General Terms & Conditions (GTC)
I . Scope
Our General Terms and Conditions as stated below shall apply to all of our offers, orders, sales, deliveries, and services of any kind. Our Sales Conditions shall apply exclusively. Diverging, conflicting, or supplementing general terms and conditions shall become part of the agreement only if we have accepted such general terms and conditions as valid. That requirement of consent shall apply in any case, even then, if we do perform the delivery without reservation having knowledge of those general terms and conditions.
II. Binding periods, written form
Our offers are valid non-binding for six (6) weeks. Contracts are deemend as made if and to the extent that we do confirm in writing a purchase order, which we have received within such period. Agreements made with us require the written form within the meaning of § 126 BGB (German Civil Code) for becoming legally binding.
III. Titles and copyrights
We do reserve any titles and copyrights in all our written and electronic documentation (particularly in estimate of costs, designs, drawings, models, and invoices). You may disclose such titles and copyright to third parties only upon our consent in writing, and you should return such documents immediately on request.
IV. Prices, securities, payment terms
Our prices are fixed prices ex supply warehouse excluding freight, customs duties, fees, other charges, and packaging plus the statutory value-added tax applicable on the invoice date each time. They are based on material, labour, and overhead costs applicable at the time of the date of delivery stated on the order confirmation. If there shall occur any increases in costs following the conclusion of the agreement, which we are not responsible for, and which we could not foresee in terms of calculation, we shall be entitled to adjust the prices accordingly.
We do not take back any transport and other packaging material; such become the property of the Customer (except for euro-pallets/pallet cages).
In case of a total price exceeding € 10,000, we shall be entitled to require from the Customer an absolute, unlimited and unconditional guarantee issued by a German big bank.
You should pay our invoices within thirty (30) days of delivery by bank transfer. The deduction of any discount does require a separate written agreement. The notification of readiness for taking delivery or for shipment is equal to delivery. Default does occur upon arrival of such notification.
The Customer may set off any claims (even from other deals of a running business relationship) only against claims that are undisputed or that have been declared by final judgement.
In case of payment not made in time, we shall be entitled (by reservation of further going rights) to require default interest amounting to nine (9) percentage point above the base interest rate p.a. applicable each time (§ 247 BGB) without providing any special proof for this. Further, we shall be entitled to require advance payment or the provision of security if the Customer does not comply with such payment terms, or if we become aware of circumstances that are suitable to reduce his credit standing. After having set a reasonable period, we shall be entitled to withdraw from the agreement and/or to claim damages.
V. Reservation of title
The subject matter of the service that we have delivered shall remain our property until any claims out of the business relationship with the Customer have been settled (“goods subject to reservation of title”). Such reservation of title to the Customer shall remain even if we include the claims in a current invoice and if the balance has been drawn and accepted (“current account reservation”).
If the goods subject to reservation of title are processed or mixed together with other goods that do not belong to us, we shall acquire co-ownership in the new item in proportion of the value of the goods subject to reservation of title to the other processed items. The Customer is performing a possible processing and manufacturing for us without any liabilities accruing to us from this. The processed or manufactured goods serve us as security at the amount of the proportionate value of the goods subject to reservation of title. The Customer should keep such goods in a safe place with the diligence of a prudent businessman.
The Customer is entitled to sell the delivered goods and the new item that has come into being by using such goods in business dealings provided, however, that a reservation clause with the same content as the present one be agreed. This shall only apply to the extent that we did not revoke the reselling within the framework of the purpose of the guarantee. In the event of reselling the subject matter of the service, the claims of the Customer against the buyer shall pass to us.
You may not pledge the goods subject to reservation of title to a third party nor transfer such title for security until the secured claims have been paid completely. The buyer should notify us promptly in writing if and to the extent that third parties access the goods that belong to us.
You do already now assign to us your claims against third parties including all ancillary rights. The assignment covers a part of the total claim of the Customer out of the obligation, on which the further delivery of the goods subject to reservation is based amounting to the purchase price that has been agreed between the Customer and us for the goods subject to reservation of title, and which the Customer delivers to its buyer on the basis of the joint and several obligation. The claims assigned to us in this way serve for securing all and any of our claims (including such arising in the future) against the Customer under the business relationship. That is why; the assignment does apply in the stated limited amount, regardless whether and when the Customer has fulfilled our asking price for the goods subject to reservation of title in full or in part. We accept such assignment.
