Gen. Terms and Conditions effective from 01.09.2015
(1) Our deliveries shall be subject to the following General Terms and Conditions. This shall also apply where we do not refer to them explicitly in the future in the framework of the business relationship. Deviating terms and conditions shall only apply if such terms and conditions have been acknowledged by us in writing beforehand. This shall also be applicable if we accept the service/performance of the contractual partner without objections.
(2) Foreign customers within the meaning of these General Terms and Conditions shall be companies with registered offices outside the Federal Republic of Germany. Foreign orders shall be orders from customers with registered offices abroad.
2. Offers / Order Confirmation, Prices
(1) Our offers shall be subject to change unless agreed otherwise. Orders as well as all other agreements shall only become binding upon us through our written confirmation. The delivery note or the commercial invoice shall also be regarded as such confirmation.
(2) Unless agreed otherwise, our prices shall be ex works exclusive of packaging, freight and customs duties (export duties, import duties etc.) and import taxes. However, the respective statutory value-added tax shall be added to the prices. As far as foreign customers with registered offices inside the EU do not have or do not provide a valid TVA no./VAT identification no., German value-added tax shall be payable.
(3) The cost of packaging will be charged separately.
3. Delivery Period, Delayed Acceptance, Terms of Delivery
(1) The date of delivery shall be the day of transfer to the shipper. Where shipping is delayed through no fault of ours, the day of provision for shipping shall be regarded as the date of delivery. In the event of agreed dates/deadlines, we shall only come in default as a consequence of a dunning letter. Partial deliveries/partial services shall be admissible as far as their acceptance is reasonably acceptable to the customer in consideration of all respective circumstances. If we are prevented from making delivery in time through incidents not attributable to our fault, the delivery period shall be extended appropriately.
Incidents not attributable to fault shall also include labour disputes, disruptions in the own operating processes, which were not avertable despite reasonable care/diligence, disruptions of the forwarding companies, disruptions of the transport routes, shortages of raw materials and interventions by public authorities.
(2) Where an incident not attributable to fault within the meaning of Subsection 1 is in place, we shall be entitled to withdraw from the contract to the exclusion of any more far-reaching claims of the customer. If performance at a later time is of no interest to the customer as a result of the delay, he shall be entitled to withdraw from the contract to the exclusion of any more far-reaching claims.
(3) In case of foreign customers, possible delivery periods shall not begin to run before a letter of credit is opened and before the necessary import licences / certificates have been submitted.
(4) In addition, customers with registered offices inside the EU shall be under obligation to send the original acknowledgement of receipt back to us within 8 days from receipt of the goods. Where the customer fails to comply with this period of time, German value-added tax shall become payable with immediate effect. We shall be entitled to demand from the customer to sign the acknowledgement of receipt already at the time of delivery in the presence of the forwarding agent. If the customer refuses to sign the acknowledgement of receipt, we shall be entitled to refuse the delivery of the goods by the forwarding agent.
(5) If the customer is in default of acceptance, we shall be entitled, without prejudice to more far-reaching claims, to withdraw from the contract in respect of the partial services not having been accepted in due time.
(6) In the event of special designs, deviations of the delivery quantities may result by up to 15 percent. Where pump and suction bulbs with a weight of up to 15 g/unit are delivered, tolerances of 5 percent shall be possible. In case of a bulb weight of more than 15 g/unit, the admissible deviation shall be 5 percent. In this context, invoicing shall be true to the number of units in line with the actual delivery quantity. Insofar, the purchaser’s right to withdraw from the contract shall be ruled out.
(7) Changes to the configuration of the goods, which prove to be necessary in technical or legal terms or prove to be conducive to the utilisation of the product, as well as changes to the design, which do not impact the utilisation of the product, shall also be admissible following conclusion of the contract provided they are reasonably acceptable to the customer and provided we indicated such changes when delivering the respective products/goods.
(8) The minimum contract value for domestic orders shall be € 500.00 net. In case of contract values of up to € 250.00 net, we will charge a mark-up of 25 percent on the entire net contract value. In case of contract values from € 250.01 to € 499.99 net, the mark-up shall be 20 percent. The minimum contract value for foreign orders shall be € 1,000.00 net. In case of contract values of up to € 500.00 net, we will charge a mark-up of 25 percent. In case of contract values from € 500.01 to € 999.99 net, the mark-up shall be 20 percent.
