1. General, offer, order and conclusion of contract
(1) All offers of the seller, the acceptance of offers and all deliveries and services are carried out exclusively on the basis of the following terms and conditions. These terms and conditions also apply to any and all future and similar business transactions with the purchaser. Deviating purchase terms of the purchaser are hereby expressly disacknowledged. They are only valid if the seller acknowledges them in writing.
(2) All orders, subsidiary agreements, reservations, changes or amendments to a contract require written form to become valid. Oral or written agreements deviating from contract conditions and/or order confirmations of the seller require for their validity the written consent of the seller’s statutory representatives or prokurists [holders of special power of attorney] in a number fit to represent the seller. The seller’s office and field service staff is not authorised to make any deviating agreements or to grant any special conditions.
(3) Offers of the seller are subject to change without notice. A sales, delivery or any other contract is only effective upon delivery of the order confirmation or upon delivering of the goods to the purchaser.
(4) All information on products of the seller, in particular, but not limited to, illustrations, drawings, measurements and service information contained in offers and publications, are to be seen as approximate average values. They are not guaranteed qualities but descriptions of the goods. This also applies to specimens and samples.
Variations customary in this particular line of business are permissible unless in the order confirmation specifications are marked as binding. Excess or short deliveries, which are taken into account in the invoice, may be carried out to the extent of 10 % as customary in this line of business.
(5) The seller reserves its title and copyright in any illustrations, drawings, calculations, other documents as well as in any specimen and sample. They may be made accessible to third parties only upon express consent of the seller.
(6) If the seller advises the purchaser free of charge no contractual or other legal relation comes into existance between the seller and the purchaser. The same applies, if the seller provides information or recommendations to the purchaser free of charge. A diviating agreement must be in writing to be effective. Implicit contracts on advice, information or recommendations are excluded.
(7) Advice, recommendations or information provided to the purchaser in the course of contract negotiations or in the process of initiating a contract or an order are binding for the seller only if they are confirmed by the seller a least in the form of a text.
2. Pricing and packaging
(1) The prices on the day of delivery as stated from time to time in the seller’s price lists shall apply unless a fixed price was explicitly agreed. The prices are understood to be net and without any VAT and discount. The fixed prices shall be valid for four months from the conclusion of the contract. If longer delivery dates have been agreed, or if the purchaser is responsible for an actual delay in delivery and if, in the meantime, there have been changes in material and energy costs, wages or any other general production costs, the sales prices generally valid at the time of delivery shall apply.
(2) All prices are understood to be ex works or ex stocks. Packaging material is charged at cost price and not taken back, with the exception of recyclable pallets which will be taken back without refund.
(3) To the extent that free-of-charge deliveries have been agreed, all prices are understood to be in EUR per sales quantity unit plus statutory VAT, not unloaded, free of charge ex stock or ex passable construction site on mainland Germany. A flat-rate freight will be charged for small quantities. A flat-rate for setup costs will be charged for small quantities of commissioned goods. The valid flat-rates are listed in the current price-lists.
(4) The purchaser shall pay, in advance and without any cash discount, transshipment fees, freight charges and duty according to the prices valid on the day of conclusion of contract. Any changes in transshipment costs, freight charges and duty shall be credited or debited to the purchaser.
3. Payments
(1) Payments are due immediately after invoicing, in cash, without any discount and franco domicile of the seller. Discounts for cash payments require explicit agreement. Each contracting party is entitled to prove any damage due to delay in performance which exceeds the statutory scope.
(2) Bills of exchange and cheques shall be accepted only upon explicit agreement and on account of performance. Discount, collection and other charges are at the purchaser’s expense.
(3) If payment in a foreign currency is agreed, the purchaser is obliged to pay in the currency agreed upon. If, between conclusion of the contract and receipt of payment the foreign currency upon which the purchase price is based, has depreciated in comparison with the domestic currency, the purchaser has to settle the differential amount.
(4) The purchaser can only set off undisputed or res judicata claims, or claim right of retention therefore. Any retention of payment is excluded if the claim to retention is based on a different contractual relation.
