General
(1) The General Terms and Conditions of Business below form part of the contractual relations between us and the orderer/buyer. In the case of ongoing business relations they shall also apply to contracts concluded by facsimile or telephone. Deviating terms and conditions of purchase of the orderer/buyer may only be accepted in exceptional cases, subject to our express written approval. Contractual performance on our part does not replace such written confirmation.
(2) The contract shall only be binding upon receipt by the orderer/buyer of our written confirmation of order. Before the orderer/buyer has received our written confirmation of order, all offers are non-binding and subject to change.
(3) Any collateral agreements, amendments or supplements to the contract are subject to our written confirmation.
(4) Any documents forming part of the offer or confirmation of offer such as drafts and pictures and other specifications and performance data shall not be binding unless expressly declared so. Moreover, specifications regarding the delivery item or subject of the contract must be understood as approximations. In particular, such specifications do not constitute any guarantee, but are merely descriptions and characterisations of the products. The same applies to technical regulations such as DIN norms etc.
(5) We reserve the right to make changes or improvements to our products if, taking into account our interests, these are reasonable for the orderer/buyer.
(6) We reserve all property and copy rights to documents such as pictures drafts etc. forming part of the offer. They must not be made available to third parties and must be returned to us upon request.
(7) Any assignment of the rights of the orderer/buyer arising from this contract is subject to our prior written approval.
Prices and terms of payment
(1) Our prices are quoted ex works and are payable net plus VAT and any packaging and transport costs.
(2) In case of delivery within four months after conclusion of the contract, the prices stated in the confirmation of order shall be binding. In case of later delivery, we reserve the right to increase the prices after a change in circumstances since the conclusion of the contract has occurred, in particular after an increase in raw materials or labour and transport costs. Such adjustments shall be limited to compensation of the aforementioned price and cost increases. Should our prices quoted in the confirmation of order be increased by more than 5 % due to the aforementioned circumstances, orderers/buyers who are not entrepreneurs, special funds under public law or legal entities under public law shall be entitled to rescind the contract. The same right shall apply to entrepreneurs if the legal transaction does not form part of their entrepreneurial activities.
(3) Special packaging requests on the part of the orderer/buyer must be communicated in writing at least four weeks before the delivery or loading date.
(4) Any pallets, containers etc. which are expressly designated as returnable packaging must be returned to us in a clean and undamaged condition free of carriage charges.
(5) On special written request by the orderer/buyer, we arrange insurance of the consignment against theft, destruction, damage in transit, damage by fire, water and other risks. The costs of the insurance cover shall be borne by the orderer/buyer.
(6) Unless otherwise specified in the offer or the written confirmation of order, invoices are payable prompt net cash without deduction within 30 days of the date of invoice or within 8 days with 2% discount. Payments are always allocated to the oldest receivables. Any discount deduction is therefore subject to payment of all previous invoices. No discount is granted in case of payment by instalments. No discount is granted on separately charged freight and packaging costs. Bills of exchange are not accepted as means of payment.
(7) Any retention of payment on the part of the orderer/buyer is not permissible in the case of counterclaims in connection with a different contract. Where a counterclaim is based on the same contract, retention of payment is only permissible if the counterclaims are undisputed or recognised by declaratory judgment.
(8) The orderer/buyer may only offset receivables against counterclaims which are undisputed or recognised by declaratory judgment.
(9) Bills of exchange are only accepted upon prior agreement and only on account of payment and subject to their discountablility. Where payment is made by bill of exchange, cheque or other promissory instrument, any discounting and drawing of costs shall be borne by orderer/buyer, unless expressly agreed otherwise.
(10) If in connection with payment of the purchase price an endorser’s liability is created by the buyer/orderer (cheque/bill of exchange procedure), claims shall not be settled before discharge of the bill by the orderer/buyer as drawee. Payments by the orderer/buyer shall be treated as security for the purpose of covering the risk in connection with the bill of exchange until discharge of the bill. Following discharge of the bill by the orderer/buyer the payment shall be offset against the purchasing price, whereby the orderer/buyer is entitled to deduct a discount, subject to Para. 6 of this Section.
(11) In case of any default on a payment we reserve the right to withhold delivery or performance of any other contractual obligation in connection with all contracts until complete settlement of all claims we may have against the orderer/buyer. The orderer/buyer may avoid this right of retention by arranging an absolute undated guarantee by a major German bank or German savings or cooperative bank for the full amount of all outstanding claims. In case the orderer/buyer has failed to settle claims within a period of grace, we shall be entitled to rescind any unperformed contracts, whereby the right to compensatory damages in connection with the default remains unaffected.
