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G e n e r a l T e r m s a n d C o n d i t i o n s o f B u s i n e s s
1.
Offers, conclusion of contract, execution
1.1
The terms and conditions set out below shall apply to all contracts, and shall be deemed
to have been acknowledged by the customer when the order is placed or at the latest
when the first consignment is accepted. They shall remain in force for the entire duration
of the business relationship. No general terms and conditions of purchase used by the cu-
stomer shall apply unless we give our written consent.
1.2
No offer from us shall be regarded as binding on us unless it has been expressly identi-
fied as such. No contract shall come into existence until we have given written confirmati-
on of an order, and then only with the provisions contained therein, or when goods are
delivered if this is sooner.
1.3
All information regarding shapes, dimensions, colours, construction, etc., contained in our
printed matter, catalogues, prices lists, or other contract documentation shall be regarded
as only approximate unless specifically designated as binding.
1.4
We reserve the right to make modifications to the contract products covered, within the bo-
unds of the reasonable. In the case of products manufactured to the customer’s special or-
der, we shall be entitled to deliver up to 10 percent more or less than the quantity orde-
red. The quantity invoiced shall always be the quantity actually supplied.
1.5
No assurances, subordinate agreements, or changes to the contract shall be valid unless
confirmed in writing.
2.
Prices and terms of payment
2.1
The gross prices stated in our offer documentation (catalogues, price lists, diskettes, etc.)
shall be multiplied by the ex-works multiplier and related to the day of delivery. Value Ad-
ded Tax (VAT) shall be added to the prices at the statutory level. Prices are defined as ex-
Elgersweier railway station. If any consignment has a net goods value of DM 100 or mo-
re, packing shall be deemed to be included in the price; if less than DM 100, we charge
DM 10 as a small-quantity surcharge. Quantities of any product ordered in less than the
stated packing unit shall be subject to a surcharge of 10 percent on the value of the goods.
If the goods are to be delivered to a third party, we apply a surcharge of 5 percent of the
value of the goods. Goods are normally despatched ex-station. If the net goods value of
the order is less than DM 1,500, any freight costs shall be added to the invoice. The reci-
pient shall bear the extra costs of express delivery. If goods are sent by post, the customer
shall be invoiced the full postal charge.
2.2
We invoice the gross prices agreed and/or in force when the contract is concluded and
based on the cost factors in effect at that time. Should any of the cost factors (in particu-
lar: materials, wages, energy, and public charges) change between the conclusion of the
contract and the delivery of the goods, we shall be entitled to adjust the gross price ac-
cordingly.
2.3
Our invoices are payable within 7 days at a 3 percent prompt-payment discount, within
14 days at a 2 percent prompt-payment discount, or within 30 days net of any deduction,
counting from the date of invoice in each case. Prompt-payment discount shall not be de-
ducted if the customer is in arrears of payment with any other invoice.
2.4
The customer shall not offset payments which we dispute and/or have not been establis-
hed by a court ruling. The customer shall not exercise any right of retention or withholding
he may have over counter-claims unless they fall under the same contract.
3.
Arrears of payment, deterioration of assets
3.1
In the event of late payment or postponement of payment, interest shall be charged at a
rate 4 points above the basic interest rate of the European Central Bank at the material ti-
me, plus Value Added Tax.
3.2
If the customer falls into arrears of payment, or if there are specific grounds for believing
that he is insolvent, we shall be entitled to cease work on orders in hand and also to de-
mand immediate advance payment of all outstanding accounts, including those not yet
due for payment (including bills-of-exchange and postponed payments), or else the ap-
propriate collateral. Should the customer fail to meet these demands, we shall be entitled
to cancel the contract(s) and invoice the customer for the costs so far incurred and also for
forgone profits.
4.
Delivery period, delivery delay, impossibility
4.1
The agreed delivery shall be deemed to have been met if, by the time it expires, the con-
signment has left our works or the customer has been informed that the goods are ready
for despatch or collection. Any later customer requests for changes or additions shall ha-
ve the effect of lengthening the delivery period by the appropriate length of time. The sa-
me shall apply if unforeseen obstacles arise which are outside our control, such as Acts of
God, force majeure, strikes, lock-outs, or the delayed delivery of essential raw materials,
or materials or parts from our sub-suppliers. The same shall also apply if any of these cir-
cumstances affect our sub-suppliers. The aforesaid circumstances shall likewise not be held
to our account if they arise after a delay has already occurred. If it is not possible to fore-
cast when the above-mentioned hindrances will end, we shall be free to cancel the con-
tract.
