our sales. All deviating terms and conditions of the ordering party shall not apply, even if we have not expressly rejected them. Agreements which are reached orally or on the telephone or are transferred electronically shall apply only when we confirm them in writing.
2. Our terms of sale shall only apply vis-à-via companies in accordance with § 14 BGB (German Civil Code). Our terms of sale shall also apply for all future business with the ordering party.
3. Our offers shall be subject to change and non-binding. The conclusion of agreements,  addenda, amendments or subsidiary agreements shall require our written confirmation to take effect. If the order is to be qualified as an offer in accordance with § 145 BGB, we shall be able to accept this within four weeks.

 

§ 2 Transfer of risks and delivery time

1. All deliveries shall take place ex warehouse, excluding packaging, and in all cases for the ordering party's account and risk.
2. The risks shall be transferred to the ordering party at the latest when the delivery is dispatched, also when partial deliveries are made or we transport the goods ourselves.
3. The delivery times specified are only to be regarded as approximate. Unless expressly agreed otherwise, complaints must be notified to us in writing without delay, at the latest within 8 days of receipt of the goods.
4. If dispatch is delayed owing to circumstances for which we are not responsible, the risks shall be transferred to the ordering party from the day the goods are ready for dispatch. In this case we shall be entitled to place the delivery in storage at the ordering party's risk and expense.
5. If no special packaging type is prescribed, we shall choose the dispatch route and means of dispatch according to our best judgment and without any liability, in particular not for the cheapest packaging. If the ordering party so wishes, we shall take out a transport insurance for the delivery. The costs thus incurred shall be borne by the ordering party.

 

§ 3 Prices and discounts

1. Unless agreed otherwise, expressly and in writing, our list prices and discounts which apply on the day of delivery shall apply. The prices shall not include packaging and transport. These shall be billed separately.
2. Our prices shall not include the statutory value-added tax; this shall be shown separately on the invoice, in accordance with the rate applicable on the day the invoice is issued.

 

§ 4 Terms of payment

1. Our invoices shall be payable either within 8 days after the invoice date minus 2 % trade discount, or within 30 days after the invoice date net cash, or with three months' acceptance insofar we are notified of this no later than 30 days after the invoice date, namely

b) when acceptance is received within 8 days of the invoice date
• Charges to be borne by our company.

c) when acceptance is received within 30 days of the invoice date
• Charges to be borne by the ordering party.

2. In the case of a default on payment by the ordering party, we shall be entitled to charge interest on arrears which shall be 8 % p.a. above the basic interest rate in accordance with § 247 BGB. If we can prove that the loss due to the default on payment was greater, we shall be entitled to assert a claim for this loss. The ordering party shall be entitled to prove to us that we incurred no or a smaller loss as a result loss of the default on payment.
3. The ordering party shall be entitled to set-off rights only if their counterclaims are established legally, are undisputed and are recognised by us. Furthermore, the ordering party shall be entitled to exert their set-off right provided their counterclaim is based on the same contractual relationship.

 

§ 5 Warranty

1. The ordering party's warranty rights require that the ordering party has properly complied with their obligation to examine the goods and make a complaint in accordance with § 377 HGB (German Commercial Code). Our quality assurance complies with DIN EN ISO 9001:2000.
2. Unless agreed otherwise, expressly and in writing, all the information on our products, in particular figures, illustrations, technical details and references to standards and specifications in prospectuses and catalogues are not warranties in accordance with § 434 BGB, but only descriptions or labels. The same shall apply for the delivery of prototypes or samples unless something else is agreed.
3. Complaints regarding obvious defects – including the absence of any guaranteed features – must be lodged without delay, no later than 14 days after receipt of the goods. Complaints regarding concealed defects must be lodged in writing and without delay after they have been detected, no later than 14 days after their discovery. If the customer fails to provide notice of defects in the correct form and in time, the goods shall be regarded as approved. The timeliness of the notification shall depend on the time at which we receive it.
4. If we are hindered in fulfilling our obligations owing to the occurrence of unforeseeable circumstances which, despite taking all due care as required by the circumstances of the case, we could not prevent, and if this results in delivery becoming impossible, we shall be freed from our delivery commitment. Such circumstances which shall free us from our delivery commitment shall include, for example,  disruptions in operation, delays in the delivery of important raw and construction materials, and strikes and lock-outs, irrespective of whether these circumstances occurred on our premises or on the premises of our subcontractors.
5. If delivery is not impossible, in the event of the aforementioned circumstances the delivery time shall be extended appropriately. If the delivery time is extended in the cases mentioned above or if we are freed from our delivery commitment, any claims to damages derived from this shall not apply.
6. If the aforementioned circumstances occur on the side of the ordering party, the same legal consequences shall apply for the ordering party's acceptance commitment.
7. If the ordering party defaults on acceptance or violates any other obligations to cooperate, we shall be entitled to demand compensation for the loss we incurred, including any additional expenses. In this case the risk of accidental loss or chance deterioration of a purchase item shall be transferred to the ordering party at the time the ordering party defaults on acceptance.
8. Insofar as there is a defect in the purchase item for which we are responsible, we shall be entitled to decide whether to correct the defect or replace the item. However, as an alternative to this we shall also be able to choose to compensate for faulty goods which have been delivered and missing items at the price charged.
9. If we deliver goods which are not included in our normal delivery programme (custom-made products), we shall reserve the right to fall short of or exceed the quantity ordered by 5 %. Complaints regarding a shortfall or overrun of the order quantity by 5 % cannot be accepted.
10. All other claims, including those for damages, and contractual penalties shall be explicitly rejected. We shall therefore not be liable for damage which did not occur on the delivery item itself; in particular we shall not be liable for lost profit or other financial loss on the part of the ordering party.
11. The exclusion of liability above shall not apply if the cause of damage was due to intent or gross negligence or in the event of a fatality, physical injury or damage to health. If we culpably violate a major contractual duty or an "essential duty", liability shall be restricted to damages that are typical for the agreement; for the rest, it shall be excluded in accordance with the preceding paragraph.
12. The warranty period shall be six months starting from the transfer of risks. This period is a limitation period and shall also apply for claims for compensation for consequential damage insofar as no claims relating to liability owing to intent are asserted.