The Customer shall remain entitled to recover the assigned claims even after such assignment. Our authority to recover the claims shall remain unaffected. However, we undertake not to recover the claims as long as the Customer fulfils his payment obligations out of the collected proceeds, if he is not in default of payment, and if he has not filed an application for opening insolvency proceedings or such for suspension of payments. Otherwise, we may request that the Customer shall inform us about the assigned claims and about the parties liable for such, that he shall provide us with all details required for the recovery, that he shall deliver to us the appropriate documents, and that he shall notify the party liable of such assignment.
We undertake to release the guarantees that we are entitled to at the Customer’s request insofar as the value of our guarantees does exceed the claims to be secured by more than 10 %. It is incumbent on us to select the guarantees to be released.
VI. Periods, provision of services
Periods agreed for deliveries and assemblies (times of performance) are only approximate, unless otherwise expressly described as binding. They are suspended as long as we have not received the documentation, permits, and the releases to be provided and the advance payments to be made by the Customer and for such period of delay, for which the Customer is responsible. An agreed term for delivery does not start before the delivered samples have been accepted (delivery release). Subsequent modifications made by the Customer shall renew the running of the agreed period for delivery.
We have rendered our service at shipment to the Customer, as soon as the subject matter of service leaves our supply warehouse, at collection by the Customer, and as soon we have notified the Customer of the readiness for shipment. We are entitled to make partial deliveries.
If we are not responsible for the delay (particularly in case of energy shortage, importing problems, interruptions of operations and traffic, strike, acts of God or delay by our suppliers), the time of performance shall be extended reasonably. If we cannot perform after such reasonable extension either, both the Customer and we shall be entitled to withdraw from the agreement. Damage claims by the Customer are excluded, unless intent and gross negligence are involved.
If the shipment is delayed for reasons caused by the Customer, or if the Customer does not collect the subject matter of service immediately despite he has been notified of the readiness for shipment, he shall reimburse us for all expenses and damages that we have incurred however, at least for an amount of 0.5 % of the agreed price for each part of the month of such delay. The Customer is at liberty to prove that we have not incurred any damage or a smaller damage than the lump sum to be paid.
VII. Passing of risk, insurance
The risk passes to the Customer as soon as the subject matter of service has left our supply warehouse. This does even apply if we assume further services based on a special written agreement like shipping charges or the delivery. If an acceptance has to be made, the risk passes on acceptance.
If the shipment or the acceptance is delayed or not taking place because of circumstances the Customer is not responsible for, the risk passes to the Customer as soon we have notified the Customer of the readiness for shipment and acceptance.
We are entitled to insure the subject matter of service at the Customer’s expense against damages caused by theft, breakage, fire, water, transportation, and against other damages, unless the Customer proves to us that he has taken out an insurance policy.
VIII. Liability for material defects, duty to examine, and obligation to make a complaint about defects
Our liability for defects is above all based on the agreement made on the quality of the goods. The product specifications/drawings/plans provided to the Customer before the agreement was made or that have been included in the agreement in the same manner like these sales conditions are considered as an agreement on the quality of the goods. In case of manufactures to customer’s specifications, excess or short deliveries of up to 10 % are according to the agreement.
Our liability shall be excluded
− if the Customer or a third party does not store, install, put into operation or use our products properly;
− at normal wear and tear,
− if not serviced properly;
− if unsuitable resources are used;
− in case of damages caused by repairs or other work performed by a third party that we have not approved expressly.
The claims of the Customer based on defects require that he has complied with his statutory duties to examine and his obligations to make a complaint about defects (§§ 377, 381 HGB - Commercial Code). If a defect is identified during the examination or later, you should notify us of such defect immediately. Such notification is deemed to have been made immediately if it is made within one week, but the timely posting of the notification is sufficient for keeping a set period. The Customer shall (irrespective of such duty to examine and the obligation to make a complaint about defects) notify in writing obvious defects (including false and short deliveries) within one week of delivery, but here too, the timely posting of the notification is sufficient for keeping a set period. If the Customer fails to perform a proper examination or to submit the notice of defect, our liability shall be excluded for the defect not notified.
