I. Conclusion of a Contract
- Orders become legally binding after the Supplier has confirmed them in writing or via electronic means. Changes and Amendments may be made exclusively in writing. The same applies to changes of the written form clause.
- Concerning permanent business relations, these terms and conditions apply also to future business transactions - recurring contracts - if it has not been explicitly referred to in these terms and conditions or if they have been received by the customer with an earlier order confirmed by the Supplier.
- The business conditions of the customer do not apply, unless the Supplier has explicitly confirmed them. This also applies if the conditions of the customer stipulate to the contrary and the Supplier does not disagree and supplies the delivery uncontested or if it is accepted by the customer.
- lf any term or condition set forth herein is or shall be held invalid, such invalidity shall not affect the remainder thereof.
- The Suppliers prices are valid from point of origin. The legally valid value added tax, packaging and shipping costs will be added as well as incurring customs fees, taxes or similar charges for border-crossing deliveries.
- lf the relevant cost factors change substantially from the time the offer is submitted or after the order is confirmed until the delivery - as e.g. energy, raw material, wage, insurance and transportation costs - Supplier and customer will negotiate an adjustment of costs.
- Orders without price will be performed at the applicable daily prices. An ordering value "as usual" always refers to the quality, not to the price.
III. Terms of Delivery and Performance
- Terms of delivery and performance are stipulated in the order confirmation. They do not become effective, however, until all details of the order have been completely clarified and the customer has submitted all Information and documents to the supplied and/or before the agreed upon down payment has been received. The terms of delivery shall be considered completed when the merchandise has left the works before the expiration of the stipulated term or the customer has been notified that the merchandise is ready to be delivered
- If a term of delivery is not complied with due to circumstances within the Supplier's control. The customer shall have the right to request compensation for delay or withdraw from the contract after a reasonable additional period of time has expired, exclu- ding any further claims, provided the Supplier has not acted grossly negligent or intentionally careless. The compensation for delay is limited to a maximum of 5% of that portion of the delivery that has not been supplied in accordance with the terms and conditions of the contract. A withdrawal is excluded if the customer is in default of acceptance. The right of the customer to prove any further damages is reserved
- Appropriate partial deliveries as well as reasonable deviations from the ordering quantities up to plus/minus 10% are admissible.
- In the event that the customer does not comply with his obligation to accept the merchandise, the Supplier shall not be bound to the regulations of a public auction, notwithstanding any other rights, and may sell the merchandise of delivery on the open market after prior notification of the customer.
- lf the delivery is delayed upon the customer’s request; he shall be obliged to pay the additional costs incurred for storage/handling starting one month after the notification advising that the merchandising is ready for delivery.
- in the event of force majeure, the Supplier shall be entitled to delay the delivery for the period of Interruption and a reasonable preparation time, or withdraw from the contract in whole or in part due to the portion of the contract not yet complied with. Strike, Lockout or any other unforeseeable, unavoidable circumstances, e.g. operational breakdown that render it impossible for the Supplier to deliver the merchandise in a timely manner in spite of making reasonable efforts, are equivalent to force majeure. Proof thereof must be provided by the Supplier. This shall also apply if the aforementioned obstructions occur during a delay w1th a sub-supplier. The customer may request the Supplier to declare within two weeks whether he would like to withdraw or deliver within a reasonable additional time. lf he does not make a statement, the customer may withdraw from the portion of the contract that has not been complied with. The Supplier will notify the customer without delay as soon as a case of force majeure, as stipulated in sentences 1-4, occurs.
IV. Packaging, Shipping, Passing of Risk and Default of Acceptance
- Unless otherwise agreed upon, the Supplier will dictate the packaging, type and means of shipping, without regard for the fastest and cheapest transportation.
- Risk is passed to the customer as soon as the merchandise leaves the Supplier’s works. This also applies to freight prepaid merchandise. In the event of delays in shipping within the customer's control, risk is assumed by the customer upon notification that the merchandise is ready for delivery.
V. Reservation of Proprietary Rights
- Property of all merchandise delivered shall remain with the Supplier until all claims by the Supplier against the customer have been fulfilled, even if the sales prices for specially designated receivables have been paid. Concerning current accounts, the merchandise subject to the reservation of proprietary rights shall be deemed to serve as a security for the balance reconcilement of the Supplier. In the event that a liability for the payment of the sales price is substantiated due to a bill of exchange, the reservation of proprietary rights dies not cease to exist before the bill of exchange is honored by the customer as the drawee.
- Any modification or processing of merchandise by the customer is performed under the exclusion of acquisition of ownership in accordance with § 950 Civil Code (BGB - Bürgerliches Gesetzbuch) upon the request of the Supplier. The Supplier shall become the co-owner of the new merchandise in the ratio of the net invoice value of his merchandise to the net invoice value of the merchandise to be processed or treated. This new merchandise shall be deemed to be merchandise subject to the reservation of proprietary rights to secure any claims by the supplier in accordance with Article 1.