(5) All claims shall fall due upon suspension of payment, the application for the opening of insolvency proceedings, or the opening of insolvency proceedings over the assets of the purchaser. In such event any and all discounts and allowances shall be inapplicable. If after the conclusion of the contract it becomes apparent that financial or economic situation of the purchaser does not allow a granting of credits or payment periods, the seller may demand collateral securities to be provided or the advance payment of all claims, and refuse fulfilment until such collateral security is provided or payment is made. If collateral securities and/or the advance payment are not provided within the required period, the seller may withdraw from the contract or claim damages for of non-performance.
4. Delivery
(1) If possible, the seller shall adhere to the terms specified for delivery and service. Any indication of time shall, however, only be seen as approximations.
(2) The delivery periods shall commence with the date of the seller’s order confirmation. They shall be deemed adhered to upon notification of the goods being ready for dispatch if the dispatch is not possible for reasons beyond the seller’s control. If the purchaser picks the goods up himself, the delivery periods and dates shall refer to the point of time for which the seller has declared the goods ready for dispatch. The agreed delivery periods and dates shall be extended – without prejudice to the rights of the seller resulting from the purchaser’s default – by the period of time the purchaser is in default based on this or any other contract. The right to self-delivery shall be reserved.
(3) Together with the delivery the seller will issue the purchaser an invoice for the goods delivered. If the purchaser does not receive the invoice without undue delay after delivery, it is obliged to send the seller a reminder within 8 days after receipt of delivery. If this is not done, no deductions for cash discount and no other payment reductions may be made.
(4) If the seller is in default, the purchaser shall allow the seller a reasonable extension period of at least 30 days. After the expiry of the extension period, the purchaser may withdraw from the contract unless the goods were declared ready for dispatch before expiry of the extension period.
(5) In the case of war, strike, lock-out, a shortage of raw materials or energy, disruptions of operation and traffic, restraints of rulers as well as in any other cases of force majeure regardless to whether they concern the seller, the seller’s suppliers or carriers and for which the seller is not responsible and which impair or prevent the business concerned from being carried out, the delivery period of the seller shall be extended by the period of the delay plus a reasonable start-up time. The seller shall notify the purchaser without undue delay about such kind of delay. If, by the aforementioned circumstances, delivery or services are made impossible or cannot reasonably be expected from the seller, the seller shall be entitled to withdraw from the contract in part or in whole, without the purchaser being entitled to asset claims for damages because of such withdrawal.
5. Dispatch and passing of risk
(1) Dispatch and transport are carried out at the expense and risk of the purchaser. Goods that have been declared ready for dispatch by the agreed date shall be called for immediately. Otherwise the seller is entitled to store them at its own discretion at the cost and risk of the purchaser and to invoice them as if they had been delivered.
(2) Upon handing the goods over to the forwarder or the carrier, however at the latest upon the goods leaving the plant or the warehouse, the risk – including the risk of seizure – shall pass to the purchaser. This also applies if partial deliveries are made, or if the seller provides any other additional services, e.g. payment of the forwarding or delivery
costs.
6. Discovery of defects and warranty
(1) After receipt of the goods the purchaser shall examine the goods without undue delay, but at the latest prior to any installation or processing, and notify the seller of any defects in writing. The purchaser’s duty to examine applies to the entire consignment. If no complaint is made in time with respect to any defects of goods the delivery shall be considered performed in accordance with the contract. The same applies to any wrong deliveries as well as any variations in quantity not covered by clause 1.(4).
(2) The burden of proof that the goods were already defective at the time the risk passed to the purchaser rests on the purchaser. In particular, but not limited to, this applies for defects not notified after receipt of the goods without undue delay.
(3) Guarantees or taking over of a procurement risk have to be expressly stipulated. Features which the purchaser may expect by virtue of public statements concerning the good’s features that are made by the seller or persons assisting him, in particular in advertisements or in connection with labelling, do not belong to the agreed quality, unless they are expressly stipulated. Stipulations according to this subparagraph (2) must be in writting to be effective.
