Section 1) General, Scope
(1) These General Terms and Conditions of Sale and Delivery (GTCSD) apply to all our business relationships with our commercial clients (hereinafter referred to as “Buyers”). Subsequently the GTCSD only apply if the Buyer is an entrepreneur (Section 14 BGB - German Civil Code).
(2) The GTCSD shall apply in particular to contracts on the sale and/or delivery of moveable property (hereinafter: “goods”) regardless of whether or not the goods are manufactured by us or purchased by us from suppliers (Sections 433, 651 BGB - German Civil Code). The GTCSD as amended from time to time shall also apply as a framework agreement to future contracts on the sale and/or delivery of goods with the same Buyer, without necessitating a reference thereto in each individual case; we shall advise the Buyer without undue delay of any changes to our GTCSD.
(3) Our GTCSD shall apply exclusively. Any alternative, contrary or supplementary general terms and conditions of the Buyer shall only constitute an integral part of the agreement if and to the extent expressly approved by us. This approval requirement shall apply at all times, and also, e.g., if we, despite being aware of the Buyer’s General Terms and Conditions, render delivery without reservation.
(4) Individual agreements concluded with Buyer (including subsidiary agreements, supplementary agreements and amendments) shall take priority over these GTCSD. Such individual agreements shall only be valid if set out in a written contract or if they have been confirmed in writing by us.
(5) Legally relevant declarations and claims to be submitted by Buyer to us after conclusion of the contract (e.g. the setting of deadlines, notice of defects, withdrawals and reductions) shall only be applicable if made in writing.
(6) References to the validity of statutory regulations are merely of an explanatory nature. The statutory regulations shall apply even if no such reference is made to the validity of statutory regulations provided they have not been directly amended or expressly excluded in these GTCSD.
Section 2) Conclusion of Contract
(1) Our offers are subject to change and not binding. This also applies to any catalogues, technical documents (e.g. drawings, specifications, evaluations, calculations, references to DIN standards), other product descriptions or documents provided by us - also electronically - to the Buyer. We shall retain the right of property and copyright to all such documents.
(2) Orders placed by Buyer shall be deemed to be a binding contract offer.
(3) The acceptance of an offer can either be made in writing (e.g. by confirmation of order) or by delivery of the goods to the Buyer.
Section 3) Term of delivery and delay in delivery
(1) The term of delivery shall be agreed on individually or provided by us upon acceptance of the offer. No warranty is given for terms of delivery unless the parties expressly agreed on a fixed date (fixed-term agreement).
(2) Should we be unable to adhere to delivery deadlines for reasons beyond our control (e.g. unavailability of performance), we shall be entitled to entirely or partly withdraw from the contract. In such event, we will fully reimburse any advance payment rendered by the Buyer. Such unavailability of performance shall be deemed the non-timely self-delivery by our suppliers if we have concluded a congruent hedging transaction, if neither we nor our suppliers caused the delay or if, in the individual case, we have no procurement obligation.
(3) A delay in delivery shall be determined in accordance with the statutory provisions. In any case a reminder by the Buyer is required.
(4) Buyer’s rights pursuant to Section 8 of these GTCSD and our statutory rights, in particular relating to the exclusion of the performance obligation (e.g. as a result of the impossibility or unreasonableness of performance and/or subsequent performance) shall remain unaffected.
Section 4) Delivery, passing of risk, acceptance of performance, default in acceptance
(1) Delivery shall be ex works, which shall also be the place of fulfilment, but insured. At Buyer’s request and cost, the goods will be dispatched to a different destination (dispatch sale). Unless agreed otherwise, we are entitled to determine the method of dispatch (in particular, the carrier, method of transport, packaging).
(2) The risk of accidental loss or accidental impairment of the goods shall be passed to the Buyer at the latest upon delivery. However, in the case of dispatch sales, the risk of accidental loss or accidental impairment and the risk of delay shall be passed to the Buyer as soon as the goods have been handed over to the forwarding agent, the freight forwarder or any person or institute assigned to carry out the dispatch. If an acceptance procedure has been agreed on, this shall apply to the passing of risk. The applicable statutory provisions of the law on contracts for goods and services (“Werkvertrag”) shall apply accordingly to any acceptance procedure agreed on. Delivery, i.e. acceptance, shall be deemed to be effected if Buyer is in default in acceptance.
(3) Should the Buyer be in default in acceptance or should he fail to perform an act of cooperation or if our delivery is delayed for other reasons caused by the Buyer, we are entitled to claim compensation for the damage incurred including additional expenses (e.g., storage costs).
