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Terms of Sale, Supply and Payment

Terms of Sale, Supply and Payment

(version date: 08/02)

1. Conclusion of Contract

1.1. In respect of orders received by us we can accept the offers contained therein within a period of four weeks by sending an order confirmation and/or supplying the goods. Acceptance shall be based exclusively on our Terms of Sale, Supply and Payment, which shall also apply to all future business relations.

1.2. Any terms of purchase of the party placing the order (hereinafter the “customer”) deviating from our Terms of Sale, Supply and Payment are hereby expressly objected to. This objection shall also be effective in the event that the customer has stipulated a specific form for such objection. If objections are excluded in the Terms of Purchase of the customer, the statutory rule shall apply.

1.3. The Contract shall be subject solely to the laws of the Federal Republic of Germany. The application of the uniform law on the international purchase of movable goods is hereby excluded.

2. Prices

2.1. Prices shall be ex works, excluding the cost of packaging and shipping as well as the applicable rate of turnover tax.

2.2. In commercial transactions, any subsequent reduction of the order quantity or, where partial shipments have been agreed, any subsequent reduction in the number of units, and any extension of agreed calls, shall confer on us the right to make adequate adjustments to the prices per unit.

2.3. We shall be entitled to effect price adjustments in commercial transactions where wage and salary costs and/or material costs and/or energy costs rise in the period between conclusion of the contract and the agreed delivery date. The adjustment shall take place in accordance with the relevant increases, taking into consideration their share of the costs.

2.4. In non-commercial transactions, subsequent modifications of the number of units, the order quantity or reductions of the agreed delivery calls shall constitute a new offer, the acceptance of which we expressly reserve and which neither invalidates nor alters the existing agreements.

3. Payment

3.1. The agreed price shall be settled in cash with no deduction within ten (10) days of the invoice date.

3.2. If the period of payment is exceeded, we shall be entitled to charge default interest, which we shall charge at a rate of 5% above the respective base interest rate.

3.3. Bills of exchange and cheques shall only be accepted on account of payment. They shall not be deemed to be cash payments. Discount charges shall be charged to the customer. The same shall apply to own or other acceptances.

3.4. Retention of payments or offsetting on grounds of any claims of the customer disputed by us shall not be permissible. This shall not apply to legally established and undisputable claims.

4. Passing of risk

4.1. The place of performance and fulfilment shall be the headquarters of our company. The risk shall pass to the customer at the latest when the delivery items are ready for shipment; this shall also apply to partial deliveries.

4.2. We shall be entitled to effect partial performance and partial deliveries to a reasonable extent.

5. Excess and short deliveries

5.1. In commercial transactions, excess and short deliveries of up to 10% of the quantity ordered shall be considered to constitute performance as stipulated in the contract.

5.2. Where contracts entail successive deliveries, we shall be informed of the calls and delivery dates thereof at the time the order is placed. We shall however be entitled to produce the full quantity of the job if we so choose, unless other arrangements are expressly agreed. Subsequent requests for alteration by the customer concerning the ordered goods can only be considered where we have not yet engaged in production.

5.3. Where deliveries are to be effected on call, calls shall be made at the latest within six months of the order confirmation, unless otherwise agreed in writing. Once the call period has elapsed, we shall be entitled to effect delivery even without receiving a call and to assert our claim. The contract partner shall be obliged to accept delivery and effect payment.

5.4. Tools/appliances shall not pass into the ownership of our contracting partner, even if they were invoiced at full cost, unless otherwise agreed.

6. Delivery period

6.1. The agreed delivery period shall commence on dispatch of the order confirmation, but not before all technical problems have been finally resolved and the documents, permissions and approvals to be furnished by the customer have been submitted. This shall specifically include all technical order documentation, including all requisite drawings with the drawing revision indices effective on the date when the order is placed.

6.2. Where a delivery period is determined by the calendar, the delivery period shall be extended if the technical problems have not been solved within 14 days of conclusion of the contract or if we have not received the documents to be furnished by the customer within this period.

6.3. In the cases designated above, the delivery period shall be extended by the period that lapses between the contractual date for performing said acts and their actual performance.

6.4. We shall further be entitled to withdraw from the contract upon issuance of a reminder to perform said acts. In such cases, we ourselves can claim from the customer the costs already incurred and the lost profit.

