Terms of delivery and payment
I. General Provisions
1.
All deliveries and services are effected and performed on the basis of these Terms and of any other separate contractual agreements. Any purchasing terms of the customer deviating from our Terms shall not become part of the terms of the contract even by virtue of acceptance of the order. A contract becomes effective - in the absence of a special agreement - upon written confirmation of the order by the supplier.
2.
All quotations are subject to confirmation. Illustrations are not binding. We reserve the right to undertake design changes. The documents contained in the quotation and in the order confirmation such as descriptions, drawings, details of weights and measures are only approximations unless they are explicitly specified as being binding.
3.
The supplier reserves all rights of title and copyright to samples, cost estimates, drawings and similar information both tangible and intangible, also in electronic form; they may not be made accessible to third parties.
The supplier undertakes that it will only make information and documents that the customer classified as confidential accessible to third parties with the specific consent of the customer.
II. Price and payment
1.
Prices are ex works Abtsgmünd excluding packaging and shipping costs. The statutory amount of turnover tax shall be added to the prices.
2.
Payment is to be made on the supplier’s account without any deductions.
3.
The customer shall only have the right to withhold payments or to offset against counterclaims insofar as the customer’s counterclaims are undisputed or recognised by final and binding judgment.
4.
The invoice is issued on the day the goods are made available or on the date of delivery.
5.
Payment of the net amount is to be effected immediately after receipt of the invoice.
6.
Irrespective of any instructions for utilization of the funds, payments are always used to settle the oldest accounts payable plus default interest accrued.
III. Delivery period, delay in delivery
1.
The delivery period is determined in the agreements reached between the contracting parties. The precondition for the supplier’s compliance with the delivery deadline is that all commercial and technical queries have been clarified between the contracting parties and that the customer has fulfilled all obligations incumbent on it, such as procuring all the official certifications or permits required and effecting an advance payment. If this is not the case, the delivery period shall be extended accordingly. This shall not apply insofar as the supplier is responsible for the delay. Subsequent modifications desired by the customer result in an interruption in the delivery period. Compliance with the delivery deadline is subject to the reservation that delivery to the supplier is correct and punctual. Any delays becoming evident will be notified by the supplier as soon as possible.
2.
The delivery deadline shall be deemed met if the goods are notified as ready for dispatch prior to expiry of the delivery period.
3.
If the dispatch or collection of the goods being supplied is delayed due to reasons for which the customer is accountable, the customer shall be charged with the costs incurred due to the delay, beginning one month after the goods are notified as ready for dispatch.
4.
If non-compliance with the delivery deadline is due to force majeure, labour disputes or other events beyond the control of the supplier, then the delivery period shall be extended accordingly. The supplier shall inform the customer of the beginning and the end of such circumstances as soon as possible.
5.
The customer may terminate the contract without notice if it becomes definitively impossible for the supplier to perform prior to passing of the risk.
6.
If the impossibility or inability occurs during a delay in acceptance, or if the customer is solely or very largely responsible for such circumstance, then the customer remains liable to effect consideration. If the supplier is in default and if the customer thereby incurs a loss, the customer is entitled to demand lump-sum compensation for default. This amounts to 0.5% for each full week of the delay, but in total not exceeding 5% of the value of that part of the total delivery which was not able to be used in good time or not in accordance with the contract on account of the delay. If the customer sets the supplier a reasonable deadline for performance after the due date - giving due consideration to the statutory exceptions - and if the deadline is not met, the customer shall be entitled to terminate the contract within the framework of the statutory provisions. Further claims on account of default in delivery shall be governed exclusively by Section VII.2 of these Terms.
IV. Passing of risk, acceptance
1.
Risk passes to the customer when the goods being delivered leave the works, even if the supplier has undertaken further services such as shipping costs or delivery.
2.
If shipment or collection is delayed or not effected due to circumstances for which the supplier is not accountable, the risk passes to the customer starting on the day of notification of readiness for dispatch. The supplier undertakes to take out the insurance required by the customer at the customer’s expense.
