TÉRMINOS GENERALES DE VENTA Y ENTREGA
1.1 These business terms shall apply to all of our deliveries and services (hereinafter referred to as : “deliveries”) and for future contracts entered into even if the applicability of these terms is not explicitly stipulated again. These terms may be modified by us for future contracts. These terms are deemed to be accepted at least when the goods or services are received. Any acknowledgment by the buyer including a reference to the buyer’s business terms or terms of purchase orders are hereby disagreed with.
1.2 No stipulation made by telephone or verbally before or at the same time as any agreement is entered into shall be effective unless it is laid down in writing.
1.3 Our delivery terms shall only apply to agreements entered into with business operations, public legal entities, and public separate estates in terms of BGB (Bürgerliches Gesetzbuch = German Civil Code) section 310 subsec. 1 clause 1 and section 14.
2. FORMATION OF AGREEMENT AND DOCUMENTS
2.1 Our offers are subject to change and non-binding. No agreement shall take effect until we acknowledge any order in writing or by telecopy. The nature and the quantity of any delivery to be made by us shall only be determined by our written acknowledgment of the order.
2.2 Drawings, pictures, measurements, weights, or other specifications of any delivery shall only be binding if so expressly agreed upon in writing.
2.3 We retain all property rights and copyrights in pictures, drawings, and other documents, none of which shall be made accessible to any third party without our agreement. Drawings and other documents relating to offers shall be returned to us if we so request and and always if no order is placed with us. We reserve the right to assert claims for damages if the orderer breaches this duty.
2.4 If we have delivered any item on the basis of drawings, models, samples or other data and documents supplied by the orderer, the orderer warrants that no intellectual property rights of any third party are infringed upon. If any third party prohibits us from making and delivering such items on the basis of invoking intellectual property rights, we may discontinue all services insofar and shall be entitled to damages pursuant to BGB section 280 without having to examine the legal situation. In addition, the orderer agrees to indemnify us immediately from all third party claims connected to data and documents made available to us.
2.5 Samples will only be delivered against payment.
3. PRICES AND PAYMENT TERMS
3.1 Unless stated otherwise in our acknowledgment of any order, our prices shall apply “ex works” neither including packaging and shipping charges nor the cost of transport insurance; these expenses will be invoiced separately. The legal sales tax is not included either, it will in each case be separately identified in the invoice in the amount legally applicable at the invoice date.
3.2 Parts which are not included in lists will be subject to a surcharge on the basis of the manufacturing cost caused by the special manufacture thereof.
3.3 If the costs for raw materials, labor, energy, or other costs change unexpectedly and without our responsibility, we shall have the right to adjust our prices accordingly.
3.4 All payments by the orderer shall be made in euros.
3.5 Unless otherwise specified in our offer, our invoices shall be payable at Obereisesheim in cash without any discount and free of any charges, at the latest within 30 days strictly net (no discount); only if payment is made within 10 days as of the invoice date, a discount of 2% may be deducted. All repairs and contract work shall be payable immediately after the invoice has been received strictly net without any discount.
3.6 No payment shall be treated as completed until we can use the amount for our purposes. Drafts and checks are only accepted as a tool of payment but not in lieu of payment; the orderer shall pay the expenses for negotiation and collection.
3.7 The day on which the amount is in our hands or credited to our bank account shall be treated as the date on which payment is received. If the orderer defaults on any payment, we shall have the right to charge interest in the amount of 8 percentage points above the European Central Bank’s base rate as liquidated damages while the orderer remains in default of payment. The interest rate shall be less if the orderer proves that we are charged a lower debit interest rate; we shall have the right to prove that our damage is higher.
3.8 Businesses which are unknown to us shall only be delivered any goods or services against prepayment of the amount or cash on delivery. Special parts will only be delivered to such businesses against equivalent payment; in such a case the advance payment will be set off when the remainder of the delivery is made.
3.9 If we become aware of circumstances casting a doubt on the orderer’s creditworthiness, especially if a check is not honored or a payment is suspended or if we become aware of other circumstances casting a doubt on the orderer’s creditworthiness, we shall have the right to demand immediate payment of the entire remaining debt even if we have accepted checks. Moreover, we shall have the right in such a case to demand advance payments or a security. If the orderer fails to comply with our demand for an advance payment or a security within a reasonable period, we shall have the right to rescind the agreement and to charge the orderer the expenses incurred until then including any lost profit.