 

§ 6 Limitation of liability

1. A more extensive liability for damages than that specified in § 5 shall be excluded, irrespective of the legal form of the claim which was asserted.
2. The provision in accordance with para. 1 shall not apply for claims in accordance with §§ 1, 4 of the Product Liability Act. Insofar as the limit of liability in accordance with § 5 para. 6 does not apply for claims from the manufacturer's liability in accordance with § 823 BGB, our liability shall be limited to the indemnification of the insurance.
3. The provision in accordance with para. 1 shall also not apply in the case of initial inability or it being justifiably impossible to perform the service.
4. Insofar as our liability is excluded or limited, this shall also apply for the personal liability of our employees, staff, representatives and vicarious agents.

 

§ 7 Retention of title

1. We shall retain the right of title to the purchase item until all payments specified in the delivery agreement have been received. In the event of behaviour on the part of the ordering party which is contrary to the agreement, in particular in the case of default on payment, we shall be entitled to take back the purchase item or to withdraw from the agreement. After we have taken back the purchase item we shall be entitled to utilise it; the revenues from this utilisation - minus the appropriate utilisation costs - must be credited against the ordering party's liabilities.
2. In the case of distraints or other third-party interventions, the customer must immediately inform us in writing so that we can take legal action in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is not able to reimburse us for the judicial and extrajudicial costs of an action in accordance with § 771 ZPO, the ordering party shall be liable for the losses which we incur.
3. The ordering party shall be entitled to resell the purchase item within the proper course of business; however, the ordering party shall transfer to us all debts incurred vis-à-vis the ordering party's customers or third parties through resale up to the value of the final invoice amount (including VAT), irrespective of whether the purchase item was resold without or subsequent to being processed.
4. The ordering party shall remain authorised to settle these debts even after they have been transferred. This shall not affect our authority to collect the debts ourselves. However, we undertake that we shall not collect the debts provided the ordering party meets the payment obligations from the revenues received, is not in default of payment, and in particular has not applied to open insolvency proceedings or suspended payment. If this is the case, we can demand that the ordering party  inform us of the debts which have been transferred and their debtors, provide all details required for collecting these debts, hand over the associated documents and inform the debtors (third parties) of the transfer.
5. Processing or alteration of the purchase item by the ordering party shall always be performed for us. The expectant right of the ordering party to the purchase item shall continue for the altered object. If the purchase item is processed with other objects which do not belong to us, we shall acquire joint ownership of the new item in the ratio of the objective value of our purchase item to the other processed objects at the time of processing. For the rest, the same shall apply for the item resulting from the processing as for the purchase item supplied under reservation.
6. If the purchase item is inseparably mixed with other objects which do not belong to us, we shall acquire joint ownership of the new item in the ratio of the objective value of our purchase item to the other mixed objects at the time of mixing. If mixing takes place in such a way that the ordering party's item must be regarded as the primary item, it shall be agreed that the customer shall afford us proportional joint ownership. The ordering party shall retain the resulting sole ownership or joint ownership for us.
7. At the customer's request we shall undertake to release the securities to which we are entitled provided that the realisable value of our securities exceeds the debts to be secured by over 25 %; we shall be entitled to choose which securities should be released.

 

§ 8 Place of performance, legal venue and applicable law

1. The place of performance for all deliveries and payments shall be Saarbrücken. The sole legal venue shall be the Amtsgericht (District Court) or Landgericht (Regional Court) Saarbrücken. However, we shall also be entitled to bring an action against the ordering party at the location of their registered office.
2. The law of the Federal Republic of Germany shall apply exclusively for all legal relations between the customer and our company. Application of the United Nations Convention on the International Purchasing of Goods of 11 April 1980 shall be excluded.

 

§ 9 Data privacy and validity clause

1. In accordance with § 33 Bundesdatenschutzgesetz (German Data Protection Act) we point out that we store customer data according to this act.
2. If individual clauses in these general terms and conditions should be invalid, either fully or in part, this shall not affect the validity of the other clauses of the remaining parts of such clauses. The parties must replace an invalid provision by a provision which comes closest to the commercial purpose of the invalid provision and is valid.

Date: June 2008