General Terms and Conditions for Sale and Delivery
- These General Terms and Conditions for the Sale and Delivery of Goods shall only apply to natural persons, entities or partnerships with legal personality acting in their commercial or self-employed capacity (entrepreneurs) at the time the contract is concluded.
- Our General Terms and Conditions of Sale and Delivery shall exclusively be applicable; customer’s terms adverse to or deviating from our terms of sale shall not be acknowledged by us, unless we have explicitly given our written consent to the validity of said terms. Our General Terms and Conditions of Sale and Delivery shall even be applicable in the event that we carry out customer’s order without any reservations, although being aware of customer’s adverse or deviating terms. Our General Terms and Conditions of Sale and Delivery shall also be applicable for all future transactions with the customer without any need of express reference thereto or agreement thereon at the conclusion of such transaction:
- All contractual relations between us and the customer as well as these General Sale and Delivery Terms are construed under and governed by German Law. The provisions of the UN Convention for the International Sale of Goods from April 11, 1980 (CISG) are applicable if the customer is not situated in the country of our place of business. English legal terms shall have the meaning ascribed to them under German law.
- If any term or condition of these General Terms and Conditions of Sale and Delivery is or becomes fully or partially void, the validity of the other terms and conditions remain unaffected.
- All agreements (orally, by phone or telegraph, by e-mail or fax) made between us and the customer in expectation of the contract are subject to our written confirmation to become effective; the same also applies to side agreements and other commitments.
- Our offer is non-binding and subject to change. Customer’s order shall be a binding offer. The contract is concluded by delivery of our written order confirmation within ten days as from receipt of the order or by delivery of the ordered goods to the customer within said term (acceptance). In case of orders for goods to be delivered on demand (release orders), customer undertakes to accept the delivery ten months after placing the order at the latest, unless another agreement has been made; customer’s request for delivery needs to be made in due time, but at the latest four weeks before delivery.
- Orders confirmed by us can be cancelled by the customer only for important reasons. The right to withdraw from a contract pursuant to statutory provisions and agreed terms and conditions shall not be affected. This applies particularly to orders for successive deliveries, framework agreements or orders for goods to be delivered on demand.
- The customer may not transfer or assign any of its rights accruing from our contractual relationship to any third party without our prior written consent; such consent not to be withheld unreasonably. The provision of § 354a HGB (German Commercial Code) remains unaffected.
Intellectual Property Rights
- The right of ownership and copyright of illustrations, drawings and calculations as well as of other documents provided by us are reserved to us; these must not be made accessible to third parties. This applies particularly to written documents which are designated as “confidential”; passing on said documents by the customer to third parties is subject to our explicit written consent.
- As far as we have to supply products according to drawings, models, samples, tools, calculations or illustrations handed over to us by the customer, the latter shall assume liability towards us that by the production and delivery of said products no intellectual property rights of third parties are infringed. In such a case we shall not be responsible to review whether the tools to be made by us and the products to be produced by means of these tools infringe any intellectual property rights of third parties in Germany or abroad; this falls rather within the customer’s exclusive scope of responsibility.
- As far as we are prohibited by a third party – making reference to an intellectual property right which belongs to said party – from producing or supplying products manufactured according to drawings, models, samples, calculations, illustrations or tools of the customer, we shall be entitled – without any obligation to review the factual and legal situation – to stop the production and delivery, excluding any claims for damages on the part of the customer, and to demand refund of the costs incurred and compensation for lost profit.
- The customer undertakes to hold us harmless immediately on our request from any damage claims asserted by third parties. Customer shall make to us an adequate advance payment for all direct and indirect damages resulting from an infringement and assertion of possible intellectual property rights, including the expenses for consultations and proceedings incurred by us.
- Samples or drawings made available to us will only be returned on request. In the event that no contract is concluded, we shall have the right to destroy samples and drawings at the end of three months after delivery of our offer.
Prices and Payment
- As far as not otherwise stated in the order confirmation, our prices are understood to be “ex works”, excluding freight and packaging; this will be invoiced separately. In case of freight free return of boxes and multi-use packaging, a credit note of 2/3 of the sum invoiced will be issued. The rent for hired railway-containers shall be paid by the customer.
