Terms and Conditions
Issue: June 2007
§ 1 General Scope
Our terms and conditions of trade apply to all current and future business relationships and contracts, in particular with traders and also with statutory corporations or public law entities with special public funds. (hereinafter known as “the Client”). Differing, conflicting or additional general terms and conditions of trade will not become part of a contract, even when we unreservedly make deliveries to the Client in knowledge of conflicting or differing terms and conditions, unless their validity is expressly agreed in writing..
§ 2 Conclusion of a contract
All information and descriptions of goods are subject to change. Documents forming part of our information and descriptions, including illustrations, drawings, details of weights and dimensions, are only approximate, unless expressly identified as binding; technical modifications as well as changes in shape, colour and/or weight are reserved, where this is reasonable.
By placing an order for a product, which must be a written order, the Client makes a binding declaration that he wishes to purchase the particular product. We are entitled but not obliged to accept the offer appearing in the order within two weeks from receipt thereof. Acceptance can either be notified in writing or by simply delivering the goods to the Client.
A contract is concluded subject to the correct and timely availability of supplies from our supplier. This only applies in the event that a failure to deliver cannot be ascribed to us, in particular where an appropriate agreement to guarantee coverage has been concluded with our supplier. The Client will be immediately informed should the performance not be available or possible. Consideration made will immediately be refunded. We retain the property title and copyright for quotations, drawings and other documents, which may not be made accessible to third parties. We undertake to make documents identified by the Client as confidential only accessible to third parties with the latter’s consent.
All agreements must be documented in writing; verbal agreements are only valid once confirmed in writing. This also applies to subsequent changes that the Client wishes to make, for which additional payment may be required.
§ 3 Retention of title
We retain the property title of the goods (the “Retained goods”) until we receive payment in full of all amounts outstanding under the ongoing business relation. The Client undertakes to take good care of the Retained goods. Where maintenance and inspection work is necessary, the Client must carry this work out at regular intervals at his own cost. The Client undertakes to immediately notify us of any attachment or seizure and like events of the Retained goods by third parties, as well as of any damage or destruction of Retained goods. The Client must immediately notify us of a change in ownership of Retained goods as well as a change of his domicile. In the event of a breach of contract by the Client, in particular late payment, or a breach of duty pursuant to clauses 2. and 3. of this article, we are entitled to withdraw from the contract and to reclaim possession of the Retained goods. Handling and processing the Retained goods by the Client always takes place in our name and on our behalf. Should processing be carried out, together with items that do not belong to us, we will become joint proprietor of the new item up to the value equivalent to the value of the Retained goods supplied by us for the processed items. The same applies when the Retained goods are combined with other items that do not belong to us. The Client will hold these in trust for us, free of charge. We undertake to release our securities upon the request of the Client, to the extent that the realisable value of our securities exceeds the secured payments by more than 20 %. We may choose the securities to be released at our sole discretion.
§ 4 Delivery
Compliance with our delivery obligations is subject to the timely and proper fulfilment by the Client of his obligations. The start of the lead time specified by us is subject to the clarification of all technical questions. Lead times and delivery deadlines specified by us are approximate, unless we have issued a written and explicitly binding commitment for a specific date. Lead times commence with the dispatch of the order confirmation, but not before the provision of the documents, approvals and clearances to be procured by the Client as well as before receipt of any agreed deposits/instalments. Unless agreed otherwise in writing delivery is made EX WORKS (INCOTERMS 2000). The lead time is deemed to have been met when the goods have left the plant or the Client has been notified of the readiness for dispatch, by the expiry date. The lead time is reasonably extended in the event of a strike or industrial dispute as well as in the event of unforeseen hindrances, e.g. breakdowns, delays in supplies of essential raw materials and auxiliary materials, fires or similar catastrophes, over which we have no control, but only where such hindrances demonstrably have a significant effect on the production or delivery of the goods. The same applies if the aforementioned situation arises at our supplier or sub-contractor. We are not responsible and liable if the aforementioned circumstances arise even if we are in delay with our performance at the time such event occurs.