(12) The orderer/buyer acknowledges our right to offset our claims against those of the orderer/buyer even in case the maturity dates of the mutual claims are different or in case payment in cash has been agreed regarding one claim and payment by acceptance bill or customer bill of exchange regarding the other.
Credit
(1) Delivery is subject to the creditworthiness of the orderer/buyer. If, after conclusion of a contract, information is made known to us which warrants reasonable doubts as to the security of a credit in the amount of an order or if facts to that effect become known to us, in particular a drastic deterioration of the financial standing (levy of execution, default on payments, insolvency, liquidation, transfer of the company) we may demand advance payment or a collateral or full payment irrespective of any previous arrangements.
(2) In the case of the circumstances described above we also reserve the right to inspect the warehouse of the orderer/buyer after delivery and, irrespective of any previous arrangements, to secure goods which are subject to reservation of title until payment in cash has been made. Any transportation and storage costs shall be borne by the orderer/buyer.
Delivery dates and delivery periods
(1) Unless expressly indicated otherwise in the confirmation of order the specified delivery dates are non-binding and no guarantee is made with regard to their observance.
(2) The delivery period shall commence on the day the final confirmation of order has been issued, in any case not before clarification of all specifications regarding performance of the contract, in particular not before we have received all documents to be supplied by the orderer/buyer and any agreed down payment due upon conclusion of the contract. Moreover, observance of the delivery period is subject to the performance by the orderer/buyer of his contractual obligations.
(3) The agreed delivery period shall be extended commensurately with any delay in the performance of the orderer’s/buyer’s obligations arising from this or any other contract, whereby any of our rights in connection with a default on the part of the orderer/buyer remain unaffected.
(4) The delivery period shall be deemed as observed if at the time of expiry the delivery item has left our works or if the delivery item is ready for dispatch at the time of collection by the orderer/seller and this has been communicated to the orderer/buyer. The orderer/buyer may not reject partial deliveries unless they are unreasonable.
(5) The delivery period shall be adequately extended in case of lawful industrial action, in particular in case of a strike or lockout in our works and, regardless of whether lawful or unlawful, industrial action in third party companies, provided that no culpability on our part has been established for reasons of lack of conveyance/acceptance, lack of due diligence and preventative measures, further in case of unforeseeable events such as mobilisation, war, blockade, export and import prohibitions, special legal or governmental measures, shortage of raw materials or fuel, fire, suspension of road traffic or force majeure, if such obstructions are proven to have affected the production or delivery of the delivery item and occur with us, a sub-supplier or sub-contractor or our transport company and if we are not responsible for their occurrence, whereby our liability is only excluded in case of slight negligence on our part. If, due to the aforementioned circumstances, performance of our contractual obligations is impossible, we shall be entitled to withdraw from the contract.
(6) In case of default on our part, the orderer/buyer shall be entitled to have recourse to the rights defined by the law. However, the right to damages is limited to the circumstances specified in Section “Transfer of risk, liability for defects, damages”, whereby in case of slight negligence, compensation for damage or loss due to delay is limited to 0.5% of the purchasing price for each full week of delay and a maximum of 10%, unless the orderer/buyer proves that the damage or loss he has incurred as a result of the delay is higher. Upon request the orderer/buyer shall inform us within a reasonable period of time whether in spite of the delay, he insists on performance of the contract or wishes to withdraw from the contract as a result of the delay.
(7) In case shipment is delayed on request of the orderer/buyer or due to circumstances for which the orderer/buyer is responsible, we shall charge, in case of storage on our premises, a storage fee of at least 0.5% of the invoice amount for each started month of storage, starting one month after notice of readiness for shipment has been given, whereby any right to further compensation remains unaffected.
(8) In addition, we shall be entitled, in case we have set a period of grace for acceptance of the delivery and the orderer/buyer has failed to comply, to dispose over the delivery item and to make a new delivery to the orderer/buyer after granting additional respite or to rescind the contract and/or claim compensatory damages.
