GENERAL TERMS OF SALE AND DELIVERY
1 Scope of Application
(1) The following General Terms and Conditions of Sale and Delivery (also referred to herein as (“General Terms”) shall apply during the entire business relationship with our customers, i.e. to all contracts, deliveries and other services, including advisory services, to the extent not modified or excluded with our express consent. The customer acknowledges them to be binding on the present agreement and all subsequent transactions even if not again agreed to separately.
(2) General terms and conditions of business of our customers (e.g. purchasing terms) or other agreements at variance herewith shall only be applicable if they have been expressly accepted by us in writing. Neither our silence nor delivery by us nor our failure to assert an express objection shall constitute acceptance.
(3) Our General Terms are applicable only in the event our customer is a business (Sec. 14 German Civil Code “BGB”), a public-law legal entity or a special fund under public law. They do not apply to consumers (Sec. 13 BGB).
2 Formation and Contents of Contracts
(1) The customer has been informed regarding the primary functionalities of the product and its operation and bears the risk of its conformity with the customer's wishes and needs. In cases of doubt, the customer shall seek advice from one of our employees under a separate advisory agreement or from a knowledgeable third party.
(2) Our offers are subject to change and are non-binding to the extent we have not expressly designated them as binding or stipulated a specific acceptance period.
(3) Information we have provided regarding the product and regarding our services do not represent warrantied characteristics but rather are descriptions of the product and of our services.
(4) We retain title to and copyright on samples, cost estimates, drawings and similar information in both tangible and intangible form – also in electronic form; they must not be disclosed to third parties. We undertake that we shall only disclose documents provided to us by the customers and designated as confidential to third parties with the customer’s consent.
(5) We may accept orders placed and contracts offered by the customer within 14 days of our receipt thereof.
(6) A contract shall only be deemed to be formed upon our written confirmation of the order. Individual agreements at variance with the foregoing shall take precedence.
(7) Our General Terms shall apply in particular in the case of contracts for the sale and/or delivery of movable goods (also referred to herein as "Products") regardless of whether we manufacture the Product ourselves or purchase it from a vendor. Where we undertake to deliver moveable goods to be manufactured, the law applicable to contracts for works and services [Werklieferungsverträge] shall apply.
(8) We shall be deemed to produce a work on behalf of a customer (Sec. 631 et seq. BGB) only to the extent this has been expressly agreed with the customer. To the extent we have expressly agreed to produce a work on behalf of a customer in an individual case, these General Terms shall apply mutatis mutandis, subject to any special agreements.
We do not provide the customer any advisory services except where expressly agreed. The following applies in the event we have expressly agreed to provide advisory services to the customer in an individual case: An advisory contract is a separate agreement which is concluded in addition to the delivery contract. We undertake to provide a service and do not guarantee an outcome. The law applicable to management services for remuneration and to services contracts (Sec. 675, 611 BGB) shall be applicable in the event we provide advisory services for consideration. The provisions of these General Terms shall apply mutatis mutandis with respect to advisory services rendered by us, subject to any special agreements.
3 Prices and Payment
(1) The customer shall pay such compensation as has been agreed. Our prices apply to the contractually agreed goods and services. Additional and/or special services shall be invoiced separately.
(2) Subject to agreements to the contrary, our prices include loading, however are exclusive of packaging and unloading. The customer shall bear the requisite packaging costs.
(3) Our prices quoted are always subject to VAT payable at the current applicable statutory rate. To the extent not otherwise agreed, all payments shall be made within 30 days of the invoice date in such manner as to ensure that we shall received the amount stated on the invoice by the due date. We accept discountable and properly taxed bills of exchange on account of payment if expressly agreed in advance. Bills of exchange and cheques will be credited subject to receipt and minus disbursements. No discounts will be allowed, in particular, in cases in which the purchaser is in arrears with payments for previous deliveries.
(4) To the extent the agreed prices are based on our list prices and deliveries are not made until four months after formation of contract, deliveries shall be made on the basis of the then-valid list prices.
(5) Payments may only be made to our employees where those employees furnish appropriate proof of authorisation for collection. Invoices for catalogue goods, customer services and spare parts shall be paid net 30 days.
(6) The customer shall only have a right to retain or set-off payments against counterclaims to the extent such counterclaims relate to the same transaction, are undisputed and have been determined by res judicata judgment of a court.
(7) In the event the customer asserts a claim for defects, the customer may withhold payment in such amount as is reasonable in light of the claimed defect.