3.10 Even if defects have been given notice of or if counterclaims have been asserted, the orderer shall not be entitled to set off any counterclaim, withhold any payment or reduce any payment unless such counterclaims have either been declared meritorious by an unappealable judicial decision or if they are uncontested. Counterclaims based on the same contractual relationship as our claims may also be a basis for the orderer to withhold a payment, however.
4. RETENTION OF TITLE
4.1 Until all debts owing to us (including all balance debts under current accounts) are settled, we shall be granted the following security interests which we will release at our choice upon request if their value permanently exceeds the debts by more than 20%.
4.2 We retain ownership in the goods. The processing or transformation of any goods is always performed on our behalf as manufacturer, yet without obligation for us. If our (co-)ownership rights expire through an attachment of any goods, the orderer and we agree now, already, that the buyer’s (co-)ownership rights in the integrated item will pass to us on a value fraction basis (invoice value). The buyer shall keep the item (co-)owned by us in its custody free of any charges. Goods (co‑)owned by us are hereinafter referred to as goods title to which is retained.
4.3 The buyer may process and sell the goods title to which is retained in the ordinary course of its business unless it defaults on any payment. The buyer shall not pledge or mortgage goods title to which is retained. The orderer is now, already, assigning to us all claims relating to the goods title to which is retained (inclusive of all receivable balances from any current account) arising either from their resale or from any other legal basis (including without limitation claims arising from insurance contracts or from tortious acts). We authorize the orderer revocably to collect the debts assigned to us for our account in its own name. This authorization to collect debts may only be revoked if the orderer does not duly meet its payment obligations.
4.4 If any third party takes hold of the goods title to which is retained, especially by attaching these goods, the buyer shall make the third party aware of our ownership rights and notify us immediately so that we can enforce our ownership rights. The buyer shall be liable for all costs and expenses incurred by us in court and out of court in connection therewith if the third party is not able to reimburse us for these costs and expenses.
4.5 If the buyer breaches any contract, especially by defaulting any payment, we shall have the right to rescind that agreement and to reclaim the goods title to which is retained.
5. TIME OF DELIVERY AND TIME OF PERFORMANCE
5.1 The time of delivery results from the agreements between the contracting parties. Any confirmed time limit/period for delivery shall be subject to the condition that we ourselves receive our supplies correctly, completely, and in time. We will inform the orderer about any looming delays as soon as possible. The time limit for delivery does not commence to run until the orderer has duly fulfilled its obligations such as procuring the technical data and documents, permits, and, if so agreed, paying a deposit or submitting a payment guaranty.
5.2 Even if time limits and dates have been agreed upon as firm, we shall not be held liable for any delay of any delivery or service caused by force majeure and caused by occurrences making the delivery not only temporarily considerably more difficult or impossible – including without limitation strikes, lockouts, and government agency orders – not even if our suppliers or their sub-suppliers have been affected thereby. Such occurrences shall give us the right to delay the delivery or service by the duration of the obstruction plus a reasonable start-up time. We will notify the orderer without culpable delay about the beginning and the end of such circumstances.
5.3 If the obstruction lasts longer than 3 months, the buyer will have the right to rescind the part of the contract which has not yet been fulfilled after having fixed a reasonable extension of the original period for the delivery or service. If the delivery period is extended, the buyer shall not infer any claims for damages from that extension. We may only invoke the above mentioned circumstances if we notify the buyer thereof immediately.
5.4 If we are responsible for not observing firmly promised time limits and dates or if we are in default, the buyer will be entitled to default compensation in the amount of .5% of each completed week of default, not to exceed 5% of the invoice value of the deliveries and services affected by the default. Unless the default is caused by gross negligence on our side, the buyer shall have no rights in excess of the above mentioned rights.
5.5 We may make deliveries in installments or perform portions of services unless the delivery installments or portions of services are of no interest for the buyer.
5.6 We shall only be obligated to perform the deliveries and services as agreed if the buyer performs its obligations timely and duly.
5.7 If the buyer defaults in taking delivery of any goods or service, we shall have the right to claim compensation of any loss incurred; the risk of accidental deterioration or accidental loss of the goods or services shall pass to the buyer as soon as the default of taking delivery of the goods or services commences.
6.1 The risk shall pass to the orderer as soon as the goods to be shipped are handed over to the person performing the shipment of the goods or as soon as the goods have left our warehouse in order to be shipped. The same shall apply even if we pay the shipping charges unless otherwise agreed with the orderer.
6.2 If the orderer so desires, we will have the shipment covered by shipment insurance; the cost incurred for such insurance coverage shall be paid by the orderer.