Retention of title
(1) We shall retain the title of the goods supplied as well as the items which are processed and finished until the fulfilment of all our current and future as well as contingent and limited claims which the orderer is entitled to as a result of the business association, irrespective of the legal basis. The purchase-money claim, in particular, belongs to the secured claims. Under the secured purchase-money claim in the context of the above include the preservation of the item purchased and the assertion of rights retained by ourselves regarding expenses incurred for the objects purchased. These are in particular: costs involved with the final inspection, dispatch, packaging as well as interest after due date and interest on arrears, costs incurred as a result of discontinuation, placement and insurance as well as those costs which arise due to the assertion of our rights, whether judicial or extrajudicial. As far as it concerns a legal transaction with a businessman we are entitled to assert our rights regarding retention of title if the orderer falls into payment arrears without rescinding the contract.
(2) The orderer/buyer undertakes to store and label the goods with retention of title separately. Any processing and finishing is undertaken by the orderer/buyer without any obligations being incurred by ourselves. If the orderer/buyer processes/finishes our reserved goods with other goods which belong to him, we shall retain the sole right to the new items. If the orderer/buyer processes our reserved goods with other items which do not belong to him, we shall have co-ownership of the new items in proportion to the value of the processed reserved goods as part of the other articles at the time of being processed and finished. The orderer/buyer shall immediately confer upon us co-ownership shares arising from bonding, blending or mixing the goods supplied with other items. The orderer/buyer shall possess the items as custodian. He shall be liable for his own wilful and negligent behaviour, just as he is liable for his legal representatives and persons used in order to meet his obligatins. The orderer/buyer may only sell the goods supplied and the items stemming from being processed, finished, bonded, blended or mixed in an orderly business transaction for cash or under retention of title. Collateral assignments, pledging and other dispositions, which endanger our rights, are not permitted.
(3) Accounts receivable appertaining to the orderer/buyer as a result of reselling the goods or due to any other legal basis concerning the reserved goods, including compensation due to damage or destruction of the reserved goods, irrespective of whether there are contractual or legal claims against the damaging party, underwriter or any other third party, and for replacement of use drawn, shall immediately be conferred upon us in full.
(4) If the reserved goods are sold by the orderer/buyer with his own goods in an unfinished condition, the orderer/buyer shall confer upon us the accounts receivable to the full amount of the value of the reserved goods to us which result from the sale. If the share in the price of the reserved goods sold is higher than the value of our reserved goods, we shall be entitled to receive the additional amount.
(5) If we acquire co-ownership of the new item with other suppliers as a result of the processing or finishing of the reserved goods, the assignment covers in the event of resale the corresponding amount of the claim of our share in the ownership as far as this can be specified; otherwise the invoice value of our processed reserved goods.
(6) If the processing or finishing takes place as part of a specific task contract or a contract for works, labour and material, then the orderer/buyer shall also assign to us in advance the pro-rata claim regarding compensation for work corresponding to the value of the processed reserved goods.
(7) If the orderer’s/buyer’s aforementioned accounts receivable are brought into mutual accounts, the current account receivables are hereby assigned to us in full. Upon settlement, this is replaced by the balance which is deemed to be assigned up until the amount which made up the original current accounts receivable. This applies to the closing balance upon termination of the mutual accounts.
(8) As long as the orderer/buyer meets his commitments, assignment will be treated as an undisclosed assignment and the orderer/buyer shall be authorised to recover the debt. The orderer/buyer shall record the amounts received as the assigned claim separately and shall keep them separately.
(9) In the event that agreements signed by the orderer/seller are invalid or void as regards the resale of the reserved goods, the orderer/buyer shall assign to the same extent with immediate effect the legal claims instead of the assigned contractual claims to which he is entitled, especially claims on account of unjust enrichment.
(10) As long as and insofar as the registration and/or the fulfilment of other requirements are prerequisite for the efficacy of the retention of title, the orderer/buyer undertakes to carry out all necessary actions and to make all necessary announcements at its own cost.
(11) If, in connection with the payment of the purchase price by the orderer/buyer, a changeable liability be established on the part of the seller (cheque/bill of exchange process), the retention of title shall not be dissolved before the bill of exchange has been drawn by the orderer/buyer as the drawer.
(12) If the value of the securities shall exceed our accounts receivable by more than 20%, then the orderer/buyer is entitled to request that the collateral be released.
(13) Seizure of the reserved goods by third parties or assigned accounts receivable shall be notified to us immediately by the orderer/buyer by handing over any necessary paperwork for us to intervene. The costs of intervention shall be borne by the orderer/buyer.
(14) The costs of return transport of the reserved goods shall be borne by the orderer /buyer.
