General terms of sale, delivery and payment
I. Authoritative conditions
- These conditions apply to all business activities with our customers even if they are not mentioned in subsequent contracts. They also apply where our customers refer to their own general terms and conditions unless said terms and conditions have been acknowledged explicitly and in writing.
- All collateral agreements must be confirmed in writing. Verbal collateral agreements or commitments will only take effect if they have been confirmed in writing. Subsequent amendments to the contract must also be made in writing. This also applies to a revocation of the written form requirement.
- The contract will only be concluded upon our confirmation of order or delivery of the goods.
II. Delivery, partial delivery and default of delivery
- If a delivery date has not been agreed in writing, the delivery date stipulated by us will be deemed to have been agreed.
- Delivery dates or delivery periods that can be agreed bindingly or non-bindingly are to be recorded in writing. The delivery periods begin upon conclusion of the contract. In the event of any subsequent amendments to the contract, the delivery date or delivery period is to be adjusted accordingly as required.
- We reserve the right to deliver excess or reduced quantities of up to 10% for custom product runs.
- 3 weeks after a non-binding delivery date has expired, the customer can submit a written request for delivery within an appropriate period of time. We will then be in default with this reminder. In addition to delivery, the customer may only claim compensation for damage caused by the delay if said delay is attributable to intent or gross negligence on our part. In the event of a default on delivery, the customer can also stipulate a reasonable deadline in writing and state that acceptance of the goods will be refused after the deadline has expired. Should this deadline expire without the goods having been delivered, the customer will be entitled to withdraw from the purchase contract by giving written notice thereof or, in the case of wilful intent or gross negligence, to claim damages for non-performance; an entitlement to delivery will be excluded in such cases, however.
- Partial deliveries are permissible.
- If a bindingly agreed delivery date or a bindingly agreed delivery period is exceeded, we will be in default as soon as the delivery date or delivery period is exceeded. The rights of the customer will then be determined pursuant to Item 4, Para. 1, sentence 3 and Para. 2.
- In the event of force majeure, in particular operational disruptions, shortage of raw materials, traffic disruptions, industrial action, regulatory measures and the like, even should these occur in the person of our subcontractor, we shall be exempt from our obligation of performance for the duration of the hindrance or its consequences. In this case the customer will not be entitled to withdraw from the contract or to claim damages. The same shall apply in instances of unforeseen events or where the prevailing circumstances make production or delivery of the sold goods impossible or excessively difficult.
- Shipping takes place ex works on a freight forward basis. All risk is transferred to the customer as soon as the goods leave our factory or they become available to the customer at our factory and the customer has been notified accordingly. We are entitled to determine the shipping method and its execution at our reasonable discretion unless the customer has given us special instructions for delivery.
- In the case of delivery periods of more than 4 months, we are entitled to raise the agreed price should the market conditions have changed in the time between the placement of order and delivery. All cost changes that have occurred between the times of placement of order and delivery, in particular the prices of raw materials, auxiliary materials, energy and wages, are to be proportionally taken into consideration. If the customer is a merchant, the cost changes as stated in Sentence 2 will entitle us to change the prices with immediate effect.
- The weights, number of units and quantities as determined by us are decisive for the calculation of prices. Unless agreed otherwise, all prices are deemed to be net prices, ex works and exclusive the statutory sales tax.
V. Terms of payment, default
- All invoices, including those for partial deliveries, are payable within 30 days of the invoice date without deductions. Unless agreed otherwise in writing, we grant a 2% discount on payments made within 10 days of the invoice date. In the event of payment after the due date, the customer will owe after a reminder - insofar as this is necessary - interest amounting to at least 5% pursuant to § 1 of the Discount Rate Transition Act dated June 9, 1998, and namely for the period from the beginning of the default until the receipt of payment by us. We reserve the right to assert claims for further default damages.
- The exercising of the right of retention and set-off against our claims is permissible only if the counter-claims have been acknowledged by us or have been legally established by a court.
- In the case of payment by bill of exchange, which we shall accept at our discretion, the full collection and discount charges shall be borne by the customer. The customer shall only assume liability for the prompt presentation, protest, notification and return of bills of exchange that have not been redeemed to the extent that the customer's bank has assumed liability towards the customer in accordance with usual banking conditions. If in the period following conclusion of the contract and delivery a significant change should occur concerning either the customer's corporate or personal circumstances, or should the creditworthiness be questionable, we shall be entitled to render any outstanding services only in return for advance payment or collateral security, as well as to withdraw from the contract after a reasonable deadline or to demand damages for non-performance insofar as our request for advance payment or collateral security is not fulfilled on time. Bills of exchange and cheques will only be accepted on account of payment.
- If the customer defaults on payment of the purchase price for a delivery, all claims arising from the specific contractual relationship with us shall become due immediately and we shall be entitled, subject to our other rights, to demand collateral security prior to any further deliveries or, if collateral security is denied, to withdraw at our discretion either fully or partially from the unfulfilled contract after a reasonable deadline has been set.