(8) In the event of a late payment, we shall charge interest thereon at such rate as a major European bank charges us for bank loans; however default interest shall be charged at a minimum rate of 8 percentage points above the base lending rate.
(9) If, following formation of a contract, circumstances come to light that appear to place the payment of amounts outstanding at risk due to a lack of solvency on the part of the buyer, we shall be entitled to require payment in advance or demand corresponding collateral before effecting any outstanding deliveries.
4 Customer’s Duty of Co-operation
The customer shall perform all such actions as are necessary to enable us to perform the contract. In particular, the customer is responsible for approval of samples and construction models and changes to such models, procurement of required government certificates or permits as well as approval of installation drawings. Where the customer fails to discharge its duty of co-operation or fails to discharge such duty properly, our duty to perform this contract shall be deemed suspended to the extent that and for such time as our performance is dependent upon the customer’s co-operation. The customer shall bear all expenses and disadvantages resulting from its breach of these obligations; the foregoing is without prejudice to other statutory rights to which we are entitled.
5 Time for Delivery / Performance: Default and Impossibility
(1) Deadlines and delivery / performance dates (Time for Delivery / Performance) are governed by agreement of the parties.
(2) To the extent we propose a Time for Delivery / Performance, such dates shall always be deemed approximate unless a fixed period of time or set date has explicitly been confirmed or agreed to. To the extent a shipment has been agreed to, the Time for Delivery / Performance relates to the date on which goods are transferred to the carrier, freight forwarder or other third party engaged to transport such goods.
(3) Without prejudice to our other rights in the event of a default by the customer, we may request an extension of the Time for Delivery / Performance for the period during which the customer has failed to discharge its contractual obligations to us; in particular where the customer has not discharged its duty of co-operation. The foregoing is without prejudice to the defence of contractual non-performance and the assertion of additional claims or rights.
(4) We shall inform the customer immediately and provide an estimated new Time for Delivery / Performance in the event we cannot comply with a Time for Delivery / Performance (impossibility) for reasons lying outside our control (e.g. an act of God). If performance remains impossible during the new Time for Delivery / Performance we may rescind the contract in whole or in part; in such cases, we shall immediately refund any consideration already paid by the customer. Impossibility within the meaning of the foregoing in particular includes our suppliers’ failure to deliver in good time if we have entered into a matching cover transaction, unless we are responsible for the incorrect or late delivery to us.
(5) To the extent not otherwise agreed, we may make partial deliveries if such partial delivery is capable of being used by the customer for its contractual purpose, the delivery of the remaining goods on order has been guaranteed, the customer does not incur any additional costs or significant additional expenses (unless we have stated that we shall cover such costs), and the partial delivery is otherwise not unreasonable to the customer.
(6) The time at which a default in delivery on our part is deemed to arise shall be determined on the basis of applicable legal rules. However, a reminder by the customer shall be required in any event.
(7) In the event of a default by us in effecting delivery/performance hereunder, or in the event it becomes impossible for us to make a delivery / perform hereunder for any reason whatsoever, our liability shall be limited to damages and expenditures on the basis of the provisions of secs. 10 and 11 of these General Terms.
6 Shipping; Passage of Risk; Formal acceptance
(1) INCOTERMS 2010 shall apply to the extent we use delivery terms pursuant to INCOTERMS (e.g. EXW).
(2) The type of shipping and packaging used shall be at our reasonable discretion. The customer shall bear the requisite costs of packaging.
(3) To the extent not otherwise agreed, we may insure the goods being shipped against damage, at the customer’s expense and on standard market terms. We charge a fee of 1% of the net invoice amount per shipment, with a minimum fee of EUR 0.50.
(4) The risk of accidental loss or of accidental deterioration shall pass to the customer no later than at such time as the Product is transferred to the carrier, freight forwarder or other third party engaged for purposes of delivery (which is deemed to be the start of the loading process). The foregoing shall likewise apply in the event we are making partial deliveries or we have assumed other costs or items, e.g. shipping costs, delivery and assembly. In the event formal acceptance is required, this shall be determinative for purposes of passage of the risk of loss. Formal acceptance must be carried out immediately upon our notification of readiness for acceptance. Otherwise, the statutory provisions applicable to contracts for work and services shall likewise be deemed applicable to formal acceptance. If delivery or formal acceptance is delayed or does not occur due to circumstances for which we are not responsible, the risk of loss shall pass to the customer on the day upon which the Product is ready for delivery or acceptance and we have provided the customer notice thereof.