(15) In the event that any liabilities on the part of the orderer/buyer are offset by a direct debit system, all our rights from the aforementioned and regulated retention of title shall remain in force until a revocation of direct debiting is no longer possible, as far as our rights continue to exist not due to the aforementioned regulations.
Transfer of risk – liability for faults – compensation claims
(1) All risks are transferred to the orderer/buyer once the delivery item is handed over to the freight forwarding company or carrier. This also applies to cases where the delivery is free of charge, CIF, FOB and similar transport provisions. If the transport is undertaken by our vehicles and drivers, any risk shall be transferred to the orderer/buyer once the loading process is complete. Any delay in delivery for which we are not responsible is transferred to the orderer/buyer on the day when notification for dispatch has been received by the orderer/buyer.
(2) For defects of goods already detected upon transfer of risk we provide warranty in line with the following provisions: a) Defects which are evident or have been recognised must be notified to us immediately in writing and immediate cessation of any processing or finishing activities. If these duties to inspect and requirement to give notice of defects are breached, any claims pertaining to defects shall not be accepted. b) As a claim arising from a defect the orderer/buyer shall be entitled to a subsequent fulfilment in the first instance. In this respect, we shall initially at our own choice provide a warranty by subsequently rectifying the defect or a replacement delivery or production of new works. If both forms of the subsequent fulfilment are associated with disproportionate costs in the sense of Section 439 III of the German Civil Code [BGB], we shall be entitled to refuse to carry out the subsequent fulfilment. c) If subsequent rectification is not successful or if it is refused for a valid reason, the orderer may request that the contract be rescinded (withdrawal) or to lower the amount paid (reduction). In the event of a minor breach of contract, especially concerning minor defects, the orderer/buyer shall not be entitled to withdraw from the contract.
(3) Claims for compensation on the part of the orderer/buyer, on whatever legal basis, shall not be permitted. This shall not apply as far as compelling liability is determined for damage for which we are accountable for in accordance with the product liability law, premeditation or gross negligence, resulting in injury to life, physical injury to the body or health, non-adherence to guarantees or breach of major contractual duties. Nevertheless, compensation for breach of major contractual duties shall be limited to predictable damage which is normally included in contracts as far as premeditation or gross negligence has not been determined or that compelling liability can be determined as regards injury to life, physical injury to the body or health or non-adherence to guarantees or as a result of claims in accordance with the product liability law.
(4) Quality descriptions are no guarantees in a legal context. Any guarantees given by the manufacturer shall be unaffected by this.
(5) All claims arising from a defect on the part of the orderer/buyer shall fall under the statutes of limitations one year after the goods have been delivered. Anything to the contrary shall only apply if we have concealed the defect maliciously or it concerns goods which have been used for a building in accordance with its normal use and has caused its defectiveness. Negotiations between the parties shall not result in a suspension of the statute of limitations in accordance with Section 203 of the German Civil Code [BGB].
(6) An advisory service performed by our employees shall constitute neither a contractual legal relationship nor a secondary duty of the contract, meaning that we are not liable as a result of such a consultation unless any agreements to the contrary have been expressly given in writing.
(7) The statutes of limitations shall not be prolonged as a result of the replacement of parts as part of undertaking reworks and as a result of replacement supplies.
(8) We offer product liability in accordance with the respective valid laws pertaining to the Federal Republic of Germany. Any liability over and above the legal provisions is thereby excluded. All compensation payments which are not the result of legal provisions governing product liability and not legally prescribed, shall hereby be expressly refused.
Final provisions
(1) We are entitled to process data pertaining to persons as a result of the business relation within the context of the German Data Privacy Law.
(2) The place of fulfilment and jurisdiction for any disputes arising from all business covered by these general terms and conditions of business shall be the city of our registered offices as well as for legal proceedings which are initiated by ourselves as well as for those initiated against us. This provision shall not apply for business activities with orderers/buyers who are not merchants in the sense of the German Commercial Code nor public assets nor judicial persons under public law, as well as for business activities conducted with a merchant who does not belong to the operation of his commercial enterprise.
(3) Relations between ourselves and the client shall be subject exclusively to the Law of the Federal Republic of Germany, but exclude law of conflict, the Hague Standard Sale of Goods Act and the Vienna UNCITRAL Agreement on International Trade Law.
(4) If certain provisions of these General Terms of Business are or become invalid, this shall not affect the remaining provisions. Instead of the invalid provision the legally valid provision shall apply which comes closest to the invalid provision in terms of the purpose intended.
