I. Area of Application; Exclusion of Deviating Terms and Conditions
1. Our General Terms and Conditions of Delivery and Payment shall apply exclusively. They shall also be applicable to any and all future business transactions and ancillary services, such as any technical information, notifications or the like, as well as to any and all business contacts with the Customer, including, for example, in cases where contractual negotiations are initiated or contracts proposed, even where these General Terms and Conditions of Delivery and Payment have not yet been expressly agreed again or where no repeat express reference is made to them.
2. If, in individual cases, contractual obligations are established also against persons who are not themselves to be a contractual party, then the liability stipulations of these General Terms and Conditions of Delivery and Payment shall also apply to such third parties in as far as the General Terms and Conditions were involved in the establishment of the contractual obligation. This shall apply, in particular, in cases where the third parties were informed of or already had knowledge of the General Terms and Conditions of Delivery and Payment when the contractual obligation arose.
3. We do not acknowledge and hereby contradict the application of any conditions on the part of the Customer which deviate from or conflict with our General Terms and Conditions of Delivery and Payment. Any agreements entered into at an earlier date and earlier revisions of our General Terms and Conditions of Delivery and Payment shall be superseded by the present General Terms and Conditions of Delivery and Payment.
II. Conclusion of Contract; Content and Scope of Delivery; Prohibition of Assignment
1. Our quotations are drawn up free of charge and shall be non-binding. A contract comes into effect on confirmation of the Customer’s purchase order or on commencement of order execution by us.
2. Our written quotation and/or our confirmation of order shall be authoritative in determining the scope of our performance. Ancillary agreements or changes must be confirmed by us in writing. The same shall also apply to any agreement on any special quality of the item to be delivered. We shall be obliged to present test or approval certificates of third parties only if this has expressly been agreed upon.
3. Unless expressly marked as binding, any information, drawings, illustrations, technical data, weights, measures and service descriptions contained in brochures, advertisements, price lists or other documentation are deemed approximations only.
4. The Customer shall not be entitled to assign or transfer to third parties any claims made against us or rights arising from the business relationship without our prior consent. The same shall apply in respect of claims and rights against us arising directly by act of law.
III. Payment; Offsetting and Right of Retention
1. Our invoices shall be due for payment in cash and without delay. Any other means of payment shall only be accepted by separate agreement and on account of performance, and a charge made for all discount and collection fees which shall fall due for immediate payment.
2. Should the Customer fall into payment arrears, we shall be entitled to make the provision of further services conditional upon full settlement of any outstanding payments.
3. We shall furthermore be entitled to refuse to provide our services in cases where circumstances arising after conclusion of contract give rise to doubts as to the ability of the Customer to make full and timely payment in return of such services, unless the Customer meets its obligation or provides adequate security. This shall apply, in particular, if, after the contract has been concluded, our credit insurance company declines to insure the payment of the purchase price for the goods or services supplied on the grounds of the creditworthiness of the Customer, or if we are made aware of any compulsory enforcement measures and/or protests relating to the checks or bills of exchange being made against the Customer.
4. Offsetting against any counterclaims of the Customer which are disputed, have not been established by due legal process or are not ready for adjudication shall be excluded. If the Customer is acting on conclusion of contract in a commercial or self-employed professional capacity, any notification of defect shall affect neither its obligation to pay nor the due date for payment. Moreover, the Customer shall waive any right to refuse performance and/or withhold payment, excepting where we and/or our legal representatives or vicarious agents are responsible for gross infringement of contract or where the counterclaims on the part of the Customer which form the basis of the right of the Customer to refuse performance or to withhold payment are undisputed, established by due legal process or ready for adjudication.
IV. Delivery Term; Partial Deliveries; Acceptance; Creditor Default; Delay in Delivery
1. The agreed delivery period shall essentially commence with the conclusion of the contract, but in any case not before any documents to be supplied by the Customer or any releases or agreed advance payments have been received in full. The delivery date shall be deemed to have been met if, by the time the delivery period expires, the goods have left our company headquarters or the Customer has been notified of their readiness for dispatch, which would have taken place but for reasons attributable to the Customer.
