General terms and conditions
1. General conditions
1.1 (Scope) These General Terms and Conditions are only intended for use in business with en-trepreneurs.
1.2 (Conflicting business conditions, confirmation in writing, additional agreements) The only terms and conditions for the contract shall be these terms and conditions. We will not accept any conflicting general business terms, whether or not expressly rejected by us. Any modifications or additional agreements must be confirmed in writing (or email) by us.
1.3 (Right to make modifications, electronic data storage) Initial quotations are made free of ob-ligation. We reserve the right to make technical improvements of our products. We may store contract information in data processing systems.
1.4 ( Offsetting,assigning) Unless the customer has undisputed or non-appealable counterclaims or he has counterclaims directed on payment resulting from his right to withhold (according to § 320 BGB), he shall not be entitled to offset payments. We are entitled to assign our claims against the customer to a third party.
1.5 (Place of performance, Court of jurisdiction, governing law) Place of performance is our works in Wertheim. For all disputes arising out of the contract the courts of jurisdiction shall be Wertheim / Mosbach as competent courts of our registered office. We can also take legal action against the customer at his registered office. The contract shall be construed and interpreted in accordance with the laws of the Federal Republic of Germany with exception of the ‘UN Convention on the International Sale of Goods’ (CISG).
1.6 (Contractual language) The language of the contract is English.
2. Forwarding charges and risk
2.1 The risk shall be transferred to the customer when the goods leave our works. This shall apply also when we have agreed to provide additional services such as freight forwarding, exportation or installation.
2.2 The customer shall bear all transport, packing and insurance costs.
2.3 We are entitled to deliver up to 10% less or more.
2.4 If we have accepted orders on call, the customer must call up the entire order quantity within 12 months. If the customers does not call up the entire order quantity we are entitled to deliver the outstanding quantatity to the customer after the expire date.
2.5 If there be any delay in the customer’s acceptance of a shipment or of commodity, which is ready for delivery, we may have the products stored at the customer’s expense.
3. Delivery period, delay, delay-damages
3.1 Delivery periods are ex works. Delivery times or periods shall commence only after settlement of all technical questions and after we have received all documents, permits or releases required from the customer or from authorities as well as any advance payments requested. Subject to correct and punctual internal delivery. We shall inform the customer without delay of the non-availability of the delivery products.
3.2 Acts of God or any events for which we are not responsible i.e. strikes, lockouts, operating breakdowns, shortages of raw materials or means of production, delayed deliveries or failure of delivery by our suppliers shall extend the delivery period accordingly. Delivery times will also be extended due to modification of products or services requested by the customer.
3.3 In any case the customer has to send us a reminder setting a reasonable period of grace before claiming default of delivery.
3.4 In the event of compensation for damages caused by late deliveries, our liability shall be lim-ited to 10 % of the value of our delivery. This limit shall not apply in cases of intent, gross negli-gence and/or injury to life, body or health.
4. Prices, conditions of payment, collateral security
4.1 Prices quoted shall be EXW (ex-works). If applicable, VAT will be added. We may raise prices in accordance with § 315 BGB in proportion to cost increases if a period of more than four months lies between conclusion of contract and delivery.
4.2. Invoices are due immediately without deduction to our account in the Federal Republic of Germany, in EURO (€). We shall accept bills of exchange or checks only on account of perfor-mance and at the customer’s expense.
4.3 In case of any delays in payment or if we have reason to believe that there could be failure of the customer to fulfill his paying obligation we reserve the right to require payment in advance or the provision of a security in the amount of the invoice amount.
4.4 In the event of the agreed return of defect-free goods by the customer, we shall charge a fee in the amount of 15 % of the invoice amount. The customer shall bear risk and costs of the return of the defect-free goods.
5. Reservation of proprietary rights, assignment in advanve
5.1 The delivered goods shall remain our property and title shall not pass to the customer until all open liabilities of the customer have been fully paid for.
5.2 The customer may resell the goods in the normal course of business provided the claims aris-ing from the resale have not been assigned, pledged, attached or otherwise encumbered. Pledging and transfers of security are prohibited though.
5.3 The Customer may neither merge or combine the goods with other objects, to which a third party may have rights. If, however, the goods become a component of a new object, then we shall be a direct proportional co-owner of this object even if it constitutes a new legal entity. Our pro-portion of co-ownership shall be based on the relation of the invoice value of the goods to the value of the new object at the time of the connection.
5.4. If the customer processes the goods he processes them for us.
5.5 The Customer shall assign to us in advance as collateral any claims against his customers or a third party from the resale of the goods (see clause 5.2) and/or newly formed objects (see clause 5.3) and/or processed goods (see clause 5.4) to the value of our invoice for the products. If the Customer is not in default of payment for the goods, he may collect the assigned claims in his normal course of business. However, he may only use the proportional proceeds for the payment to us for the goods.