As at March 2008
(1) The General Terms and Conditions of Business below form part of the contractual relations between us and the orderer/buyer. In the case of ongoing business relations they shall also apply to contracts concluded by facsimile or telephone. Deviating terms and conditions of purchase of the orderer/buyer may only be accepted in exceptional cases, subject to our express written approval. Contractual performance on our part does not replace such written confirmation.
(2) The contract shall only be binding upon receipt by the orderer/buyer of our written confirmation of order. Before the orderer/buyer has received our written confirmation of order, all offers are non-binding and subject to change.
(3) Any collateral agreements, amendments or supplements to the contract are subject to our written confirmation.
(4) Any documents forming part of the offer or confirmation of offer such as drafts and pictures and other specifications and performance data shall not be binding unless expressly declared so. Moreover, specifications regarding the delivery item or subject of the contract must be understood as approximations. In particular, such specifications do not constitute any guarantee, but are merely descriptions and characterisations of the products. The same applies to technical regulations such as DIN norms etc.
(5) We reserve the right to make changes or improvements to our products if, taking into account our interests, these are reasonable for the orderer/buyer.
(6) We reserve all property and copy rights to documents such as pictures drafts etc. forming part of the offer. They must not be made available to third parties and must be returned to us upon request.
(7) Any assignment of the rights of the orderer/buyer arising from this contract is subject to our prior written approval.
Prices and terms of payment
(1) Our prices are quoted ex works and are payable net plus VAT and any packaging and transport costs.
(2) In case of delivery within four months after conclusion of the contract, the prices stated in the confirmation of order shall be binding. In case of later delivery, we reserve the right to increase the prices after a change in circumstances since the conclusion of the contract has occurred, in particular after an increase in raw materials or labour and transport costs. Such adjustments shall be limited to compensation of the aforementioned price and cost increases. Should our prices quoted in the confirmation of order be increased by more than 5 % due to the aforementioned circumstances, orderers/buyers who are not entrepreneurs, special funds under public law or legal entities under public law shall be entitled to rescind the contract. The same right shall apply to entrepreneurs if the legal transaction does not form part of their entrepreneurial activities.
(3) Special packaging requests on the part of the orderer/buyer must be communicated in writing at least four weeks before the delivery or loading date.
(4) Any pallets, containers etc. which are expressly designated as returnable packaging must be returned to us in a clean and undamaged condition free of carriage charges.
(5) On special written request by the orderer/buyer, we arrange insurance of the consignment against theft, destruction, damage in transit, damage by fire, water and other risks. The costs of the insurance cover shall be borne by the orderer/buyer.
(6) Unless otherwise specified in the offer or the written confirmation of order, invoices are payable prompt net cash without deduction within 30 days of the date of invoice or within 8 days with 2% discount. Payments are always allocated to the oldest receivables. Any discount deduction is therefore subject to payment of all previous invoices. No discount is granted in case of payment by instalments. No discount is granted on separately charged freight and packaging costs. Bills of exchange are not accepted as means of payment.
(7) Any retention of payment on the part of the orderer/buyer is not permissible in the case of counterclaims in connection with a different contract. Where a counterclaim is based on the same contract, retention of payment is only permissible if the counterclaims are undisputed or recognised by declaratory judgment.
(8) The orderer/buyer may only offset receivables against counterclaims which are undisputed or recognised by declaratory judgment.
(9) Bills of exchange are only accepted upon prior agreement and only on account of payment and subject to their discountablility. Where payment is made by bill of exchange, cheque or other promissory instrument, any discounting and drawing of costs shall be borne by orderer/buyer, unless expressly agreed otherwise.
(10) If in connection with payment of the purchase price an endorser’s liability is created by the buyer/orderer (cheque/bill of exchange procedure), claims shall not be settled before discharge of the bill by the orderer/buyer as drawee. Payments by the orderer/buyer shall be treated as security for the purpose of covering the risk in connection with the bill of exchange until discharge of the bill. Following discharge of the bill by the orderer/buyer the payment shall be offset against the purchasing price, whereby the orderer/buyer is entitled to deduct a discount, subject to Para. 6 of this Section.
(11) In case of any default on a payment we reserve the right to withhold delivery or performance of any other contractual obligation in connection with all contracts until complete settlement of all claims we may have against the orderer/buyer. The orderer/buyer may avoid this right of retention by arranging an absolute undated guarantee by a major German bank or German savings or cooperative bank for the full amount of all outstanding claims. In case the orderer/buyer has failed to settle claims within a period of grace, we shall be entitled to rescind any unperformed contracts, whereby the right to compensatory damages in connection with the default remains unaffected.
