Our general business conditions are exclusively valid; conditions of the buyer, different or contrary to our business conditions, will not be accepted by us unless we have expressly agreed in writing to the validity. Our business conditions will also be valid if we will effect the delivery in an unconditional manner to the buyer in knowledge of contrary or different conditions of the buyer towards our business conditions.
All agreements, which will be made between our firm and the buyer concerning the execution of this treaty, are written down in this treaty.
Our business conditions are only valid for companies in respect of § 310, paragraph 1 Civil Statute Book.
§ 2 Offer – offer documents
Offers and prices, included in prospects, advertisements etc. are without any engagement and not binding for us. Especially elaborated offers are valid for a period of 30 calendar days from date of offer.
If an order can be qualified as an offer - according to § 145 Civil Statute Book – we can accept it within a period of 2 weeks.
Indications in our offers or order confirmations, resulting in an obvious error, especially writing and calculation mistakes, are without any engagement for us. In this case the obviously deliberated explanation is valid.
We reserve the property and copy rights on prospects, drawings, calculations and other documents. This is also valid for such written documents, considered as “confidentially”. Before their transmission to a third party, the buyer expressly needs our written approval.
§ 3 Prices – payment conditions
If there is nothing contrary in the order confirmation, our prices are to be understood “ex works”, excluding assembly, operation, training and packing; these positions will be charged separately.
Our prices are quoted excluding value added tax.
The reduction of discount requires our written agreement.
If there is no contrary in the order confirmation, the net selling price (without deduction) is due at the date of invoicing. The legal rules conc. delay in payment are valid.
We expressly reserve the right to refuse cheques and bills of exchange. The reception always takes place on account of performance. Discount and bill of charges are to the debit of the buyer and immediately due.
If there will be doubts conc. the credit worthiness of the buyer, especially the non-honouring of a cheque or the stopping of payments, we are entitled to invoice the total remaining amount, even if we have accepted cheques. In addition we are entitled in this case to demand prepayments or safety performances.
If the buyer is stopping his payments and/or a bankruptcy, composition or insolvency proceeding will be applied for his property, we are also entitled to withdraw from that part of the contract, not being fulfilled.
We are entitled– contrary to other regulations of the buyer – to credit at first older debts of the buyer. We will inform the buyer about this kind of effected settlement. If already costs and interests have been caused, we are entitled to credit the payment with the costs, then with the interests and at least with the main payment.
If the buyer is getting into delay of payment, we are entitled to invoice from this time interests amounting to 8 percent points above the respective basic rate of interest (§ 288 paragraph 2 Civil Statute Book). We reserve the right to make claims going far beyond the damage caused by default.
The buyer is only entitled to set-off rights if his counter claims are legally valid, undisputed and accepted by us. He is only entitled to execute the right of retention as far as his counter claim is based on the same contract relation.
§ 4 Delivery period
(1) Delivery times or limits, which can be agreed upon binding or non binding, must be quoted in writing. Liability can only be taken for granted if we will give a final explanation.
(2) The beginning of the delivery time, stated by us, requires the clearing up of all technical questions.
(3) The observation of our delivery duty further requires the punctual and proper fulfillment of the obligation of the buyer. The objection of the contract, not fulfilled, will be reserved.
If the buyer will be in delay to take delivery of the goods or will culpably injure other cooperation duties, we are entitled to demand in replacement the damage occurred so far, including any additional expenses. More extensive claims will be reserved.
(5) As far as conditions of paragraph (4) are valid, the risk of a coincidental destruction or a coincidental worsening of the object to buy moves on to the buyer at that time the buyer is in default of acceptance or debtor`s delay.
(6) We will be liable according to the legal regulations as far as the sales contract forms the basis of a time bargain in respect of § 286, paragraph 2 No. 4 Civil Statute Book or of § 376 Commercial Code.
(7) In addition we are liable according to the legal regulations as far as the delay in delivery is based on an intentional or grossly negligent violation of the contract and caused by us. As far as the delay in delivery is not based on an intentional violation of the contract and caused by us, our compensatory damages are limited on the foreseeable, typically occurring damages.
(8) By the way, we are liable in case of a delay in delivery for each accomplished week delay within a limit of an estimated compensation of delay amounting to 1 % of the delivery value, however maximum not more than 10 % of the delivery value.
§ 5 Transfer of risks – Packaging costs
(1) If there is nothing contrary in the order confirmation, delivery “ex works” is agreed upon.
(2) Transport packaging and all other packaging will not be taken back according to the packaging rules with the exception of paletts. The buyer is obliged to see for a waste disposal of the packaging at his own costs.
(3) The risk moves on to the buyer as soon as the consignment has been handed over to the person, responsible for the transport, or has left our factory for dispatch. If the dispatch will be delayed or not executed at the instigation of the buyer, the risk moves on to him by notice of the willingness to deliver.
(4) If the buyer wants us to cover a transport insurance for the delivery, we will do so; the respective costs are to be born by the buyer.
§ 6 Liability for defects
Warranty claims of the buyer assume that he has properly met – according to § 377 Commercial Code – his owed requirements to examine and to give notice of defects.
Unessential, acceptable deviations conc. measurements and executions – especially in case of repeat orders – entitle to claim unless the absolute observing has been expressly agreed upon. Technical improvements as well as necessary technical alterations are also valid as stipulated in the contract, provided they do not represent a worsening of the suitability of use.
If our operational and maintenance instructions will not be followed up, alterations on products will be made, parts will be changed or consumption materials will be used, any liability for defects is excluded, if the buyer cannot refute a respective substantiated claim, that only one of these circumstances has led to the defect.