Where we make a commitment in writing to binding fixed delivery dates and are responsible for them not being met or in case we are in delay with our performance, the Client is entitled – as soon as he can credibly demonstrate that this has caused him damages – to compensation for late delivery, up to a maximum of 0.5 % of the invoice value of the deliveries and services that are late, for every full week of the delay, with an aggregate maximum of 5 % in total. Any additional claims above and beyond this amount, in particular claims for damages, are excluded, except in cases where mandatory liability is established by law for deliberate intent, gross negligence or physical injury. The Client may only withdraw from the contract, within the framework of legal provisions, where we are responsible and liable for delays in deliveries. The foregoing does not include a change in the burden of proof to the detriment of the Client. For custom-made products, over and under deliveries of up to 10 % of the quantity ordered are permitted. Stricter restrictions only apply when agreed separately in writing. Production related discrepancies in terms of dimensions, contents, weights and colours, are permitted within the framework of normal commercial activities (mass-production). The same applies to discrepancies due to technical progress and the related further development of the product.
We are only in delay with our performance after the performance has fallen due and after receipt of a written default notice. Partial delivery is allowed. Every partial delivery is considered an independent transaction.
§ 5 Payment
The price stipulated by us is binding and applies, in the absence of a special agreement, ex-works including loading at the plant, but does not include packaging. All related charges and public duties, any new additional taxes and freight costs as well as increases in the latter, which directly or indirectly affect a delivery and increase the price, must be borne by the Client, unless legal provisions state otherwise. In the absence of a special written agreement, our invoices are due for payment within 30 days from the invoice date. In the event of late payment, the Client has to pay interest at a rate of 8% above the basic rate of interest. We retain the right to claim actual damages are a higher rate.
The Client only has the right to offset payments, when his counterclaims have been established by non-appealable court ruling or are recognised by us. The Client only has the right to withhold his performance for any legal reason where counterclaims are undisputed or have been established by non-appealable court ruling. The payment obligations becomes due independently of the delivery thereof and independently of any claims that the Client may have based on a defect of the goods. Deduction of discount requires a separate written agreement.
§ 6 Transfer of risk
Unless stipulated otherwise in the order confirmation, the risk of loss or damage of the goods transfers to the Client on handover, for mail order purchases on delivery of the item to the carrier, freight forwarder or other person or establishment entrusted with shipping, notwithstanding the fact that it may concern partial deliveries or that we have undertaken to provide other services or to pay for transportation. Handover will be deemed to have taken place, even when the Client is late accepting a delivery.
§ 7 Warranty
The warranty period commences on the invoice date, and at the earliest on the day that the risk is transferred to the Client. The decisive moment for the contractually agreed characteristics of the goods is the time when they leave our plant or distribution centre. For goods defective at the moment that the risk transfers we provide, at our discretion, free of charge repair or replacement. The Client must allow us a reasonable period to make a replacement delivery or to carry out the repair. Should the Client deny us the right to remedy the situation within a reasonable period, we are released from the liability for implied warranty (gesetzliche Gewährleistung). Should we make a delivery of a replacement in order to remedy a defect, the Client must return the defective good(s) to us. The Client must notify us in writing of obvious defects within a period of two weeks from receipt of the goods; otherwise no warranty claims may be made. Timely dispatch of the notification is sufficient to comply with this time line. The Client bears the burden of proof for all conditions of entitlement, in particular for the defect itself, for the time at which the defect was noticed and for timely notification of the defect. Notifications of defects do not entitle the Client to withhold payment of the purchase price or a part thereof or to offset payments against counterclaims, unless this entitlement is established by non-appealable court ruling or recognised by us in writing. We can refuse to remedy a defect, if the Client fails to fulfil his obligations to us. Should we not take action, fail to remedy the problem or to provide a replacement within the reasonable period that has been granted to us the Client may, at his discretion, require the invoice to be reduced (reduction) or the contract to be cancelled (withdrawal). In the event of a minor contractual infringement, in particular relating to a non-material defect of the good(s), the Client does not have the right to withdraw from the contract. Should the Client choose to withdraw from the contract, because of a defect in quality or title, and following a failure to remedy a problem, he