General Terms and Conditions
The performance of all of our deliveries and services shall be effected exclusively on the basis of the following Terms and Conditions. We shall reject the application of any terms and conditions of purchase of the buyer which are not in line with our Terms and Conditions of Sale, Delivery and Payment. The buyer shall be deemed to have accepted the application of our Terms and Conditions upon his/its unconditional acceptance of delivery of our goods, at the latest.
- Offers, Orders
- Any offers made by us shall generally be extended on a non-binding basis, except where we indicate a binding period of validity. The validity of all agreements entered into, particularly with regard to the acceptance of orders placed with us, shall be subject to our written confirmation.
- The information contained in any documents, images, diagrams and specifications as to weights or measurements relating to offers made by us shall constitute merely indications of approximate values and not statements as to the quality or condition of the goods in question. Where the order confirmation does not delimit the divergences which will be deemed to be permissible and where there has been no express acceptance of specifications issued by the buyer, the divergences customarily accepted in the industry shall be deemed to be permissible in any case. The quality and condition, the suitability and qualification for the intended purpose, the functionality and the actual intended purpose of our goods shall be governed exclusively by our service specifications and technical qualifications. Any statements made or laudatory or promotional endeavours undertaken by us or any third parties in the public sphere shall be deemed to represent statements as to the quality or condition of the goods in question. We shall retain the rights of ownership and copyrights with regard to all documents, which may not be made accessible to any third parties without our consent.
- Any warranties as to the quality or condition, or the durability, of our goods shall be expressly identified as such in the order confirmation. Unless expressly stated otherwise in the order confirmation, no warranties shall be deemed to have been given as to the quality or condition of any prototypes or samples delivered. The same shall apply to any indications of the results of analyses carried out.
- Unless expressly stated otherwise in the order confirmation, any construction-related suggestions made by us on the basis of data provided by the buyer (e.g. orally communicated information, diagrams or other documents) shall be deemed to constitute recommendations only and not statements as to the quality or condition, or the intended purpose, of the goods in question.
- We shall be liable in accordance with Section 7 for any damage to or loss of diagrams, prototypes, models, etc. provided to us by the buyer.
Prices shall be indicated on an ex point of dispatch basis, plus the applicable statutory rate of VAT and exclusive of packaging and shipping costs. Should there be any increase in the prices charged by our upstream suppliers, freight charges and/or public dues between the date of the conclusion of the contract and the delivery of the goods in question, we shall be entitled to raise our prices accordingly; this shall only apply vis-à-vis consumers where the delivery in question is to be effected more than four (4) months after the date of the conclusion of the contract.
- Proprietary Rights
To the extent that we are obligated to deliver items on the basis of diagrams, models or prototypes provided to us by the ordering party, such ordering party shall issue a warranty vis-à-vis us to the effect that the manufacture and delivery of the items will not infringe any industrial property rights of third parties. He/it shall indemnify us and our upstream suppliers against any claims which may arise upon the use of any such proprietary rights. The ordering party shall assume liability for all damage or loss which may be incurred as a result of the infringement of any third-party rights.
- Unless the parties expressly stipulate otherwise, the delivery periods indicated by us shall be of a merely approximate nature.
Should we exceed any such delivery period, the buyer shall be entitled to impose a reasonable deadline for the delivery of the goods two weeks after the expiration thereof. We shall be deemed to have defaulted on our obligations in this regard only upon the expiration of such grace period. Under no circumstances shall a delivery period be deemed to have commenced before the customer has furnished the documents to be procured by him/it, e.g. any approvals or clearances of production diagrams or before we have received a down payment where the effecting of such a down payment has been agreed upon in writing.
- Should the effecting of a delivery occur late or prove to be impossible, we shall be liable for any claims for damages only to the extent stipulated in Section 7. The damage or loss incurred as a result of a late delivery for which compensation is to be paid by us in accordance with Section 7 shall be limited to foreseeable types of damage or loss typically occurring in such cases. In all other respects, the amount of compensation to be paid, for each complete week of default, for damage or loss incurred as a result of a late delivery or a partial delivery, or on grounds of ordinary negligence, shall be limited to a maximum of 5% of the value of the late (partial) delivery.
