§ 1 Scope
- These Sales Terms apply exclusively to entrepeneurs, legal entities of public law or those of separate assets as defined in Section 310, Clause 1 BGB (German Civil Code). Any contradictory or deviating terms and conditions from Buyers referred to in transactions are only recognized if given written consent from our side.
- These Sales Terms also apply to all future business transactions with the Buyer, as far as these transactions are related, even without repeated announcements.
- By placing an order The Buyer recognize and accept our Sales Terms.
- All collateral agreements, especially those expressed verbally, as well as telephone orders, shall only be binding by us if confirmed in writing. Oral agreements prior to conclusion of contracts, which are not confirmed in writing, are hence ineffective.
§ 2 Offers and Conclusion of Contract
- Provided an order is regarded as an offer according to Section 145 BGB (German Civil Code), we can accept it within two weeks.
- Our offers are subject to change without notice in regard to price, quantities, terms of delivery as well as to delivery possibilities.
- Any order shall become binding upon us only if confirmed in writing from our side.
- Sales according to samples guarantee only a professional trial moderation, in which warranties of any suitability for use will not be accepted. Illustrations, drawings, itemized lists, brochures, etc. of our products and data contained within shall be regarded as approximative, unless it is expressly stated that they are binding. Changes in design, form and execution, which essentially do not impair the purpose of use, do not entitle to any complaint or withdrawal.
§ 3 Provided Documentation
We shall retain intellectual property rights and/or copyrights to all documentation – also in electronic form – provided to the Buyer upon order placement, like cost estimates, drawings, application proposals, etc. The above mentioned documentation may not be made accessible to third parties, unless we expressly grant our written consent to the Buyer. In case we do not confirm the offer within the period of time mentioned in Section 2 Number 1 of this contract, these documents are to be returned to us immediately.
§ 4 Price and Payment
- If nothing to the contrary has been expressly agreed in writing, all our prices shall be ex works, excluding packaging. Valued added tax will be added at the statutory rate. Packaging costs are not included and will be charged separately.
- Payment of the purchase price has to be made exclusively to the account named on the letterhead.
- If prices are generally raised during the period between conclusion of contract and delivery for longterm supply agreements, the price according to the current valid price list shall be applied. For single orders the Buyer has the right to step back from the contract within two weeks after being informed of a price raise. All this does not apply if alterations in price are due to changes in the relevant value added tax regulation.
- We only grant cash discount in case of prior explicit written agreement. No deduction of discount shall be permitted as long as there are any outstanding unsettled purchase price claims on older invoices. Likewise, a cash discount may not be deducted if payment is made by bill of exchange.
- We are not obliged to accept bills of exchange or cheques. The acceptance shall be only effected on account of payment. By accepting bills of exchange, any bank transaction costs or collection charges will be invoiced. These are due for immediate payment without any deduction.
Unless otherwise agreed upon, the purchase price is due within 30 days of date of invoice.
- If the Buyer is in delay of payment we shall be entitled to claim interest for late payment according to statutory regulations defined in Section 288 BGB (German Civil Code). We explicitly reserve the right to assert claims for higher amounts of default compensation.
- If there is reasonable doubt that the claim for payment is in jeopardy due to lack of liquidity of the Buyer, or should the Buyer be in arrears with invoices due, we are entitled to release further supplies only against concurrent payment (Zug um Zug gegen Zahlung) or lodging of a security. We are not obliged to offer our products on site against concurrent payment. A written offer against concurrent payment justifies the Buyer´s default on acceptance, provided that the Buyer does not lodge a security in the amount of the value of the merchandise.
§ 5 Set-off, Suspension
- The Buyer is entitled to exercise a set-off or suspension only if his counter-claim is based on the same contractual relationship and is undisputed, ready for decision or legally enforcable.
- Offsetting on behalf of the Buyer will be excluded unless the counter-claim has not been legally enforced or put ready for decision or has not been undisputed.