(9) Where delivery is agreed “carriage free”, the goods shall be delivered on euro pallets (dimensions 120 x 80 x 15 cm) with a maximum weight of 1,000 kg and a maximum package height of 180 cm. Small quantities can be send by DPD parcel service. If the customer demands delivery in other packaging units, he shall bear the resulting higher shipping costs.
4. Customer-specific products (customer-specific production cavities)
(1) Should we manufacture individual products for the Customer, the prices agreed for it (the costs of production cavities) apply to the production cycle specified by us or the parts/production quantity specified by us. Should it be necessary to replace or repair the production cavities based on the production cycle or the parts/production quantity being exceeded, the Customer shall bear any costs incurred for the latter. Should the Customer have originally borne the production cavities pro rata, it shall also accordingly bear the costs incurred for the replacement/repair pro rata. The Customer may not derive any rights from any delays in production or delivery that are attributable to the Customer not having accepted the costs of the replacement or repair of the production cavities.
(2) Ownership of the individual production cavities shall pass to the Customer upon the agreed costs being paid in full. Should the Customer bear the costs of the production cavities pro rata, it shall acquire corresponding co-ownership after settling the pro rata costs in full. Also following the transfer of ownership or the acquisition of co-ownership, we shall have a direct and exclusive right of ownership in the production cavities. The Customer shall be deemed an indirect owner, and shall only be entitled to request that the production cavities owned or co-owned by it be handed over if
a) we terminate the business relationship with the Customer altogether;
b) the Customer has terminated the contractual relationship concerning the production cavities for a significant reason (cf. Sec. 314 German Civil Code (BGB));
c) we cease our business operations – for whatever reason – in whole or in part and not only temporarily; or
d) the institution of insolvency proceedings over our assets is rejected due to there being insufficient funds to cover the costs of the proceedings.
In any other cases, we are not obliged to hand over the individual production cavities.
The place of fulfilment for the handing over of the production cavities shall be the place where the latter are located at the time of receiving the Customer’s request to hand them over.
(3) We may use any production cavities that are owned or co-owned by the Customer solely for orders of the Customer. The Customer’s rights of ownership are to be pointed out by us to third parties, using suitable means.
(4) We shall be liable for any losses occurring to production cavities owned or co-owned by the Customer during the production cycle or the quantity of parts/production quantity specified which are not attributable to wear and tear, if, and to the extent that, we are bound to accept the fault and the damage is not compensated by an insurance company or other third party.
(5) If the business relationship comes to an end, the Customer may require us to destroy the production cavities owned or co-owned by it. In addition, we shall be entitled to destroy any production cavities owned or co-owned by the Customer without the Customer being able to claim any compensation for damage from us
a) if, and to the extent that, the production cavities are no longer deployed for production due to wear and tear, and they can no longer be repaired at a reasonable cost;
b) if the Customer terminates the business relationship with us and no obligation to hand over the production cavities exists; or
c) if, and to the extent that, the Customer does not place any further orders for the production cavities concerned with us for two years, counting from last order for parts
and we have pointed out the intended destruction to the Customer, in writing or in text form, at least two weeks in advance.
5. Transfer of Risk
The risk of accidental loss or deterioration of deliveries shall be transferred to the customer, even if we bear the freight costs, as soon as the goods have left the point of shipping at our registered office or the manufacturing plant of our partner companies. Where shipping is delayed through no fault of ours, the goods shall be stored at the expense and risk of the customer; in this event, the indication of readiness for shipping to the customer shall be equivalent to the shipping itself.
(1) Our invoices shall be due for payment immediately unless agreed otherwise. A discount is not granted unless explicitly agreed beforehand. Where receipt of the invoice is a matter of dispute, the customer shall come in default without a reminder no later than 30 days after receipt of the goods. We shall also be entitled to create and send our invoices electronically.
(2) Payments shall be set off first against possible costs, then against interest and thereafter against the main debt. Concerning the main debt, it shall be set off first against the not enforceable debt and then against the older debt. The customer shall not be entitled to retain and set off payments on the grounds of any counterclaims including warranty claims unless the counterclaims are undisputed or finally established by a court.
(3) Where circumstances come to our knowledge after conclusion of the contract that give rise to substantial doubts on the creditworthiness of the customer, we shall be entitled to demand the immediate payment of all our accounts receivable. In particular, this shall apply to any creditworthiness downgrading by credit enquiry agencies/credit enquiry agency files (from an assessment of the creditworthiness as “tense” onwards). In this event, we shall be entitled to demand advance payment. Instead, the customer may demand step-by-step performance at the location of the goods.
