General Terms and Conditions of Sale and Delivery
1.Scope of Application
(1) These Terms and Conditions of Business apply to entrepreneurs, legal entities under public law and public-law special funds (hereinafter: Customer).
(2) Our deliveries, services and quotations are provided solely and exclusively on the basis of these Terms and Conditions of Sale and Delivery. They apply as well to any and all future transactions with the Customer to the extent that such transactions are legal transactions of the same or related nature.
(3) Objection is hereby raised to any terms and conditions of business or purchasing of the Customer.
2.Offer and Conclusion of Contract
(1) Our offers are subject to change and non-binding unless we have expressly designated them as binding.
(2) We may accept any order placed by the Customer (which shall be deemed an offer for the conclusion of a contract) within a period of two weeks by sending a confirmation in written or text form or by performance of the contracted service within the same period.
(3) Drawings, pictures, dimensions, weights or other specifications are binding only if and when specifically agreed in writing.
3.Delivery
(1) Our delivery obligations are subject to the reservation of correct and timely delivery by our own suppliers unless we are accountable for the incorrect or delayed delivery by our own suppliers.
(2) We are entitled to perform partial deliveries and partial services only if and when such performance is not contrary to the purpose of the contract and the interests of the Customer and the Customer does not incur any significant additional expenses as a consequence.
(3) Information concerning delivery periods is approximate unless otherwise agreed with the Customer. Delivery periods do not commence until any and all details of the performance have been clarified completely and presume the timely and orderly fulfilment of the Customer’s obligations.
(4) If and when the Customer is in default with the release, acceptance or collection of the goods, we are entitled to request compensation for any loss or damage we have suffered in consequence; the risk of accidental worsening and of accidental loss passes to the Customer upon occurrence of default of acceptance.
(5) In the event of default of delivery that we have not caused through wilful intent or gross negligence, we are liable for payment of lump-sum default compensation for each and every full week of default in the amount of 0.5% of the value of the consignment, but not exceeding 5% of the value of the consignment in the aggregate.
(6) The above provisions are without prejudice to further claims and rights of the Customer arising from default of delivery.
4.Prices and Payment
(1) Our prices are shown ex works or warehouse, plus freight and applicable value-added tax.
(2) We charge at cost for packaging usual for the transport/shipment unless otherwise agreed with the Customer.
(3) Our invoices are due and payable within 14 days and without deduction.
(4) The Customer may offset against our claims solely claims that are undisputed, that we have acknowledged and that have been finally adjudicated or claims that are in a relationship of mutuality with our claims. Furthermore, the customer is entitled to exercise a right of retention solely if and when its counterclaim is based on the same contractual relationship.
(5) If and when the Customer is in default of payment, statutory regulations apply.
5.Passing of Risk for Shipment
(1) If and when the goods are shipped to the Customer at its request, the risk of accidental loss or of accidental worsening of the goods passes to the Customer upon shipment to the Customer, at the latest upon the goods leaving the works/warehouse. The above provision applies regardless of which party bears the freight costs.
(2) If and when shipment is delayed at the Customer’s request, the risk passes to the Customer upon notification of readiness of delivery.
6.Retention of Title
(1) We retain title to the supplied goods until final payment of any and all claims that have arisen or that arise on the basis of the business relationship has been made in full (reserved goods). In the event of multiple claims or running account, the retention of title shall be deemed security for the balance of the claims even if separate consignments have been paid.
(2) In the event of Customer’s conduct in breach of the contract (e.g. default of payment), we have the right to retake possession of the reserved goods after expiration of a previously stipulated reasonable period. If we retake possession of the reserved goods, this action shall be deemed a rescission of the contract. We are entitled to utilise the reserved goods after their repossession. The income from the utilisation shall be offset against the amounts owed to us by the Customer subsequent to deduction of a reasonable amount for the costs of the utilisation.
(3) In the event of seizures of the reserved goods by third parties, in particular attachments, the Customer shall notify the third parties of our title of ownership and notify us immediately so that we can assert our rights of ownership.