§ 6 Dispatch and Passing of Risk
- Dispatch takes place at our choice, on the account and risk of the Buyer. This applies also for carriage prepaid, FOB or CIF dispatches.
- If the item is sent to the Buyer by his request, the risk of accidental loss or deterioration of the delivered item will pass to the Buyer when leaving the plant or the warehouse at the latest. This applies regardless of whether the dispatch is made from the place of performance or regardless of who bears the freight costs. We are not responsible for transport hindrances of all types.
§ 7 Packaging
We will only take back packaging delivered by us if we are obliged by statutory regulations and no dispensation from disposal associations or local communities is granted for such purpose.
§ 8 Delivery and Contract Obstacles
- Hindrances that are not our fault, particularly all cases of force majeure, operational interruptions, works interruptions, prevented supply of raw materials, auxiliary materials and energy supplies, the absence of loading facilities, official measures, strikes, lock-outs and similar, exempt us from the obligation of delivery for their duration of their effects. If the hindrance lasts longer than eight weeks, each party can withdraw from the contract, any further claim being excluded. In case of partial deliveries the aforementioned provision applies correspondingly for the still outstanding parts. In case the delivery cannot be made by us due to a sub-supplier not delivering, we are not obliged to supply by a third party. We are entitled to divide available stock into the existing orders according to equitable discretion.
- Delivery dates are subject to confirmation, unless another arrangement has been expressly agreed to in writing. If in any individual case, a fixed delivery date is agreed upon and if we shall be deemed in default of delivery, the Buyer can set an appropriate deadline explicitly mentioning that he refuses acceptance of the supply after the expiry of the additional period or he shall withdraw from the contract. As a rule, a reasonable period of grace will be 20 days.
- The provisions under (2) above apply correspondingly provided that we are obliged to replace the merchandise due to a defect for which we are responsible for and do not carry out a replacement delivery within a reasonable extension period.
- In case delayed delivery or impossibility to supply is our fault, claims for comüpensation due to negligence are excluded. Any liability for damages and subsequent damages is limited to the amount of the particular order by the Buyer.
§ 9 Customized Orders, Small Lots
- For customized orders of small lots, we are entitled to request a surcharge according to an individual price calculation as well as to invoice separately non-standard packing charges.
- In case of customized orders, we are also entitled to exceed or reduce quantities by 20% from the agreed amount in the contract.
§ 10 Warranty, Notice of Defects and Recourse
- Warranty claims of the Buyer require that the Buyer has duly complied with his obligations to examine and complain according to Section 377 of the German Commercial Code (HGB), at the latest however within eight days.
- Warranty claims based on defects shall become statute-barred 12 months after delivery to the Buyer of the goods supplied by us. For claims for damage in cases of gross negligence and intent as well as for damages to life, body or health, when these are based on a deliberate or negligent breach of duty by the user, the statutory limitation period shall be applied.
- If, in spite of all due care, the shipped product has a defect, which was already present at the time of the transfer risk, we shall, at our discretion and subject to on-time notification of the defects, repair the goods or supply replacement goods. The opportunity to carry out repairs within an appropriate period is always to be given to us. Recourse claims shall remain unaffected by the above regulation without restriction.
- Defect claims do not apply if there is only a minor deviation from the agreed nature of the goods or for minor impairment of the service ability of the goods, or due to immaterial impairment of the usability, or in cases of natural wear and tear, as well as for damage occurred after the passing of risk due to improper or careless handling, excessive loads, unsuitable equipment, imperfect workmanship, unsuitable building ground or by reason of extraordinary external influences not specified in the contract. Likewise, if repair work or modifications are carried out improperly by the Buyer or by a third party, claims for defects and any consequences resulting thereof, cannot be asserted.