(12) The orderer/buyer acknowledges our right to offset our claims against those of the orderer/buyer even in case the maturity dates of the mutual claims are different or in case payment in cash has been agreed regarding one claim and payment by acceptance bill or customer bill of exchange regarding the other.
Credit
(1) Delivery is subject to the creditworthiness of the orderer/buyer. If, after conclusion of a contract, information is made known to us which warrants reasonable doubts as to the security of a credit in the amount of an order or if facts to that effect become known to us, in particular a drastic deterioration of the financial standing (levy of execution, default on payments, insolvency, liquidation, transfer of the company) we may demand advance payment or a collateral or full payment irrespective of any previous arrangements.
(2) In the case of the circumstances described above we also reserve the right to inspect the warehouse of the orderer/buyer after delivery and, irrespective of any previous arrangements, to secure goods which are subject to reservation of title until payment in cash has been made. Any transportation and storage costs shall be borne by the orderer/buyer.
Delivery dates and delivery periods
(1) Unless expressly indicated otherwise in the confirmation of order the specified delivery dates are non-binding and no guarantee is made with regard to their observance.
(2) The delivery period shall commence on the day the final confirmation of order has been issued, in any case not before clarification of all specifications regarding performance of the contract, in particular not before we have received all documents to be supplied by the orderer/buyer and any agreed down payment due upon conclusion of the contract. Moreover, observance of the delivery period is subject to the performance by the orderer/buyer of his contractual obligations.
(3) The agreed delivery period shall be extended commensurately with any delay in the performance of the orderer’s/buyer’s obligations arising from this or any other contract, whereby any of our rights in connection with a default on the part of the orderer/buyer remain unaffected.
(4) The delivery period shall be deemed as observed if at the time of expiry the delivery item has left our works or if the delivery item is ready for dispatch at the time of collection by the orderer/seller and this has been communicated to the orderer/buyer. The orderer/buyer may not reject partial deliveries unless they are unreasonable.
(5) The delivery period shall be adequately extended in case of lawful industrial action, in particular in case of a strike or lockout in our works and, regardless of whether lawful or unlawful, industrial action in third party companies, provided that no culpability on our part has been established for reasons of lack of conveyance/acceptance, lack of due diligence and preventative measures, further in case of unforeseeable events such as mobilisation, war, blockade, export and import prohibitions, special legal or governmental measures, shortage of raw materials or fuel, fire, suspension of road traffic or force majeure, if such obstructions are proven to have affected the production or delivery of the delivery item and occur with us, a sub-supplier or sub-contractor or our transport company and if we are not responsible for their occurrence, whereby our liability is only excluded in case of slight negligence on our part. If, due to the aforementioned circumstances, performance of our contractual obligations is impossible, we shall be entitled to withdraw from the contract.
(6) In case of default on our part, the orderer/buyer shall be entitled to have recourse to the rights defined by the law. However, the right to damages is limited to the circumstances specified in Section “Transfer of risk, liability for defects, damages”, whereby in case of slight negligence, compensation for damage or loss due to delay is limited to 0.5% of the purchasing price for each full week of delay and a maximum of 10%, unless the orderer/buyer proves that the damage or loss he has incurred as a result of the delay is higher. Upon request the orderer/buyer shall inform us within a reasonable period of time whether in spite of the delay, he insists on performance of the contract or wishes to withdraw from the contract as a result of the delay.
(7) In case shipment is delayed on request of the orderer/buyer or due to circumstances for which the orderer/buyer is responsible, we shall charge, in case of storage on our premises, a storage fee of at least 0.5% of the invoice amount for each started month of storage, starting one month after notice of readiness for shipment has been given, whereby any right to further compensation remains unaffected.
(8) In addition, we shall be entitled, in case we have set a period of grace for acceptance of the delivery and the orderer/buyer has failed to comply, to dispose over the delivery item and to make a new delivery to the orderer/buyer after granting additional respite or to rescind the contract and/or claim compensatory damages.