7 Retention of Title
(1) The retention of title set out below serves to secure all respective outstanding claims on our part as against the customer related to the transaction between us and the customer including accounts receivable from a current accounts relationship limited to a particular transaction.
(2) We retain title to any product delivered to the customer until all secured claims have been satisfied in full. The Product, as well as goods subject to retention of title in place of the Product, are referred to below as “retention of title goods.” The customer shall hold retention of title goods in safe custody on our behalf free of charge.
(3) The Customer shall be entitled to process and sell the retention of title goods in the course of its normal business operations until occurrence of an event of realisation. Pledges or transfers of ownership by way of security are prohibited.
(4) To the extent the customer has processed retention of title goods, the parties agree that such processing is deemed to be carried out in our name and on our account as manufacturer and that we have a direct ownership interest or – if goods are processed together with goods from several owners or the value of the processed goods is higher than the value of the goods in which title is retained – we shall acquire a joint ownership interest (fractional ownership) in the newly-created goods pro rata in such proportion as the value of the retention of title goods bears to the value of the newly-produced goods at the time of their processing. In cases in which we do not acquire an ownership interest, the customer shall upon execution of this agreement transfer its future ownership interest, or its fractional interest as described above, in the newly-created goods to us by way of security. To the extent that retention of title goods are combined or inseparably intermingled with any other goods to create a single product and one of the other goods is considered the key component, we hereby transfer to the customer, if the key component is owned by us, a joint ownership interest in the single product in the proportions described in the first sentence hereof.
(5) In the event of resale of retention of title goods, the customer is deemed to have assigned to us by way of security at the time of its execution of this agreement its resulting account receivable from the buyer; where the customer holds joint ownership in the retention of title goods together with us, such assignment shall be deemed to be pro rata in proportion to the relative ownership interests. We accept such assignment. The same shall apply with regard to any claims replacing the retention of title goods or which otherwise arise in connection with the retention of title goods, such as insurance claims or claims resulting from unauthorised acts in the case of loss or destruction. We grant the customer the revocable right to collect the accounts receivable assigned to us in its own name. We may revoke the customer’s authorisation to receive payments where an event of default occurs, where the customer becomes insolvent or where an application has been made to commence insolvency proceedings or insolvency proceedings over the customer’s assets have been commenced or such an application was rejected due to a lack of assets in the estate. The foregoing is without prejudice to our right to collect the receivables ourselves; however, we undertake not to collect the receivables for so long as the customer complies with its payment obligations in an orderly manner, the customer is not insolvent, no application has been made to commence insolvency proceedings and no application has been made to commence insolvency proceedings as to the customer’s assets and no such application has been rejected due to a lack of assets in the estate. Following expiry of a reasonable deadline, we may demand that the customer discloses receivables assigned to it as well as the respective obligors, provides all information required for collection, provides the associated documentation and informs the obligors of the assignment. The customer is responsible for any resulting costs. In the event an assigned receivable from a third-party obligor is included in an open invoice, the respective outstanding balance – including the closing balance – shall be assigned in the amount of the goods related to the individual assignment.
(6) The customer shall immediately inform us in writing where any attachments are made, where an application to initiate insolvency proceedings is made or where insolvency proceedings are opened over the customer’s assets or where such an application has been rejected due to a lack of assets, or where there is another intervention by a third party or efforts by third parties to seize the goods subject to reserved title, so that we may assert our ownership rights. The customer shall immediately inform the third party seeking to seize the retention of title goods of our ownership interest. The customer is liable to the extent the third party is not able to compensate us for any resulting judicial or extrajudicial expenses.
(7) Upon written request, we shall release at our discretion the retention of title goods and/or goods or receivables taking their place to the extent their realisable value exceeds the amount of our current and secured claims against the customer by more than 10%.
(8) In the event we rescind the contract as a result of a breach (e.g. default in payment) on the part of the customer (event of default), we have the right to demand possession of the retention of title goods. The contract may only be rescinded by means of a written declaration from us. The enforcement of our retention of title, as well as the attachment of the Product, shall not be deemed a rescission of the contract.
8 Rights/Customer's obligations in the case of defects
(1) This agreement contains no express warranties on our part. No express warranty on our part shall be legally effective unless it is given in writing. The customer shall inspect the goods immediately upon receipt as to defects, quality and any warrantied characteristics. The customer shall notify us in writing within 2 weeks with regard to obvious defects. The customer must notify us in writing of any latent defects within 2 weeks of its discovery of such defects.
(2) In the case of a defect in the product, we are obliged and authorised to either remediate the defect or replace the goods at our discretion within a reasonable period.