6.5. The subject-matter of the contract shall be the items in the form and design indicated in the technical specifications as per 6.1. available to us at the time the order is placed.

7. Deterioration of financial position

7.1. In the event of considerable deteriorations in the financial position of the customer which arise subsequent to conclusion of the contract or do not become known until thereafter, we shall be entitled to refuse to provide our services and to request the customer to eliminate any risk to the purpose of the contract by providing adequate security. This shall not affect the right to cancel the contract in accordance with section 313 of the German Civil Code (Bürgerliches Gesetzbuch, BGB).

7.2. If the customer does not comply with the request to provide security within a reasonable period of time, we shall be entitled to withdraw from the contract and to claim damages.

7.3. Where partial deliveries have been agreed, we shall be entitled to refrain from effecting further partial deliveries in the event that the payments agreed for partial deliveries that have already been effected, including any accrued default interest and prosecution costs, have not yet been settled, and to cancel the contract in accordance with section 313 of the Civil Code.

8. Retention of title

8.1. The goods shall remain in the ownership of the seller until all and any claims have been fully settled, including secondary claims, claims for damages and payments of cheques and bills of exchange.

8.2. Retention of title shall continue to apply where individual claims of the seller are included in an open account and the balance is calculated and approved.

8.3. Where the purchaser processes goods subject to retention of title into a new movable item, such processing shall be deemed to be performed for the seller without the latter incurring any obligations therefrom. The new item shall pass into the ownership of the seller. Where goods are processed, mixed or blended with goods not owned by the seller, the seller shall acquire co-ownership of the new item in accordance with the proportion of the invoice value of its goods subject to retention of title in relation to the total value.

8.4. The seller shall be entitled to resell, process or install the goods subject to retention of title only if the following provisions are complied with, and only on the proviso that the claims in accordance with No. 6. actually pass to the seller

8.5. The rights of the purchaser to sell, process or install goods subject to retention of title in the ordinary course of business shall terminate upon withdrawal by the seller as a result of the sustained deterioration of the financial position of the purchaser, but at the latest at the time when it ceases payments, or when insolvency proceedings are requested or initiated in respect of its assets.

8.6.1. The purchaser hereby assigns to the seller the claim with all ancillary rights from the resale of the goods subject to retention of title, including any demands for payment of balance.

8.6.2. If the goods were processed, mixed or blended, and if the seller has acquired co-ownership of these in the amount of its invoice, it shall be entitled to the share of the purchase price receivable that is proportionate to the value of its claims in respect of the goods.

If goods subject to retention of title are installed by the purchaser in a property/building, the seller herewith already assigns the claim for payment arising therefrom or from the resale of the property/building in the amount of the invoice value of the goods subject to retention of title with all ancillary rights, including the right to grant a mortgage as security with priority over the others.

8.6.3. If the seller sells the claim in the framework of real factoring, the seller’s claim shall become due immediately, and the purchaser shall assign the claim that substitutes the original claim against the factor to the seller, and shall transfer its sales proceeds to the seller without delay. The seller shall accept assignment.

8.7. The purchaser shall be authorized to collect the assigned receivables as long as it complies with its payment obligations. The collection authorization shall expire on withdrawal, but at the latest in the event of the purchaser falling into arrears or of considerable deterioration to the financial position of the purchaser. In such case, the seller is hereby authorized by the purchaser to inform the buyers of the assignment and to collect the receivables itself.

The purchaser shall be obliged to hand over to the seller upon request a precise list of the claims to which the purchaser is entitled, including the names and addresses of the buyers, the amounts of the individual claims, invoice dates, etc., and to provide all information to the seller needed to assert the assigned claims, and to permit verification of such information.

8.8. If the value of the security provided to the seller exceeds the seller’s total claims by more than 20%, the seller shall be obliged, upon request of the purchaser or of a third party affected by the excessive provision of security to the seller, to release securities at its option in this respect.

8.9. Pledging or assignment as security of goods subject to retention of title or of assigned claims shall be impermissible. The seller shall be informed immediately of any pledging that has taken place, including the name of the pledgee.

8.10. If the seller takes back the delivery item on grounds of retention of title, this shall constitute withdrawal from the contract only if the seller makes an express declaration to this effect. The seller can recover its expenses by selling in the open market the goods subject to retention of title that it has taken back.