4.2
If we fall into arrears of delivery for reasons for which we are to blame, the customer can
set us a suitable extension in writing and state that he will refuse to accept the contract
goods once this extended delivery time has expired. Should the extended delivery time ex-
pire fruitlessly, the customer can cancel the contract by making a written declaration to this
effect. In the event of our having acted with intent or in gross negligence, he can sue for
damages on the grounds of non-fulfilment or delay. Claims for damages over and above
the foregoing, including those based on Article 286 and/or 326 of the Code of Civil Law,
shall be ruled out if the law so permits.
4.3
The foregoing provisions shall also apply if delivery is impossible for reasons for which we
are to blame.
5.
Transfer of risk, part-consignments, insurance
5.1
Risk shall in any case be transferred to the customer when the contract goods are handed
over to the party responsible for transporting them (regardless of whether this is the custo-
mer or a third party). The same shall apply in all relevant respects to part-consignments,
which we shall always be entitled to make. Should the cause of a delay in despatch lie
with the customer, risk shall be transferred on the day on which the customer is notified that
the goods are ready for despatch or collection. If the customer so requests, we will at his
expense insure the contract goods against all insurable risks.
6.
Delay in collection, call-off orders
6.1
Should the customer fail to collect the contract goods on time, we shall be entitled to insist
on immediate acceptance and payment, or to set a suitable extension period, after the ex-
piry of which we shall be free to dispose of the contract goods in any other way and to
supply the customer an appropriate period of time later. The foregoing shall have no ef-
fect on our rights under the conditions laid down in Article 326 of the Code of Civil Law
to cancel the contract or sue for damages on the grounds of non-fulfilment. In the latter ca-
se, we shall also be entitled to demand 25 percent of the purchase price plus VAT as com-
pensation without having to substantiate this claim unless the customer can prove that we
have only suffered a considerably smaller loss. We reserve the right to sue for greater da-
mages if we have actually incurred a greater loss.
6.2
Call-off orders that we have confirmed shall be taken up within one year of the confirma-
tion date, unless anything to the contrary has been specifically agreed. The same shall ap-
ply in the case of reserves held against future orders or later call-off orders. If the goods
are not called off within the agreed or stated periods of time, the provisions of Clause 6
Paragraph 1 above shall apply in all relevant respects.
7.
Retention of title, assignment of claims to payment
7.1
The contract goods shall remain our property until all claims to payment under the busin-
ess relationship with the customer have been settled in full. The same shall apply in the
event of our goods having been installed. If the contract goods are processed, joined,
and/or mixed with other goods, we shall be entitled to co-ownership over the resultant
product in the same proportion as the invoice value of our goods to these other goods at
the point in time when they were processed, joined, or mixed.
7.2
The customer shall only resell our retained goods in the normal course of business, and
then only if he is not in arrears of payment towards us. He shall not be entitled to dispose
of the goods in any other way, e.g. by providing them as collateral or by pledging them.
The customer’s purchase price or his claims to payment for contract work from the resale
of our retained goods are assigned to us here and now in the amount of our invoice va-
lues until all claims to payment stated in sub-clause 7.1 have been settled. The customer
shall be irrevocably authorised to collect these outstanding accounts, and shall be under
an obligation to inform us on request of the names of the third-party debts and the amount
of their accounts payable to him, and in addition to this to provide us with all necessary
information to enable us to collect the accounts receivable that have been assigned to us.
7.3
If so requested, we shall be under an obligation to release collateral to which we are ent-
itled, at our free choice, if the total exceeds the accounts payable to us by more than 25
percent.
7.4
In the event of arrears of payment, imminent cessation of payments, or unsatisfactory in-
formation about the customer’s solvency or asset position, or if compulsory enforcement
proceedings have been initiated against him or his drafts have been refused, we shall be
authorised to take back and/or sell the goods we have delivered to him and the customer
shall be under an obligation to surrender them. He shall also bear all costs incurred
through our taking back and/or selling the goods. The latter shall be deemed to amount
to 20 percent of the proceeds from the resale, without our being required to furnish proof
thereof.
7.5
The customer shall inform us without delay of any attachment or other attempt by a third
party to take title to the retained goods, and shall bear all costs incurred as a result of any
such attachment.
8.
Guarantees, legal liability
8.1
Recognisable defects or deficiencies shall be reported to us in writing within 8 days of re-
ceipt of the consignment, hidden defects without delay as soon as they come to light.
8.2
If complaints prove to be justified, payment shall only be withheld to an extent that is rea-
sonable and commensurate with the defect or deficiency. We shall only bear legal liabili-
ty for defects, deficiencies, or the absence of assured properties if the following conditions
are met: all those parts that prove within 24 months of having been installed, or at the la-
test 30 months after delivery, to be unusable or of significantly reduced usability as a re-
sult of circumstances arising prior to the transfer of risk, meaning in particular if the design,
materials, and/or workmanship were poor, shall be either repaired or replaced at our free
discretion and free of charge. Replaced parts shall become our property.