2. The delivery period shall be reasonably extended in cases of force majeure as well as in the event of any exceptional and unforeseen events, such as riots, strikes, lock-outs, fire, sequestrations, embargoes, statutory or locally imposed restrictions on energy consumption or incorrect and/or late deliveries of supplies to us, in so far as these occurrences are not attributable to us and/or could not be avoided by us despite us taking reasonable care appropriate to the circumstances of the case, and in so far as they affect the fulfilment of the contract within the specified delivery period. If the delivery period arising out of such circumstances is unreasonably prolonged, the Customer shall be entitled to withdraw from the contract on the expiry of a reasonable period of grace to be set by him or, in so far as the matter relates to a partial delivery, to withdraw from the unfulfilled part of the contract.
3. Shipments prior to expiry of the delivery period and partial deliveries shall be allowed to the extent that this does not interfere with any conflicting interests of the Customer to an unreasonable extent.
4. The customer shall be obliged to accept the object of purchase within a period of one (1) week of receipt of the notification of its supply at the headquarters of the Seller. In the case of non-acceptance, the Seller shall be entitled to make use of the Seller’s legal rights. In the event of delayed acceptance, the Seller shall be entitled to charge a storage fee in accordance with local custom. At the Seller’s discretion, the subject matter of the order can also be kept or stored elsewhere. The costs and risks of such storage shall be borne by the Customer. In the event that the Customer requests the object of purchase to be delivered to the Customer’s premises, such delivery shall be made at the Customer’s expenses and risk. Any liability in case of default shall remain unaffected.
5. If the seller demands damages due to non-acceptance, such damages shall be 10% of the purchase price. The Customer expressly retains the right to provide evidence that no damage has been incurred at all or that any such damage was considerably less than the flat-rate stipulated in Sentence 1.
V. Transfer of Risk; Dispatch; Packaging
1. Our supplies shall be made from our company headquarters.
2. In every case, including the risk of any sequestration, the risk shall pass to the Customer on the handing-over of the subject matter of delivery to the transport contractor, even in the case of carriage paid consignments, provided that the Customer is an entrepreneur who is carrying out his or her commercial or self-employed business at the time the contract is signed. This shall also apply if we ourselves transport the goods or arrange their transport, even if we ourselves have undertaken to carry out the dispatch or delivery at our own expense. If dispatch is delayed for reasons attributable to the Customer, then the risk will already pass to the Customer on the Customer being notified that the goods are ready for dispatch, provided that the Customer is an entrepreneur who is carrying out his or her commercial or self-employed business at the time the contract is signed. At the Customer’s request, the goods to be delivered shall be insured against transport damage. Such insurance shall be at the Customer’s expense.
VI. Retention of Title
1. We shall title to the goods supplied until all the debts arising out of the contract concluded with the Customer have been discharged in full, including debts arising out of cheques and bills of exchange and any legal rights of relief relating to same arising out of payments in fulfilment by cheque or bill of exchange. If payments are made within the framework of the so-called cheque/bill of exchange method, we shall reserve title to the goods supplied until the risk of recourse arising out of the bills of exchange placed at our disposal has passed. In so far as the Customer is exercising the Customer‘s commercial or self-employed professional activity in concluding the contracts on which the claims mentioned hereinafter are based, we shall reserve title to the item to be delivered until all accounts payable arising from the business relationship have been paid off in full.
2. Any processing or transformation of the subject matter of delivery is to be undertaken by the Customer for us without this giving rise to any obligations on our part. If the Customer combines, mixes, blends or processes the goods supplied by us with any other goods, we shall acquire joint ownership of the goods resulting therefrom. The proportion of joint ownership shall be determined in accordance with the proportion of the invoiced value of the goods supplied relative to the value of the newly manufactured goods. The combining, mixing, blending or processing of the goods supplied by us shall be permitted in the ordinary course of business to the extent that the aforesaid safeguards are guaranteed.
3. The Customer may dispose of the goods supplied and the articles made from them (hereinafter referred to summarily as goods subject to retention of title) in accordance with Clause 2 above in the ordinary course of business, provided the Customer guarantees the extended retention of title (assignment of claims in accordance with Clause 4 below). No other form of disposal, particularly pledging, hiring, lending or transferring as a security, shall be allowed.
