All purchase orders placed by us are subject to the Terms and Conditions of Purchase set forth below. These Terms and Conditions will also apply to all future transactions even if not explicitly agreed to in each case. Any exception to these Terms and Conditions will be valid only if agreed to by us in writing. Any terms and conditions of the customer that we have not explicitly acknowledged in writing will be immaterial even if we fail to explicitly object to such terms and conditions.
- 1.Quotations, Scope of Delivery
- 1.1 Our quotations are subject to change. Understandings made orally, in person or by telephone will be valid only if confirmed in writing.
- 1.2 Samples only approximate the characteristics of goods. Documents related to our quotations such as brochures, photos and drawings as well as weights and measures will be considered only approximations unless explicitly specified as binding by us. Order confirmations will be exclusively determinative for the purposes of definition of the quality of goods and services.
- 1.3 Our written order confirmations will be determinative for the purposes of definition of the scope of delivery. In the absence of such written confirmation, our quotation will be determinative. Collateral agreements and changes must be confirmed in writing by us.
- 1.4 We reserve the right to deviate from quantities by ± 10 per cent. We will charge for the quantities actually delivered.
- 2.Prices and Conditions of Payment
- 2.1 Prices apply ex works, including packaging. The list prices as of the time of shipment of the goods will apply in the case of products from our standard line of products.
- 2.2 In the case of shipments to other countries, the customer will bear all duties, fees, taxes, costs for technical certification, etc., incurred outside the Federal Republic of Germany. This will also apply accordingly to the cost of any necessary legalization of certificates of origin, invoices for consular services, etc.
- 2.3 The customer may not offset counterclaims or exercise any rights of retention unless claims of the customer are undisputed or legally enforceable.
- 2.4 If it should become apparent after execution of a contract that our claim to payment is at risk due to inability to make payment, we may refuse to make shipment and require that the customer either make payment upon delivery within a period specified by us or provide appropriate security. In the event this period should elapse with no response from the customer, we may cancel the order and demand reimbursement of expenses incurred. No such period of notice will be required if the customer seriously and definitively refuses to make payment or if special circumstances exist that justify immediate cancellation of the contract by us after weighing the interests of both sides.
- 3.Delivery Time
- 3.1 Dates and deadlines specified in our order confirmations or otherwise agreed with the customer will be binding. Compliance with such dates and deadlines by us presupposes timely receipt of all documents to be supplied by the customer as well as compliance with the agreed conditions of payment and other obligations by the customer. If these conditions are not met in a timely manner, delivery or performance will be delayed accordingly.
- 3.2 Delivery will be considered to have been made on a timely basis if the goods are ready for shipment or collected by the delivery date. If shipment is delayed for reasons attributable to the customer, delivery will be considered to have been made on a timely basis upon notification of completion or availability for shipment by the agreed delivery date.
- 3.3 Partial shipments are permissible insofar as the customer can be reasonably expected to accept such shipments.
- 3.4 If we are prevented from performing our obligations due to the occurrence of unforeseeable unusual circumstances affecting our operations or those of our suppliers that we could not preclude despite all due care in view of the given circumstances, for example, disruption of operation, governmental intervention, delays in the delivery of essential raw and building materials, delivery will be postponed by the duration of any such occurrence unless delivery or performance is rendered impossible. In the event delivery or performance should become impossible due to the circumstances mentioned above, we will be released from our obligation to make delivery.
We may rely on the circumstances mentioned here only if we notify the customer accordingly without delay.
In the event delivery or performance should become impossible, the customer may set a reasonable period for delivery and cancel the order if we fail to make delivery within that period.
- 3.5 If the operations of the customer should be affected by any of the above-mentioned circumstances, the same legal consequences will also apply in respect of the customer’s obligation to accept delivery.
- 4.Shipment and Passage of Risk
The risk of loss or damage will pass to the customer upon shipment. If shipment is delayed for reasons lying within the sphere of influence of the customer or the customer’s agents, the risk of loss or damage will pass to the customer as of the day of readiness for shipment.
- 5.Retention of Title
- 5.1 Shipped goods will remain our property after shipment until we have received payment in full of the agreed price, including all amounts already due or that will become due.
- 5.2 The customer may resell the goods in the course of ordinary business activity. The customer hereby assigns to us any claims arising from the resale of goods to which we retain title, including in particular claims for payment against the purchasers of such goods, and we accept such assignment. The customer will notify its debtors of such assignment at our request. The customer will notify us of the outstanding receivables and the names of the respective debtors.
- 5.3 The customer is authorized to collect amounts owed us in connection with the resale of goods. We may revoke such authority to make collection in the case of arrears on payments owing to us or if we become aware of circumstances that from a commercial point of view would compromise the creditworthiness of the customer.
- 5.4 Goods to which we retain title are processed for us as the manufacturer within the meaning of § 950 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). If goods to which we retain title are processed or combined with other physical objects that are not our property, we will automatically acquire rights of joint ownership in the new object in proportion to that share of the combined net invoiced value of the goods to which we retain title and other goods that corresponds to the net invoiced value of the goods to which we retain title as of the time of processing or combination.