(4) Irrelevant defects, particularly minor variations in colour and structure as well as immaterial variations in length, width and thickness of the material delivered do not entitle to any notification of defects.
(5) In the case of properly notified, justified defects, the seller in its free discretion shall be entitled to either supply replacement free of charge or rectify the defects. Should the supply of a replacement or the rectification of a defect fail twice, the purchaser shall be entitled to reduce to purchase price or to withdraw from the contract.
A purchaser withdrawing from the contraction the event of deterioration, loss or destruction of the goods to be returned to the seller shall compensate the seller for lost value also in cases where neither the purchaser nor the seller is responsible for such deterioration, loss or destruction. With regard to the assertion of claims for damages due to defects it is referred to the statutory provisions without prejudice to the exclusion and limitation of liability according to clause 7.
(6) The appropriate storage and treatment of the goods delivered is the prerequisite for sustaining the purchaser’s warranty claims. The seller shall be given the opportunity to inspect the goods complained about. If such opportunity is not granted and if on request of the seller the purchaser does not make the goods available to the seller without undue delay, any claims based on defects shall cease to exist.
(7) If the goods delivered have been used consistent with their customary use for a building and such goods have caused the defectiveness of such building the warranty period shall be five years from the date of handing over of the goods. In all other cases the warranty period shall be one year from the time of handing over of the goods. If a defect has been fraudulently concealed, the statutory warranty period shall apply.
(8) The forwarder shall be notified of any damage to goods in transit. In this respect, the notification duties specified in the General German Forwarder´s Conditions [Allgemeine Deutsche Speditionsbedingungen] (ADSp) shall apply.
7. Liability
(1) For injury to life, body and health, the seller shall be liable in the case of slight negligence. Likewise, the seller shall be liable in the case of slight negligence for the violation of contractual obligations which are indispensable for achieving the contractual objective (cardinal obligations). In all other cases of contractual and extra-contractual liability the seller shall be responsible only for wilful intent and gross negligence. This applies in particular for the case of damages caused by a violation of duties or delay in performance (default), damages in lieu of performance, reimbursement of expenditures in vain as well as in cases of tort or product liability – except for any liability under mandatory product liability laws. Moreover, where a guarantee or procurement risk is assumed, the seller shall be liable only in the case of wilful intent or gross negligence, unless otherwise expressly stipulated in the contractual provisions.
(2) The seller is liable only for contract-typical and foreseeable damage. This liability limitation shall not apply if statutory representatives or executive staff of the seller have acted with wilful intent or gross negligence or in the case of liability for injury to life, body or health.
(3) With the exception of liability due to wilful intent or injury to life, body or health and unless claims for damages fall under the statute of limitations within a shorter period by operation of law or based on other provisions of the agreement claims for damages shall fall under the statute of limitations within two (2) years from the time the purchaser has gained knowledge of the circumstances establishing the claim and of the seller as obligor of damages or in the absence of gross negligence should have gained knowledge thereof. In all other cases Sec. 199 para. 2 and 3 of the Civil Code (BGB) shall apply.
(4) The seller shall be liable for advice, recommendations or information only if the purchaser and the seller have entered into a contract on such advice, recommendation or information, or if the seller is liable for the advice, the recommendation or the information under aspect of tort or culpa in contrahendo. Moreover is the seller’s liability for advice, recommendations and information regulated by clauses 7.(1) to (3)
(4) The liability provisions pursuant to clause 7. (1) to (4) also apply in favour of employees of the seller as well as of affiliate companies and subsidiaries.
8. Reservation of title
(1) The seller reserves the ownership of all goods delivered by it until the purchaser has settled all (also future) claims that have arisen from the business relationship. If deliveries are carried out by current account, the reservation of title shall serve as a security for the accounting balance.