- The stipulations of Articles 947, 948 Civil Code apply if the reserved merchandise is processed (combined/mixed) with other mer chandise not belonging to the Supplier resulting in the share in in the co-ownership of the Supplier in the new merchandise now being deemed to be reserved merchandise within the meaning of this Stipulation, without any obligations arising thereof for the supplier in reference to clauses 2 and 3.
- The customer shall be at liberty to sell the reserved merchandise within the scope of ordinary business operations provided that he also agrees with this customers an a reservation of proprietary rights in accordance with clause 1 through 3. The customer shall however not be entitled to dispose of the reserved merchandise in any other manner, e.g. by pledging or transfer of the title in order to secure a debt.
- Upon resale of the reserved merchandise, the customer fully assigns to the Supplier any and all demands and justified claims from the resale against his customer to the amount of the reserved merchandise value together with all ancillary rights until all claims of the Supplier have been satisfied. The Supplier accepts this assignment. Upon request of the supplier, the customer shall be obliged to forward to the Supplier without delay any and all Information and documentation necessary to raise claims against third parties.
- In the event that the value of securities in favor of the Supplier exceeds his total claims by more than 15%, the supplier shall be obliged to release securities upon the request of the customer, the type is at the Supplier's desecration. The Supplier must be notified at any pledge or seizure of the reserved merchandise by a third party without delay.
VI. Liability for Defects
- Quality and type of merchandise is based on the order. The merchandise is delivered according to normal trade practice. The purpose of notices concerning technical norms is to describe the Service and shall not be construed as a quality guarantee.
- In the event that the Supplier has advised the customer outside his contractual obligation, he shall be liable for the functioning and suitability of the merchandise supplied only after prior explicit confirmation.
- Defects must be recorded without delay. Hidden defects must be reported without delay upon detection. In both cases, any and all claims for defects become statute-barred 24 month after the risk have been passed, unless otherwise agreed upon. lf a compulsory law stipulates longer terms in accordance with § 438 Paragraph 1, no. 2 Civil Code, § 479 Paragraph 1, Civil Code and § 364a, Paragraph 1, No. 2, Civil Code, then these shall apply.
- The supplier shall be obliged to subsequently improve the merchandise once the complaint is substantiated. If he does not comply with this Obligation within a reasonable period of time, or if the subsequent improvement falls in spite of repeated attempts, the customer shall be entitled to reduce the sales price or withdraw from the contract. Any further claims, in particular claims for compensation of expenses and claims for compensation of damages due to defects or consequential defects may only be raised within the scope of the stipulations under VII. Replaced parts must be sent to the Supplier upon request, the shipping costs thereof being home by the Supplier.
- Arbitrary post processing and improper handling will result in the lass of all claims for defects. Wear and tear to the usual extent does not constitute a claim for defects.
- In the event of defects of title, clauses 1 through 5 apply
VII. General Limitations of Liability
In all cases, in which the Supplier is liable for compensation of expenses or damages due to a contractual or legal basis of claim, Deviating from the aforementioned stipulations, he shall only be liable if he, his management or supplemental agent acted intentionally, grossly negligent or impaired life, limb or health of another. Liability for culpable breach of substantial contractual Obligations shall also remain unaffected. In this respect, liability is limited to foreseeable contract typical damages, however excluding all cases of sentence 1. The aforementioned stipulations do not includes the reversal of the burden of proof to the disadvantage of the customer.
VIII. Terms and Conditions of Payment
- Unless otherwise agreed, all payments must be made to the Supplier in € (EURO).
- Unless otherwise agreed upon, the sales price for deliveries or other services is to be paid within 14 days less 2% cash discount, or within 30 days after the date of invoice. A cash discount is only granted after an previous due and uncontested invoices have been paid. No cash discount will be granted for payment by bill of exchange.
- In the event that the date of payment agreed upon is exceeded, interest will be charged at the amount at the legal interest rate of 8% above the respective base rate of the European Central Bank (EZB), unless the Supplier submits proof of higher damages. The right remains with the customer to submit proof of a lower damage.
- The Supplier reserves the right to reject checks or bills of exchange. Checks and bills of exchange eligible for rediscount will only be accepted on account of performance, any and all costs incurred thereof shall be borne by the customer.
- The customer may only offset accounts or claim any reservation rights if his claims are uncontested or have established as legally valid.
- In the event of a permanent non-compliance of payment terms or knowledge of circumstances which substantiate serious doubts about the customer's credit worthiness, all claims by the Supplier fall due immediately. Furthermore, the Supplier shall be entity led in this case, to request advance payments for all deliveries outstanding, as well as to withdraw from the contract after a reasonable time has expired.
IX. Place of Performance and Venue
- Place of performance is the Supplier's facility.
- Venue shall be, at the discretion of the Supplier, the Suppliers principal office or the customer's principal office. The same applies for documentation, bill of exchange or check procedure.
- German laws shall apply exclusively. The application of the Agreement at the United Nations of 11. April 1980 concerning the international sale of movable items (Uniform Law on the international Sale of Goods and Uniform Law on the Formation of Con- tracts for the international Sale of Goods) is excluded.