General Conditions of Sales and Delivery
1. Scope – written form
Our general conditions of sale and delivery are effective exclusively. Any terms of the purchaser which conflict with or deviate from our general conditions of sale and delivery shall not be recognized unless we have expressly acknowledged their validity in writing.
Our general conditions of sale and delivery shall apply even if we make a delivery to the purchaser without reservation with knowledge of terms of the purchaser which conflict with or deviate from our general conditions of sale and delivery.
All agreements concerning the establishment of the contractual relationship are fully set down in writing in this agreement. Oral sub-agreements shall not be affected.
All future transactions with the purchaser shall also be governed exclusively by these general conditions of sale and delivery.
2. Contractual declarations – documents
Unless otherwise stated in our offer, our offer is not binding and is merely an invitation to the purchaser to submit a respective offer to enter into a contract (order).
We will confirm orders in writing.
Any technical illustrations, product descriptions or other documents which are handed out in the course of contractual negotiations shall remain our property. These items may not be passed on to third parties without our prior consent.
3. Prices payment – set-off – packaging
Unless otherwise stated in the confirmation of order, prices are „ex warehouse“ and include normal packaging. The normal price on the day of delivery shall apply in the absence of a price agreement. The calculation shall be based on the unit of quantity determined by us. Prices are net prices; they will be charged with the addition of VAT at the statutory rate current at the time of invoice; VAT will be shown separately. With the exception of pallets, transportation packaging and other types of packaging covered will not be taken back; the purchaser shall expressly waive its right to return packaging. lt shall dispose of packaging at its own cost.
Unless otherwise stated in the confirmation of order, our invoices shall be payable within 10 days of receipt of the invoice. Cash discounts may not be deducted without written agreement. The statutory rules shall apply in case of default in payment.
Payment shall only be deemed performed when we are able to dispose of the amount. We are not obliged to accept of bills of exchange or cheques; these shall only be accepted pending full discharge of the debt and not in lieu of payment.
The purchaser must raise any objections to invoices without delay, that is in writing without undue delay.
The purchaser may only make a set-off of counterclaims which are recognized by us, undisputed. The purchaser shall only be entitled to exercise its right of retention if the counterclaim is based on the same contractual relationship and is recognized by us, undisputed.
4. Period of delivery
A period of delivery shall only commence when the purchaser has submitted all the required documents, approvals and/or releases or when other cooperative acts or an agreed advance payment have been performed. Even after a period of delivery has commenced there shall be no obligation to deliver if the purchaser does not meet its obligations in good time and in the proper manner and, in particular, if it defaults on a payment. We reserve the right to a defense of non-performance of the contract. To a reasonable extent we shall also be entitled to make partial deliveries of the goods.
The purchaser shall be obliged to accept delays in delivery which are due to force majeure and other unforeseeable reasons beyond our control for a period of up to 6 weeks. Such events shall include, in particular, disturbances due to fire, flooding or storms, and labor disputes affecting us or our suppliers. Any additional rights shall remain unaffected.
Obstacles to performance under 4.2 shall entitle us to withdraw from the contract should the obstacle lead to impossibility of performance; in case of an ongoing supply relationship we shall be entitled to terminate the overall contract if we cannot reasonably be expected to abide by the contract, even if only part of the deliveries is affected. Any additional rights shall remain unaffected. In such cases the purchaser’s right to withdraw from the contract shall be excluded before expiry of the 6-week time limit.
5. Creditor’s default of acceptance – debtor’s delay – other impairment of performance
We shall be entitled to deposit goods or have them held at the purchaser’s risk and expense for the duration of the purchaser’s default of acceptance. For this purpose we may, in particular, also make use of a forwarding company or a warehousing company. Should we store the goods ourselves, we shall be entitled to make warehouse charges at the normal rates for that location. Any additional claims shall remain unaffected.
The risk of accidental perishing or conspicuous deterioration of the goods to be delivered shall also pass to the purchaser at the point when it fails to accept the goods.
Should the purchaser refuse to accept the contract goods or should the reasonable time limit it has been set have expired, we shall be entitled to withdraw from the contract or to claim compensation in lieu of performance. In this case we shall be entitled to claim from the purchaser a flat-rate compensation of 20% of the agreed delivery price. lt shall be left to the purchaser’s discretion to furnish proof that we have not incurred a loss or that any loss incurred is considerably lower than the flat-rate compensation. Our other legal rights, including the right to prove a higher loss, shall remain unaffected.
In case of our default we shall be liable in accordance with statutory provisions. Should the default in delivery be due to an intentional or grossly negligent breach of duty on the part of a vicarious agent who is not a member of management, liability for compensation shall be limited to foreseeable loss that can typically be expected to arise. Liability for slight negligence shall be excluded unless the default in delivery for which we are responsible is due to breach of a material contractual duty; in this case liability for compensation shall also be limited to foreseeable loss that can typically be expected to arise. Our liability for injury to life, body and health, as well as our statutory liability in case of a transaction for delivery by a fixed date, shall remain unaffected.
The limitations on liability under 5.4 shall also apply to losses which arise due to impossibility of delivery and breach of accessory obligations under the contract.
6. Dispatch – transfer of risk
Unless otherwise stated in the confirmation of order, we shall deliver „ex warehouse“. Our obligations are limited to making the goods available for collection at the warehouse or at a specially agreed location; the purchaser shall bear all transportation expenses and risks, including loading charges. The risk shall pass to the purchaser as soon as the goods have been properly made available; in particular, the goods shall be loaded at the risk of the purchaser. lf a date has not been set for the goods to be made available we shall inform the purchaser of their readiness for dispatch; in this case the risk shall pass to the purchaser the day after receipt of this information.