At first, the claims of the Customer based on defects are limited to supplementary performance at our option (removing defects or replacement delivery). The Customer shall give us the chance for supplementary performance promptly and to a reasonable extent. Otherwise, we shall be released from liability for the resulting consequences. The Customer may remove the defect himself or have it removed by a third party only in urgent cases, for instance in order to maintain operational safety or to ward off disproportionately large damages, and to require from us compensation for the necessary expenses. The Customer should return to us the replace parts in any case. Claims by the Customer eith regard to the expenses for rectifying a defect (particularly transportation, infrastructure, labour, and material costs) are excluded if such costs increase, because the products that we have delivered were brought to a different place than the agreed place of delivery afterwards, unless such shipment complies with the normal use of such products.
If such supplementary performance has failed, the Customer shall be entitled to reduce the consideration or (in case of substantial defects) to withdraw from the agreement.
The statutory period of limitation for claims based on material defects and defects of title is one (1) year from delivery. If an acceptance has been agreed, the period of limitation does commence on the day of acceptance.
IX. Wage labour
The above General Terms and Conditions apply to wage labour when the contract is placed. The Customer’s data and definitions are binding for the performance of the order. We are not obliged to verify the correctness, completeness, practicability, accuracy, and the admissibility of the information, data, drawings, samples, equipment, and tools provided to us by the Customer for executing the order.
Our manufacturing and final inspections are limited to complying with the dimensions, tolerances, and colours specified for us. The Customer guarantees by own suitable inspections that he will use or further process or treat parts, which we have manufactured, processed or treated, only if such parts are flawless.
If the Customer provides or defines the material, our inspection of incoming goods is limited to the quantity, the dimensions, and to the external condition. We are not obliged to perform a quality control. We shall notify the Customer if a necessary selection results in short quantities. He should then declare immediately whether he shall procure replacement and shall extend the term of delivery accordingly or whether he insists on that we keep the delivery deadline for the short number of items due to the selection. If the manufactured batch sizes are reduced by the short quantities of the material in a manner that has an influence on the costs, we shall be entitled to charge extra costs.
If hidden material defects are identified in the batch processing or treatment during our production, this shall not interrupt the production of the entire order or call. If we have chosen and procured the defective material, we shall be obliged to sort out faulty parts free of charge and to deliver the resulting short quantities on time. If the Customer insists that we shall deliver the complete number of items of the order, he should inform us about this in writing by stating a grace period reasonable for procuring the material and for processing or treating the products. The new term for delivery is binding if we have confirmed it. The same shall apply if the Customer has provided the material. In that case, the Customer shall bear the costs of the selection.
We shall use any tools and equipment that the Customer may have provided to us like supplied and without checking them. If the using of such tools and equipment shall result in production difficulties or in complaints about the product to be delivered by us, the Customer shall bear any such caused costs. We shall treat and keep the tools and equipment provided to us like our own. We shall not assume any liability for wear and tear, damage, or loss.
Scrap of material provided by the Customer that arises in the batch processing and treatment during our production shall become our property.
X. Limitation of liability
We assume liability for any breach of material duties under the agreement in accordance with statutory provisions if we are responsible for such breach. As far as we cannot be held responsible for intent nor for gross negligence, we shall assume liability only for any normal occurring foreseeable damage. We shall assume liability for all other breaches of duty only, if any of our legal representatives or vicarious agents has caused a damage wilfully or gross negligently. Damages caused by injury to life, body and health, for which we are liable according to statutory provisions, shall be excluded from this. Any liability according to the Product Liability Act shall remain unaffected too. As for the rest, any damage claims against us resulting from breaches of duty shall be excluded.
XI. Miscellaneous
If one or several of the above provisions are invalid, the other provisions shall remain unaffected from this. Our place of business shall be the place of fulfilment and the exclusive jurisdiction for any disputes arising out of agreements made with us. However, we shall be entitled at our option to file a suit at the Customer’s head office.
The law of the Federal Republic of Germany shall govern these terms and conditions and all legal relationships between the buyer and us by taking the United Nations Convention on Contracts for the International Sale of Goods (CISG) into account. However, requirements and effects of the reservation of title are subject to the law at the respective storage location of the item, if according to this the choice of law in favour of German law is inadmissible or invalid.
