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1. General, Conclusion of the Contract
1.1 These conditions shall apply only in dealings with commercial enterprises as per section 14 of the German Civil Code, legal entities under public law or special fund under public law. In dealings with consumers as per section 13 of the German Civil Code the statutory provisions shall apply.
1.2 All of our deliveries/services are subject to these conditions without any express reference needing to be made to them. Unopposed acceptance of the Contract does not result in deviating conditions of the Purchaser being incorporated into the contract. Such deviations require our express written agreement.
1.3 Our offers are always non-binding. The Customer’s order is deemed to be the legal offer.
1.4 A contract is only concluded with our written order confirmation. Any oral or ancillary agreements are only valid if agreed by us in writing. The written form requirement is equally met where using e-mail or fax. Carrying out the delivery/service as per the order is deemed to be an implied acceptance of the order.
1.5 Contracts (orders) are binding and cannot be changed. Where a change is requested after confirmation of the order a new offer can be made. Additional costs usually apply. The Customer accepts this offer at the latest when accepting the service as per the requested change.
1.6 In placing an order the Customer gives a guarantee as to his ability to pay and creditworthiness. Where this is in doubt, and in particular where negative information is received from the credit insurer following conclusion of the contract, we have the right to withdraw from the Contract or demand appropriate security or prepayments within four working days. After an unsuccessful elapsing of this grace period, we may withdraw from the contract. In the case that the contractually agreed security is not given, or is not given in full (e.g. only half a prepayment is made) within the agreed period, we shall immediately withdraw from the contract. In the case of withdrawal, we have the right to demand damages, in particular for the costs of procuring primary materials which cannot be used elsewhere.
2.1 Quotations are for delivery from the given factory, excluding packaging and other expenses and are subject to VAT in the relevant amount. The total packaging costs correspond to a percentage of the net value of the goods. Packaging material may not be returned.
2.2 Should the initial costs forming the basis of our calculation change owing to factors outside of our control, such as raw material prices or collective agreements, following the conclusion of the contract, we have the right, in the case of a delivery later than four months after the conclusion of the contract, to subsequently adjust the agreed price as per the increase in costs.
3.1 All delivery costs are borne by the Customer. The risk is passed to the Customer once the deliveries has left the given factory and also when partial deliveries are made or we have taken on additional services, for example dispatch costs, delivery service or assembly. Insurance is only provided during transportation at the express request of the Customer with any such costs being borne by the Customer. The Customer is deemed to be in default of acceptance and liable to pay storage costs within a reasonable time where he does not arrange within two weeks of being notified that the goods are ready for dispatch for such goods to be collected. In such a case we are entitled to demand damages in the amount of 0.5% per week up to a maximum of 15% of the value of the order. Such a demand does not exclude the enforcement of any higher loss which may be established The Buyer is entitled to provide evidence that no damage or less loss occurred than the amount being enforced.
3.2 Any given delivery times are observed where possible. They are, however, non-binding unless they are confirmed as a fixed delivery time. An enforcement of rights owing to unobserved delivery times is only possible after an appropriate grace period which shall be a minimum of 21 days. Where default is caused by minor negligence, liability to pay damages is limited, in terms of substance, to the additional costs of a covering purchase and, in terms of amount, to 0.5% per each full week of the default up to a maximum of 5% of the value of the order affected by the delay.
3.3 In the case of delay caused by force majeure, labour disputes, sustained traffic disruption such as motorway closures, official measures and disruptions in operations for which we are not at fault, the delivery period is extended accordingly. The same applies to delays owing to export restrictions or in the case of an act of war or terrorism. Where we can prove a careful selection was made of delivery provider, which in turn does not make the delivery as contractually required, the delivery period shall be extended by the resulting delay provided it cannot be expected that we organise a replacement delivery.
3.4 The dispatch weights and dimensions listed in the documents are to be stated as accurately as possible but should be read as approximations. The details in the order confirmation are the decisive factors for determining the nature of the goods. Any information on the purpose of use is only included in the contractually required nature of the goods when such use is confirmed in writing. We work as a matter of principle in line with European Union standards. If such standards are not used, then the Customer must inform of this before the contract is concluded. Outside of the European Community area the Customer is responsible for ensuring that any relevant product safety regulations are adhered to in each case. Any associated costs, in particular for any necessary checks or certifications, are borne by the Customer.
3.5 All commercial intellectual property rights in respect of drawings and devices and any associated documentation, offers and quotations remain with us. They are entrusted to the Customer for personal use only as a basis for the respective offer and may not be reproduced in extracts or made accessible to third parties. Where a decision is made not to make an order, drawings and any associated documents must be immediately sent back to us. We only accept the guarantee in respect of third party property rights within the Federal Republic of Germany.
