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General terms and conditions
Our deliveries and services shall – also in the future – be made exclusively on the basis of the following terms and conditions, even if we do not make specific reference to them in individual cases. Their validity can only be excluded in whole or in part by express written agreement in the individual transaction. These terms and conditions shall also apply to sales based on a commercial clause, in particular the Incoterms. General terms and conditions, in particular purchasing conditions of the purchaser, shall not apply to our deliveries and services. They shall not bind us even if we do not specifically object to them in individual cases; we hereby object to them. Our General Terms and Conditions of Delivery and Sale shall be deemed accepted at the latest upon receipt of the goods or services.
I. SCOPE OF THE OBLIGATION TO DELIVER
(1) Our offers are subject to change, even if they are made at the request of the customer. In principle, a legally binding contractual relationship with the customer shall only exist when we have confirmed the order in writing, which may also be done by fax or computer-written without signature; the same shall apply to amendments or supplements to the contract. Our written order confirmation shall be decisive for the scope, type and time of delivery. 2.
We reserve the right to make design changes. Our advertising materials are constantly revised. Illustrations and drawings contained therein are non-binding and do not form part of the agreed quality. They also do not constitute a guarantee of durability or quality or any other promises.
The documents belonging to the offer such as drawings, data sheets, illustrations, plans, etc. are only approximately authoritative unless they are expressly designated as binding. The documents remain our property; we reserve all rights thereto. They may not be made accessible to third parties without our written consent and must be returned to us immediately upon request. 4.
Call-off orders shall be called off and accepted in good time and in agreed partial quantities. In the case of call-off orders without agreement of running times, production batch sizes and acceptance dates, we may demand a binding stipulation thereof no later than 3 months after confirmation of the order. If the customer does not comply with this request within 3 weeks, we shall be entitled to set a two-week period of grace and, after the fruitless expiry of this period, to withdraw from the contract or to reject the delivery and claim damages.
If the contractual quantity is exceeded by the individual call-offs, we shall be entitled but not obliged to deliver the surplus. We may charge for the excess at the prices valid at the time of the call-off or delivery.
1. the prices are basically EURO prices. The statutory value added tax shall be charged additionally at the rate applicable at the time.
2) The prices apply to domestic deliveries ex works, uninsured and excluding packaging, and to foreign deliveries free German border or FOB German air or sea port, including packaging and transport insurance for export.
3. surcharges and subsequent calculations on the agreed remuneration are permissible if circumstances, such as material costs or wage or energy cost increases, increases in public charges, etc., force us to do so and the delivery or service is to take place later than 4 months after conclusion of the contract. In the event of other price increases, the customer shall have the right to withdraw from the contract if the list price has increased considerably more than the general cost of living. Deliveries from follow-up orders which take place after the time of a price change will be invoiced at new prices without the purchaser therefore having a right of withdrawal.
The delivery period shall commence with the dispatch of the order confirmation, but not before clarification of all details of the order execution and not before receipt of an agreed advance payment or provision of materials. The delivery period shall be deemed to have been complied with if the delivery item has been dispatched or collected by the expiry of the delivery period or if notification has been given that the item is ready for dispatch if dispatch does not take place through no fault of our own. 2.
Force majeure and other events for which we are not responsible and which may jeopardise the smooth processing of the order, in particular delays in delivery on the part of our suppliers, traffic and operational disruptions, industrial disputes, shortages of materials or energy, shall entitle us to withdraw from the contract in whole or in part or to postpone delivery without the purchaser being entitled to any compensation claims as a result. The customer may demand a declaration from us as to whether we wish to withdraw from the contract or fulfil the contract within a reasonable period of time. If we do not make a declaration, the customer may withdraw from the contract.
We shall not be responsible for the aforementioned events or circumstances even if they occur during an already existing delay in delivery. 3.
In the event of a delay in delivery for which we are responsible, we shall be granted a reasonable period of grace. After expiry of this period, the customer may demand compensation and/or withdraw from the contract insofar as the goods have not been reported ready for dispatch or delivered by the expiry of the period. There shall be no right of withdrawal if we are not responsible for the delay in delivery, i.e. the exceeding of the delivery period.
The customer shall only be entitled to claims for damages in lieu of performance if the cause of the damage is based on intent or gross negligence on our part. This shall not apply in the event of a transaction for delivery by a fixed date.