7. Liability for Defects
(1) Samples, images and drawings, which are made available, shall only include a guarantee or the agreement of a property/condition if we explicitly confirmed this in writing beforehand. Warranty claims shall not be in place in the event of an insignificant deviation from the agreed property/condition or in cases where the usability is only impaired insignificantly.
(2) For second-hand goods, our liability for defects shall be ruled out in general. Our liability for defects for new goods shall come under the statute of limitations within twelve months as far as customers not being consumers are concerned. By contrast to this regulation, claims for damages of the customer, which are attributable to material defects, shall come under the statute of limitations within fifteen months. The period of limitation shall always begin to run on arrival of the goods at the premises of the customer.
(3) If we are liable for defects, we shall be entitled to choose between defect remedy and new delivery in return for the restitution of the rejected goods. If the customer wishes to withdraw from the contract, reduce the price, claim damages instead of performance or remedy the defect himself, subsequent performance must first have failed in the event of subsequent performance. Failure of the subsequent performance shall only be in place after the second unsuccessful attempt. The statutory cases of dispensability of the setting of a deadline shall remain unaffected.
(4) Claims of the customer because of the expenses required for subsequent performance such as transport, infrastructure and labour costs as well as costs of materials shall be ruled out as far as such expenses increase because the goods delivered by us were subsequently taken to a place other than the delivery address of the customer unless the respective transportation occurred in the framework of the intended course of business.
(5) Rights of recourse against us shall not be in place as far as the customer has granted rights to his purchaser, which go beyond the compulsory legal warranty claims in Germany.
(6) Any customer not being a consumer shall examine the goods delivered without delay and provide written notification of possible defects no later than within seven calendar days after receipt in the place of destination; notification of hidden defects shall be given immediately after their detection. Otherwise, the goods shall be considered to have been approved.
8. Limitation of Liability
(1) We shall only be liable where damage has been caused through the culpable infringement of an essential contractual obligation in a manner endangering the achievement of the contractual purpose or where the damage is attributable to gross negligence or wilful misconduct. This shall not apply to injuries caused to life, body or health. The claim for compensation due to the infringement of essential contractual obligations shall be limited to the foreseeable damage typical of this kind of contract and, in terms of amount, to EUR 2 million; this shall also apply in the case of gross negligence, but not in case of an injury caused to life, body or health. Our liability for damage caused to other legally protected interests of the customer by the delivery item/scope of delivery shall be ruled out. This shall not apply in the event of wilful misconduct or gross negligence and to cases of an injury caused to life, body or health.
(2) The regulation of no. 7 Subsection 1 shall apply to compensation for damages in addition to performance and instead of performance, on whatever legal grounds, especially in connection with defects, the infringement of obligations under the contractual relationship, impermissible acts and the compensation of futile expenses.
9. Reservation of Proprietary Rights
(1) Until the complete payment of all accounts receivable, to which we are entitled against the customer on the basis of the business relationship, including collateral claims/receivables and claims for damages, the goods shall remain our property. This shall also apply if the price of a certain item indicated by the customer has been paid. In case of running accounts, the reservation of proprietary rights shall serve as security for our balance claim. Where the commercialisation value of the goods being subject to the reservation of proprietary rights exceeds our accounts receivable by more than twenty percent, we shall be under obligation, at the customer’s request, to hand over goods according to the corresponding percentage. The individual goods subject to the reservation of proprietary rights, which are to be handed over to the customer, shall be determined by us.
(2) If the customer processes the goods being subject to the reservation of proprietary rights to create a new movable object, such processing shall take place on our behalf, without any obligations arising for us from such processing. The new object shall become our property. Where the goods being subject to the reservation of proprietary rights are combined, mixed or processed with other goods, which do not belong to us, we shall acquire co-ownership of the new object according to the proportion between the value of our goods being subject to the reservation of proprietary rights and the overall value of the processed, combined or mixed objects. Where the contractor acquires sole ownership as a result of the combination, mixture or processing, he shall transfer co-ownership to the contractor already now according to the proportion between the value of the goods being subject to the reservation of proprietary rights and the value of the other goods at the time of combination, mixture or processing. In these cases, the customer shall store the object free of charge, which he owns in whole or in part and which shall likewise be regarded as goods being subject to the reservation of proprietary rights within the meaning of these provisions. If goods being subject to the reservation of proprietary rights become an integral part of the landed property of a third party, the customer shall cede, already today, the receivables arising against the third party for remuneration of the value of the goods being subject to the reservation of proprietary rights including all collateral rights including a collateral right for the provision of an equitable mortgage with a rank preceding the rest, to the contractor who accepts the cession; apart from that, Subsection 2 shall apply correspondingly.