(3) If we deliver replacement goods, the customer is required to accept such to the extent they are of the same value and are not defective and provided this would be reasonable to the customer. In the case of replacement goods, the customer shall return the defective item to us in accordance with applicable law.
(4) Where we attempt to remediate the defect, we are entitled to make at least two attempts at correction. The customer must assist us in analysing the defect and correcting it, in particular, by describing any problems that have occurred in detail, and shall provide us with all information necessary and afford us the time and access necessary to correct the defect. We shall be entitled to undertake to remediate the defect at a place of our choosing.
(5) If, during our attempts to correct a defect, it becomes apparent that we are not responsible for the defect, we may demand payment for our efforts on the basis of our then applicable hourly rate as published in our price list.
(6) In the case of defects in components of other manufacturers which we are not permitted to remediate due to licensing or for other reasons, we may, at our discretion, assert our rights related to defects against the manufacturer or vendor on the customer’s account or may assign such rights to the customer. The customer’s warranty rights against us in the case of such defects shall be subject to other applicable requirements and subject to the terms of these General Terms and shall only apply in cases where judicial enforcement of the claims described above against the manufacturer or vendor was not successful or, as in cases of insolvency, lacks prospects of success. The statute of limitations on claims by the customer against us for defects shall be suspended for the duration of the legal dispute.
(7) If the subsequent performance has failed or a reasonable deadline set by the customer for subsequent performance has expired to no avail or may be dispensed with under applicable law, then the customer may terminate this agreement or abate its payment by a reasonable amount. However, there is no right to terminate the contract in the case of an non-material defect.
(8) The provisions of secs. 10 and 11 are applicable to the customer's rights to compensation for damages and expenses.
(9) If the customer remediates the defect itself, it may only demand reimbursement for related expenses if this has been expressly agreed to in advance in writing.
(10) Any statutory warranty shall be deemed to lapse in the event the customer modifies the product, or has it modified by a third party, without our express written consent and such modification renders our efforts to correct a defect impossible or unreasonably difficult. The customer may explain and substantiate its claim that such modifications are in no way connected to the claimed defect and that our efforts to correct a defect are not rendered impossible or unreasonably difficult thereby. In any event, the customer is liable for any additional expense incurred in connection with remediating a defect caused by the modification.
(11) The foregoing provisions are without prejudice to the special statutory provisions applicable to final delivery of the Product to a consumer (recourse by a consumer pursuant to Sec. 478, 479 BGB).
9 Intellectual Property Rights of Third Parties
(1) The customer is required to inform us immediately in writing in the event claims are asserted against the customer for infringement of commercial or copyright protections of third parties (Intellectual Property Rights of Third Parties).
(2) In the event that the Product infringes Intellectual Property Rights of Third Parties, we may, at our election and at our costs, modify or replace the Product in such a way that it no longer infringes on any third party rights, but so that the item supplied continues to fulfil its contractually agreed functions, or procure the right of use for the client by means of a license agreement.
(3) If we are unsuccessful after a reasonable period of time, the customer may terminate this agreement subject to applicable statutory provisions or may abate its payments to a reasonable extent.
(4) Any potential claims for damages on the part of the customer are subject to the provisions of secs. 10 and 11 of these General Terms.
(5) In the event we agree to indemnify the customer, such a claim shall in particular be subject to the following conditions precedent: (i) the customer must immediately notify us of any asserted infringements of IP rights or copyrights, (ii) the customer must provide reasonable assistance to us in defending any such claim and/or permit us to perform modifications, (iii) all defensive measures must be available to us including settlement out-of-court, (iv) the Product was not manufactured or modified on instructions of the customer, and (v) the infringement was not caused through the customer’s improper modification of the Product.
10 Our Liability
(1) We shall bear liability without limitation pursuant to applicable law
a. for damages based on a breach of express warranty provided by us
b. for intentional acts
c. for damages caused by the fraudulent concealment of a defect
d. for injury to life, limb or human health due to intentional or negligent breach of an obligation on our part or due to the intentional or negligent acts of our legal representatives or vicarious agents
e. for damages other than those listed under sec. 10 (1), bullet point 4, which are the result of the intentional or grossly negligent breach of an obligation on our part or due to the intentional or grossly negligent acts of our legal representatives or vicarious agents
f. under the German Product Liability Act (Produkthaftungsgesetz).