- Our prices are understood to be exclusive of the statutory value-added tax, which shall be added in the amount valid on the date of invoice; VAT shall exclusively be shown in the invoice.
- In contracts with continuing obligations prices are subject to change. The prices are calculated on the basis of the price and discount structure negotiated in each case with customer. In the event of an increase of wages or prices for material at least three months after the date of the order confirmation, we shall be entitled to pass on the increased expenses for wages and/or material to the customer, if they are not compensated by decreases of other costs reflected in the price structure. Accordingly we will pass on to the customer decreased expenses for wages and/or material. The customer shall furthermore accept that we are entitled to an increase of prices if the execution of the order requires – particularly in case of first supply – additional substantial production phases and tools which according to generally accepted codes of practice were unforeseeable and therefore not included in the pre-calculations being the basis for the stipulation of prices and negotiations as apparent to the customer. Price increases as defined by sentences 2 and 3 shall take place pursuant to §§ 315, 316 of the German Civil Code (BGB). The customer in such a case has an extraordinary termination right with regard to work not yet performed. Work performed has to be reimbursed.
- For lack of explicit written agreement, the payment has to be made to us net cash, i.e. without any deductions. Differing terms of payment are subject to written agreement with us. This applies in particular to longer periods for payment and to payment by bill or payments by bill / cheque. Cheques and bills shall only be accepted under the condition of effective payment, invoicing to the customer all charges for collection and discount. No liability shall be assumed for presentation in due time and for protest. C.O.D. charges shall be borne by customer.
- Cash discount shall only be granted in writing. As far as cash discount has been granted, this refers only to the price of the goods excluding additional expenses.
- If several debts are overdue, we shall have the right to determine the order of repayment.
- As far as not otherwise stated in the order confirmation, our invoices fall due for payment immediately after receipt. 14 days after due date and receipt of invoice the customer comes in arrears. § 286 sect. 3 of the German Civil Code remains unaffected in other aspects.
- In the event that the customer fails to pay in due time, we shall be entitled to demand default interest exceeding by 8% the applicable basic interest rate as defined by § 247 of the German Civil Code. We shall have the right to assert a higher loss of interest which will have to be proved by us. Assertion of additional damages caused by delay is still reserved. Rebates and/or price reductions conceded for the respective payments shall not apply in case of default in payment and collection becoming necessary or in case of payments are stopped by the customer.
- All payments have to be made in Euro to us and not to our commercial agents.
- The customer shall only be entitled to exercise a retention right or a setoff if his counterclaim is based on the same contractual relationship.
- The delivery period stated by us shall only start to run provided that technical issues have been clarified with the customer and – if this has explicitly been stipulated – all agreed down payments have been received; it shall on no account start to run before receipt of all documents, drawings, calculations and components the customer has to provide and which are necessary for the execution of the order. In the event that type sample need to be supplied, all delivery periods for the serial supply shall start to run on acceptance of the type samples.
- Delivery periods stated by us shall only be binding if these are explicitly designated by us in writing to be binding. Obtaining supplies ourselves is a prerequisite for the observance of delivery periods. Information about emerging delays will be given by us immediately. In case the goods cannot be obtained or only partially and we are not responsible for this, we have the right to rescind the contract. We will inform the customer immediately and restitute any prepayments of the customer immediately.
- Observance of our obligation to supply requires perfect fulfillment in due time of all obligations on the part of the customer.
- In the event that the customer gets into default of acceptance or infringes other duties to cooperate, we shall be entitled to demand compensation for the damage caused to us, including possible additional expenditures. In such case, the risk of accidental loss or deterioration of the delivered product shall also pass to the customer at the moment at which the latter gets into default of acceptance.
- In the event that collection of the goods by the customer himself or on his behalf has been agreed, but collection does not take place within one week after notification of the goods being ready for dispatch, we shall have the right to deliver the goods at customer’s expense and the customer is obliged to accept the goods supplied by us. The customer shall get into default of acceptance according to section 4 at the latest at the moment of not accepting the goods supplied according to section 5 sentence 1.