3.
Partial deliveries are permitted insofar as they are reasonably acceptable for the customer.
V. Retention of title
1.
All goods supplied remain our property until all claims have been met, in particular also including all payment balance claims due to us, irrespective of the legal ground therefor. This also applies if payments are made for specifically designated claims.
2.
The processing or transformation of the goods by the customer is always performed for us. When the customer processes the goods with goods which do not belong to us, we are entitled to co-ownership in the new object; such co-ownership is in proportion to the value of the goods to which we have retained title compared with the value of the other goods processed at the time of processing.
3.
The customer is entitled to resell the goods supplied by us within the normal course of business. The customer assigns to us in advance the claims resulting from such sale in the amount of the value of the goods to which we have retained title; if the customer has current account agreements with third parties, this also applies accordingly to the claim to the balance on the current account. The customer remains authorized to collect the assigned claim even after such assignment. Our authorization to collect the claim ourselves remains unaffected hereby. We undertake, however, not to collect the claim as long as the customer meets his payment obligations and in particular provided that the customer has not applied for the initiation of insolvency proceedings. If this should be the case, we may demand that the customer advise us of the assigned claims and of who the debtors are, that the customer provide all information required for collection, that the customer hand over the respective documentation to us and inform the debtors (third parties) of the assignment.
4.
The customer may neither pledge nor transfer as security the goods to which we have retained title and is under obligation to inform us immediately of attachments effected at the behest of third parties.
5.
The customer shall store for us the goods to which we have retained title. The customer is to insure the goods against fire, theft and damage by water and assigns to us now already the claims to which the customer is entitled in this connection from his insurance, as well as other compensation claims due to the loss or destruction of the goods.
6.
An application for the initiation of insolvency proceedings entitles the supplier to terminate the contract and to demand the immediate return of the goods supplied.
VI. Claims on account of defects
The supplier provides the following warranty with respect to defects of quality and defects of title in the delivery, excluding further claims, – subject to the provisions of Section VII:
Defects of quality
1.
Notice of a defect is to be given in good time, namely within 14 days of receipt of the goods both as regards defects in quantities and externally visible defects.
2.
All those parts found to be defective due to circumstances occurring prior to the transfer of risk shall be repaired or replaced by defect-free goods free of charge at the supplier’s discretion. The supplier must be notified in writing without delay when such defects are established. Replaced parts become the property of the supplier.
3.
In order for the supplier to be able to perform all repair work and replacement deliveries deemed necessary by the supplier, the customer must, following agreement with the supplier, allow the supplier the required time and opportunity, otherwise the supplier is released from liability for the consequences resulting therefrom. Only in urgent cases of danger to operating safety or to avert disproportionately large damage, in which case the supplier is to be informed immediately, does the customer have the right to remedy the defect itself or to have it remedied by a third party and to claim compensation for the necessary expenditure from the supplier.
4.
Insofar as the complaint is found to be justified, of the direct costs resulting from the repair or replacement delivery, the supplier shall bear the costs of the replacement part and the costs of transport. In addition, the supplier shall bear the costs of dismantling and installation as well as the costs of providing any assembly operators and auxiliary personnel which may be necessary, including travel expenses, insofar as this does not involve a disproportionate burden for the supplier.
5.
Within the framework of statutory provisions, the customer has the right to terminate the contract if the supplier – giving due consideration to the exceptional cases stipulated by statute – allows a deadline to pass to no avail which was reasonably stipulated for the repair or replacement delivery of a defect as to quality. In case of an only minor defect, the customer only has the right to reduce the contractual price. The right to reduce the contractual price is otherwise excluded. Further claims are determined in accordance with Section VII. 2 of these Terms.
6.
No warranty is granted in the following cases in particular:
Unsuitable or inappropriate use, faulty assembly or faulty commissioning by the customer or third parties, normal wear and tear, faulty or negligent handling, incorrect maintenance, unsuitable operating supplies, insofar as these are not within the responsibility of the supplier.