4. delivery obligations and delivery periods shall be suspended as long as the purchaser is in default of acceptance or other obligations, without this affecting our rights arising from the purchaser’s default, or if the purchaser has exceeded the credit limit granted by us. In this case, the risk of accidental loss or accidental deterioration shall also pass to the customer at the time he is in default. 5.
The originally agreed delivery period shall be cancelled if the order is amended with our written consent.
Reasonable partial deliveries as well as deviations (max. +/- 10 %) from the order quantities are permissible, insofar as these are reasonable for the purchaser, taking into account the interests of the purchaser. 7.
The weight and number of pieces of the delivered goods shall be decisive for the calculation as determined by us.
1. the goods shall be dispatched at the expense and risk of the customer from a place to be determined by us. 2. the packaging, method of dispatch and dispatch shall be determined by us.
We shall choose the packaging, type of dispatch and dispatch route at our own discretion, unless the customer has made special requests in this respect. Additional costs for special requests of the customer shall be borne by him. We do not assume any obligation for the cheapest dispatch. 3.
If dispatch or delivery is delayed at the request of the customer, we shall be entitled to set the customer a reasonable deadline for acceptance and, after the fruitless expiry of this deadline, to demand immediate acceptance and compensation for any damage caused by our delay.
V. TERMS OF PAYMENT
1. The conditions stated in our order confirmation shall apply to payment. Payments for foreign deliveries must always be made by irrevocable, confirmed letter of credit.
2. Cheques shall only be accepted subject to the usual reservations. Expenses shall be borne by the customer. In the case of payments of any kind, the day of performance shall be the day on which we can dispose of the amount.
3. If payments are deferred or made later than agreed, interest at a rate of 8 percentage points above the respective base interest rate shall be charged for the interim period without the need for a reminder. We reserve the right to claim further damages caused by default. The customer reserves the right to prove a lower damage caused by default. 4.
The customer is not entitled to offset counterclaims unless his claims are recognised by us, are undisputed or have been legally established. The customer also has no right of retention due to disputed counterclaims.
5. All our claims shall become due immediately, irrespective of the term of any bills of exchange accepted and credited, if the terms of payment are not complied with or if we become aware of circumstances which are likely to reduce the creditworthiness of the customer. We shall then also be entitled to make outstanding deliveries only against advance payment or provision of security or to withdraw from the contract after a reasonable period of grace and/or to claim damages in lieu of performance. We may also prohibit the resale and processing of the delivered goods and demand their return or the transfer of indirect possession of the delivered goods at the expense of the ordering party and revoke the collection authorisation in accordance with section IX.
7. The customer hereby authorises us to enter his premises in the aforementioned cases and to take away the delivered goods.
8. payments are always offset against the oldest invoice due. As long as an older invoice is outstanding, the customer shall not be entitled to claim a discount on the payment of later invoices.
VI. COMPLAINTS AND NOTICES OF DEFECTS
1. complaints due to incomplete or incorrect delivery or complaints due to recognisable defects must be notified to us in writing without delay, at the latest, however, within 2 weeks after receipt of the goods. Other defects must be notified to us in writing without delay, at the latest, however, within 2 weeks of discovery.
Warranty claims are excluded if complaints or notifications of defects are not made in good time. In the event of timely notification, we shall be obliged to provide warranty in accordance with Section VII. 2.
In the event of damage in transit, the customer shall provide us with a damage report from the railway or post office or from the carrier. 3.
3. defects in part of the delivered goods do not entitle the customer to complain about the entire delivery, unless the partial delivery is of no interest to the customer.
1. In the event of defects in the delivered goods, we shall be entitled, at our discretion, to remedy the defects or to make a replacement delivery within a warranty period of 12 months. This shall not apply where longer periods are prescribed by law, in particular in the case of defects in a building and in the case of goods which have been used for a building in accordance with their customary manner of use and have caused the defectiveness thereof. In the event of rectification of defects, we shall be obliged to bear all expenses necessary for the purpose of rectifying the defect, in particular transport, labour and material costs, insofar as these are not increased by the fact that the delivery items were delivered to a third party.
the fact that the delivery items have been taken to a place other than the place of performance.
2. The customer shall grant us the time and opportunity necessary to remedy the defect according to our reasonable discretion. Replaced parts shall become our property.