The rules under 6.1 shall also apply if we select the person responsible for transportation or the delivery is carried out by our own staff. Should the goods perish or deteriorate while being delivered by our own staff we shall be liable for damage caused intentionally or by gross negligence, including damage caused intentionally or by gross negligence on the part of our representatives or vicarious agents. Provided that we are not grossly at fault, liability for compensation shall be limited to foresee able loss that can typically be expected to arise. The purchaser is obliged to notify us without delay in the event of damage.
Goods which have not been accepted shall be returned at the expense and risk of the purchaser, unless we are responsible for the reason for the return.
Our consent shall be required if delivery is not carried out by us or by a transportation company we have selected. The purchaser shall not be entitled to collect the goods itself. In case the purchaser collects the goods itself it shall be solely responsible for their proper transportation and, in particular, their proper loading and compliance with road traffic regulations. Any liability on our part shall be excluded. The purchaser shall indemnify us from liability in case of recourse by third parties.
7. Notification of defects – guarantee
The purchaser’s rights in case of defects are conditional upon the purchaser inspecting the goods immediately after delivery, insofar as this is feasible in the proper course of business, and notifying us without delay if a defect is discovered, unless the defect in question was not recognizable during the inspection. Should such a defect be discovered at a later time, the purchaser must notify us without delay upon discovery of the defect. An inspection shall in all cases only be deemed to have taken place immediately if it took place before the goods were processed or passed on to third parties. Rejected goods shall be stored in an appropriate manner. The date notification is sent shall be decisive for the purposes of determining whether it was sent in good time; the purchaser shall bear the burden of proof with regard to whether notification was sent in good time.
In case of a defect in the goods we shall be entitled at our option subsequently to perform our obligations either by removing the defect or by delivering a different item which is free of defects. Should we decide to remove the defect, we shall bear all the expenses required to do this, provided that such expenses are not increased through the goods being taken to a place other than the point of destination after delivery.
lf subsequent performance does not rectify the situation, the purchaser shall be entitled at its option to cancel the contract or demand a reduction of the purchase price.
In case of defects for which we are responsible we shall only be liable for compensation within the limits of 5.4. Our liability shall remain unaffected in case of fraudulent concealment of a defect or liability arising from the assumption of a guarantee or procurement risk. A guarantee shall only exist if the declaration is expressly termed a „guarantee“ in writing. Specifications, product descriptions, indications of quantities, specimens, samples, directions for use or similar information are descriptions of the condition of the goods.
Any claims based on defects shall be subject to a limitation period of one year; the period of limitation shall begin to run upon delivery of the goods. Any exercise of the right to cancel the contract or demand a reduction of the purchase price shall also be excluded one year after delivery of the goods. These limitations shall not apply if we have fraudulently concealed the defect or are liable for damage caused intentionally.
The limitation period shall remain unaffected in case of recourse on the part of the supplier pursuant .lt shall run to five years after delivery of the goods.
The full extent of contractual liability for compensation is laid down in 5 and 7; any further liability for compensation shall be excluded. Tortuous liability shall also only exist within the limits of 5 with respect to the criteria for fault and the scope of the stipulated limitations on losses to be compensated.
Our legal representatives’, employees’ and vicarious agents’ personal liability for compensation shall be excluded or limited to the extent to which our liability for compensation is excluded or limited.
9. Retention of title
We will retain title to the delivered goods until all existing claims against the purchaser arising from the supplier contract and the ongoing business relationship have been discharged, even if such claims will only fall due in the future.
The purchaser shall be entitled to resell the retained goods in the ordinary course of business. As security for our retention of title, the purchaser shall with immediate effect assign all claims arising from any resale, regardless of whether the goods were resold without or following further processing. The purchaser shall remain entitled to collect the assigned claims; this shall not however affect our authority to collect the claims ourselves. We shall not collect the assigned claims provided that the purchaser meets its payment obligations from the proceeds received, does not default in payment and, in particular, no application has been made to commence insolvency proceedings and no suspension of payments is in effect. The purchaser shall support us in the collection of the sums due, in particular with respect to providing us with the required information.
Any processing or transformation of the retained goods by the purchaser shall in all cases be carried out on our behalf. Should retained goods be processed or inseparably mixed or combined with other goods not belonging to us, we shall acquire joint ownership of the new product in proportion to the final invoiced amount including VAT of the goods delivered under retention of title of the other processed or mixed goods at the point of processing or mixing. Should the goods be mixed or combined in such a way that the purchaser’s goods may be regarded as the main constituent, it is agreed that the purchaser shall assign its pro rata share of the jointly owned property to us. The purchaser shall hold the sole property or jointly owned property which has been created in this way on our behalf. In all other respects property which has been created by processing or mixing shall be treated in the same way as goods delivered under retention of title.
The purchaser shall notify us without delay if third parties claim or attach the retained goods. The purchaser shall reimburse the costs we incur in and out of court in connection with safeguarding our rights.
In case of breach of contract by the purchaser, in particular in case of default of payment, we shall be entitled to take back the delivered goods after setting a reasonable time limit. The requirement to set a time limit shall not apply in case of imminent danger. The act of taking back the goods shall simultaneously cancel the contract. We shall be entitled to use or sell any purchased goods we have taken back; the proceeds from using or selling the goods shall be allowed as credit against the purchaser’s liabilities after deduction of reasonable expenses involved.
We undertake to release the securities due to us at the purchaser’s request insofar as the value of the securities exceeds the claims to be secured by more than 20%; we shall select the securities which are to be released.