(2) In cases other than those listed in sec. 10 (1), our liability shall be limited to compensation for damages which are foreseeable and typical for the contract in question, to the extent such damages are due to a negligent breach of material obligations by us or our legal representative or vicarious agents. Material obligations are obligations that must be discharged for the contract to be performed properly and the observance of which may be, and is, ordinarily relied upon by the customer.
(3) Liability for negligence is hereby disclaimed in all cases other than those listed in sec. 10 (1), (2).
(4) The provisions set out above apply with respect to all contractual and non-contractual claims for damages regardless of their legal basis and to our liability for frustrated expenditure.
(5) The foregoing is without prejudice to the defence of contributory fault.
(1) Without contractual limitation the statute of limitations provided in the German Product Liability Act shall apply in the following cases:
a. Claims on the part of the customer against us on the basis of intentional acts
b. Claims on the part of the customer against us on the basis of defects of the Product, to the extent we fraudulently concealed the defect or to the extent we have given an express warranty of quality of the Product
c. Claims on the part of the customer against us on the basis of defects in the Product, to the extent the defect consists of a third party's rights in rem, on the basis of which the surrender of the Product may be demanded, or in some other title that is registered on the Land Registry (Grundbuch)
d. Claims for recourse against a supplier in cases involving final delivery to a consumer (sec. 479 BGB)
e. Claims on the part of a customer due to defects in a construction or other object that is commonly used in a construction and which caused it to be defective
f. Claims for damages on the part of a customer
which are due to our intentional or grossly negligent breach of an obligation or due to the intentional or grossly negligent acts of our legal representatives or vicarious agents
for injury to life, limb or human health due to our intentional or negligent breach of an obligation or due to the intentional or negligent acts of our legal representatives or vicarious agents
under the German Product Liability Act.
(2) In cases other than those listed in sec. 11 (1), the limitation period for claims on the part of the customer for material defects in the Product shall be one year from the delivery of the Product or – if formal acceptance has been agreed or must occur by law – one year from the date of formal acceptance.
12 Special Provisions (inter alia taxes)
(1) Where a customer residing outside of the Federal Republic of Germany (foreign customer) or an agent of such a customer collects goods or transports or sends them abroad, the customer is required to provide proof of export necessary for tax purposes. If this is not provided, the customer must pay such VAT as is otherwise applicable to the delivery of goods within the Federal Republic of Germany based on the amount shown on the invoice.
(2) In the case of deliveries from the Federal Republic of Germany to other EU member states, the customer must, prior to delivery, provide the VAT ID no. it uses for payment of income taxes within the EU. Otherwise, in addition to the agreed purchase price, the customer must pay such VAT amount as we are legally obliged to pay.
(3) When invoicing for deliveries from the Federal Republic of Germany to other EU member states, the VAT rules of the respective recipient member state must be complied with, provided either the purchaser is registered for VAT in another EU member state or if we are registered for VAT in the recipient member state.
13 General Terms
(1) The language of the contract is German. To the extent these General Terms are provided in other languages, the German version shall be deemed to govern.
(2) Contracts between us and the customer shall be governed by the laws of the Federal Republic of Germany, but excluding the UN Convention on the International Sale of Goods and international private law.
(3) To the extent not otherwise agreed, the place of performance and payment shall be deemed to be our company's registered office. Jurisdiction and venue for all disputes arising directly or indirectly under contract with merchants, legal entities or bodies corporate under public law or a special fund entity under public law shall lie with the courts at the location of our company’s registered office; at our election we may bring an action in the courts at the location of the customer’s registered office.
(4) Amendments or addenda to agreements must be set out in writing for evidentiary purposes. This applies similarly in the case of a waiver of this clause. Any party to this agreement may request that an amendment or addendum to this agreement be set out in writing. The parties may make other agreements. Express warranties and undertakings we have given, notices of defects, reminders and deadlines issued by the customer, as well as declarations with respect to abatements of the purchase price, rescission or termination of the contract on the part of the customer shall only be effective if given in writing. The written form requirement contained in these General Terms may be satisfied by telecommunication via facsimile and in the case of a contract, by exchange of postal correspondence. In all further and other respects, Sec. 127 (2) BGB shall not be deemed applicable.
(5) In the event that any individual provisions of this agreement, including these General Terms, should be or become invalid or unenforceable in whole or in part, the effectiveness of the remaining provisions of this agreement, including these General Terms, shall not be affected thereby. To the extent the agreement or these General Terms contain any gaps, the parties shall be deemed to fill any such gaps with such legally effective provisions as the contracting parties would have agreed to in light of the commercial aims of the contract and the purpose of these General Terms, had they been aware of the gaps.