- Force Majeure exempts us from performance of the contract for the duration of the impediment; in the event of a duration of more than six months both parties shall have the right to cancel the contract. Force Majeure shall also include accidents and other causes non-foreseeable or non-avoidable by us which result in a postponement of our production start or a partial or complete stop of work, such as non-foreseeable or non-avoidable lack of material and/or fuel, problems of transport, difficulties in energy supply, disorders in the own enterprise or in subcontractors, as well as delayed supply of raw materials, tools and machines for the ordered manufacturing.
Passing of risk, Delivery
- Unless otherwise stated in the order confirmation, delivery is agreed to take place “ex works”. We use to forward the goods at customer’s expense and risk even in case of freight free delivery and transport by vehicles of our own firm.
- Packaging and dispatch shall be made to the best of our discretion; we shall only be liable pursuant to section IX.
- The goods and/or the transport thereof shall be insured by us according to the customer’s instruction and at the customer’s expense. The customer shall be responsible for the regulation of transport damages or losses.
- Partial deliveries are permissible to an extent which is reasonable for the customer, unless otherwise stated in our order confirmation. In case of a partial delivery contrary to the contract, a right to cancel the agreement shall only exist after the expiration of an appropriate period for performance or subsequent fulfillment and only as far as the customer makes clear not to have any interest in a partial performance.
- The customer must not export our products out of the EU without our previous written consent; this explicit consent is not required if the destination of the products coincides with customer’s invoice address. The customer shall take care that this provision is accordingly observed by his own clients.
Components supplied by or on behalf of the customer
- In case additional parts and/or additional packaging (e.g. pallets or molded shells to be provided by the customer) are supplied by the customer, the latter undertakes to deliver these to our plant cost-free with a reserve in quantity of 5 – 10% for possible refuse or additional production, in due time, in perfect conditions and in such quantities that a continuous processing in our plant is possible.
- In the event that said additional parts are not supplied in due time or in sufficient quantity, the customer undertakes to refund additional costs incurred by this and to compensate the damages caused to us. In such cases we reserve the options to interrupt the production and to continue at a later time or, after timely having informed the customer about our needs, to buy the needs on our own and to charge the customer with the additional costs. In such case, all delivery periods shall be considered to have been cancelled.
- The agreed quality, nature and condition of the goods forms the basis of our warranty obligation. Product descriptions and directions for assembly, use and maintenance handed out to the customer before his order or incorporated into the contract are regarded as such agreement on quality, nature and condition of the goods. Only if such quality, nature and condition of the goods has not been agreed, any defects of the goods have to be assessed according to the legal provisions.
- Warranty shall be assumed by us for defects that exist at time of delivery. We assume warranty for the functioning of our products in accordance with the conditions described in the instructions for assembly, use and maintenance and provided proper assembly, use and maintenance. In the event that no instruction for use was included into the delivery, this will subsequently be delivered to customer immediately on his request. Parts exposed to pressure need only to be checked for density in our plant if this has explicitly been agreed in writing.
- The customer’s warranty claims are subject to due fulfillment of his obligation to examine the goods and to give notice of defects pursuant to § 377 of the German Commercial Code, respectively Art. 38, 39 CISG; the customer himself shall be responsible for all costs incurred by a receiving inspection. Apparent defects can only be notified to us within seven days as from passing of risk to the customer, i.e. in writing and exactly specifying the asserted defects. Other defects have to be notified immediately after their detection. Persons charged by us with the examination of defects are not entitled to recognize defects with binding effect for us.
- We are only obliged to handle warranty claims of our direct customer. In case the direct customer has sold the goods to a third party, such third party has no direct warranty claims towards us, unless we agreed differently in an end-customer guarantee or other written agreement. If our direct customer asks us to handle the warranty claims with his customer and we agree to that, we reserve our right to claim compensation of our expenses and working hours, especially if the warranty claims prove unjustified.