(4) The Customer is entitled to process and sell the reserved goods in the orderly course of business, provided that the customer is not in default. Pledging or conveyance by way of security is prohibited. The Customer hereby assigns to us in full, here and now, any and all receivables resulting from the resale or from other legal reasons (insurance, actions in tort) related to the reserved goods as security. We grant to the Customer the revocable authorisation to collect the receivables assigned to us for its own account and on its own behalf. The collection authorisation expires if and when the Customer does not properly fulfil its payment obligations or suffers difficulties in making payments; debt execution measures are initiated against it; court bankruptcy proceedings are initiated against its assets; or the initiation of such proceedings is dismissed owing to the lack of assets.
(5) Any processing or alteration of the goods shall be conducted at all times for us as the manufacturer, but without any obligation for us. If and when the supplied goods are processed together with other goods not belonging to us, we acquire co-ownership to the new product in the ratio of the value of the supplied goods to the other processed goods at the time of the processing. If and when the supplied goods are combined or inseparably mixed with other goods not belonging to us, we acquire co-ownership to the new product in the ratio of the value of the supplied goods to the other combined or mixed goods. If and when the Customer’s product from the combination or mixture becomes the primary product, it shall be deemed agreed that the Customer will assign to us a proportionate co-ownership of the new product. The Customer shall safeguard the resulting co-ownership on our behalf.
(6) We are obligated to release any securities to which we are entitled to the extent that the realisable value of our securities exceeds the secured claims by more than 10%; the selection of the securities to be released shall be at our discretion.
7.Warranty
(1) In the event of the breach of a contractual obligation, the Customer is entitled to exercise its statutory rights against us in accordance with the regulations below.
(2) The Customer is entitled to assert warranty claims solely if and when it has fulfilled its duties of examination and lodging of complaints pursuant to Section 377 HGB [Commercial Code].
(3) If and when justified complaint of defects has been submitted in good time, the Customer has a claim to subsequent performance during the warranty period; we are entitled to decide on the form of the subsequent performance (remedy of the defect or delivery of a product free of defects) at our discretion. If and when the subsequent performance fails or the Customer cannot reasonably be expected to accept further attempts at subsequent performance, the Customer is entitled to reduce the price or rescind the contract.
(4) If and when claims are asserted against the Customer by its customer or a consumer because of a defect in the supplied product that existed prior to the transfer of risk or by a consumer as the end customer, the above provisions are without prejudice to the Customer’s statutory regress claims against us pursuant to Sections 478, 479 BGB [Civil Code].
(5) The Customer may not assert any claims for damages due to defects subject to the conditions regulated in Section 8 until subsequent performance has failed or we refuse subsequent performance. The above provision is without prejudice to the Customer’s rights to assert more extensive claims for damages subject to the conditions regulated in Section 8.
(6) Claims due to defects against us may be asserted solely by the Customer and may not be assigned.
(7) The period of limitations for claims due to defects is one year from the passing of risk. The above provision does not apply to the extent that Sections 478, 479 BGB (Supplier Regress) stipulate longer periods or in cases of injury to life, body or health, of our wilful or grossly negligent breach of obligations and of fraudulent concealment of a defect.
8.Liability
We are liable for loss or damage suffered solely if it is the result of a breach of an essential contractual obligation or of wilful or grossly negligent action on our part or on the part of our legal representatives or vicarious agents. If a breach of an essential contractual obligation results from slight negligence, our liability is limited to the foreseeable damage or loss typical of the contract. An essential contractual obligation is any obligation that must be fulfilled if proper performance of the contract is to be at all possible or that the customer expected to be fulfilled and could justifiably expect to be fulfilled
Any more extensive liability for damages is excluded. The above provisions are without prejudice to liability for culpable injury to life, body or health as mandated by statutory provisions. This provision applies as well to liability mandated by the Product Liability Act.
9.Place of Performance/Place of Jurisdiction/Applicable Law
(1) Place of performance for any and all supply obligations on our part and for any and all other contractual obligations of both parties is Jork.
(2) This contract and these terms and conditions of business as well as any and all aspects of the legal relationships between the Customer and us are governed by the laws of Germany, excluding any and all references to other legal systems and international treaties. The application of UN sales law is excluded.
(3) Place of jurisdiction for any and all disputes arising from this contractual relationship is Jork. However, we are also entitled to file suit against the Customer at courts having general jurisdiction at the latter’s registered office.