(3) The customer shall be entitled to use the goods being subject to the reservation of proprietary rights in his ordinary course of business or sell them to his purchaser under reservation of his ownership title until payment has been made by the purchaser. The customer shall hereby cede all his accounts receivable, which result from the use of the goods being subject to the reservation of proprietary rights, including the value-added tax, to us in advance. If goods being subject to the reservation of proprietary rights are sold or used together with other objects, which do not belong to us, the cession shall only cover the part of the account receivable, which corresponds to the proportion between the delivery value of the goods being subject to reservation of proprietary rights and the delivery value of the objects, which do not belong to us. The customer’s entitlement to sell or process goods being subject to the reservation of proprietary rights in the framework of his ordinary course of business shall expire in the event of revocation by us or, if there is no such revocation, at the latest in the event of delayed payment by the customer by more than one month or in the event of an essential deterioration of his financial situation (see conclusion of 5). If the customer has sold the account receivable in the framework of genuine factoring, he shall hereby cede the substitute receivable against the factor to us already now. If the purchaser makes payment into one of our customer’s bank accounts, the customer shall cede the claim under the credit note against his bank/credit institution to us already now. We accept the aforementioned cessions.
(4) Any customer not being a consumer shall be authorised to collect the ceded accounts receivable as long as he meets his payment obligations. The direct debit authorisation shall expire in the event of revocation by us or, if there is no such revocation, at the latest in the event of delayed payment by the customer by more than one month or in the event of an essential deterioration of his financial situation (see conclusion of 5). Our entitlement to collect the ceded accounts receivable ourselves shall always remain unaffected. We shall be entitled to notify the clients of the customer of the cession and demand payment to us as long as insolvency proceedings have not been opened and orders from the insolvency court are not opposed to this procedure. On request, the customer shall always be under obligation to submit to us a precise list of the accounts receivable, to which we are entitled, including the names and addresses of his clients, the amount of the individual accounts receivable, the invoice date etc., as well as to provide us with any information required for asserting the ceded accounts receivable, and to permit the review/auditing of such information.
(5) If the customer infringes his obligations, e.g. in the event of delayed payment by more than one month or stoppage of payments, we shall be entitled, without having to set a deadline, to take possession of the goods being subject to reservation of proprietary rights, to satisfy our claims on a free-hand basis out of the goods being subject to the reservation of proprietary rights and to enter the business premises of the customer for this purpose as long as insolvency proceedings have not been opened and orders from the insolvency court are not opposed to this procedure. The resulting costs shall be at the expense of the customer. If we take back goods due to the reservation of proprietary rights, this shall only constitute withdrawal from the contract if we explicitly declare such withdrawal or commercialise the goods.
(6) Pledging or transfer by way of security of the goods being subject to the reservation of proprietary rights or of the ceded accounts receivable shall not be admissible. The customer shall notify us without delay of any access to the goods being subject to the reservation of proprietary rights or to the ceded accounts receivable by third parties (e.g. seizures or other third-party interventions). The cost of interventions against third-party access shall be borne by the customer as far as the respective costs are not reimbursed by the third party.
(7) The customer shall store the goods being subject to the reservation of proprietary rights for us free of charge. He shall insure them appropriately against the usual risks (fire, theft, water etc.). The customer shall hereby cede his claims for compensation, to which he becomes entitled against insurance companies or any other party obligated to provide indemnification due to damage of the aforementioned kinds, to us according to the value of the property assigned as security. We accept the cession.
10. Effectiveness, Applicable Law, Place of Performance, Place of Jurisdiction
(1) Should individual provisions of these General Terms and Conditions be or become void in whole or in part, all other provisions of these General Terms and Conditions shall nevertheless remain effective. In complementation, the contracting parties shall then agree on what comes closest to the legally ineffective provision. Apart from that, the statutory regulation shall apply.
(2) The contractual relationships between the customer and us shall be subject exclusively to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG). The place of performance for deliveries and payments shall be our registered office. The place of jurisdiction, including for disputes on the effectiveness of the contract, these General Terms and Conditions or this agreement concerning the place of jurisdiction, shall be the court responsible locally and in material terms for our registered office.