3. If subsequent performance fails, if we allow a reasonable period of grace granted to us for this purpose to elapse without making a new delivery or remedying the defect, or if subsequent performance is impossible or is refused by us, the customer shall have the right to withdraw from the contract or to reduce the purchase price, as well as in the event of our inability to provide subsequent performance.
4. the warranty does not apply to defects and/or damage resulting from natural wear and tear, nor to defects and/or damage resulting from faulty or negligent handling, excessive stress, unsuitable use, incorrect handling, etc., as well as such influences which are not assumed under the contract, provided that the damage is not attributable to our fault.
The warranty claim cannot be transferred to third parties without our consent. 6.
6. We shall not be liable for defects resulting from improper modifications and repair work carried out by the customer or third parties.
7. in the case of essential third-party products, our liability shall be limited to the assignment of the warranty claims to which we are entitled against the supplier of the third-party product, unless satisfaction from the assigned right fails or the assigned claim cannot be enforced for other reasons.
8. Further claims of the customer, irrespective of the legal grounds, against us are excluded, unless otherwise provided for below, in particular a claim for compensation for damages which do not arise and/or exist on the delivered goods themselves (e.g. loss of profit, consequential damages, other financial losses); this exemption from liability does not apply if we are compulsorily liable on the basis of intent, gross negligence or a guarantee promise or if an essential contractual obligation has been breached or in the event of injury to life, limb or health.
In the event of negligent, but not grossly negligent, infringement, our liability shall be limited to compensation for typical, foreseeable damage.
9. The above provisions shall apply mutatis mutandis in the event of delivery of goods other than the contractual goods.
VIII. LIABILITY, LIMITATION OF ACTIONS
1. the exclusion and limitation of our liability for damages as set out in section VII. 8. shall apply mutatis mutandis to all cases of our liability for damages due to breach of obligations arising from legal or quasi-legal obligations and from tort. This shall not affect claims pursuant to §§ 1, 4 of the German Product Liability Act (Produkthaftungsgesetz) and due to
impediment to performance upon conclusion of the contract or impossibility for which we are responsible. This exemption from liability does not apply if we are compulsorily liable on the basis of intent, gross negligence or a guarantee promise or if an essential contractual obligation has been breached or in the event of injury to life and health. 2.
(2) If our liability for damages is excluded or limited, this shall also apply to the personal liability of our executive bodies, employees and vicarious agents.
(3) The claims of the customer referred to in paragraph 1 shall generally become statute-barred after 24 months, calculated from the end of the year in which the risk passed. If the statutory limitation period is shorter than 24 months, this period shall apply to the relevant claims of the customer. The shortening of the limitation period does not apply to claims arising from tort or product liability. 4.
The statutory provisions on the burden of proof shall remain unaffected.
IX. RETENTION OF TITLE
1. all goods delivered shall remain our property (reserved goods) until all claims, in particular also the respective balance claims, to which we are entitled from the business relationship against the customer have been fulfilled. This shall also apply if payments are made on specially designated claims. 2.
In the event of combination and mixing of the goods subject to retention of title with other goods by the customer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership expires due to combination, the customer shall transfer to us already now the ownership rights to the new item to which he is entitled to the extent of the invoice value of the goods subject to retention of title and shall keep them in safe custody for us free of charge. The co-ownership rights arising hereafter shall be deemed to be goods subject to retention of title within the meaning of paragraph 1. We accept the transfer.
3. The customer may only sell the goods subject to retention of title in the ordinary course of business, under his terms and conditions of business, if they include a comprehensive retention of title corresponding to these provisions, and as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with paragraphs 4 and 6. He shall not be entitled to dispose of the reserved goods in any other way; in particular, the right to dispose of the reserved goods shall be deemed revoked without further ado if insolvency proceedings are filed against the assets of the customer or liquidation is initiated.
4. the customer’s claims from the resale of the reserved goods are already assigned to us now. They serve as security to the same extent as the reserved goods. We hereby accept the assignment.
5. If the goods subject to retention of title are sold by the customer together with other goods not sold by us, the assignment of the claim from the resale shall only apply to the amount of our invoice value of the respective goods subject to retention of title sold. In the event of the sale of goods in which we have co-ownership shares pursuant to para. 2, the assignment of the claim shall apply in the amount of these co-ownership shares.
6. If the goods subject to retention of title are used by the customer to fulfil a contract for work and services or a contract for work and materials, paragraphs 4 and 5 shall apply mutatis mutandis to the claim arising from this contract.