3.6 The Customer is prohibited from recreating our products, having them recreated or being involved in the distribution of recreations of our products, irrespective of whether and to what extent we are entitled to the commercial property rights. Should the Customer violate this prohibition, he forfeits for each case of culpable infringement a contractual penalty in the amount of 150% of the list price of our product per each item recreated. Any compensation claims to which we are entitled remain unaffected. Further, we may enforce injunctive relief which we can implement by way of injunctive proceedings.
3.7 We have the right to make partial deliveries and provide partial services insofar as this does not unreasonably disadvantage the Customer.
3.8 Where the Customer is in default of acceptance, we are entitled to demand damages for the loss suffered by us as a result. Where the Customer, after the expiration of a reasonable grace period imposed on him, refuses acceptance or has already expressly declared that he does not intend to collect the goods, we may withdraw from the contract or demand damages. We may demand 20% of the purchase price without deductions as damages for a default of acceptance. However, the Customer has the right to produce evidence that we have suffered either no loss or loss below the liquidated amount. Upon default of acceptance the risk of accidental deterioration and accidental destruction passes to the Customer.
3.9 Where goods ordered under a collection contract are not collected within a grace period set by us, we have the right to withdraw from the collection contract. The Customer shall compensate us for loss incurred as a result of this withdrawal.
4.1 Payment shall be made in cash or by bank, giro or postal cheque transfer. Billing is made in EUROS. Currency risks are borne by the Customer. The customer shall be entitled to off set or withhold payment, or to a reduction, only if his claims are legally binding or uncontested. We expressly reserve the right to accept bills of exchange or cheques. Bills of exchange or cheques are only accepted for payment purposes and are only valid once completely credited as a payment. Clearing fees and note taxes are borne by the Customer. When accepting bills of exchange and cheques, no guarantee will be undertaken for prompt submission or the production of claims.
4.2 Our sales representatives may only accept payment when they have produced express written authority for receiving payments. Sales representatives may not issue invoices, exchange goods or, without express instruction, take returned goods.
4.3 Should the Customer fall into arrears, we have the right from the applicable point in time to demand default interest in the amount of eight percent above the relevant base rate of interest as a lump sum for default damages (legal rate of interest) or a higher rate of default interest under the laws applicable in jurisdiction where the Customer has its registered offi ce. We are free to provide evidence of interest higher than the legal rate of interest in an individual case as default damages.
4.4 Where a Customer defaults on a payment, where a bill of exchange or cheque is not met or where a third party enforces a claim against the Purchaser, all payments become immediately payable, including those which were not yet due.
4.5 Further deliveries, including those for which a delivery time has been agreed, may be withheld by us until all claims have been settled in full without the Customer becoming entitled to any claim for damages.
4.6 As a matter of principle payments are deemed to be made against the invoice which became payable first. Any potentially agreed discounts are only honoured where, at the time of the receipt of payment, no other invoices are due for payment.
5. Reservation of Title
5.1 The items delivered remain our property until the Customer has paid all, including future, amounts arising from the business relationship, especially any outstanding current account balance, or the payment bill of change/cheque given as payment has been credited.
5.2 The Customer may only sell the items delivered as part of its normal business activities and may neither pledge nor assign them as security. As far as is permissible, the following applies: Where the items delivered are sold or otherwise given to a third party, the Customer shall immediately assign to us all demands/claims which have arisen for him. The Customer may collect these claims. However, in the case of a default in payment this right is immediately revoked.
5.3 Where the value of our security exceeds our claims by more than 20%, we shall release some of the secured assets on request. Where the customer sells the delivered items on, he must retain possession of them. Insofar as permissible by the applicable law, the following also applies: The handling/processing of our delivered items is made as part of our order and for us without giving rise to any liability on our part. If the items delivered by us are linked to other items, the Customer shall immediately assign to us its possession or co-possession rights in the newly created item to the items we delivered.
5.4 The Customer shall insure the delivered items in the normal way or include such items in existing insurance policies and hereby assigns to us all rights to which he is entitled in respect of the insurance policy.
5.5 The Customer undertakes to immediately inform us of pledges of items delivered which are subject to the right of retention or any assigned claims. The Customer shall bear the costs of our intervention.
5.6 Should the applicable law on enforcing existing rights require formal steps to be taken, e.g. registration of the delivered items, the Customer undertakes to inform us of such and to co-operate with us in completing such steps. Should individual provisions of the right of retention be ineffective under the applicable law, a provision applicable under the relevant law which comes as close as possible to the original provision is deemed to be agreed.