- The customer shall hand out the defective goods to us for examination upon our request. In the event that a deficiency claim turns out to be justified, we shall have the choice to render subsequent performance by way of repair of the defects or substitute delivery. Alternatively, we can agree with the customer on a reduction of the purchase price; in case of long lasting business relations the reduction of the purchase price can be made by issuing a credit note for defective goods. In case of subsequent performance we undertake to bear all expenditures necessary for the repair of the defects or of the substitute delivery, in particular the expenses for transport, fares, work or material, subject to our right to refuse disproportionate high expenses, e.g. in case of transport of the goods to a location other than the place of performance. or agreed place of destination. If the goods have been built into another object according to their intended purpose, we have the choice to remove the defective goods ourselves or to reimburse customer’s expenses for the removal, subject to our right to reduce disproportionate expenses.
- In case of failure of the subsequent performance, the customer shall have the right – according to his choice – to cancel the contract or to reduce the remuneration in the amount by which the defect diminishes the value of the defective product compared to the remuneration. The subsequent performance shall be considered to have failed after two unsuccessful attempts.
- In the event the customer asserts claims because of a quality missing which has been explicitly and unrestrictedly guaranteed by us, we shall be liable pursuant to the statutory provisions. Guarantees are only given by us in writing and designated as such. As for the rest, we shall only be liable pursuant to section IX.
- In case of faulty deliveries, the customer undertakes to pay the undisputed and faultless part of the delivery plus expenses for transport and packaging as well as the proportionate VAT.
- In the case of faulty deliveries, the customer must pay for the undisputed defect-free portion of the delivery plus the costs for transport and packaging and proportional VAT.
- Claims relating to defects shall become statute-barred within 24 months after transfer of risk. This period does not apply, if § 438 section 1 no. 2 German Civil Code (buildings and goods integrated in buildings) or § 479 section 1 German Civil Code (delivery regress) apply and the statutes regulate longer periods and in cases where we can be charged with malice or intent, non-fulfilment of an unrestricted guarantee on durability of the goods or damages to life, limb or health.
- In cases not covered by our warranty obligation according to section VIII, we shall be liable for compensation of damages towards the customer only in the following cases:
- infringement of essential contractual duties, meaning duties which endanger the achievement of the contract purpose, at least resulting from our simple negligence,
- intentional or grossly negligent infringement of contractual duties which are not essential contractual duties,
- the culpable violation of life, body or health,
- defects which have maliciously been concealed by us or which we have unrestrictedly guaranteed not to exist,
- defects of the goods, if and as far as liability is assumed pursuant to the applicable product liability law.
- As far as no gross negligence of the general management or of executive employees is concerned, the obligation to compensate damages shall be limited in events according to section IX. 1.a) or b) to the damage which is foreseeable and typical for the contract.
- The customer shall only be entitled to demand compensation for damages instead of subsequent performance after having granted to us an adequate grace period for performance or subsequent performance; said grace period shall at least be four weeks. The same applies to the right to rescind the contract.
- As far as our liability is excluded or limited, the same applies also to the personal liability of our employees, colleagues, agents and persons employed in performing the contractual obligations.
- All contractual claims for damages shall become statute-barred within 24 months after transfer of risk. This period does not apply, if § 438 section 1 no. 2 German Civil Code (buildings and goods integrated in buildings) or § 479 section 1 German Civil Code (delivery regress) apply and the statutes regulate longer periods and in cases where we can be charged with malice or intent, non-fulfilment of a unrestricted guarantee on durability of goods or damages to life, limb or health.
- In cases not covered by our warranty obligation according to section VIII, we shall be liable for compensation of damages towards the customer only in the following cases:
- The expenses for tools, which might be stated in our offer or in our order confirmation, only show a part of the labor and material costs, which are actually to be apportioned to the tools’ costs and have therefore to be considered as target prices. By payment of said quota of the tool’s costs, customer shall not acquire ownership or title in the tools or any claim for the transfer of ownership in the tools. These shall rather remain in our property and in our possession.
Reservation of title and security interests
- We reserve title of the goods until complete payment of all accounts receivable to which we are entitled to now or in future as a result of the business relationship with the customer.