will not be entitled to make a claim for any additional damages because of the defect. Should the Client choose to recover damages, following a failure to remedy a problem, the goods will remain with the Client where this is reasonable. Damages are limited to the difference between the purchase price and the value of the defective item. This does not apply when we have deceitfully caused a breach of contract. The warranty period for export orders (i.e. orders for which delivery is made outside of Germany) is six months, subject to timely notification of a defect by the Client. Solely the product description provided by us is agreed as the document used to define the characteristics of the goods. Public statements, promotional or advertising materials do not represent a contractual description of the characteristics of the goods. It is not a defect and no liability exists for damages due to negligible differences from the agreed and/or typical characteristics, minor interference with contractual or normal usability, natural wear and tear or damages, which arises after the transfer of risk because of inappropriate or incorrect use, incorrect assembly or commissioning by the Client or a third party, natural wear and tear, incorrect or careless handling, excessive strain, unsuitable materials, replacement materials, defective construction work, unsuitable foundations, chemical, electrochemical or electrical effects, where these cannot be attributed to fault on our part. No liability will be assumed in particular for exhaust systems, which are modified or altered by a reseller, purchaser or other customer (by welding or other processing). Claims by the Client for costs, in particular for transport, shipping, handling, labour and materials, relating to repair or replacement of a defective good are excluded, where the goods have been placed at a location other than the Client’s place of business or the delivery address. Should the Client receive incorrect assembly instructions, we are only obliged to supply correct assembly instructions and only on the condition that proper assembly of the goods is prevented by reason of the improper descriptions and instructions of the deficient assembly manual. The Client’s right of redress is always limited to the statutory provisions of the law for delivery of defective products notwithstanding the fact that the Client may have made other or further arrangements in his agreements with his customers. We do not provide any warranty agreements (selbstständige Garantie¬versprechen) unless we have agreed so in writing. Claims for damages are governed by § 8 (other claims for damages). Additional or complementing claims, or claims other than those outlined in this clause, by the Client against us and our vicarious agents because of a defect of the goods delivered are excluded. Only our direct Client is entitled to claims relating to defective products. Such claims cannot be assigned and/or transferred without our prior written consent.
§ 8 Other claims for damages
Claims for damages and the reimbursement of expenses (hereinafter known as “claims for damages”) by the Client, on whatever legal basis, in particular because of a breach of contractual obligations or tort (unerlaubte Handlung) are excluded. This does not apply in so far as liability is statutory established by law, e.g. strict product liability, in cases of deliberate intent, gross negligence or physical injury, or because a legal guarantee has been given regarding the existence of a particular characteristic or a breach of material contractual obligations. Compensation for damages due to breach of material contractual obligations is nevertheless limited to foreseeable, contract typical, direct damages, unless liability exists for deliberate intent or gross negligence, or physical injury or because a legal guarantee has been given regarding the existence of a particular characteristic of the good. The aforementioned clause does not include a change in the burden of proof to the detriment of the Client. Where the Client is entitled to make claims for damages pursuant to this clause, these lapse at the end of the limitation period for material defect claims pursuant to § 7, unless there is deliberate intent. As regards claims for damages pursuant to strict product liability, the legal statute of limitations applies.
§ 9 Tools and moulds
Tools and moulds remain our property, even when the Client has born all or some of the costs thereof.
§ 10 Final provisions
This contract is governed by the law of the Federal Republic of Germany. The terms and conditions of the United Nations Convention on Contracts for the International Sale of Goods do not apply. If the Client is a trader, a statutory corporation or public law entity with special public funds, the place of jurisdiction for all disputes arising from this contract, at our discretion, is our registered office. The same applies when the Client does not have a general place of jurisdiction in Germany or his domicile or usual residence are not known at the time when legal proceedings are instituted. We are nevertheless entitled to file a suit at the competent court at the Client’s registered office. Should individual clauses of the agreement with the Client, including these general terms and conditions of trade, be or become entirely or partially invalid, this will not affect the validity of the remaining clauses. The completely or partially invalid clause should be replaced by a clause, whose commercial effect mirrors as closely as possible that of the invalid clause.