Retention of title
(1) We shall retain the title of the goods supplied as well as the items which are processed and finished until the fulfilment of all our current and future as well as contingent and limited claims which the orderer is entitled to as a result of the business association, irrespective of the legal basis. The purchase-money claim, in particular, belongs to the secured claims. Under the secured purchase-money claim in the context of the above include the preservation of the item purchased and the assertion of rights retained by ourselves regarding expenses incurred for the objects purchased. These are in particular: costs involved with the final inspection, dispatch, packaging as well as interest after due date and interest on arrears, costs incurred as a result of discontinuation, placement and insurance as well as those costs which arise due to the assertion of our rights, whether judicial or extrajudicial. As far as it concerns a legal transaction with a businessman we are entitled to assert our rights regarding retention of title if the orderer falls into payment arrears without rescinding the contract.
(2) The orderer/buyer undertakes to store and label the goods with retention of title separately. Any processing and finishing is undertaken by the orderer/buyer without any obligations being incurred by ourselves. If the orderer/buyer processes/finishes our reserved goods with other goods which belong to him, we shall retain the sole right to the new items. If the orderer/buyer processes our reserved goods with other items which do not belong to him, we shall have co-ownership of the new items in proportion to the value of the processed reserved goods as part of the other articles at the time of being processed and finished. The orderer/buyer shall immediately confer upon us co-ownership shares arising from bonding, blending or mixing the goods supplied with other items. The orderer/buyer shall possess the items as custodian. He shall be liable for his own wilful and negligent behaviour, just as he is liable for his legal representatives and persons used in order to meet his obligatins. The orderer/buyer may only sell the goods supplied and the items stemming from being processed, finished, bonded, blended or mixed in an orderly business transaction for cash or under retention of title. Collateral assignments, pledging and other dispositions, which endanger our rights, are not permitted.
(3) Accounts receivable appertaining to the orderer/buyer as a result of reselling the goods or due to any other legal basis concerning the reserved goods, including compensation due to damage or destruction of the reserved goods, irrespective of whether there are contractual or legal claims against the damaging party, underwriter or any other third party, and for replacement of use drawn, shall immediately be conferred upon us in full.
(4) If the reserved goods are sold by the orderer/buyer with his own goods in an unfinished condition, the orderer/buyer shall confer upon us the accounts receivable to the full amount of the value of the reserved goods to us which result from the sale. If the share in the price of the reserved goods sold is higher than the value of our reserved goods, we shall be entitled to receive the additional amount.
(5) If we acquire co-ownership of the new item with other suppliers as a result of the processing or finishing of the reserved goods, the assignment covers in the event of resale the corresponding amount of the claim of our share in the ownership as far as this can be specified; otherwise the invoice value of our processed reserved goods.
(6) If the processing or finishing takes place as part of a specific task contract or a contract for works, labour and material, then the orderer/buyer shall also assign to us in advance the pro-rata claim regarding compensation for work corresponding to the value of the processed reserved goods.
(7) If the orderer’s/buyer’s aforementioned accounts receivable are brought into mutual accounts, the current account receivables are hereby assigned to us in full. Upon settlement, this is replaced by the balance which is deemed to be assigned up until the amount which made up the original current accounts receivable. This applies to the closing balance upon termination of the mutual accounts.
(8) As long as the orderer/buyer meets his commitments, assignment will be treated as an undisclosed assignment and the orderer/buyer shall be authorised to recover the debt. The orderer/buyer shall record the amounts received as the assigned claim separately and shall keep them separately.
(9) In the event that agreements signed by the orderer/seller are invalid or void as regards the resale of the reserved goods, the orderer/buyer shall assign to the same extent with immediate effect the legal claims instead of the assigned contractual claims to which he is entitled, especially claims on account of unjust enrichment.
(10) As long as and insofar as the registration and/or the fulfilment of other requirements are prerequisite for the efficacy of the retention of title, the orderer/buyer undertakes to carry out all necessary actions and to make all necessary announcements at its own cost.
(11) If, in connection with the payment of the purchase price by the orderer/buyer, a changeable liability be established on the part of the seller (cheque/bill of exchange process), the retention of title shall not be dissolved before the bill of exchange has been drawn by the orderer/buyer as the drawer.
(12) If the value of the securities shall exceed our accounts receivable by more than 20%, then the orderer/buyer is entitled to request that the collateral be released.
(13) Seizure of the reserved goods by third parties or assigned accounts receivable shall be notified to us immediately by the orderer/buyer by handing over any necessary paperwork for us to intervene. The costs of intervention shall be borne by the orderer/buyer.
(14) The costs of return transport of the reserved goods shall be borne by the orderer /buyer.