4. The Customer shall hereby assign to us all debts arising or yet to arise to the Customer from the disposal or other use of the goods subject to retention of title, and we shall accept such assignment. If the goods subject to retention of title are only jointly owned by us, the assignment shall only comprise that proportion of the debts that corresponds to the proportion of our joint ownership.
5. The Customer shall be entitled to collect the receivables assigned to us only within the framework of the ordinary course of business and in a revocable manner. Such revocation may occur only if the Customer does not fulfill his or her obligations in a proper manner in accordance with this agreement. In such case and upon our request, the Customer must promptly disclose to us to whom the Customer has assigned the goods; we shall be entitled likewise to disclose to the customer the extended retention of title against the customer of our Customer.
6. The authorisation of the Customer to dispose of the goods subject to retention of title and to process, combine, mix and blend the goods subject to retention of title, as well as the authorisation to collect such assigned claims shall lapse upon any non-compliance with the payment conditions, the unauthorised disposal of goods subject to retention of title, or the protesting of a cheque or bill of exchange, the occurrence of the Customer’s inability to pay or if the Customer is determined to be over-indebted, in the event of discontinuation of payment, as well as in the case that any application for insolvency proceedings is submitted by the Customer, if such insolvency proceedings are opened, or in case of any non-opening of such proceedings due to lack of assets. In all of such cases, we shall be entitled respectively to take possession of the goods subject to retention of title without setting an additional acceptance period, and the Customers shall be obliged to hand over such goods to us without delay.
7. If the value of the sureties furnished to us exceeds all the privileged debts by more than 20%, we shall be obliged to release any excess sureties at our discretion, at the Customer’s request.
8. The Customer shall be required to notify us immediately in writing of any impending or completed actions by third parties to gain access to the goods subject to retention of title or the assigned debts and to supply the documents necessary for our intervention. The costs of intervention, including any legal costs whatsoever, are to be borne by the Customer within the terms of the relationship between us and the Customer.
1. If the Customer is a merchant, then the Customer shall be obliged to check the goods immediately after receipt, in particular, for visible damage, defects, weight and dimensions. Obvious defects in the delivered goods are to be notified by the Customer immediately on receipt of the delivery. Concealed defects are likewise to be notified to us by the Customer immediately after they have been discovered by the Customer. If the Customer fails to lodge a complaint within an exclusion period of seven (7) days, the delivered goods shall be deemed to have been approved, even given the presence of any defect.
2. If the Customer is a consumer within the meaning of the German Civil Code (BGB), and if the item delivered is a movable item (sale of consumer goods), then the Customer may request subsequent improvement, reduction of the purchase price or withdrawal from the contract in accordance with the legal provisions. In the case of the delivery of new items, such claims shall become time-barred two (2) years from the statutory period of limitation. In the case of the delivery of used items, the claims shall become time-barred one (1) year from the statutory period of limitation. A claim for compensation for damages by reason of any slightly negligent behaviour, which does not infringe a fundamental contractual obligation (cardinal duty), shall be excluded, provided no injury is caused posing a threat to life or limb or harm to the health. Claims for compensation by reason of non-fulfilment or the delayed or deficient fulfilment of the contract shall become time-barred one year from the commencement of the legal period of limitation.
3. If the Customer is an entrepreneur within the meaning of the German Civil Code, and if a used item is delivered, any warranty for defects shall be excluded.
4. In all other cases, claims for repair or replacement, a price reduction, withdrawal from the contract or compensation for damages shall exist only in accordance with the following provisions:
If the article fails to meet the agreed quality standard or exhibits any other defect as described in § 434 Para. 1 Sentence 2 BGB, we undertake to rectify the defect or supply a fault-free article (repair or replacement) within a period of one (1) year, provided that we have been informed of such defect in due time. To the extent that our delivery is made up of parts that have been supplied to us by third parties, then we shall be entitled to assign to the Customer our claims for subsequent performance against our supplier instead of providing such subsequent performance.