5.6 Upon the customer’s request, we shall release collateral at our discretion, if and to the degree that the nominal value of the collateral exceeds 120 % of the nominal value of our open debt claims against the customer.
5.7 In the event of delay in payment, we are entitled to withdraw from the contract and/or, even without withdrawal, to demand that goods still available at the customer be handed over to us and to collect the assigned claims ourselves. The demand to hand over goods cannot be con-sidered as withdrawal unless explicitedly declared.
5.8 To determine our rights, we can have all of the documents/books affecting our proprietary rights of the customer inspected by a person who is obliged to observe professional discretion.
6. Liability for defects
6.1 We are liable that our goods are free of defects at the transfer of risk. Immaterial deviations from the agreed quality or non-essential restrictions in usability are, however, of no significance. Qualities, performance, usage of our commodity or other features shall only be binding if we have expressly agreed on them in writing in specifications, product descriptions or/and instruction manuals. Details in advertisements, instructions for use or reference to industrial standards shall also only be binding if we have expressly agreed on them in writing.
6.2 If the customer requires the delivered goods for purposes other than those agreed, he must check before use on his own authority if the goods are specially suitable for such purposes. We shall not be responsible for the fulfillment of any application not expressly confirmed by us in writing.
6.3 In the case of justified deficiency claims we shall be required to provide subsequent perfor-mance by free replacement or repair at our sole discretion. In the event of rejection, impossibility or failure of subsequent performance, the customer has the right to demand a reduction of the purchase price or to withdraw from the contract.
6.4 In case that additional expenses to repair or replace the goods arise because the customer has transferred the goods after delivery to another place than the agreed place of performance the customer has to bear the additional costs.
6.5 The customer shall be obliged to promptly and carefully check the incoming goods – also for product safety – and to notify us of any apparent deficiencies in writing, any hidden defects as soon as they are found. The customer must notify the carrier immediately of any transport dam-age. Non-observation of the obligation to check and give notice of defects will void any and all warranty claims for those deficiencies.
6.6 We are not liable for any damages following improper use, handling, maintenance, operation or processing caused by the customer or his employees or on normal wear and tear. This especially excludes liability for results of chemical, electrochemical or electric impact on the goods or in case that the customer does not use the goods according to our instructions.
6.7 Our liability for slight negligence is restricted to claims based on injury to life, body or health, to claims arising from the Product Liability Law and to claims arising from the culpable infringement of essential contractual obligations, with said infringement putting the purpose of the contract at risk. Our liability for the slightly negligent infringement of essential contractual obligations is restricted to typically occurring damage foreseeable by us at the time the contract was signed.
6.8 Claims against us based on defects are subject to a statute of limitations of one year as of the delivery of the goods to the customer. The same shall apply accordingly to claims for damages, for whatever legal reason. The restriction of the period of limitation shall not apply for claims based on fraudulent conceal-ment of a defect, for claims based on the Product Liability Law as well as for claims arising from injury to life, body or health, and for other damage based on intent or gross negligence.
6.9 If in the course of the examination of a defect of which the customer has given notice or in the course of our subsequent performance, it should turn out that the notice of defects was not justified we shall be entitled to charge reasonable compensation for the examination or the repair work.
7. Industrial proprietary rights, secrecy
7.1 We reserve ownership in any designs, samples, diagrams, technical documents, cost estimates or offers provided by us as well as all copyrights, proprietary and intellectual property rights in any such item. This applies also if the customer has borne their costs. The customer may use all such items only in formats agreed with us.
7.2 The customer may not change the delivered goods, nor connect them to or combine them with other objects or use them in any other way, if this would involve the infringement of proprietary and intellectual property rights of third parties. The customer shall exempt us of all claims filed against us by third parties due to the infringement of proprietary and intellectual property rights through customer use in the sense of sentence 1, and shall reimburse any costs incurred to us as a result thereof. This particularly applies in the case of claims filed on the grounds of the indirect infringement of patent rights.
7.3 If we deliver goods according to designs or other requirements specified by the customer, he is liable by default for ensuring that through the production and delivery of these goods industrial property rights or other rights of third parties are not infringed. He shall be obligated by default to provide compensation for all damages resulting from such legal infringements.
7.4 We reserve ownership in moulds, tools or devices manufactured or provided by us. This ap-plies also if the customer has borne their costs partly or in whole.
7.5 All information acquired through the business relationship which is not deemed to be public knowledge shall be deemed proprietary and may not be disclosed to any third parties.
– state 7. august 2012