- In cases involving the occurrence of a force majeure event or measures undertaken in the context of an industrial dispute, in particular strikes or lock-outs, and in cases involving non-delivery, incorrect delivery or late delivery on the part of one of our suppliers, irrespective of the grounds therefor (proviso as to availability of goods from our own suppliers), and other impediments to the performance of our obligations for which we are not responsible, we shall be entitled to postpone the delivery in question for the duration of the impediment concerned and for a reasonable lead time thereafter. Should the impediment in question prove to be of a permanent nature, we shall be entitled to withdraw from the contract, either in whole or in part. In such cases, the buyer shall not have any claims for damages against us. He/it shall not be obligated to effect payment of the stipulated consideration and shall be reimbursed for any down payment made by him/it.
- Subject to any arrangements made by the parties to the contrary, invoice amounts shall be payable within 30 days of the date of the invoice in question.
- Should such deadline for payment be exceeded, we shall charge interest in the amount of 5% or 8% above the applicable base interest rate p.a. published by the Deutsche Bundesbank in the case of consumers and entrepreneurs, respectively, unless the incurrence of greater or lesser damage or loss is established.
- Our claims shall fall due immediately, irrespective of the maturity date of any bills of exchange accepted in lieu of payment, should the buyer fail to comply with any of his/its contractual obligations or should we become aware of any circumstances having the effect of impairing the buyer's creditworthiness. In such cases, we shall be entitled to require advance payments on any outstanding deliveries. Any further claims shall remain unaffected.hereby.
- The buyer shall not be entitled to offset any counterclaims which he/it may have against the amount of our claims, except where such counterclaims have been acknowledged by us in writing or have been finally and absolutely established. Any right of retention on the part of the buyer shall be excluded, except where the buyer is not an entrepreneur and the right of retention in question is based on one and the same contractual relationship.
All sales shall be effected on an ex works St. Georgen basis. Where the buyer is an entrepreneur, the goods in question shall be shipped at the buyer's expense and risk. In this case and even in the case of partial deliveries, the risk associated with the goods shall pass to the buyer once the consignment in question is handed over to the individual undertaking the transportation thereof – irrespective of whether such individual is an employee of our company or an external party – or leaves our factory for onward conveyance. Where the buyer is a consumer, the risk associated with the goods sold shall pass once they are handed over to the buyer. Where the dispatch of goods which are ready for shipping is delayed for reasons attributable to the buyer, the risk associated with those goods shall pass to the buyer – irrespective of whether he/it is an entrepreneur or a consumer – upon the latter's defaulting on his/it acceptance of their deliver
- The buyer shall be obligated to carefully inspect the goods delivered without delay upon his/its receipt thereof at the destination point, even where deliveries of prototypes or samples have already been received. The buyer must notify us and provide a precise description of any defects in writing or via fax within 7 days of his/its receipt of the goods at the destination point. Any defects which were not evident, despite careful inspection of the goods, upon delivery must be notified to us without delay upon their discovery. The preceding clause shall apply only where the buyer is a consumer. A delivery shall be deemed to have been approved where no notification of defects is received by us within the stated deadlines. All notifications of defects must be addressed directly to us.
- Where a notification of defects is well-founded and effected in a timely manner and where the buyer is an entrepreneur, we shall exercise our discretion in deciding whether to effect subsequent performance by way of the rectification of the defects in question or by way of the delivery of replacement goods. Where the buyer is a consumer, he shall initially be entitled to decide whether subsequent performance is to be effected by us by way of the rectification of the defects in question or by way of the delivery of replacement goods. However, we shall be entitled to decline to effect subsequent performance in the desired manner where this would only be possible at unreasonable expense and the alternative means of subsequent performance would not substantially be to the buyer's detriment.
- Should the rectification of the defects in question or the delivery of replacement goods ultimately prove unsuccessful, the buyer shall be entitled to demand a reduction of the purchase price or the rescission of the contract. The buyer shall not have any right of rescission in the case of minor defects. Should the buyer opt in favour of the rescission of the contract in the event of an unsuccessful effecting of subsequent performance, he shall not have any additional claim for damages on grounds of the defect(s) in question.
