1. Offers are subject to confirmation as far as the order confirmation does not state otherwise. Our GBTC also apply to all future business transactions with the Buyer. Our General Business Terms and Conditions apply exclusively; we do not recognise the Buyer‘s General Business Terms and Conditions which contradict or deviate from our own unless we have explicitly agreed to their validity in writing. Our General Business Terms and Conditions also apply if we carry out the Buyer‘s delivery without reserve despite our knowledge of any terms and conditions which are contrary or deviate to our own. Our contractual commitment always requires our written order confirmation. Collateral agreements, assurances regarding the properties of our goods as well as contractual relationships require our written confirmation. We are entitled to correct spelling and/or calculation errors or other obvious inaccuracies in our declarations without any legal prejudice. All agreements reached between ourselves and the Buyer for the execution of this contract are recorded in this agreement. Our General Business Terms and Conditions only apply vis-à-vis entrepreneurs according to Section 310 subsection 1 BGB [Bürgerliches Gesetzbuch = German Civil Code].
2. As far as nothing else is derived from the order confirmation, our prices are considered to be ex works, exclusive of packaging; these charges will be invoiced separately. The statutory value-added-tax is not included in our prices; it is listed separately in the invoice according to the legally applicable amount valid on the invoice date.
3. Provided the order confirmation does not state anything to the contrary, the invoice amount is due for payment – net without any deductions – within 30 calendar days from the date of invoice. Wage invoices are payable immediately without any deduction. 50 percent of the invoice amount for tools is due upon placement of the order; the remaining 50 percent is due without any deduction after the release of the reference samples. Statutory regulations apply with regard to the consequences of payment arrears. The Buyer only has a right to set off any amounts if his counter-claims are legally determined, ready for decision or recognised by us. The Buyer may only exercise a right of retention if his counter-claim is based on the same contractual relationship.
4. Measurements, weight and performance details as well as illustrations are only approximate and non-binding. Brochures, photographs, price lists, descriptions, drafts, drawings and quotations – even in as far as they were drawn up at the Buyer‘s request – remain our property and possession. These documents may not be made accessible to third parties – irrespective in which form – neither as an original nor as a copy. They must be returned to us without delay if the contract does not materialise. Tools and special equipment we manufacture for the Buyer are not assigned by way of a legal transaction but are made available for the specific purpose of creating the goods. As far as the Buyer manufactures tools and special equipment for us, these become our property and possession even if they remain in the ownership of the Buyer (indirect possession relationship). We will not use tools for deliveries to third parties without the Buyer‘s approval; we are, however, entitled to scrap these tools if the Buyer has not purchased the corresponding goods for a period of five (5) years.
5. The beginning of the delivery period stated by us presupposes the clarification of all technical questions. Adherence to our delivery obligation requires the timely and proper fulfilment of the Buyer‘s obligation. We reserve the right of objection regarding the non-fulfilled contract. Should the Buyer be in default of acceptance or culpably violate other duties to cooperate, we are then entitled to demand compensation for damage incurred to us in this regard, including possible additional expenditure. Further claims remain reserved. In particular with regard to acceptance delay on the part of the Buyer we are entitled to claim damages for non-fulfilment or withdraw from the agreement without giving notice. The same applies in extension to our rights arising from Section 321 BGB also in the event of subsequent knowledge of a poor financial standing or a deterioration of the Buyer‘s assets following the conclusion of the agreement. In this case we are also entitled to demand immediate payment in settlement of our claim. As far as the aforementioned conditions exist, the risk of a possible loss or a possible deterioration of the purchased item will pass over to the Buyer on the occurrence of the default of acceptance or the debtor‘s delay. In terms of prevailing legal provisions, we are liable as far as the underlying sales agreement represents a fixed-date transaction in terms of Section 323 subsection 2 (2) BGB or Section 376 HGB [Handelsgesetzbuch = German Commercial Code]. In terms of prevailing legal provisions, we are also liable provided the Buyer‘s entitlement to assert that his interest in the further continuation of fulfilling the contract ceases is the result of a delivery delay for which we are responsible. We are further liable in terms of prevailing legal provisions provided the delay in delivery is due to an intentional or grossly negligent breach of contract on our part; we are responsible for negligence on the part of our representatives or vicarious agents. Provided the delivery delay is not the result of a wilful breach of contract for which we are responsible, our liability for damages is in any case limited to foreseeable and typical damage. In terms of legal provisions, we are also liable if the delivery delay, for which we are responsible, is based on a culpable breach of a significant contractual obligation; even in this case, however, the liability for damages is restricted to foreseeable and typical damage. Otherwise, in the event of a delivery delay, we are responsible for each completed week of delay within the scope of a lump sum delay compensation amounting to two (2) percent of the delivery value; however, no more than ten (10) percent of the delivery value. Further legal entitlements and rights of the Buyer remain reserved. Operational disruptions of any kind, such as a shortage of raw materials, strike and/or lockout, force majeure and war as well as other incidents causal to a delay in production, or events occurring after the conclusion of the agreement that may significantly increase the price of the production/supply or make the production/supply uneconomical, shall entitle us to the partial or full withdrawal from the contract or to a reasonable price increase. Delivery deadlines only commence after the receipt or credit note of a down payment as well as the receipt of services to be provided by the Buyer; however, at the earliest on the date of our order confirmation. If the dispatch is impossible through no fault of our own, delivery deadlines without special written agreement are approximate and non-binding and deemed to have been met by us on the timely notification that the goods are ready for dispatch. Where the delivery deadlines stated are exceeded for the above-mentioned reasons, the Buyer nevertheless remains obliged to accept delivery. The agreed delivery deadlines are extended - irrespective of the Buyer‘s rights regarding delay - by the period in which the Buyer is in arrears with his obligations arising out of this or another contract with us. In this respect, we are entitled to a right of retention.