- In case of acting in breach of the contract on the part of the customer, and in particular in case of default in payment, we shall be entitled to take back the goods. Taking back the goods shall not mean cancellation of the contract by us, unless this has explicitly been declared by us in writing. Seizure of the goods by us shall always mean cancellation of the contract. After taking back the goods, we shall have the right to make use thereof. The proceeds resulting from the utilization shall be offset from the customer’s outstanding liabilities, deducting adequate costs of the utilization.
- The customer undertakes to treat the goods carefully; he is in particular obliged to insure these at own expense sufficiently at the original value against damages by fire, water and theft.
- The customer is entitled to resale and further dispose of the goods in the normal course of business. The installation in grounds or in buildings connected to plants or the utilization for fulfillment of other contracts for services or for work done and material supplied are equivalent to further disposal.
- Already now the customer assigns to us at the sum of the total of the invoice (VAT included) agreed with us all accounts receivable achieved by further disposal to his customers or to third parties, irrespective whether the goods have been sold without or after having been processed. The customer shall be entitled to collection of said accounts receivable also after assignment. Our authorization to collect the account receivable ourselves shall not be affected by this. Nevertheless, we undertake not to collect the receivable as long as the customer fulfils his payment obligations resulting from the proceeds collected, is not in default of payment and as long as no application for opening of an insolvency procedure has been filed or payments have been stopped. If this, however, should be the case, we can demand that customer discloses to us the assigned accounts receivable and the debtors thereof, gives all information necessary for collection and notifies the debtor (third party) of the assignment.
- Processing or reshaping of the goods by the customer shall always be made for us; we shall in particular be considered as manufacturer as defined by § 950 of the German Civil Code. Customer’s contingent right to the goods shall be continued with the new or reshaped physical object. In the event that the goods are connected or processed with other physical objects not being our property, we shall acquire co-ownership of the new physical object in the proportion of the real value of our goods to the other connected or processed objects at the time of connection or processing. As for the rest, the same shall apply to the physical object resulting from connection or processing as to the goods supplied under reservation of title.
- In the event that the physical object supplied is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new physical object in proportion of the real value of our physical object to the other mixed object at the time of mixture. If the mixture is made in such way that customer’s physical object needs to be considered to be the main thing, it is deemed to be agreed that customer transfers to us co-ownership on a pro rata basis. Customer shall hold in custody for us the sole ownership or co-ownership, which has thus been created.
- The customer shall also assign to us the receivables to secure our claims towards him resulting from the business relationship, which are created towards a third party by connection of the goods to a piece of real property.
- As far as the customer is entitled to claims towards insurers or third parties as a result of damaging, diminution, loss or destruction of mortgaged property or for other reasons, the customer already now undertakes to assign in advance to us said claims.
- The customer undertakes to inform us immediately in writing about seizures by third parties of reserved goods or assigned claims, in particular seizures. In such case the customer has to send to us immediately a copy of the bailiff’s record and an affidavit about the identity of the goods seized. As far as the third party is not in a position to refund to us the judicial or extrajudicial expenses of our prosecution or defence, in particular an action as defined by § 771 of the German Civil Procedure Code, the customer shall be liable towards us for the loss resulting from this.
- On customer’s request we undertake to release the securities to which we are entitled, as far as the realizable value of our securities exceeds the claims to be secured by more than 20% or the nominal value of the securities by more than 50%; the choice of the securities to be released is within our scope of responsibility.
- In countries where a right similar to this reservation of title does not exist, customer shall grant to us – where possible even at this stage, otherwise upon first request – the comparable kind of security in the country concerned and shall cooperate in the additional measures, which are necessary to establish appropriate securities.
Places of Jurisdiction and Performance
- Exclusive place of jurisdiction shall be at the courts competent at our place of business; we shall nevertheless have the right to sue the customer also at his place of business or court of his place of residence.
- Unless otherwise stated in the order confirmation, our place of business is the place of performance for all obligations resulting from the contractual relationship.
Ahlen/Germany June 2019