§ 1 General information – Scope of application
GENERAL TERMS AND CONDITIONS
(1) Our General terms and conditions apply exclusively; we do not accept opposing conditions or those deviating from our General terms and conditions of the Customer unless we have expressly agreed to their application in writing. Our General terms and conditions apply also if we execute the delivery to the customer without reservations in the knowledge of opposing conditions of the customer or conditions deviating from our General terms and conditions. Our silence in terms of the differing conditions of the Customer or standard conditions provided to us cannot be interpreted as an acceptance of these conditions.
(2) All agreements, also subsidiary agreements and assurances, have to be documented in writing. This also applies for deviations from this condition.
(3) Our General Terms and Conditions apply only to merchants.
(4) Our General Terms and Conditions also apply for all future transactions with the Customer.
(5) Our General Terms and Conditions apply for all of our deliveries, works, work deliveries, services and all of our other services.
§ 2 Offer – offer documentation – formation of the agreement
(1) We are at liberty to accept orders within 4 weeks.
(2) Our offers are subject to change.
(3) Our offers are pursuant to correct and on-time self-supply. This applies with the limitation that we are not responsible for an omitted or delayed self-supply.
(4) In terms of illustrations, drawings, calculations and other documents, we retain proprietary and copyright, particularly for those written documents designated “confidential”; the customer requires an explicit written consent prior to their transfer to third party.
§ 3 Prices – Terms of payment
(1) Unless contractually agreed otherwise, our prices apply ex work (EXW according to INCOTERMS) excluding packaging; packaging shall be invoiced separately.
(2) We are entitled to charge an additional processing fee of €100.00 per order for each order value below € 1,000.00.
(3) We reserve the right to increase our prices appropriately in the event of cost increases, particularly in case of material and wage cost increases after the conclusion of the agreement. Upon request, we shall verify this to the customer.
(4) Statutory value added tax (VAT) is not included in our prices; it is specified in the invoice at its legal amount on the day of invoicing and has to be paid by the Customer.
(5) Unless otherwise contractually agreed, the purchase price is due and payable within 30 days from date of invoice without deduction; a discount of 2% is granted in case of payment within 10 days from date of invoice.
(6) If the customer is in default, we are entitled to demand default interest of 8% above the respective basic interest rate p.a. If we are able to verify a greater damage caused by default we are entitled to assert such claim.
(7) The Customer is responsible for costs, taxes and customs also in cases whereby the transport is assumed by us or third parties commissioned by us.
(8) The customer is only entitled to off-setting and retention if his counter claims were legally determined, are uncontested or accepted by us. He is furthermore only entitled to a right of retention in as far as his counter claim is based on the same contractual relationship.
(9) If we become aware of circumstances indicating the customer’s over-indebtedness, payment delays or the inability to pay, we are entitled to call in the entire debt or demand prepayment or securities.
§ 4 Deliveries – delivery times
(1) Unless deadlines or periods of notices are contractually specified, they are not binding.
(2) We are entitled to partial deliveries and partial invoices unless the acceptance of the partial delivery is unfeasible for the customer due to special circumstances in an individual case.
(3) We are not responsible for delays in delivery and performance due to force majeure or comparable events (e.g. strike, lockout) even in case of bindingly agreed deadlines and dates and even if they occur during an already existing delay, unless we have caused the delay intentionally or through gross negligence due to our own conduct or conduct attributable to us.
(4) Delays in delivery and performance not owed to us according to section (3) above entitle us to postpone the delivery and/or performance for the duration of the impediment plus a reasonable start-up time or to completely or partially withdraw from the agreement with regard to the yet unfulfilled component. This also applies if our suppliers or their sub-suppliers are affected.
(5) If the impediment lasts longer than 2 months the customer is entitled to withdraw from the agreement with regard to the yet unfulfilled component following a reasonable period of grace. If the period of delivery is extended or if we are released from our obligation, the customer is not entitled to any compensation claims.
(6) We can only invoke the impediment in terms of the paragraphs above if we have notified the Customer without undue delay.
(7) If we are in default of delivery for reasons owed to us, the customer is entitled to demand a flat rate compensation for the delay for each completed week of the delay in the amount of 1% of the delivery value, however up to a maximum of 5% of the delivery value. Additional compensation claims are excluded, unless we are guilty of gross negligence or intent. We reserve the right to verify to the customer that no damage or considerably less damage has occurred as a consequence of the default of delivery. Compensation claims of the Customer are limited in any case to the replacement of unforeseeable damages, unless we are guilty of gross negligence or intent.