7. The customer is entitled to collect claims from the sale in accordance with paragraphs 3, 5 and 6 until our revocation, which is permissible at any time. We shall only make use of the right of revocation in the cases of paragraph 3 and section V. 5. The customer is not authorised to assign the claims in any other way. At our request, he is obliged to inform his customers immediately of the assignment to us – insofar as we do not do this ourselves – and to provide us with the information and documents necessary for collection. The customer is not permitted to pledge or assign the reserved goods as security.
8. Our retention of title is conditional in such a way that with the full payment of all claims the ownership of the goods subject to retention of title passes to the customer without further ado and the customer is entitled to the assigned claims without restriction. If the value of the existing securities exceeds the secured claims by more than 20% in total, we are obliged to release securities of our choice at the request of the customer. For the valuation of the securities, their realisable value shall be decisive as the security value.
9. The customer shall notify us without delay of any seizure or any other threat to or impairment of our rights of ownership and claims by third parties, handing over the seizure records or other documents, and shall do everything in his power to protect our rights.
10. We are entitled to enter the warehouse and the business premises of the customer at any time in order to remove, separate or mark the goods subject to retention of title. Upon request, the customer shall provide us with all relevant information about the goods subject to retention of title and hand over any necessary receipts. The customer is obliged to comprehensively insure the goods subject to retention of title in our favour at his own expense and to provide us with evidence of the insurance upon request. He hereby assigns to us all insurance claims resulting therefrom; we accept the assignment.
11. The assertion of our retention of title shall not be deemed a withdrawal from the contract. The purchaser’s right to possession of the goods subject to retention of title shall expire if he fails to fulfil his obligations under this or any other contract. We shall then be entitled to take possession of the goods subject to retention of title ourselves and to realise them in the best possible way by private sale or by auction, without prejudice to the payment and other obligations of the customer towards us. The proceeds of the sale shall be credited to the customer’s liabilities after deduction of the costs. Any surplus shall be paid to him. 12.
(12) If the retention of title or the assignment is not effective according to the law in whose area the goods are located, the security corresponding to the retention of title or the assignment in this area shall be deemed to be agreed. If the cooperation of the customer is required in this respect, the customer shall take all measures necessary to establish and maintain such rights.
Tools, moulds, devices and the like – hereinafter referred to as “tools” – are in principle our property, even if the customer has paid the costs for them in whole or in part. This applies irrespective of whether we ourselves or third parties commissioned by us have manufactured the tools. 2.
We undertake not to manufacture any parts for third parties with tools for which the customer has assumed the entire costs as long as the customer places follow-up orders with us. This obligation shall expire without the customer having any claim for reimbursement of any kind against us if we do not receive further orders within two years after the last order. 3.
We shall store and maintain the tools free of charge. The costs of maintenance and repairs shall be borne by the customer. Our obligation to store the tools shall expire upon expiry of the two-year period referred to in para. 2.
4. the above provisions (paras. 1.-3.) shall not apply to tools for articles which are generally customary and usable.
XI. INDUSTRIAL PROPERTY RIGHTS OF THIRD PARTIES
If we have to manufacture according to drawings, models or samples of the purchaser, the purchaser shall warrant to us that the industrial property rights of third parties are not infringed thereby. If this does happen, the customer shall indemnify us in full against any claims by third parties and compensate us in full for any damage incurred. If a third party asserts industrial property rights to which it is entitled, we shall be entitled to immediately discontinue the manufacture or delivery of the items without examining the legal situation.
XII. OTHER CONDITIONS
The place of performance and – if the customer is a merchant – the place of jurisdiction for both parties to the contract shall be D-78050 Villingen-Schwenningen. We are also entitled to sue the customer at his general place of jurisdiction.
2. All legal relations between us and the customer shall be governed exclusively by the law of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
3. Should individual provisions of these terms and conditions and the contractual provisions be or become invalid, this shall not affect the validity of the remaining provisions. The invalid provisions shall be reinterpreted in such a way that the legal and economic purpose intended by them is achieved. The same shall apply if a gap in the contract requiring supplementation becomes apparent during the performance of the contract. The contracting parties undertake to replace the invalid provisions immediately by legally valid agreements or to close the gap in the contract.
4. the customer’s data shall be stored by us within the scope of the purpose of the contractual relationship.