6.3 If the ordered item is ready to be shipped and if the shipment is delayed due to reasons within the orderer’s control, the risk shall pass to the orderer when it receives the notice that the item is ready to be shipped.
6.4 Packaging, especially special packaging, will be invoiced at the cost price.
7.1 If the orderer is a merchant, its warranty claims are contingent on the orderer’s prior due fulfillment of its legal duties to examine the goods and to give us notice of defects.
7.2 The products will be delivered free from any manufacturing defects and free from any defective material; the time limit for asserting any claim based on such defects shall be one year following the delivery of the goods. If an installation is contractually agreed upon, the one-year warranty period shall commence to run upon the recorded completion of the performance check.
7.3 If our operating instructions or maintenance instructions are not complied with, or if the goods are modified, or if parts are replaced or consumables used which do not comply with the original specifications, the orderer shall have no claims due to defects of the goods if it fails to disprove a sufficiently substantiated allegation that one of the aforementioned circumstances has caused the defect.
7.4 Entrepreneurs who are not merchants shall notify us in writing of any defect without culpable delay, no later, however, than within 2 weeks of receipt of the goods. Defects which cannot be identified within that period even if the goods are diligently examined shall be made known to us in writing without culpable delay after they have been identified.
7.5 In case we receive notice from the orderer that any product is defective, we will at our choice and at our expense require that:
a) the defective part or equipment is sent to us for repair and subsequent return;
b) the orderer makes the defective part or equipment available at its premises and we send a service technician to orderer’s premises to make the repair.
If the orderer requests that the work to cure the defect be performed at a location of its choice, we may agree to that request.
7.6 If and to the extent any complaint about defects turns out to be justified, the cost of the replacement item including the shipping charges shall be the portion to be paid by us of the direct cost to be incurred for curing any defect. In addition we will pay the cost of the disassembly and assembly as well as the cost of any possibly needed provision of the necessary service technicians including traveling expenses provided that no unreasonable burden is caused thereby.
7.7 If the defect is not cured within a reasonable period, the orderer may choose to either demand a reduction of the price or to rescind the agreement.
7.8 There shall be no liability for regular wear and tear.
7.9 Only the direct orderer shall be entitled to any claims due to defects and those claims shall be non-assignable.
7.10 If the orderer or any third party tries to cure any defect in an inexpert manner, we shall not be liable for the consequences resulting therefrom. The same shall apply to any modification of the goods made without our prior permission.
8. DESIGN CHANGES
We reserve the right to change the design at any time; we are not obligated, however, to implement such changes to goods which have already been delivered.
9.1 We shall not be liable for any damage regardless of the nature of any breach of any duty including tortious acts unless we have acted intentionally or grossly negligently.
9.2 In any case of a breach of any essential contractual duty we will be liable for any level of negligence not to exceed the foreseeable damage, however. The orderer shall have no right to claim lost profits or wasted expenses, nor shall it have a right to assert claims on the basis of third party damages, nor shall it have a right to assert indirect and consequential damages unless any warranted quality specifications have been made for the purpose of protecting the orderer against such loss.
9.3 The no liability clauses and liability limitation clauses in subsections 9.1 and 9.2 hereof shall neither apply to claims arisen against us because of intentional conduct on our part nor to any liability for warranted quality specifications nor to claims under the product liability code nor to any damage caused by any injury to life, body, or health.
9.4 To the extent our liability is disclaimed or limited, such disclaimer or limitation also applies to the liability of our clerks, employees, representatives, or vicarious agents.
10. QUANTITY AND QUALITY VARIANCES
If parts we do not keep in stock, that is to say especially manufactured parts, are ordered in large batches, the delivery may fall short of or exceed the ordered batch size to a degree which is reasonable and customary in the industry.
11. APPLICABLE LAW, LOCATION OF JURISDICTION, SEVERABILITY
11.1 These business terms and the entire legal relations between us and the orderer shall be governed by the laws of the Federal Republic of Germany. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not be applicable.
11.2 Heilbronn on the Neckar shall be the exclusive place of jurisdiction for all disputes directly or indirectly resulting from any contractual relationship if the orderer is a merchant, a public legal entity or a public separate estate. The same shall apply to any dispute about the formation and the validity of the contractual relationship.
11.3 Should any provision in these business terms or any provision under any other agreement be or become invalid in part or in full, then the validity of the other provisions or agreements shall not be affected thereby.
Reproduction including reproduction of excerpts hereof and copies hereof are prohibited.