8.11. The purchaser shall store the goods subject to retention of title for the seller free of charge. The purchaser shall obtain insurance coverage to the customary extent against the usual risks, such as fire, theft and water damage. The purchaser hereby assigns its claims for damages arising out of damage of the above-mentioned kind vis-à-vis insurance companies or other parties liable to pay damages to the seller in the amount of the invoice value of the goods.

The seller hereby accepts such assignment.

8.12. All and any claims and the rights arising from retention of title in respect of all special forms stipulated in these Terms and Conditions shall continue to apply until complete release has been obtained from any contingent liabilities incurred by the seller in the interest of the purchaser.

9. Implementation

9.1. Insofar as on conclusion of the contract the submitted drawings contain no information concerning surface finish, dimensional accuracy, etc., the provisions of DIN EN 20 4759-1 and DIN 267-2 as well as DIN ISO 2768-1 medium shall apply.

9.2. Regarding the approval and inspection of (partial) deliveries by the customer, the AQL values (Acceptable Quality Level – random sample tests in accordance with DIN ISO 2859-1) stated in the table below shall be deemed to have been agreed upon in commercial transactions.

 

Type of defect

 

Acceptable Quality Level (AQL)

 

for inspections for defects

 

for inspections for defective units *)

 

Major defect

1

1.5

Minor defect

 

1.5

4

 

*) The acceptable quality level for inspections for defective units applies to 2 major defects and up to 5 minor defects.

 

Every packaging unit (bag, box, etc.) must be inspected separately by the customer in accordance with the plan above.

 

10. Liability for defects

10.1 Claims for obvious defects shall be asserted within a period of 14 days from the delivery date.

10.2. Inner defects that do not become recognizable until the time of processing or utilization shall only be accepted in commercial transactions within six (6) months of receipt of delivery.

10.3. We shall be entitled to subsequently improve or make additional delivery of the items in the event of defective supply.

10.4. If we are unable to effect subsequent fulfilment, or if subsequent fulfilment does not lead to adequate success, or if we do not comply with the request for subsequent fulfilment within an adequate period, the customer can withdraw from the contract, return the goods at our risk and procure supplies elsewhere. Alternatively, the customer can at its option request reduction of payment (discount).

10.5. In  the event of the customer withdrawing from the contract upon failure to effect subsequent fulfilment, damages shall be limited to the difference between the contract price and the value of the defective goods insofar as the customer retains the goods. No further compensation shall be paid for defects unless fraudulent intent applies.

10.6. Regarding claims for damages, liability shall be limited to damage caused by intent and gross negligence and to damage resulting from injuries to life, limb and health caused by negligent breach of duty. Any intentional or negligent breach of duty committed by the statutory representative or agent of the other party to the contract shall be equivalent to a breach committed by the other party to the contract.

No guarantees shall be provided.

11. Property rights

11.1. The customer herewith undertakes to examine on its own initiative whether any potential breaches of industrial property rights could arise from the placement of the order and, where appropriate, to inform us of the fact that the items ordered are items effectively protected by industrial property rights.

The customer shall assume all and any liability for claims asserted against us on these grounds by any beneficiary in respect of our execution of the order. The customer shall release us therefrom in our internal relationship.

12. Venue

12.1. The venue agreed upon in commercial transactions shall be our place of business.

12.2. We herewith reserve the right to also assert claims against the customer at its place of general jurisdiction.

12.3. The place of fulfilment for both parties shall be the headquarters of our company.

 

General terms and contitions

(version date: 05/14)

GENERAL TERMS AND CONDITIONS FOR PURCHASING

1. Scope and choice of applicable law  

1.1 Our Terms and Conditions for Purchasing shall apply in exclusivity, including to future transactions between the parties; we do not recognise contrary terms and conditions of the supplier or those derogating from our Terms and Conditions for Purchasing unless we have explicitly consented in writing to their application. Our Terms and Conditions for Purchasing shall also apply if we accept the delivery of the supplier without reservation, knowing of contrary terms and conditions of the supplier or those derogating from our Terms and Conditions for Purchasing.
1.2 Agreements derogating from the present Terms and Conditions for Purchasing shall only prevail over these Terms and Conditions if they are reached explicitly and in writing.
1.3 Our Terms and Conditions for Purchasing shall only apply vis-à-vis entrepreneurs, legal persons under public law or special funds under public law in accordance with section 310 subsections (1) and (4) of the German Civil Code (BGB).
1.4 German law shall apply to all orders, deliveries and services unless agreed otherwise. The application of the UN Sales Convention (Convention of the United Nations of 11 April 1980 on Contracts for the International Sale of Goods) is herewith ruled out.