- Where the buyer is provided with deficient assembly/installation instructions, we shall be obligated merely to supply adequate assembly/installation instructions, which obligation shall be contingent upon the deficient nature of the assembly/installation instructions constituting a hindrance to the correct assembly/installation of the goods concerned.
- The preceding provisions shall definitively comprise the warranties given with regard to our goods. In particular, any liability on our part for all other claims for damages which may accrue to the buyer on grounds of or in connection with defects in the goods delivered, irrespective of the legal grounds therefor, shall be governed solely by the provisions contained in Section 7.6.
- We shall only be liable for claims for damages brought on grounds of negligent conduct, irrespective of the legal grounds therefor – including default, delivery of defective goods, breach of contractual obligations or obligations arising in the context of contractual negotiations, tortious acts, product liability (with the exception of liability pursuant to the German Product Liability Act (Produkthaftpflichtgesetz)) – in cases involving wilful intent or gross negligence. Any liability for ordinary negligence shall be excluded, except in cases in which the breach in question significantly compromises the achievement of the purpose of the contract. We shall in any case be liable only for damage typically occurring in such cases and such as would have been foreseeable upon the conclusion of the contract. This limitation shall not apply in the case of damage or loss incurred by the buyer as a result of death, physical injury or damage to health. Any attribution of personal liability to our legal representatives, agents or employees for any damage or loss incurred as a result of ordinary negligence on their part shall be excluded.
- Any warranty claims on the part of an entrepreneur shall become time-barred within one year of the date of the delivery of the goods in question. The same shall apply in the case of the sale of used items to consumers. In all other respects, any warranty claims on the part of consumers shall become time-barred within two years of the date of the delivery of the goods in question. Any claims for compensation on the part of the buyer shall become time-barred within one year of the date of the delivery of the goods in question. This shall not apply in cases in which allegations of fraudulent intent are brought against us.
- Any agreements between the buyer and his/its customers which provide for warranty claims going beyond those stipulated by statute shall not be upheld at our expense.
- Retention of Title
- All goods which are delivered shall remain our property (goods subject to the retention of title) pending the buyer's satisfaction of all outstanding claims, and also – where the buyer is an entrepreneur – all those arising after the conclusion of the contract. This shall also apply in the case of payments made by the buyer with regard to claims specifically designated by the latter.
- Any handling and processing of the goods subject to the retention of title shall be undertaken by us in our capacity as the manufacturer of those goods within the meaning of Section 950 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) and shall not give rise to any obligations on our part. Handled and processed goods shall be deemed to constitute goods subject to the retention of title in accordance with Section 8.1. Should the buyer handle, process, combine or mix the goods subject to the retention of title with goods from another source to form a new object or mixed assets, we shall remain co-owners of the latter on the basis of the invoice value of the goods subject to the retention of title at the time of the delivery in relation to the value of the other goods processed or mixed together with them. The goods representing such co-ownership share shall be deemed to constitute goods subject to the retention of title in accordance with Section 8.1.
- Should the goods subject to the retention of title be combined with other items and should one of those items which is attributable to the buyer be deemed to be the primary component of the resultant product within the meaning of Section 947 of the BGB, it is hereby stipulated that we shall acquire a co-ownership share in that product on the basis of the invoice value of the goods subject to the retention of title in relation to the value of the primary component, and that the buyer shall also store the item on our behalf and free of charge. The goods representing such co-ownership share shall be deemed to constitute goods subject to the retention of title in accordance with Section 8.1.
- The buyer shall be obligated to store the goods subject to the retention of title on our behalf. We shall be permitted, upon making a corresponding request, to take inventory of and affix adequate labelling to those goods at the storage location at any time. The buyer shall be obligated to inform us of any seizures or other encroachments of our rights by third parties without delay and provide us with all of the details thereof with a view to enabling us to take all available legal measures in response thereto.