- We will assume liability as follows for defective delivery items: a) The customer is entitled to have defects remedied (rectification) during a period of 6 months following acceptance of the delivered goods. If we are not able to remedy faults that are subject to our warranty obligations or should any further attempts at rectification be unreasonable for the customer, the customer may demand conversion (cancellation of the contract) or reduction (reduction in the remuneration) in lieu of rectification. b) Normal wear is excluded from the warranty in all cases.
- The period within which the customer must exercise his legal obligation to examine the goods and submit notification of defects is 3 working days. Notices of defects will only be valid if they are explained in writing.
- Warranty claims expire 6 months after receipt of the delivery.
- We will pay all expenses that are incurred for the purpose of remedying a defect, in particular transport, travel, labour and material costs. Where merchants are concerned, rectification costs are limited to the value of the order.
- We shall only be liable for immediate and consequential damage caused by defects in cases of wilful intent or gross negligence.
- Standard commercial tolerances will be deemed to have been agreed for all deliveries.
- All representations concerning the properties or usability of the delivered goods must always be explicitly declared in writing and designated in the contract as an assurance; unless explicitly agreed otherwise in writing, the handover of a sample does not imply an assurance of a property, rather the sample is only intended to specify the type of goods. Information contained in descriptions valid upon conclusion of the contract regarding the scope of delivery, appearance, performance, dimensions and weights form part of the contract; they are to be considered as being approximate and are not assured properties, but serve as a benchmark for determining whether the purchased item is free from defects pursuant to VI. Details about the production, composition, operation, suitability and application of our goods do not exempt the customer from his obligation to conduct his own inspections and tests.
- We shall not assume any guarantee for test results even if such tests have been conducted in our presence.
- The customer is obliged in all cases of complaint to send us product samples or to give us the opportunity to take samples.
- No liability will be assumed for damage resulting from natural wear and improper handling. Furthermore we shall not be held liable if rectification work or substitution is made difficult on account of arbitrary rectifications carried out by the customer.
VII. Extended retention of title
- We shall retain the title to the delivered goods until receipt of all payments from the business relationship with the customer. The retention of title also extends to the acknowledged balance insofar as we book receivables from the customer in current accounts (current account reservation). In the event of a breach of contract by the customer, in particular default on payment, we shall be entitled to take back the delivered goods; the customer is obliged to surrender such goods. The reclaiming of the delivered goods on our part shall not, insofar as the provisions of the Consumer Credit Act apply, imply withdrawal from the contract unless we should have explicitly made such a declaration in writing. Seizure of the delivered goods will always result in withdrawal from the contract. In the event of seizure or any other intervention by a third party, the customer must notify us accordingly without delay so that we can institute proceedings pursuant to § 771 ZPO (German Code of Civil Procedure). Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of legal action pursuant to § 771 ZPO, the customer shall be liable for any loss incurred by us.
- The customer is entitled to resell the delivered goods in the ordinary course of business; he shall, however, now already assign to us all receivables to the amount of the final commercial invoice (including VAT) which accrue to his benefit from the resale to his buyers or third parties regardless of whether the delivered goods have been sold without or after having been processed. The customer is authorised to collect these receivables after their assignment. Our authority to collect the receivable ourselves remains hereby unprejudiced; however, we undertake not to collect receivables as long as the customer duly meets his payment obligations and is not in default of payment. Should this be the case, however, we can then require that the customer informs us about the assigned receivables and the liable party concerned, and that he provides us with all the information necessary for collection, hands over the relevant documents, and notifies the liable party (third party) about the assignment.
- Processing or transformation of the delivered goods by the customer always takes place on our behalf. If the delivered goods are processed with other objects that do not belong to us, we shall acquire co-ownership of the new article in proportion to the value of the delivered goods in relation to the other processed objects at the time of processing. The same shall otherwise apply to the object resulting from the processing as applies to the reserved goods.
- If the delivered goods are inseparably combined or mixed with other objects that do not belong to us, we shall acquire co-ownership of the new article in proportion to the value of the delivered goods in relation to the other combined or mixed objects at the time of processing. If the combining or mixing took place in such a manner that the customer's article is to be regarded as being the principal object, it shall be deemed to have been agreed that the customer proportionately assigns co-ownership to us. The customer shall hold sole ownership or co-ownership on our behalf.
- The customer shall also assign us the receivables for safeguarding our claims against him which accrue to his benefit against a third party through combining the delivered goods with a plot of land.
- We undertake to release such collateral securities to which we are entitled at the request of the customer should their value exceed the receivables to be secured by more than 20% insofar as these receivables have not yet been settled.
VIII. Places of performance and jurisdiction
- Place of fulfilment is Bad Ems.
- Koblenz is the sole place of jurisdiction for all present and future claims arising from the business relationship with registered merchants including bill of exchange and cheque receivables. The same place of jurisdiction shall apply if the customer does not have a general place of jurisdiction in Germany, has moved his domicile or place of habitual residence out of the country following conclusion of the contract, or if his domicile or place of habitual residence is not known at the time when the legal action is taken.
- The legal relationships with our business partners shall be, unless expressly agreed otherwise, subject solely to German legislation.