2. Offers – offer documentation

2.1 The supplier shall be obliged to accept our order within a reasonable period, but at the latest within five (5) working days, or to promptly notify us of its rejection.
2.2 We herewith reserve the title and copyright with regard to illustrations, drawings, calculations and other documents; they may not be made available to third parties without our explicit written consent. They shall be used exclusively for production on the basis of our order; they shall be returned to us once the order has been dealt with without waiting for a request. They shall be kept secret vis-à-vis third parties; the provision contained in No. 9.4 shall additionally apply in this regard.

3. Prices – payment terms

3.1 The price stated in the order shall be binding. If no derogating written agreement is reached, the price shall be deemed to be “carriage paid”, including packaging. The packaging shall only be returned subject to a separate agreement.
3.2 Prices shall not include the statutory rate of value-added tax. This shall be shown separately, and must be paid additionally.
3.3 We are only able to process invoices if – in accordance with the instructions given in our order – they contain the order number stated in our order; the supplier shall be responsible for all and any consequences of non-compliance with this obligation unless it proves that it is not responsible therefor.
3.4 Unless otherwise agreed in writing, we shall pay the purchase price within 14 days of delivery and receipt of invoice, with a 3% discount, or net within 30 days of receipt of invoice.
3.5 We shall be entitled to rights to set off and rights of retention to the degree stipulated by the law.

4. Delivery period

4.1 The delivery period stated in the order or otherwise agreed shall be binding.
4.2 The supplier shall be obliged to inform us promptly in writing should circumstances occur or come to its attention indicating that the agreed delivery period cannot be adhered to, in particular also with regard to the causes and the duration of the anticipated delay. The statutory occurrence of default in delivery shall remain unaffected thereby.
4.3 We shall be entitled to the statutory rights in the event of default in delivery. We shall be entitled in particular to demand compensation in place of the service, and to withdraw, once a reasonable grace period has passed without satisfactory result. In the event of our demanding compensation, the supplier shall be entitled to also prove that it is not responsible for the breach of duty.
4.4 In the event of a default on the part of the supplier, we shall be entitled to charge lump-sum default damages of 0.5 % of the value of the goods and services per full week, but not more than 5 % of the value of the goods and services in total; further statutory rights shall remain unaffected thereby. Both the supplier and ourselves shall be entitled to prove that no loss, a lower loss or a higher loss was caused by the delay. In the latter case, we shall be entitled to also assert this higher loss.

5. Transfer of risk – documents

5.1 Unless otherwise agreed in writing, the delivery shall be effected carriage paid.
5.2 The supplier shall be obliged to state our precise order number – where one has been issued – on all shipping documents and delivery notes; we shall not be liable for delays in processing caused in the event of the supplier failing to do so.

6. Inspection for defects – liability for defects – limitation period

6.1 If the transaction is deemed to constitute a commercial transaction for both parties, we shall be obliged to inspect the goods on their receipt for visible defects, in particular transport damage and evident deviations in quality and quantity, and, should a defect be apparent, to forward a corresponding notification to the supplier within three (3) delivery days. We shall forward a notification of defect to the supplier within the same period as soon as any defects are discovered that are not visible and the causes of which subsequently emerge in the course of ordinary business.
6.2 We shall be entitled to the unreduced statutory warranty claims; we shall particularly be entitled to demand from the supplier, at our option, that the defects be remedied or a new article be delivered. We herewith explicitly reserve the right to compensation, in particular to compensation in place of the service.
6.3 We shall be entitled, after having made an appropriate notification to the supplier, to effect the rectification of the defect ourselves at the expense of the supplier in the event of an imminent danger or particular urgency.
6.4 The limitation period applicable to warranty claims for defects shall be at least 36 months, counting from the delivery of the goods. The limitation period shall be extended by periods during which the limitation period is suspended. Claims ensuing from a breach of obligation on the part of the supplier of which we complain within the liability/limitation period shall lapse at the earliest three months after the complaint. Other longer statutory limitation periods, or those agreed in individual contracts, shall remain unaffected thereby.