- The buyer shall only be permitted to sell of the goods subject to the retention of title in the context of his/its ordinary business activities, on his/its normal terms and conditions and subject to the stipulation of a retention of title clause to the extent specified by us, such that any claims accruing to him/it as a result of the re-sale shall pass to us in accordance with Section 8.6 to 8.8.
- The buyer hereby assigns to us all claims, as well as any and all related ancillary rights, accruing as a result of any re-sale of the goods subject to the retention of title, including pursuant to any contracts for work and services or contracts for the delivery of goods and chattels to be manufactured or produced. These shall constitute collateral, in the same amount, for the goods subject to the retention of title. The buyer shall only be entitled to assign the claims to third parties with our prior written consent.
- Should the buyer sell the goods subject to the retention of title together with other goods not delivered by us, the claims accruing as a result of such re-sale shall only be assigned to us in the amount of the invoice value of goods subject to our retention of title at the time of their delivery. In the case of a sale of goods of which we are co-owners in accordance with Section 8.2 or 8.3, the resultant claims shall be assigned to us in the amount of such co-ownership share.
- The buyer shall be entitled, subject to our revocation of this right, to collect on claims accruing as a result of any re-sale undertaken in accordance with Section 8.5 to 8.
- Should the buyer fail to comply with any of his/its obligations pursuant to this Agreement or any other agreements concluded with us, or should we become aware of any circumstances having the effect of impairing the buyer's creditworthiness:
- We shall be entitled to prohibit any resale, handling or processing of the goods subject to the retention of title, or mixing or combining of the latter with other goods, or to withdraw from this Agreement, in which case the buyer's right of possession with regard to the goods subject to the retention of title shall lapse and we shall be entitled to demand that the goods subject to the retention of title be handed over to us. We shall then be entitled to enter the buyer's premises and to take possession of the goods subject to the retention of title at the buyer's expense, and – without prejudice to the payment and other obligations incumbent upon the buyer – to dispose of them in the most advantageous manner, either by selling them on the open market or by putting them up for auction. We shall offset the proceeds of such disposal, after deduction of any costs incurred by us, against the amounts owed by the buyer and pay the latter any surplus; the buyer shall be required to provide us with the names of the debtors for the claims assigned to us, so as to enable us to inform the latter of the assignment and collect on the claims. All proceeds accruing to us in connection with the assignment of claims must be forwarded to us immediately upon receipt; if and as soon as any claims on our part against the buyer fall due, we shall be entitled to revoke any direct debit authorisations issued.
- Should the value of the collateral to which we are entitled exceed the total value of the claims by more than 20%, we shall, at our discretion, release some of such collateral upon a corresponding request from the buyer.
- Place of Performance, Applicable Law, Place of Jurisdiction
- The place of performance for the effecting of our deliveries shall be the point of dispatch for the goods in question. The place of performance for all of the obligations on the part of the buyer shall be
- The relationship between us and the buyer shall be subject to the law of the Federal Republic of Germany.
- The place of jurisdiction for all disputes arising in connection with the delivery transactions shall be our choice of either Villingen-Schwenningen or the location of the buyer's registered office or, in the case of any claims brought by the buyer, exclusively Villingen-Schwenningen. The application of any statutory provisions or conferrals of exclusive jurisdiction shall remain unaffected hereby. These provisions governing the place of jurisdiction shall not apply in the case of customers who are not merchants.
- Final Provisions
- The validity of any amendments or addenda to this Agreement, including any affecting this written form requirement, shall be subject to their having been effected in writing. The same shall apply to any ancillary or supplementary agreements.
10.2 Where the buyer is a merchant within the meaning of the statutory provisions, and also in the case of legal entities and special funds established under public law, the place of jurisdiction shall be the location of our place of business. However, we shall also be entitled to bring claims against the buyer before the courts at the location of his/its domicile.
10.3 The applicable law shall be that of the Federal Republic of Germany; the application of the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded.
10.4 Should any individual provisions of this Agreement be or become invalid, or should this Agreement contain any contractual lacunae, this shall not affect the validity of the remaining provisions.
Valid as of September 2017