General Terms and Conditions for Deliveries as per January 2014
§ 1 General information - Scope
1. Our General Terms and Conditions (Allgemeine Geschäftsbedingungen) shall be deemed to be a constituent part of the agreement and shall apply exclusively. Adverse terms and conditions of the customer shall not be acknowledged by us, unless we have approved their applicability in writing. We shall furthermore not acknowledge any deviating terms and conditions in the event of us unconditionally executing a customer’s order even being aware of any adverse terms and conditions or of any terms and conditions deviating from our applicable terms and conditions.
2. Our General Terms and Conditions shall only apply vis-à-vis companies within the sense of § 310 par. 1 BGB [German Civil Code].
3. In so far as the transaction in concern is a reciprocal commercial transaction, our General Terms and Conditions shall be deemed to also apply to all future transactions with the customer. The version being applicable at the point of time of undersigning the contract shall be deemed to be decisive.
4. Agreements which are concluded with the customer in deviation of or in addition to our General Terms and Conditions shall be deemed to take precedence over these General Terms and Conditions, in so far as these have been agreed on in writing between the contracting parties. Oral agreements shall furthermore only deemed to be binding, if we have confirmed these in writing.
§ 2 Quote – bidding documents
1. Our offers shall be deemed to be subject to change, unless any other agreement has been explicitly made.
2. If the order is to be qualified as offer pursuant to § 145 BGB, we shall be authorised to accept it within 2 weeks.
3. We shall reserve the rights of ownership and copyright in photos, drawings, calculations and any other documents. This shall also refer to any such written documents which are classified as confidential. Prior to these being forwarded to any third party the customer shall require our explicit written approval thereto.
§ 3 Prices – payment terms
1. Our prices shall be understood as net prices, unless no explicit deviating statement is made. Value Added Tax (VAT) shall be charged pursuant to the statutory prescribed amount and billed in addition to the net invoice amount.
2. Our prices shall be understood as “ex works” excluding transport, insurance and packaging, unless no other terms are specified in the order confirmation.
3. In the event of any amendment to the statutory VAT (Value Added Tax) rate, we shall adapt our remuneration at the point of time and in the amount of the respective legal amendment without the customer being entitled to derive any right of termination therefrom.
4. Additional services shall be billed separately. We shall be entitled to demand an appropriate advance payment prior to executing the order.
5. The deduction of any discount shall require a separate written agreement.
6. If no deviating agreement is laid down in the order confirmation, the purchase price (without deduction) shall be due and payable within 10 days as of the invoice date. The statutory regulations regarding the consequences of default in payment shall be deemed to be applicable.
7. Payments made by the customer shall be offset in the order of sequence as laid down in §§ 366 par. 2, 367 BGB [German Civil Code].
§ 4 Time of delivery and time of performance
1. The beginning of the time of delivery and performance specified by us shall require a clarification of any and all technical questions and issues.
2. The customer shall be obliged to submit any and all data, documents and other information which are deemed to be significant for performance resp. for the provision of services and should be taken into account prior to placing the order.
3. Compliance with our obligations for delivery and performance shall furthermore require a timely and appropriate fulfilment of the customer’s obligations. Defence of lack of performance of the contract shall be reserved.
4. If the customer defaults in accepting or if he culpably violates any other obligations to cooperate, we shall be entitled to sue him for damages in so far incurred on our part, including any additional expenditure. We shall reserve the right to enforce further claims or rights.
5. If the prerequisites as specified in par. (4) are given, the risk of an accidental destruction or an accidental deterioration of the subject matter shall pass on to the customer at the point of time at which he has entered into a default of acceptance or default of the debtor.
§ 5 Transfer of risk
1. In so far as no other regulation is laid down in the order confirmation, a delivery “ex works” shall be deemed to be agreed.
2. In so far as desired by the customer, we shall take out an insurance policy to cover the delivery. Any costs incurred herefor, if applicable, shall be charged to the customer.
§ 6 Warranty for defects
1. The customer’s warranty rights shall require the customer to have fulfilled his duties regarding an investigation of the delivery and a notification of any defect.