7. Product liability – exemption – third-party liability insurance

7.1 Claims and longer limitation periods arising from product liability and tort, as well as joint and several compensation, and those resulting from fraudulent conduct and from a guarantee, shall remain unaffected by the above provisions. The supplier may not invoke the statute of limitation as long as we are liable for the goods purchased from it and for any damage and expense resulting therefrom for causes for which the supplier is responsible. Where the supplier is responsible for defects, damage and expenditure, the supplier shall be obliged to exempt us from all and any liability vis-à-vis third parties and from third-party claims.
7.2 Other statutory rights, or those agreed in individual contracts, or longer limitation periods, shall remain unaffected thereby.
7.3 The supplier herewith undertakes to maintain product liability insurance providing lump-sum cover of at least Euro 5 million for each instance of loss or injury during the term of the present contract and within the limitation period; in the event of our being entitled to further damage claims, these shall remain unaffected thereby.

8. Property rights – defects of title

8.1 The supplier shall warrant that the goods are delivered free of third-party rights and that no third-party rights are violated by the delivery.
8.2 In the event of our being claimed against by a third party in this regard, the supplier shall be obliged to exempt us from such claims. The supplier shall also be liable for compensation unless it proves to us that it is not liable for the breach of duty.
8.3 The supplier’s obligation to exempt us shall extend to all and any expenses necessarily resulting from, or in connection with, claims asserted by a third party.

9. Reservation of title – provision of parts – tools – confidentiality

9.1 Where we make available parts to the supplier for processing and return to us, we herewith reserve title thereto. Processing or transformation by the supplier shall be effected for us. In the event of our goods which remain under reservation of title being processed together with other articles not belonging to us, we shall acquire co-ownership of the new article in the ratio of the value of our article (purchase price plus value-added tax) to the other articles that have been processed, at the time of processing.
9.2 If the article provided by us is inseparably blended with other articles not belonging to us, we shall acquire co-ownership of the new article in the ratio of the value of the article under reservation of title (purchase price plus value-added tax) to the other articles that have been blended, at the time of blending. If they are blended in such a manner that the goods of the supplier are to be regarded as the main goods, it is understood and agreed that the supplier transfers proportionate co-ownership to us; the supplier shall hold the solely owned or co-owned goods in safe custody for us.
9.3 We herewith reserve title with regard to tools; the supplier shall be obliged to use the tools exclusively for producing the goods ordered by us. The supplier shall be obliged to insure the tools belonging to us at their replacement value against fire, water damage and theft at its own expense. At the same time, the supplier shall assign today all and any compensation claims from this insurance; we herewith accept such assignment. The supplier shall be obliged to carry out any maintenance and inspection work necessary on our tools, as well as all and any servicing and repair work at its own expense and in good time. It shall inform us of all and any incidents immediately; in the event of it culpably omitting to do so, damage claims shall remain unaffected thereby.
9.4 The supplier shall be obliged to observe strict confidentiality with regard to all and any illustrations, drawings, calculations and other documents and information received. They may only be made available to third parties with our explicit consent. The confidentiality obligation shall continue to apply once the present contract has been performed; it shall expire where and to the extent that the production knowledge contained in the illustrations, drawings, calculations and other documents that have been provided has become common knowledge.
9.5 Insofar as the security interests to which we are entitled in accordance with section 9.1 and/or section 9.2 exceed the purchase price of all our goods under reservation of title that have not yet been paid for by more than 10%, we shall be obliged to relinquish the security interests of our choice on request by the suppliers.

10. REACH Regulation, social responsibility

10.1 The supplier herewith undertakes to comply with and adhere to the REACH Regulation (Registration, Evaluation, Authorisation and Restriction of Chemicals). The supplier shall provide us in good time with all and any necessary information regarding the products to which the contract relates.
10.2 The supplier shall exclusively use those products, packaging and/or processes which comply with the applicable environmental regulations with regard to production, operation and disposal. The supplier shall ensure that the working environment for its staff is safe and healthy, and that the statutory provisions are adhered to. The supplier shall give an assurance that neither it itself nor an enterprise affiliated therewith carries out business practices in breach of the provisions handed down by the Commission on the Rights of the Child.

11. Court venue – place of performance

11.1 Insofar as the supplier is a merchant, our place of business shall be the court venue; we shall however be entitled to also take the supplier to court at its general court venue.
11.2 Unless otherwise provided in the order, our place of business shall be the place of performance.

 

 
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