(8) Compensation claims by the customer due to non-compliance are limited to the amount of the unforeseeable damage and are excluded in cases of slight negligence.
(9) The liability limitation according to paragraphs (7) and (8) of these conditions do not apply if a commercial fixed business was negotiated.
§ 5 Transfer of risk
(1) The risk of accidental destruction and accidental deterioration of the goods is transferred to the customer upon dispatch of the goods or their transfer to the forwarder, regardless whether the shipping occurs from the place of fulfilment or who pays the carrying costs. If special instructions of the customer have to be obtained for the dispatch, the risk is transferred to the Customer upon notification that the goods are ready for dispatch. It is recommended that the Customer take out transport insurance.
(2) Transport and all other packaging according to the packaging ordinance are non-returnable. The Customer is obligated to ensure the disposal of the packaging at his expense.
§ 6 Warranty for defects
(1) Warranty rights of the customer imply that he has properly complied with his obligations regarding inspection and requirement to give notice of defects in accordance with Sections 377, 378 HGB (German Commercial Code) in due time.
(2) The statutory warranty period (24 months) apply, unless agreed differently in writing.
(3) If the merchandise exhibits a defect owed to us, we are entitled to remedy the defect or to subsequent fulfilment at our discretion. We hereby explicitly declare that the customer’s own remedial measures are not covered by our actual or presumed will. We do not acknowledge claims resulting from the Customer’s remedial measures. If our operating or maintenance instructions are not observed, if changes are made to the products, parts exchanged or consumables use which do not comply with the original specifications, any warranty is omitted if the customer does not disprove a respectively substantiated allegation that one of these circumstances has caused the defect.
(4) The Customer, at his discretion, is entitled to withdraw or demand a reduction in all cases of a double failure of the remedy of a defect or replacement deliver or cases of delay despite granting a period of grace.
§ 7 Liability
(1) In as far as our liability for compensation is excluded or limited according to § 6, this also applies for all claims based on culpa in contrahendo, breach of ancillary obligations, claims arising from product liability and other liability arising from tort.
(2) The regulation according to (1) does not apply for claims according to Sections 1, 4 Product Liability Act. This also applies in case of initial incapacity or impossibility owed to us.
(3) If our liability is excluded or limited, this also applies for the personal liability of our employees, workers, representatives and vicarious agents.
(4) All compensation claims become statute barred within 6 months from the transfer of risk (§ 5 (1)). This does not apply if the law stipulates longer limitation periods as well as in cases of the violation of life, limb or health, intentional or gross negligent breach of duty, liability according to the Product Liability Act or in case of the malicious concealment of a defect. Statutory regulations regarding the interruption and the recommencement of the statute of limitation remain unaffected.
§ 8 Export permit
(1) The supplied goods may be subject to German and American export controls and embargo conditions. The export from the Federal Republic of Germany can only be admissible with the consent of the Federal Office for commerce in Eschborn/Taunus and the Office of Export Control in Washington. The Customer has to transmit these instructions to his customers and thus ensure, if it is within his power, compliance with the regulations up to the end consumer. We expressly point out the criminal liability of a violation of the conditions.
(5) Unless stated otherwise below, further claims of the customer – regardless of their legal reasons – are excluded. We are therefore not liable for damages, which have not occurred on the delivered item itself; we are particularly not liable for the loss of profit or other pecuniary losses of the customer or consequential damages. We are only liable for compensation for the foreseeable damage typical of the contract, unless the customer could specifically rely on its avoidance.
(6) The exemption from liability according to paragraphs (4) and (5) of this provision shall not apply insofar as mandatory statutory provisions conflict, in particular not for claims based on the Product Liability Act due to defects in the delivered goods, for personal injury or property damage to privately used objects, in the case of intent and gross negligence, in the case of injury to life, limb or health, in the case of breach of essential contractual obligations (cardinal obligations); in the latter case, however, our liability shall be limited in amount to the foreseeable damage typical for the agreement, unless intent or gross negligence is involved or liability is assumed for injury to life, limb or health.