6. Warranty for Defects
6.1 Parts shall only, as we choose, be repaired or delivered new where they are shown to be faulty due to a circumstance occurring before the transfer of risk. The Customer undertakes to immediately and carefully inspect the items which are delivered. Where it is not possible to check the function of an item upon receipt, the Customer must ensure during further processing that its function is assessed at the earliest possible time. Each defect must be notifi ed to us immediately and in any event within 4 working days at the latest. The notification of a defect in respect of a partial delivery does not at the same time constitute a notification for the entire delivery, even where the defective product was produced in the same production batch. Where there is no assessment or a defect notification is not made, the Customer loses all rights under the warranty for defects. Replaced parts are the property of the delivering party.
6.2 The Customer shall provide us with the necessary time and opportunity to carry out any necessary repairs and additional deliveries; otherwise we shall be released from the liability for the resulting consequences. Only in urgent cases of danger to operational safety and to prevent excessive damage, whereby we must be immediately notified, or if we disproportionately delay in rectifying the fault, is the Customer entitled to rectify the fault himself or have it rectified by a third party and to demand a reimbursement of the necessary costs from us.
6.3 From the direct costs resulting from the repair or the replacement delivery, the delivering party shall pay - insofar as the dispute proves to be justified - for the costs of the replacement item including postage as well as the reasonable costs of disassembly and assembly. Furthermore, if this can be reasonably demanded according to the individual case, the necessary costs for any provision of its fitters and auxiliary workers shall also be paid. The above provision does not apply where the delivered item is sold on, e.g. as part of a system to a third party. Removal and installation costs at the site of the third party will not be covered.
6.4 The Customer has, as required by law, a right to withdrawal from the contract where we, subject to the legal exemptions, fail to repair or provide a replacement delivery within an appropriate period set for us due to a significant defect. A defect is only deemed to be significant where the functionality of the item delivered is completely lost or, where an entire delivery is affected, more than 20% of the items delivered are affected.
6.5 Where a Customer or third party carries out its own improper repairs, there is no liability for us for any resulting loss. The same applies for any modifications made to the delivered items without our agreement.
6.6 Where the use of the delivered items results in an infringement of commercial property rights or copyrights in the Federal Republic of Germany, we will as matters of principle provide the Purchaser with a right to further use or modify the delivered item to the extent that the property right infringement no longer exists. If this is not possible under economically reasonable conditions and within a reasonable time limit, we will take back the delivered item and reimburse the purchase price. Further, any legal provisions also apply.
6.7 The above obligation only exists on the delivering party when:
– The Customer immediately informs us of property or copyright claims being enforced;
– The Customer supports us to the appropriate extent with the claim being enforced and enables us to carry out modification measures pursuant to 188.8.131.52;
– We reserve the right to exercise all defensive courses of action including out of court settlements;
– The delivered item has not been manufactured or altered at the Customer’s request;
– The legal infringement was not caused by the Purchaser changing the delivered item at his own accord or by using the item in a way not permitted by the contract.
Claims for damages based on breach of significant contractual obligations or intentional or gross negligent behavior or physical injury shall be due to the Customer in accordance with the law without limitations. Claims for damages based on breach of insignificant contractual obligations which are not result to physical injury or damages due to intentional or gross negligent behavior shall be limited to the foreeable damage at the time of conclusion of the contract. Insofar as the as per 9.2 applicable law of the General Terms of Business allows a greater limitation of liability, this liability limitation is deemed to have been agreed.
Claims for defects shall become time-barred twelve months upon delivery. This shall not apply to claims for damages for which our liability is unlimited pursuant to section 7 above and statuatory provions as well as to claims under Product Liability Law, for defects in construction or to items delivered which, in accordance with their typical purpose, are used in constructions and have caused the defectiveness of such constructions. In these cases the statutory provisions shall apply.
9 Place of Performance, Place of Jurisdiction, Applicable Law:
9.1 The place of performance is Ingelfingen. Künzelsau is the place of jurisdiction for disputes arising out of this contract, provided that Customer is a merchant, legal entity under public law or special fund under public law.
9.2 The law of the Federal Republic of Germany and UN international trade law (CISG) shall exclusively apply to all legal relationships between the delivering party and the Purchaser. This does not include the law of the General Terms of Business. The law applicable to the jurisdiction in which the Customer has its registered office applies to such terms.
10. Partial Invalidity
Any invalidity of an individual provision of the General Terms of Business does not affect the validity of the remaining provisions of this condition.
Version: November 2016