- Claims asserted by the Buyer on account of the expenditure required for rectification, in particular, transport, travel and labour costs and costs of materials, are excluded to the extent, that such expenses might increase because the goods delivered by us have subsequently been transported to a location other than the Buyer's place of business, unless such transport is consistent with the goods' intended use.
- The Buyer has rights of recourse against us only in so far as the Buyer has not reached any agreements with his client which go beyond the mandatory, statutory warranty claims. In addition, item 5 shall be applied correspondingly to the scope of the right for recourse of the Buyer against the supplier.
- Claims for damages caused by slight negligence are excluded, unless they are contrary to a fundamental contractual obligation, whereby the intent of the contract is endangered. This also applies to the agents acting on our behalf.
- We are only liable for indirect and/or consequential damages if we or agents acting on our behalf are guilty of gross negligence or intent. In these cases, our liability is limited to the value of the defective goods delivered.
§ 11 Retention of Title
- We retain ownership of the delivered item until all receivables arising from the delivery contract have been paid in full (including but not limited to costs arising from currency exchange, financing costs and interest). This also applies to all future deliveries, even if we do not constantly and expressly refer to this fact. In the event of breach of the contract by the Buyer, we shall be entitled to take back the goods supplied.
- The Buyer has the right to process, to install or to reform the subject of delivery within his normal business transactions. The retention of title also remains effective even if the goods are processed, reformed or linked with another product which does not originate from us. In the latter case, co-ownership on a pro-rata basis shall arise for us in accordance with Section 947 Clause 1 BGB (German Civil Code). The same is valid for the case of any mixture. Insofar as the mixing occurs in such a way, that the item from the Buyer is to be regarded as the main item, it shall be deemed that the Buyer shall transfer joint title pro rata to us and shall keep the thus formed sole ownership or shared ownership on our behalf. To secure our claims against the Buyer, the Buyer also assigns to us such claims accruing to him from combination of the goods subject to retention with real property against a third party; we already accept this assignment with immediate effect.
- We commit to release securities we are entitled to to the Buyer upon demand, in so far as the realizable value exceeds the receivables secured by more than 20 per cent.
- In the event that the retained product is pawned by third parties, the Buyer has the duty to immediately notify us.
- In case of serious doubts as regards the Buyer's financial solvency or his default of payment as well as in case of an application for insolvency proceedings, we shall be entitled to claim back the goods at any time, also without any notification of a grace period or declaration of withdrawal from the contract to an extent as deemed necessary to cover all our payment claims. For this purpose, we are entitled to enter the premises of the Buyer to reclaim the goods.
§ 12 Trademark Rights
- Drawings, samples and drafts shall remain our property and may not be further used or made available to third parties. Orders based on drawings, sketches or other data provided to us will be executed at the risk of the Buyer regarding patent rights, samples and trademarks. If by performing such orders we shall breach trade mark rights of third parties, the Buyer shall bear the emerging damages.
- With the purchase of our goods no license to use patents or utility model rights is granted.
§ 13 Non-acceptance of Ordered Goods and Returned Goods
- In case of non-acceptance of ordered goods, we are entitled to demand a lump sum amounting to 30 percent of all expenses already incurred and any lost profit as well as an adequate sales commission. Hereby, the assertion of any further damage against proof shall not be excluded. The Buyer is permitted to provide evidence that the claimed damage was not incurred or occurred only to a lesser extent than the claimed in the demand for the lump sum amount.
- In the event that the Buyer returns the parts without any defects, a rewarehousing fee in the amount of 15% of the value of the goods shall be charged.
§ 14 Other Provisions
- This contract, as well as the entire legal relationship between the parties, is subject to the law of the Federal Republic of Germany at the exclusion of United Nations Convention on Contracts for the International Sale of Goods (CISG).
- The place of performance is our place of business in Altheim.
- The exclusive legal venue for settling any and all disputes arising from this contract is Landshut.
- All agreements that are concluded between us and the Buyer for the purposes of executing this contract are contained in writing in this contract.
Version December 2019