If we have attempted to rectify the defect twice or have supplied a fault-free article once without these actions succeeding in rectifying the said defect, the Customer may demand a reduction in the purchase price or, after a reasonable period of grace, withdraw from the contract concluded with us, instead of us rectifying the defect or supplying a fault-free article. Any claims against our supplier that have been assigned by us to the Customer, including any further claims resulting from such action, if applicable, are to be re-assigned to us in such case.
5. The above provisions stipulated in Clause 3 and Clause 4 above shall not apply in the event that defects have been fraudulently concealed by us or where we have provided a warranty of the quality of the goods subject to delivery, or if we have sold to any consumer any movable item. The same shall also apply towards the claims of the Customer in accordance with § 478 BGB, but not to any claims for damages on the part of the Customer; in this regard the restrictions of Clause 3 and Clause 4 above and the stipulations of Clause VIII below shall remain applicable.
6. The place of fulfilment for any remedial work shall be our company headquarters.
Should we fail to deliver, or should our delivery be delayed or defective, this shall not entitle the Customer to compensation for damages excepting:
a) in the event of any damage arising from injury to life, limb or health which is due to intentional or negligent infringement of duty on our part or to intentional or negligent infringement of duty on the part of one of our legal representatives or vicarious agents;
b) in the event of any other damage caused as a result of any intentional or grossly negligent infringement of duty on our part or of any intentional or grossly negligent infringement of duty on the part of one of our legal representatives, senior staff members or vicarious agents, or in the event of the intentional or negligent infringement of obligations material to the contract (cardinal obligations) on the part of one our legal representatives, senior management staff or vicarious agents; Obligations material to the contract (cardinal obligations) shall be obligations the fulfilment of which is fundamental for the proper execution of the contract and on the fulfilment of which the Customer may rely on a regular basis;
c) in the event of any damage falling within the protected scope of a guarantee (assurance) provided by us or where we have provided a warranty of characteristics, or in the event of any damage for which we bear mandatory liability by law.
Any further liability due to any malicious acts shall remain unaffected.
In the event of simple negligent infringement of a material contractual obligation, any liability shall be limited to the degree of damage typically to be expected in such cases. This shall not include any damage arising from injury to life, limb or health.
Unless otherwise agreed in these General Terms and Conditions of Delivery and Payment, any claim by the Customer to compensation for damages of any kind, in particular any damage not incurred at the delivered object itself, and any claims arising as the result of an offence shall be excluded. The same shall also apply to claims arising due to and against our vicarious agents. This liability limitation shall not be applicable in the event of intent or gross negligence on the part of ourselves or our vicarious agents either. Should third parties be commissioned or involved in the initiation or settlement of the contractual obligation between the parties, then the above outlined guarantee and liability restrictions shall also apply in favour of such third parties.
IX. Product Liability
If, by comparison with German law, different and, in particular, more stringent product liability or product safety regulations apply in the countries in which the Customer intends to dispose of our products, the Customer must point this out to us when placing his or her order at the latest. In such cases, we shall be entitled to withdraw from the contract within one month. If the Customer fails to make this declaration, we may withdraw from the contract within one month of learning of the corresponding legal position. In the latter case, the Customer shall be under an obligation to release us from any third party claims which go beyond our contractual obligations in a comparable case of product liability in Germany. This shall also apply even if we abide by the contract.
X. Final Provisions
1. The place of fulfilment and legal venue for any and all disputes between the parties arising out of the contractual relationship (including disputes arising from bills of exchange and cheques) shall be Tübingen, Germany, subject to the Customer being a merchant, a legal entity under public law or a special fund under public law, or if the Customer has no general legal venue in the Federal Republic of Germany or the Customer‘s court of jurisdiction is situated abroad. We shall also be entitled, to bring a claim before a court competent for the Customer’s place of business.
2. The Customer is aware that data from business transactions, and even personal data, must be stored, processed within the framework of business requirements and passed to third parties. The Customer is in agreement with the acquisition and processing of such data.
3. In the event that any provision contained in these General Terms and Conditions of Delivery and Payment or any provision within the framework of any other agreements should be or become invalid, then this shall not affect the validity of any other provisions or agreements.
4. German law shall apply exclusively to the contractual and other legal relationships with our customers. The United Nations Convention on Contract (CISG).