8.3
Of the costs directly incurred by such repair or replacement, provided the complaint has
proved to be justified, we shall bear the costs of the replacement including its despatch
and all reasonable dismantling and installation costs. Provided it can be reasonably ex-
pected of us under the individual circumstances of the case, we shall also bear the costs
of any of the customer’s technicians or labourers required for this work, with the excepti-
on of travel expenses outside Germany. The customer shall bear all other costs. The re-
paired or new part shall be under guarantee for six months.
8.3.1 The customer shall give us the necessary time and opportunity to carry out the repairs and
make the replacement deliveries that appear necessary to us, otherwise we shall be ab-
solved of liability for the relevant defects and deficiencies.
8.3.2 We shall bear no liability for any injury, loss, or damage caused by any of the following:
unsuitable or improper use, incorrect assembly, installation, or start-up by the customer or
any third party, fair wear and tear, defective, improper, or negligent handling or operati-
on, deficient or defective maintenance, unsuitable consumable materials, deficient buil-
ding work, improper modifications or maintenance work carried out without our prior ag-
reement. No liability shall be entertained for any consequential damage either.
8.4
If neither repair work nor a replacement is possible, or if all attempts have failed, or if any
such attempts are delayed unreasonably, the customer shall be entitled to demand a re-
duction of the price or the cancellation of the contract. Provided always that the law so
permits, the customer shall have no other claims against us or our contractual agents over
and above the foregoing, inside or outside the ambit of the contract, nor any on the gro-
unds of direct or indirect injury, loss, or damage, forgone profit, or from the execution of
guarantee work, unless we have acted with intent or in gross negligence or if liability is
mandatory because of the absence of assured properties.
9.
Violation of subordinate obligations, statute bar
9.1
Our technical consultancy services, whether written or spoken, and any suggestions, cal-
culations, or design or similar work we may undertake shall merely serve to explain to the
customer the best possible use of our products. Nothing therein shall be construed as ab-
solving the customer from his obligation of inspecting our products and ensuring for hims-
elf that they are suitable for the purpose he has in mind.
9.2
If the contract goods cannot be used for their contractual purpose as a result of our culpa-
ble violation of any of the subordinate obligations incumbent on us, including those prior
to the conclusion of the contract, resulting e.g. from inadequate or faulty technical advice
or the wrong instructions, we shall bear legal liability to the exclusion of all further claims
by the customer as set out in Clause 8 of these Terms and Conditions. In the event of our
violating our subordinate obligations, including those prior to contract (within or outside
the contract), we and our contractual and vicarious agents shall be liable for damages on-
ly in cases of intent or gross negligence, provided the law so permits. The statutory regu-
lations on statute-barred cases (the maximum period is 6 months) shall apply to any claims
raised by the customer on the grounds of violation of such subordinate obligations and un-
lawful actions provided there has been no element of intent or gross negligence.
10.
Return shipment
10.1 As a basic rule, we do not take back goods we have delivered. Should we declare our-
selves willing to do so in any individual and exceptional case, following prior written ag-
reement to this effect, an administrative charge of 20 percent of the value of the goods
(plus VAT) shall be raised. We shall also charge any necessary rework costs separately.
The customer shall bear the transport costs and the transport risk.
11.
Place of execution, applicable law, partial invalidity, place of jurisdiction
11.1 The place of execution for deliveries and payments shall be the registered offices of our
company.
11.2 The laws of the Federal Republic of Germany shall be applicable, to the exclusion of uni-
form international law on trade in merchandise (EKG and EKAG).
11.3 Our terms and conditions of sale shall remain binding in all other aspects even if indivi-
dual points prove to be legally invalid. The invalid provisions shall be deemed to have be-
en replaced by that which is legally permissible.
11.4 Either the court with jurisdiction over our place of business or Stuttgart shall be deemed to
be the agreed and exclusive place of jurisdiction for all claims that may arise, now or in
the future, from any business relationship with registered traders, legal entities under pu-
blic law, or operators of assets under public law within the Federal Special Fund. The sa-
me shall apply if the customer has no general place of jurisdiction within Germany or re-
moves his place of registered or usual residence from Germany after the contract has be-
en concluded, and if his place of registered or usual residence is unknown at the time the
action is raised.
12.
The German text of these General Terms and Conditions shall be solely
binding, and shall take precedence over any translation prepared for
convenience only.