(15) In the event that any liabilities on the part of the orderer/buyer are offset by a direct debit system, all our rights from the aforementioned and regulated retention of title shall remain in force until a revocation of direct debiting is no longer possible, as far as our rights continue to exist not due to the aforementioned regulations.
Transfer of risk – liability for faults – compensation claims
(1) All risks are transferred to the orderer/buyer once the delivery item is handed over to the freight forwarding company or carrier. This also applies to cases where the delivery is free of charge, CIF, FOB and similar transport provisions. If the transport is undertaken by our vehicles and drivers, any risk shall be transferred to the orderer/buyer once the loading process is complete. Any delay in delivery for which we are not responsible is transferred to the orderer/buyer on the day when notification for dispatch has been received by the orderer/buyer.
(2) For defects of goods already detected upon transfer of risk we provide warranty in line with the following provisions: a) Defects which are evident or have been recognised must be notified to us immediately in writing and immediate cessation of any processing or finishing activities. If these duties to inspect and requirement to give notice of defects are breached, any claims pertaining to defects shall not be accepted. b) As a claim arising from a defect the orderer/buyer shall be entitled to a subsequent fulfilment in the first instance. In this respect, we shall initially at our own choice provide a warranty by subsequently rectifying the defect or a replacement delivery or production of new works. If both forms of the subsequent fulfilment are associated with disproportionate costs in the sense of Section 439 III of the German Civil Code [BGB], we shall be entitled to refuse to carry out the subsequent fulfilment. c) If subsequent rectification is not successful or if it is refused for a valid reason, the orderer may request that the contract be rescinded (withdrawal) or to lower the amount paid (reduction). In the event of a minor breach of contract, especially concerning minor defects, the orderer/buyer shall not be entitled to withdraw from the contract.
(3) Claims for compensation on the part of the orderer/buyer, on whatever legal basis, shall not be permitted. This shall not apply as far as compelling liability is determined for damage for which we are accountable for in accordance with the product liability law, premeditation or gross negligence, resulting in injury to life, physical injury to the body or health, non-adherence to guarantees or breach of major contractual duties. Nevertheless, compensation for breach of major contractual duties shall be limited to predictable damage which is normally included in contracts as far as premeditation or gross negligence has not been determined or that compelling liability can be determined as regards injury to life, physical injury to the body or health or non-adherence to guarantees or as a result of claims in accordance with the product liability law.
(4) Quality descriptions are no guarantees in a legal context. Any guarantees given by the manufacturer shall be unaffected by this.
(5) All claims arising from a defect on the part of the orderer/buyer shall fall under the statutes of limitations one year after the goods have been delivered. Anything to the contrary shall only apply if we have concealed the defect maliciously or it concerns goods which have been used for a building in accordance with its normal use and has caused its defectiveness. Negotiations between the parties shall not result in a suspension of the statute of limitations in accordance with Section 203 of the German Civil Code [BGB].
(6) An advisory service performed by our employees shall constitute neither a contractual legal relationship nor a secondary duty of the contract, meaning that we are not liable as a result of such a consultation unless any agreements to the contrary have been expressly given in writing.
(7) The statutes of limitations shall not be prolonged as a result of the replacement of parts as part of undertaking reworks and as a result of replacement supplies.
(8) We offer product liability in accordance with the respective valid laws pertaining to the Federal Republic of Germany. Any liability over and above the legal provisions is thereby excluded. All compensation payments which are not the result of legal provisions governing product liability and not legally prescribed, shall hereby be expressly refused.
Final provisions
(1) We are entitled to process data pertaining to persons as a result of the business relation within the context of the German Data Privacy Law.
(2) The place of fulfilment and jurisdiction for any disputes arising from all business covered by these general terms and conditions of business shall be the city of our registered offices as well as for legal proceedings which are initiated by ourselves as well as for those initiated against us. This provision shall not apply for business activities with orderers/buyers who are not merchants in the sense of the German Commercial Code nor public assets nor judicial persons under public law, as well as for business activities conducted with a merchant who does not belong to the operation of his commercial enterprise.
(3) Relations between ourselves and the client shall be subject exclusively to the Law of the Federal Republic of Germany, but exclude law of conflict, the Hague Standard Sale of Goods Act and the Vienna UNCITRAL Agreement on International Trade Law.
(4) If certain provisions of these General Terms of Business are or become invalid, this shall not affect the remaining provisions. Instead of the invalid provision the legally valid provision shall apply which comes closest to the invalid provision in terms of the purpose intended.
As at March 2008