6. As far as the order confirmation does not state otherwise, delivery is agreed to be ex works. In the absence of any special written agreement with the Buyer, the choice of the dispatch route and means of transport shall be at our discretion, without liability for the most economical or fastest method of shipment. All shipments are for the Buyer‘s account. Once the goods have been handed over to the forwarding agent, carrier or the railways, however, at the latest when they leave our factory, the risk - including the risk of confiscation - shall always pass over to the Buyer; for example even in the event of possibly agreed carriage paid or if the Buyer uses his own staff. In terms of the German Packaging Ordinance, with the exception of pallets, any transport and all other packaging material are not taken back. The Buyer is obliged to ensure the disposal of the packaging material at his own expense. We will take out transport insurance cover at the Buyer‘s request; any costs incurred in this regard are for the Buyer‘s account. A statement of facts regarding any loss or damage occurred must be drawn up for the insurance company in order to assert a claim for compensation for damage incurred to deliveries we have insured. This statement of facts with precise information on the type and cause of the damage must be signed by the haulage contractor in whose safe-keeping the goods were kept on entry of the insured event.
7. The Buyer‘s right to claim for defects presupposes that the latter has duly and promptly met his obligations with regard to legal inspection and notification duties as owed in terms of Section 377 HGB. Where particular requirements are placed on quality and performance, the goods must be accepted at our factory. Failing to complete a prior examination is considered to be an unconditional acceptance respectively recognition in terms of the agreement. Reclamations by the Buyer are immediately mapped and processed via our internal system. On request, the Buyer shall provide a sample quantity for inspection on our factory‘s premises, carriage-free. The sample quantity is only accepted if it is made available to us in the original packaging and in closed packaging units.
8. As far as there is a defect in the purchase item, we are entitled – at our discretion – to provide supplementary performance by way of a removal of the defect or the delivery of a new item free of defects. As far as the goods ordered from us are so-called bulk material (metal stamping parts and non-ferrous metals as well as plastic components in large batch sizes in efficient industrial production), possible quantity differences of +/- 2% of the relevant product do not represent a defect; up to this percentage, the delivery is considered to be in terms of the agreement. Equally, small quantities of foreign parts which may be existing (e.g. scrap cuts) do not represent a defect. Where a removal of defects is required, we are obligated to carry the costs of all expenditure required for such removal, in particular transport, road costs, labour costs and material costs as far as these are not increased by the fact that the goods were moved to a place other than the place of performance. If the supplementary performance is unsuccessful, the Buyer, at his discretion, is entitled to demand a withdrawal from the agreement or a price reduction. However, in cases of a minor breach of contract, in particular for minor defects, the Buyer is not, however, entitled to a right of withdrawal. We are liable in terms of statutory provisions as far as the Buyer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. As far as we are not to blame for an intentional breach of contract, the liability for damages is restricted to foreseeable and typical damage. We are also liable in terms of statutory provisions if we culpably breach a significant contractual obligation; even in this case, however, the liability for damages is restricted to foreseeable and typical damage. The liability due to a culpable violation of life, body or health remains unaffected; this also applies for the mandatory liability under the German Product Liability Act. Liability is excluded as far as the above does not regulate anything to the contrary. The statutory period of limitations for claims on defects is twelve (12) months calculated as from the transfer of risk. The statutory period of limitations for a delivery regress as per Sections 478, 479 BGB remains unaffected; this period is five (5) years from delivery of the defective item.
9. Any further liability for compensation of damages other than that provided for in Clause 8 - without consideration of the legal nature of the asserted claim - is excluded. This also applies to possible plant shut-downs at the Buyer or his customers during the automated further processing of bulk materials (refer to Clause 8 above). In addition, the liability exclusion in particular also applies to claims for culpa in contrahendo, other breaches of duty or tortuous claims for compensation relating to property damage in terms of Section 823 BGB. To the extent that a liability for damages is excluded or limited for us, this also applies in regard to the personal liability for damages on the part of our employees, salaried workers, associates, representatives and vicarious agents.