2. In so far as the goods purchased are faulty, we shall be permitted at our discretion to eliminate the defects in the goods by repairing the goods or to alternatively deliver new goods free of defects. In the event of subsequent fulfilment we shall be obliged – for the purpose of remedying the defect(s) - to bear the additional expenses incurred, in particular transport, handling costs, labour and material costs, in so far as these are not increased by the need to transport the goods purchased to a different location than the place of fulfilment.
3. If the subsequent fulfilment fails, the customer shall – at his discretion – be entitled to demand a rescission from the contract or reduction of the price.
4. We shall warrant pursuant to the statutory regulations, in so far as we have culpably violated a substantial contractual obligation; in such a case too, the liability for damages shall be limited to the foreseeable typically incurred damage.
5. We shall warrant pursuant to the statutory regulations, in so far as we have culpably violated a substantial contractual obligation; in this case, too, a liability for damages shall be deemed to be limited to the replacement of the foreseeable, typically incurred damage.
6. In so far as the customer - for the rest – is entitled to replacement of the damage on the grounds of a negligent breach of duty instead of performance, our liability shall nevertheless be deemed to be limited to the replacement of the foreseeable, typically incurred damage.
7. Liability on the grounds of a culpable injury of life, body or health shall remain unaffected; this shall also apply to any compulsory warranty pursuant to the Product Liability Act [Produkthaftungsgesetz].
8. Warranty shall be excluded unless afore-mentioned paragraphs regulate any deviating terms.
9. The period of limitation for warranty claims shall be 12 months, calculated as of the date of transfer of the risk. This shall not be applicable, if the matter purchased is normally used for a building and has caused the defect. Claims resulting from the assumption of warranted properties or in the event of any fraudulently concealed defects shall not be affected thereby. In any such cases the statutory periods of limitation shall be deemed to apply.
10. The period of limitation in the event of a delivery recourse pursuant to §§ 478, 479 BGB [German Civil Code] shall remain unaffected; it shall amount to five years calculated as of the date on which the faulty goods were delivered.
§ 7 Joint and several liability
1. Further liability for damages as stipulated in § 6 shall be excluded – without consideration of the legal nature of the claim enforced. This shall apply in particular to damage claims on the grounds of negligence at the point of time of undersigning the agreement, on the grounds of other violations of obligations or due to tortious claims for damages pursuant to § 823 BGB [German Civil Code]. Our offers shall be deemed to be subject to change, unless any other agreement has been explicitly made.
2. The limitation pursuant to par. (1) shall also apply, in so far as the customer demands replacement of the futile expenses in lieu of a claim for damages, and instead of performance.
3. In so far as the liability for damages is deemed to be excluded or limited vis-à-vis us, this shall also apply with regard to the personal liability for damages of our employees, workers, staff members, representatives and vicarious agents.
§ 8 Protection of a reservation of title
1. We shall reserve the right to ownership in the purchased goods up to the point of time of receipt of full payment of all invoices according to the delivery agreement. In the case of any performance on the part of the customer contrary to the agreement, in particular in the event of default of payment, we shall be authorised to take back the objects purchased. If we take back the goods purchased, this circumstance shall be deemed to represent a rescission from the agreement. After taking back the goods purchased we shall be authorised to sell the goods and the proceeds resulting from the sale shall be offset with the customer’s accounts payable, minus any appropriate costs for sale of the goods.
2. The customer shall be obliged to treat the goods purchased carefully, in particular the customer shall be obliged to sufficiently insure the goods purchased at its own expense against damage resulting from fire, water and theft at replacement value. In so far as maintenance and service operations are required, the customer must ensure that any such measures are performed in due time and shall bear the costs herefor.
3. In the event of any attachment or any other third-party intervention the customer shall be obliged to inform us immediately in writing thereof, so that we can take action pursuant to § 771 ZPO [German Code of Civil Procedure]. In so far as the third party is not in a position to refund the judicial and extrajudicial costs of a lawsuit pursuant to § 771 ZPO, the customer shall warrant for any loss incurred on our part.