Section 5) Prices and Terms of Payment
(1) The prices that were valid at the time of conclusion of the contract shall continue to apply. All prices are meant ex works exclusive of VAT and excluding packaging, freight, postal charges, insurance, unloading or other ancillary services.
(2) Buyer shall bear the transport costs for dispatch sales ex warehouse (Section 4.1) and the costs incurred for any transport insurance required by Buyer. Buyer shall bear all customs duties, charges, taxes and other official charges. Transport packaging and all other packaging in accordance with the Packaging Ordinance is non-returnable and, with the exception of pallets, becomes the property of the Buyer.
(3) The purchase price is due and payable within 30 days from the date of invoice and delivery. If payment is made within 10 days after receipt of invoice, a discount of 3% on the net amount invoiced will be granted. For the first two orders placed by new customers we shall be entitled to request advance payment of the total amount invoiced.
(4) Buyer shall be in default upon expiry of the above-mentioned payment deadline. Interest will be charged at the respective applicable statutory default interest rate on the purchase price. We reserve the right to claim additional damages for default. Section 353 of the German Commercial Code (HGB) remains unaffected.
(5) If Buyer is more than 14 days in default on payment due from an individual contract for delivery or should there be a significant deterioration in Buyer’s financial situation, seller shall have the following rights against the Buyer:
· Payment obligations of the Buyer from other pending contracts for delivery shall become due and payable with immediate effect;
· Seller may request immediate advance payment for all future deliveries;
· Buyer is obliged to effect advance cash payment for all deliveries that have not yet been carried out.
· Seller may withhold delivery of further orders until receipt of full payment.
(6) Buyer may only exercise its rights to offset or lien if its claim has been legally determined or is indisputable. Section 7 of these GTCSD remains unaffected if the delivery was faulty.
(7) If, after conclusion of the contract, it becomes clear that our claim to the purchase price is endangered by Buyer’s lack of performance (e.g., by an application to open insolvency proceedings), we are legally entitled to refuse to render performance and where appropriate - having set a deadline - to revoke the contract (Section 321 of the German Civil Code - BGB). For contracts on the manufacture of specific items (custom-made items), we may declare our withdrawal immediately; in this event the statutory provisions on the dispensability of the setting of deadlines shall remain unaffected.
Section 6) Retention of Title
(1) We shall retain all title to the goods delivered (stock) until receipt of payment of all outstanding claims, including all current account balance claims. In the event of a breach of contract by the Buyer - and in particular if Buyer defaults on payment - we shall retain the right to repossess the goods, having given Buyer a reasonable deadline within which to render payment. Buyer shall bear all transport costs incurred for taking back the reserved goods. Taking back the reserved goods shall constitute a withdrawal from the contract. Should we have to effect seizure of the reserved goods, this shall also constitute a withdrawal from the contract. We have the right to make use of the returned goods. The proceeds made from the realization of the seized goods will be offset against the outstanding amount owed by the Buyer after deduction of a reasonable amount for the costs of the realization of the goods.
(2) Buyer is obliged to handle the reserved goods with due care. Buyer is obliged to insure the goods at his own expense against damage caused by fire, water and theft at their replacement value. Buyer is also obliged to carry out any maintenance and inspection work that may be necessary in due time and at his own expense.
(3) Buyer has the right to use the reserved goods and to sell them within the normal course of business provided he is not in default of payment. Buyer may not pledge the goods nor assign them by way of security. Buyer hereby assigns to us in full all claims he has towards his customers arising from the resale of the goods and any such payment claims of the Buyer towards his customers or third parties relating to the goods for any other legal reason (in particular tort claims and claims for insurance benefits) including all balance claims on the current account.
Buyer is authorized to collect the claims assigned to us in his own name for his own account provided we have not revoked such authorization. This does not affect our right to collect such claims ourselves. However, we shall not make the claims ourselves and shall not revoke the Buyer’s authorization to collect such claims as long as Buyer complies with his payment obligations.
In the event of breach of contract by the Buyer - in particular in the event of default in payment - we may demand that Buyer informs us of the assigned claims and the respective debtors and informs the respective debtors of the assignment and provides us with all documents and information necessary for us to enforce the claims.
(4) In the event of seizure of the goods in stock by third parties or any other interventions by third parties, Buyer is obliged to indicate our ownership and to immediately inform us in writing to enable us to enforce our rights of ownership. Buyer shall bear liability for any judicial or extra-judicial costs incurred by us for which the third party is unwilling to provide reimbursement.