As far as a defect of the purchase object is available, the buyer is upon his choice entitled to subsequent performance by a removal of the defect or by delivery of a new object without any defects. In case of the removal of the defect, we are obliged to take over all necessary costs for the removal of the defect, especially transport, travelling, labour and material costs, provided they will not be increased due to the fact that the sales object will not be transported to a place contrary to that of the place of performance.
If the subsequent performance fails, the buyer is upon his choice entitled to demand for withdrawal or reduction.
We are liable according to the legal regulations as far as the buyer claims for damages, which are based on intention or gross negligence, including intention or gross negligence of our agents or vicarious agents. As far as we cannot be blamed for any intentional breach of contract, the liability for compensatory damages is restricted on the foreseeable, typically occurring damage.
We are liable according to the legal regulations, as far as we culpably injure an essential contractual obligation; in this case the liability for damages is limited on the foreseeable, typically occurring damage.
As far as nothing to the contrary - mentioned before - has been arranged, the liability is excluded.
The period of statutory limitation for warranty claims belongs to 12 months, beginning from the date of the transfer of the risk.
The period of statutory limitation in case of a delivery of recourse according to §§ 478, 479 Civil Statute Book remains unaffected; the period of statutory limitation is 5 years, beginning from the delivery of the insufficient object.
The aforementioned regulations of this paragraph are not valid for the sales of already used objects. Such objects will be delivered without any guarantee.
If we will be at the disposal of the buyer beyond our legal obligations conc. the information of the use of his product, we will be only liable according to these business conditions in such case a special payment has been agreed upon.
§ 7 Total liability
A further liability for compensatory damages than prescribed in § 6 is – regardless of the legal nature of the claim made – is excluded. This is especially valid for claims of damages due to a fault when signing the contract conc. violation of duties or offence claims for replacement of object damages according to § 823 Civil Statute Book.
As far as the liability for compensatory damages towards us is excluded or restricted, the same is also valid conc. the personal liability for compensatory damages of our employees, workers, members of staff, agents and accomplices.
§ 8 Securing of reservation of ownership
We reserve the right of ownership of the sales object until receipt of all payments resulting from the delivery contract. In case of the buyer`s acting contrary to the contract, especially in case of delay of payment, we are entitled, to take back the sales object. This taking back of the sales object does not mean any withdrawal from the treaty, unless we had expressly fixed this point. The attachment of the sales object in any case means a withdrawal from the treaty. After having taken back the sales object, we are entitled to use it; the profit of utilization has to be deducted from the liabilities of the buyer less adequate utilization costs.
The buyer is obliged to treat the sales object carefully; he is especially obliged to insure it against fire, water and theft damages in a sufficient way, at his own expense and at the original value. As far as maintenance and service works are necessary, the buyer must effect them at his own expense.
In case of attachments or any other interventions of a third party the buyer has to inform us immediately in writing, enabling us to institute legal proceedings according to § 771 ZPO. As far as the third party is not able to reiumburse us for the legal and out of court costs of legal proceedings according to § 771 ZPO, the buyer is liable for the loss, caused to us.
The buyer is entitled to resale the sales object in a respectable course of business; however he will transfer to us already now all claims in the amount of the final value of the invoice of our claim, resulting from the resale against his sellers or a third party, independent of the fact whether the sales object has been resold without or after having been finished. The buyer will also be entitled to collect this claim after the transferring. Our authorisation to collect this claim ourselves, remains unaffected. However, we are obliged not to collect the claim as far as the buyer fulfils his payment obligations out of the collected sales returns, not defaults in delay of payment and especially if no application of insolvency proceedings has been put in or if a suspension of payment has come in. However, if this will be the case, we can demand the buyer to inform us about the transferred claims and the respective debtors, to state all necessary indications conc. the collection, to hand over the respective documents and to inform the debtors (third parties) about the transferring.
The processing or reshuffle of the sales object by the buyer will always be effected for us. If the sales object will be processed with other objects, not belonging to us, we acquire the co-ownership for the new object in relation of the value of the sales object (final invoice amount) with the other objects to be processed at the time of processing. Conc. the object caused by processing, the same is valid as for the object, delivered with reservation.
If the sales object will be mixed inseparably with other objects, not belonging to us, we acquire the co-ownership for the new object in relation of the value of the sales object(final invoice amount) with the other mixed objects at the time of mixing. If the mixing will be effected in such way that the object of the buyer can be considered as main object, it is agreed upon that the buyer transfers to us the proportional co-ownership. Thus the buyer gives the occurred sole ownership or co-ownership to us for safekeeping.
The buyer also transfers to us those claims for the security of our claims against him, resulting from the connection of the sales object with a real estate towards a third party.
We are obliged to unblock all securities lawfully entitled to us on request of the buyer if the realisable value of our securities exceeds by more than 10 % of the claims to be secured; the selection of the securities to be blocked belong to our responsibility.
§ 9 Place of jurisdiction – place of performance – partial nullity
As far as the buyer is a businessman, our place of business is the place of jurisdiction; however we are also entitled to take proceedings against the buyer at his domicile jurisdiction.
The law of the Federal Republic of Germany is valid; the validity of the UN sales law is excluded.
If there is nothing contrary in the order confirmation, our place of business is the place of performance.
If a regulation in these business conditions should be or become void, the efficiency of all other regulations and agreements between us and the buyer will not be affected. The totally or partially void regulation is to be replaced by a regulation, the economical success of which is most approaching that of the void ones.