7.
If the customer or a third party performs repair work incorrectly, the supplier has no liability for the consequences resulting therefrom. The same applies to modifications performed on the goods supplied without the prior consent of the supplier.
Defects of title
8.
If the use of the goods supplied leads to an infringement of industrial property rights or domestic copyright, the supplier shall, at its own expense, procure for the customer, in principle, the right to continue to use the goods supplied or modify the goods supplied in a manner reasonably acceptable for the customer in such a way that the infringement of the industrial property right ceases to exist. If this is not possible under reasonable economic conditions or within a reasonable period of time, the customer is entitled to terminate the contract. Given the aforementioned preconditions, the supplier also has the right to terminate the contract. In addition to this the supplier shall indemnify the customer from undisputed claims by the holders of the respective protective rights and from such claims recognised by final and binding judgment.
9.
The obligations of the supplier set forth in Section VI. 8 are, subject to the provisions of Section VII. 2, conclusive as regards the case of protective right and copyright infringements.
They shall exist only if
- the customer informs the supplier immediately of any claims asserted relating to protective right or copyright infringements
- the customer supports the supplier to a reasonable extent in the defence against the claims asserted or enables the supplier to perform the modification measures pursuant to Section VI. 8,
- the supplier retains the right to all defensive action, including out of court settlements,
- the defect of title is not based on an instruction issued by the customer
- the legal infringement was not caused by the fact that the customer made modifications to the goods supplied without authority or used the goods supplied in a manner not in accordance with the contract.
VII. Liability
1.
If the goods supplied cannot be used by the customer in accordance with the contract through the fault of the supplier due to the omitted or faulty execution of suggestions or consultations given or conducted before or after the contract was concluded or due to a breach of other auxiliary contractual duties – in particular instructions for the operation and maintenance of the goods supplied – the provisions set forth in Sections VI and VII. 2 shall apply accordingly, excluding any further claims by the customer.
2.
For damage not caused to the goods supplied themselves, the supplier is only liable as follows – irrespective of the legal grounds therefore
a. in case of deliberate acts,
b. in case of gross negligence by the proprietor/ executive organs or executive employees,
c. in case of culpable fatal or physical injury or damage to health,
d. in case of fraudulently concealed defects or where the absence of defects was guaranteed,
e. in case of defects in the goods supplied insofar as, under the Product Liability Act, there is liability for personal injury or material damage to privately-used objects.
In case of a culpable breach of material contractual duties, the supplier is also liable in case of gross negligence by non-executive employees, and, in the latter case, in the event of slight negligence, limited to damage typical of the type of contract and reasonably foreseeable.
Further claims are excluded.
VIII. Limitation period
All claims by the customer – irrespective of the legal grounds therefore – become time-barred after 12 months. The statutory limitation periods apply to compensation claims in accordance with Section VII. 2. a – e.
IX. Software use
Insofar as software is included within the scope of the delivery, a non-exclusive right to use the software delivered including the software documentation is conferred upon the customer.
The customer may only duplicate, revise, translate or convert the software from the object code into the source code to the extent permitted pursuant to statute (Section 69 a et seq. German Copyright Act (UrhG)). The customer undertakes not to remove the manufacturer’s details – especially copyright notices – or to change these without the prior specific consent of the supplier.
All other rights to the software and the documentation, including copies, remain with the supplier or with the software supplier. Granting sub-licenses is not permitted.
X. Place of performance, applicable law and court of jurisdiction
1.
All legal relationships between the supplier and the customer shall be exclusively bound by and construed in accordance with the laws of the Federal Republic of Germany applying to legal relations between domestic parties. The UN treaty for the international sale of merchandize (CISG) does not find application.
2.
The courts with jurisdiction at the registered office of the supplier shall have jurisdiction and venue. The supplier is, however, entitled to take legal action at the principal registered office of the customer.