10. If we carry out wage labour and the Buyer provides us with materials, parts of materials, semi-finished products or tooling devices for this or for other orders, we will process and/or treat these items with care and conscientiousness. We are only obligated to carry out an inspection if this was expressly agreed and the inspection costs are borne by the Buyer. Should these items be unusable due to circumstances for which we are not responsible or through force majeure, no claim can be derived for a free of charge replacement delivery of the material or a refund of other costs by us. Processing costs are to be refunded to us should parts be unusable due to material defects. Where parts become unusable due to processing errors, we will carry out the same work free of charge on a new item to be sent to us carriage-free.
11. The delivered goods remain our property (goods subject to reservation of title) until the full settlement of all accounts receivable from the business relationship, including any claims arising in the future, irrespective of the legal grounds, even if payments were made on particularly defined accounts receivable. We are entitled to demand a return of the purchase item, should the Buyer violate the agreement, particularly in the event of payment default. Taking back the purchase item does not constitute a withdrawal from the agreement unless we have expressly declared this in writing. Pledging the purchase item always constitutes a withdrawal from the contract. After we have taken back the purchase item, we are entitled to utilise it at any time; the proceeds of such utilisation will be set off against the Buyer‘s liability - with the deduction of reasonable utilisation costs. The Buyer is obliged to treat the purchase item with care; in particular he is obliged, at his expense, to take out sufficient insurance cover against damage resulting from fire, water and theft and insure the purchase item at its reinstatement value. The Buyer shall provide evidence of such insurance cover on request. The Buyer assigns the insurance benefits to us in the amount of the value of the goods subject to reservation of title. In the event that maintenance and inspection work is required, the Buyer shall perform this in good time at his own expense. On request, the Buyer shall provide us with all required information on the inventory of the goods subject to reservation of title. In the event of pledging or other third party interventions, the Buyer shall immediately notify us in writing to enable us to commence an action in terms of Section 771 ZPO [Zivilprozessordnung = German Code of Civil Procedure]. As far as the third party is not in a position to refund us the court and out-of-court expenses of an action pursuant to Section 771 ZPO, the Buyer shall be liable for any loss incurred to us. Otherwise, the Buyer shall at all times support us at his expense and unrestrictedly to secure the goods subject to the reservation of title. The Buyer is entitled to resell the purchase item during the course of ordinary business; however, he already now assigns all accounts receivable with all ancillary rights according to the final invoice amount (including value-added-tax) which arise to him from the resale vis-à-vis his customers or third persons; this shall apply irrespective of whether the purchase item is resold without or after processing. Even after assignment, the Buyer remains entitled to collect these accounts receivable until such time as this authorisation is revoked. This authorisation lapses if the Buyer is in arrears with his obligations towards us, if he is insolvent or if a judicial insolvency proceeding or a similar case is filed or initiated against him. Once the Buyer‘s right of disposal has fallen away, we are entitled – at the Buyer‘s expense – to take proprietary possession of the goods subject to the reservation of title that are in the Buyer‘s possession so as to secure our ownership rights, in particular also the goods subject to the reservation of title which are in the Buyer‘s warehouse. Our authorisation to collect the accounts receivable ourselves remains unaffected by the above. We do, however, undertake not to collect accounts receivable as long as the Buyer meets his payment obligations from the agreed proceeds received, is not in arrears and in particular as long as no settlement proceedings or insolvency proceedings are initiated against the Buyer or a suspension of payment exists. Should this however be the case, we can demand that the Buyer informs us of the assigned accounts receivable and their debtors, provides us with all details required for the collection and hands over the relevant documentation and he informs the debtors (third parties) of the assignment. Furthermore, all accounts receivable arising from the business relationship become due immediately; rebates are considered as lapsed. Processing or transformation of the goods by the Buyer is in each case performed for us. If the goods are processed with other items which do not belong to us, we acquire co-ownership of the new item in proportion to the value of the goods (final invoice amount including VAT) to the other processed items at the time of processing. Furthermore, the same applies to the item created through processing as to goods delivered under reservation. If the goods are inseparably mixed with other items which do not belong to us, the above-mentioned shall apply correspondingly and unrestrictedly with regard to the acquisition of our co-ownership. If the mixing takes place in such a way that the item is considered as the Buyer‘s main item, it is considered as agreed that the Buyer assigns proportional co-ownership. The Buyer will safeguard the resultant sole or joint ownership for us. The Buyer also assigns to us the accounts receivable for securing our claims against him, which arise against a third party by combining the purchase item with real property. We undertake to release the security owed to us at the Buyer‘s request to the extent that the value of our security exceeds the accounts receivable to be secured by more than 10 percent. The choice of the securities to be released is ours.
12. As far as the Buyer is a businessman, the place of jurisdiction is agreed to be our company seat; we are, however, entitled to take action against the Buyer even at the court of his place of residence. The law of the Federal Republic of Germany shall apply exclusively; the validity of the regulations on UN Convention on Contracts for the International Sale of Goods (CGIS) is excluded. As far as the order confirmation does not state otherwise, our business seat shall be the place of performance and payment.
13. Should individual provisions of the agreement with the Buyer, including the GBTC, be or become ineffective in whole or in part, this will not affect the validity of the remaining provisions. The whole or partially ineffective regulation shall be replaced by a regulation which comes closest to the economic success of the ineffective provision.