- 5.5 The customer may not assign any security interest in goods to which we retain title. In the case of any action, and in particular any form of attachment, by a third party against goods to which we retain title, the customer will identify us as the owner and notify us without delay, providing a copy of the judicial order.
- 5.6 We may in the case of breach of contract by the customer cancel the order and demand the return of any goods delivered by us. We may also claim damages in any such case.
- 5.7 If the value of any securities provided exceeds our claims by more than 20%, we will, at our sole discretion, reassign or release securities if requested to do so by the customer.
- 6.Rights of the Customer in the Case of Defects
- 6.1 If the purchase represents a commercial transaction for the customer, the customer must notify us of any defects in writing without delay and at the very latest within one week of receipt of the goods. The customer must notify us in writing without delay upon detection of any other defect that cannot be detected within the above period even upon careful inspection.
- 6.2 In the case of legitimate defects, we may, at our discretion, correct the defect or supply a replacement within a reasonable period of at least 14 days. If corrective work should prove inadequate, the customer may – unless the default is of negligible importance – reduce the price or rescind the contract. The customer may also claim damages or reimbursement of expenses if appropriate. If the customer should rescind the contract, the customer will return the goods to us.
- 6.3 No further claims of the customer in respect of expenses incurred for the purposes of carrying out required corrective work, in particular for shipping, freight, materials and labor, will be honored if such expenses are increased due to the fact that the goods are subsequently brought to a location other than the delivery destination by the customer or any other party unless required by the intended use of the goods or agreed to by us upon execution of the contract.
- 6.4 Claims of the customer for damages will exist only pursuant to section VII and otherwise be excluded.
- 6.5 If we warrant that the goods will comply with certain specifications, the conditions pertaining to limitation of liability contained in paragraph 6.4 above will not apply.
- 6.6 We accept no liability for the suitability of the goods for the purposes contemplated by the customer unless such purposes are stipulated in the contract.
- 7.Limitation of Liability, Damages
- 7.1 Unless stipulated otherwise in these Terms and Conditions, our liability for any breach of contractual obligations or any or other obligations will be governed by the relevant provisions of law. The onus for circumstances triggering a of our liability limitation lies with us.
- 7.2We will be liable for damages – for whatever legal reason – in the case of willful misconduct and gross negligence. In the case of simple negligence, we will be liable only in the case of
- a) Claims arising in connection with the loss of life, personal injury or illness,
- b) Claims arising in connection with the breach of a material contractual obligation (i.e., an obligation that must be fulfilled to permit proper performance of the contract and may regularly be relied upon by the customer). Our liability will, however, then be limited to foreseeable and typically occurring damages.
- 7.3 The limitations to our liability pursuant to 7.2 above will not apply in the case of concealment of a defect with intent to deceive or if we have extended a warranty on the respective products. The limitations to our liability do not apply in the case of claims of the customer under the Product Liability Act (Produkthaftungsgesetz – ProdHaftG).
- 7.4 The customer may rescind or cancel the order due to breach of contract only if the breach can be attributed to us. The contract will otherwise be governed and construed in accordance with the provisions of law and legal practice.
- 8.Limitation Periods
- 8.1 The general period of limitation for claims arising from defects in materials and workmanship or defects of title is one year from the date of delivery.
- 8.2 Special provisions of law governing real rights of third parties to the return of property (§ 438(1) no. 1 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), intent to deceive on our part and claims against suppliers in the case of sale to a consumer pursuant to § 479 of the German Civil Code will apply.
- 8.3 Contractual and other claims of the customer arising from defective goods will also become time-barred upon expiration of the periods specified under the provisions of law governing contracts unless the application of the regular legally prescribed periods pursuant to §§ 195 and 199 of the German Civil Code would result in earlier expiration of such claims under the given circumstances.
- 8.4 Warranty periods prescribed by the Product Liability Act will apply. The legal warranty periods will otherwise apply exclusively in the case of claims for damages on the part of the Client pursuant to section VII.
- 9.Place of Performance, Jurisdiction, Applicable Law
- 9.1 The place of performance for all obligations arising from this Agreement is the place of our principal office.
- 9.2 Any disputes arising from this contractual relationship will be submitted to the jurisdiction of the courts of the place of our principal office if the customer is a businessman, a public law corporation or special fund under public law. We may, however, at our discretion, take action before the courts having jurisdiction over the registered place of business of the customer.
- 9.3 The provisions of this Agreement will be interpreted and construed exclusively in accordance with German law. Application of the United Nations Convention on the International Sale of Goods of 11 April 1980 (CISG) is excluded.
We reserve the right to store, transmit, modify and delete personally identifiable information on the customer. We will inform the customer thereof accordingly pursuant to § 33 of the German Federal Data Protection Act (Bundesdatenschutzgesetz –BDSG).