4. The customer shall be deemed to be authorised to sell the goods purchased within the scope of normal business operations; he shall, however, assign any and all accounts receivable in the amount of the final invoice amount (including VAT) of our receivables accrued to him from the further sale against his buyers or third parties, irrespective of whether the goods purchased have been further sold without or after further processing. The customer shall be authorised to collect these accounts receivable even after the assignment. Our authorisation to collect the account receivable ourselves shall remain unaffected thereby. We shall be obliged to refrain from collecting the account receivable ourselves as long as the customer meets his payment obligations from the proceeds collected, does not default in payment and in particular no bankruptcy and insolvency proceedings have been filed or any suspension of payment is given. If, however, this is the case, we shall be entitled to demand that the customer inform us of assigned claims and the principals thereof, furthermore that the customer disclose any and all information required for a collection and submit the applicable documents and furthermore inform the principal (third party) of the assignment.
5. It shall be understood that any processing or transformation of the goods purchased by the customer be performed at all times on our behalf. If the purchased goods are processed with other objects not belonging to us, we shall acquire co-ownership in the new objects in the ratio of the value of the goods purchased (final invoice amount including VAT) to the other processed objects at the point of time of processing. For the objects created by processing the same shall be deemed to be applicable as for the conditionally delivered purchased objects.
6. If the purchased objects are inseparably combined with other objects not belonging to us, we shall acquire co-ownership in the other processed goods in the ratio of the value of the purchased object (final invoice amount plus VAT) to the other combined objects at the point of time of mixing these. If the products are mixed in such a way that the customer’s goods are viewed as main object, it shall be deemed to be agreed that the customer shall transfer to us a proportionate co-ownership therein. The customer shall store the sole property or co-ownership created thereby on our behalf.
7. The customer shall also assign to us the accounts receivable to protect our claims against the customer and arising from combining the purchased goods with a plot vis-à-vis a third party.
8. We shall commit ourselves to release the securities to which we are entitled by the customer if the realisable value of our securities exceeds the accounts receivable to be hedged by more than 10%; the selection of securities to be released shall be left up to us.
§ 9 Venue – place of fulfilment
1. In so far as the customer is a merchant, our company address shall be deemed to be the place of venue; we shall however be authorised to also take action against the customer at the court at his place of abode.
2. The laws of the Federal Republic of Germany shall be applicable; The UN Convention on contracts for the international sale of goods shall be excluded.
3. In so far as no other location is specified in the order confirmation, our company address shall be the place of fulfilment.
§ 10 Termination of the agreement
1. We shall be entitled to rescind the agreement, if the customer has filed a petition to institute insolvency proceedings against his own assets, has sworn in lieu of an oath or insolvency proceedings have been instituted against his assets or have been rejected for want of mass.
2. In the case of a failing, incorrect, or belated self-delivery we shall be entitled to rescind the agreement.
3. Statutory rights of rescission shall remain unaffected thereby.
General terms and conditions for work and service contracts
For service contracts §§ 1 to 5, § 6 par. 2-8, § 7 in conjunction with § 6 par. 2-8 and §§ 9 to 10 plus additionally the terms in the following sections §§ 11 to 13 shall apply correspondingly.
§ 11 Acceptance, remuneration and terms of payment
The customer shall submit within five days following delivery a declaration of acceptance resp. a notice of defects. If the customer does not render any information regarding the work and services, these shall be deemed to be accepted after the end of the period, unless the defect was a defect which was not identifiable at the point of time of examining the goods.
The total remuneration shall be due and payable within five days following acceptance, unless no other agreement was made. For completed performance parts an advance payment can be provided by us in the amount of the work rendered can be provided pursuant to statutory regulations.
§ 12 Warranty
Claims for warranty for defects shall become time-barred after the end of a 12-month period as of acceptance of the work and services, unless any longer period of limitation is coercively stipulated by law.
§ 13 Cancellation of the work and service contract
The rights to cancel the work and service contract shall depend on the statutory requirements.
General terms and conditions for services
For services §§ 1 to 5, § 6 par. 4-8, § 7 in conjunction with § 6 par. 4-8 and §§ 9 to 10 plus additionally the terms in the following section § 14 shall apply correspondingly.
§ 14 Termination of the service contract
If general services are deemed to be the subject matter of the agreement, each contracting part shall be entitled to regularly terminate this agreement observing a period of four weeks to the end of a calendar month without requiring the specification of reasons.
In such a case, we shall be authorised to bill any and all services rendered up to such a point of time and send an appropriate invoice to our customer. In the event of an all-inclusive remuneration the services rendered up to that point of time shall be invoiced proportionately.