(5) At Buyer’s request, we are obliged to release the securities to which we are entitled insofar as their realizable value exceeds the receivables owed to us by Buyer by more than 10%. In this event, we are entitled to select the securities to be released.
Section 7) Buyer’s Claims based on Defects
(1) The warranty period is one year from the date of delivery, or, where acceptance is required, one year from the date of acceptance. The warranty does not apply to usual wear and tear nor to the normal deterioration of the components.
(2) Buyer or third party appointed by the Buyer is obliged to carefully inspect the goods immediately after delivery. Visible defects or other defects that would have been recognizable upon immediate and careful inspection shall be considered as accepted by Buyer unless we receive a written complaint within 7 working days from the date of delivery. In relation to other defects the items delivered shall be considered as accepted by Buyer unless we receive a complaint within 7 days from the date on which the defect became evident. Should the defect have been recognizable to the Buyer at an earlier point in time during normal use, such earlier point in time shall apply for the complaint period. At our request, any such item is to be returned to us carriage free. If the complaint is justified we will reimburse the costs for the most cost-effective method of transport; this, however, shall not apply if the costs are higher because the item delivered is at a location other than the location determined for use.
(3) In the event of defects in the objects delivered by us, we are obliged and entitled, with a reasonable period of time, to either provide a remedy or a replacement for the defect. Should the remedy or replacement have failed twice (e.g., impossibility, unreasonableness, rejection or unreasonable delay of the remedy or replacement delivery), Buyer is entitled to withdraw from the contract or to reduce the purchase price within reason. Buyer is only entitled to withdraw from the contract if the defect constitutes a material defect. A material defect only exists if the repair costs amount to at least 10% of the net purchase price.
(4) Warranty does not apply if Buyer alters or has the delivered goods altered by a third party without our approval and by doing so makes subsequent performance unreasonably difficult or impossible. In any case, contractor shall bear the costs for the additional costs incurred to repair the defects.
Section 8) Other Liabilities
(1) Unless provided otherwise in these GTCSD including the following provisions, we shall be liable for any breach of contractual or non-contractual duties in accordance with the applicable statutory provisions.
(2) We shall only be liable to pay compensation, regardless of the legal reason, in the case of intent or gross negligence. In the event of ordinary negligence, we shall only be liable
a) for injury to life, body or health;
b) for damage caused by breach of a material contractual obligation (obligation which is vital for the fulfilment of the contract and on which the contract partner relies and is entitled to rely on); in such cases our liability shall be restricted to compensation for foreseeable, typically occurring damage. We shall only be obliged to render compensation for indirect damage and consequential losses caused by defects in the items delivered if such damage can be typically expected from the normal use of the items delivered.
(3) Our liability for neglect shall be limited to EUR 8,000,000.00 for each case of neglect and to EUR 1,000,000.00 for each case of consequential loss (in accordance with the current amount covered by the product liability insurance, i.e. the supplier’s liability insurance). This shall also apply to any breach of material contractual obligations.
(4) The limitation on liability pursuant to Sections 8.2 and 8.3. above shall not apply if we fraudulently conceal a defect or have warranted the quality of the goods. This shall also apply to claims by the Buyer under the Product Liability Act.
Section 9) Limitation
(1) By way of derogation from Section 438.1.3. of the German Civil Code, the general statute of limitations for claims for defects of quality and title shall be one year from the date of delivery. Unless otherwise agreed, the limitation period shall commence upon acceptance of the goods.
(2) The above-mentioned limitation periods of the law on sales shall also apply to contractual and non-contractual claims for compensation by the buyer based on defects in the goods, unless the application of the general statutory period of limitation (Sections 195, 199 of the German Civil Code) would result in a shorter period of limitation in the individual case. The statute of limitation set out in the German Product Liability Act remains unaffected. For claims for damages by Buyer pursuant to Section 8, the statutory limitation period shall exclusively apply.
Section 10) Choice of Law and Jurisdiction
(1) German Law shall apply to these GTCSD and to all legal relations between us and the Buyer with the exclusion of international uniform law and in particular UN sales law. The conditions and effects of the reservation of title pursuant to Section 6 are subject to the law in force at the place where the goods are stored, if, under that law, the application of German law would be inadmissible or ineffective.
(2) The exclusive place of jurisdiction - which also applies internationally - for all disputes arising indirectly or directly from this contractual agreement, shall be the competent court at the place of our registered office in Sonnefeld near Coburg/Germany. We shall, however, also be entitled to file claims at the Buyer’s general place of jurisdiction.