(7) Warranty claims against us are only owed to the customer. They cannot be assigned.
(8) In as far as the manufacturer of products has assumed an independent guarantee for these, we hereby expressly declare that we do not enter into or join such guarantee declarations and that claims based on such guarantee declarations are to be asserted exclusively against the manufacturer. In as far as we act as representatives of the manufacturer in the handling of these claims mentioned in sentence 1, which are to be asserted against the manufacturer, the customer must comply with our RMA procedure.
(9) With regard to Directive 2002/95/EC of the European Parliament and of the Council of 27.01.2003 regarding the restriction of the use of certain hazardous substances in electrical and electronic equipment (RoHS), our information regarding RoHS conformity refers to the information provided by our suppliers, for which we do not assume responsibility.
§ 9 Security of reservation of title
(1) We reserve ownership of the merchandise until the receipt of all payments from the delivery contract with the customer.
(2) In the event of several supply agreements, we reserve the right of ownership of the merchandise up to the receipt of all payments due to the business relationship with the Customer.
(3) In the event of the customer’s conduct contrary to the agreement, particularly in case of default of payment, we are entitled to retrieve the merchandise. The retrieval or seizure of the merchandise does not constitute our withdrawal from the agreement, unless we have declared so explicitly in writing. Upon retrieval or seizure of the merchandise we are entitled to its utilisation; the revenue from the utilisation is off-set against the customer’s obligations less reasonable utilisation expenses.
(4) The Customer is obligated to treat the merchandise carefully; he is particularly obligated to insure the merchandise against fire, water and theft at his own expense. If maintenance or inspection work has to be carried out, the Customer has to implement those at his expense in due time.
(5) The Customer is obligated to immediately inform us in writing in the event of seizures or other interventions by third parties to enable us to file a petition according to § 771 ZPO (Code of Civil Procedure). If the third party is not able to reimburse us for the judicial and extra-judicial costs of a successful petition according to § 771 ZPO (Code of Civil Procedure), the purchaser is liable for the damage we incurred.
(6) The Customer is entitled to on-sell the merchandise in the course of proper business; however, he now assigns to us all claims in the amount of the invoice (including VAT) which he accrues from his purchasers or third parties based on the on-selling, regardless whether the merchandise was on-sold with or without processing, combining or intermingling. The Customer is entitled to collect this claim also following the assignation. Our authorisation to collect the claim ourselves remains unaffected. However, we shall not collect the claim as long as the Customer complies with his payment obligations, is not in default of payment and has particularly not applied for the commencement of insolvency or composition procedures or has suspended payment. If this is the case, the Customer is obligated to disclose the assigned claims and their debtors, provide all details necessary for the collection, supply the respective documentation and inform the debtors (third parties) of the assignation.
(7) The processing or combination of the merchandise by the Customer is always performed on our behalf. If the merchandise is processed or combined with other objects not belonging to us, we obtain co-ownership in the new object at the ratio of the objective value of the merchandise (invoice amount including VAT) to the other processed or combined objects at the time of processing or combining. For the remainder, the same conditions apply for the items created by the processing or combining as in case of merchandise delivered under reservation.
(8) If the merchandise is inseparably amalgamated with other merchandise not belonging to us, we obtain co-ownership in the new object at the ratio of the objective value of the merchandise (invoice amount including VAT) to the other amalgamated objects at the time of amalgamation. If the amalgamation occurs in the manner that the object of the Customer is considered the main object, it is agreed that the Customer assigns to us proportional ownership. The customer preserves the thus created sole ownership or co-ownership for us.
(9) Upon demand by the Customer we are obligated to release the securities owed to the extent as the realisable value of the securities exceeds the claims of our security by more than 20 %; the choice of the securities to be released is at our discretion.
§ 10 Applicable law, place of jurisdiction, partial invalidity
(1) The laws of the Federal Republic of Germany apply for these Terms and Conditions and the entire legal relationship between the customer and us.
(2) Our registered business address is the place of jurisdiction; however, we are entitled to also sue the Customer at the court of competent jurisdiction for his residential address. The statutory regulations regarding judicial default action remain unaffected.
(3) If one of the conditions of these Terms and Conditions or a condition in the context of other agreements is or becomes ineffective, the effectiveness of the remaining conditions or agreements between the Customer and us remain unaffected.