(2) The purchaser shall be entitled to dispose of the purchased goods within the limits of an orderly course of business. All claims resulting from the sale of goods in which the seller has retained its ownership (hereinafter refered to as “Goods Subject to Retention of Ownership”) including any and all claimes for accounting balances resulting from current accounts shall be assigned already now and in total by the purchaser to the seller. Other than regulated in the preceding sentence claims resulting from the sale of Goods Subject to Retention of Ownership together with thirdparty goods at a total price are assigned to the seller only in a portion in the amount of the invoice value of the Goods Subject to Retention of Ownership. Likewise, any claims against insurance companies or third parties resulting from damage to Goods Subject to Retention of Ownership shall hereby be assigned to the seller.
(3) The combination, processing, assembly and any other way of utilisation of Goods Subject to Retention of Ownership is effected for the seller, but without any obligations for it. If Goods Subject to Retention of Ownership are processed, combined or mixed with goods possessed by a third party, the seller is entitled to joint ownership of the new object or the mixed stock in a proportion of the invoice value of the Goods Subject to Retention of Ownership to the invoice value of the other utilised goods. If the ownership of the seller in the Goods Subject to Retention of Ownership ceases to exist through combination or mixture it is already now agreed that the ownership or coownership in the uniform object or the uniform stock resulting from such combination or mixture vests in the seller in a proportion according to the invoice value of the Goods Subject to Retention of Ownership. The purchaser shall keep goods in which the seller has co-ownership rights in safe custody for the seller free of charge. Goods being subject to the seller’s title or ownership rights as mentioned above shall be considered as Goods Subject to Retention of Ownership within the meaning of clause 8. (1).
(4) The seller revocably authorises the purchaser to collect in its own name claims assigned to the seller on account of the seller. This authorisation can be revoked only if the purchaser does not comply properly with its payment obligations.
(5) If the realisable value of the collateral securities provided to the seller exceeds the claims to be secured by more than 20 %, the seller is, upon the purchaser’s request, obliged to release collateral securities of its choice.
(6) If the seller does not comply with its contractual duties, particularly in the event of default in payment, the seller shall have the right to withdraw from the contract and to request that the Goods Subject to Retention of Ownership are returned to the seller. In such an event the seller is entitled to invoice a flat rate of 15 % of the order value for the costs in connection with the return, unless the purchaser proves that the seller had no or less costs because of the return of the goods.
(7) The purchaser is not permitted to pledge or to transfer by way of security Goods Subject to Retention of Ownership until any and all claims of the seller have been settled. In case third parties take hold of Goods Subject to Retention of Title, in particular, but not limited to, in case of a seizure, the purchaser is obliged to make such third party aware of the retention of title in the Goods Subject to Retention of Title, and to notify the seller without undue delay of any seizure, opening of insolvency proceedings or any other legally relevant events which might impair the rights of the seller in the Goods Subject to Retention of Title. In the case of suspension of payment, the Goods Subject to Retention of Title shall, without special solicitation, be singled out and kept at the disposal of the seller.
9. Part performance
The seller is entitled to part performance within a reasonable scope; each part performance shall be seen as independent business transaction.
10. Place of performance and place of jurisdiction
(1) Place of performance for the delivery is the respective loading station. Place of performance for payments is Amorbach.
(2) Place of jurisdiction for any disputes from the contract between the parties, including actions arising from a bill or a cheque, shall be Amorbach to the extent that the purchaser is a merchant, a legal person under public law or a special fund under public law.
(3) For all legal relations between seller and purchaser the laws of the Federal Republic of Germany shall apply. The UN Sales Convention (CISG) as well as any international agreements, even after their adoption into German law, shall not apply.
11. Partial invalidity
If one of the aforementioned provisions or a part thereof should be or become invalid or do not contain a regulation that is required the validity of the remaining provisions shall not be affected. For the event of the invalidity of individual provisions the parties shall agree on a regulation which comes as close as possible to the economic result of the originally intended arrangement.
12. Translation
These terms and conditions of sale, delivery and payment are the translation of the German terms and conditions of sale, delivery and payment. In case of doubt the German version of the terms and conditions of sale, delivery and payment is binding.
(Status 2018)