1. General
All goods and services are rendered solely on the basis of the Terms and Conditions of Business that follow unless otherwise explicitly agreed in writing. No other Terms and Conditions are accepted unless explicitly agreed in writing.
2. Catalogue / product specifications
1. The product illustrations in the catalogues may differ slightly in form and colour from the products supplied. The product specifications are definitive.
2. Catalogues, drawings and designs remain our property and are to be returned when requested. They may not be copied or made available to competing enterprises.
3. Drawings and designs specially drafted in association with any offer of ours by agreement with any client will be invoiced that client. If no order for same is placed within three weeks of the drawings/designs being sent the client in question then the invoice for same is immediately due and payable and the drawings and designs to be returned to us. If such order is placed within the said three weeks then the invoice amount will be credited.
3. Making of contract
1. All orders placed directly with us or any member of our field sales force are subject to written confirmation unless the transaction is on a cash basis.
2. We reserve the right to supply products that differ from the order in question, particularly where material and design is concerned, if this serves technical progress.
4. Delivery, prices, packaging costs
1. If a delivery period has been agreed then the delivery dates we state are not binding unless explicitly confirmed by us in writing as such.
2. The precondition for adherence to any delivery period is punctual fulfilment of the buyer's contractual duties, in particular those of rendering the agreed payment/s and providing the documents needed to perform the contract.
3. If non-adherence to any delivery period is due to unforeseen events such as force majeure, interruptions of a general sort to business operations hindering commercial transactions or in particular to delayed delivery by any supplier of ours then the delivery date shall be extended appropriately. Should delivery be impossible due to any such unforeseen event then we shall be relieved of our delivery obligation without the buyer being entitled to damages. Should the seller have no further interest in performance due to delayed delivery then they may withdraw from the contract after an appropriate period of grace. We will advise the buyer without delay of any hindrance of the kind aforementioned.
4. If packaging, insofar as it consists of crates and the like, be returned carriage paid then two thirds of its invoiced value will be credited.
5. Part shipment is permissible.
6. Prices include VAT and shipment. Prices at the time of ordering apply.
Should the buyer be an entrepreneur within the meaning of §14 German Civil Code (BGB), a legal person in public law or a public separate estate then the following shall apply deviant to clause 4 number 6.
Prices include VAT and shipment. Prices at the time of ordering apply. If VAT increases between the time of ordering and that of invoicing then prices will be increased by the same amount. If the period between making contract and agreed delivery date exceeds four months we are entitled to increase prices appropriately if prices and labour in the industry make same necessary. The buyer will be advised of any such increase without delay as soon as it becomes known.
7. We reserve the right to charge a surcharge depending on the article selection.
5. Assembly
1. If our personnel are needed to install any goods supplied then this is subject to separate commissioning. Invoicing of same will be in compliance with our separate assembly terms and conditions.
2. The staff needed must be made available by the buyer to assist our personnel in such cases.
6. Terms and conditions of payment
1. All invoices are due and payable net. Any and all discounts for punctual payment etc. are subject to prior written agreement.
2. If payment in advance is agreed then we will first ship the goods when we have received the invoiced amount/s.
3. If the payment term is exceeded and after reminding interest of 5% over the applicable basic rate applies to arrears of payment.
Should the buyer be an entrepreneur within the meaning of §14 German Civil Code (BGB), a legal person in public law or a public separate estate then the following shall apply deviant to clause 4 number 3.
If the payment term is exceeded and after reminding interest of 8% over the applicable basic rate applies to arrears of payment.
4. No right of retention or of setoff against any of the buyer's extant counter-claims exists except in the case of such claims that are undisputed or res judicata.
7. Reservation of title
1. The goods and services we render remain our property until payment in full has been received of the purchase price and any claim/s arising out of the contract of supply.
Should the buyer be an entrepreneur within the meaning of §14 German Civil Code (BGB), a legal person in public law or a public separate estate then the following shall apply deviant to clause 7 number 1.
The goods and/or services we supply remain our property until the purchase price and all claims arising out of the business relationship have been settled in full. The buyer may not dispose of same in any way whatsoever other than in their normal course of business. Same may not be rendered as security to any third party.
2. The buyer may not dispose of same by e.g. sale, hypothecation, assignment as a gift, assignment as security or by permitting any third party their use.
Should the buyer be an entrepreneur within the meaning of §14 German Civil Code (BGB), a legal person in public law or a public separate estate then the following shall apply deviant to clause 7 number 2.
In the event of sale of the goods and/or services in the normal course of business the price paid for same shall replace same. The buyer herewith assigns all claims arising out of any sale of same to us. The buyer is entitled to recover said claim/s until their debt/s to us are settled in full. Assignment to any third party, in particular any financial institution, is in breach of contract and illegal in view of this extended title. The supplier is entitled to check their buyer's sales documentation at any time and inform the next buyer of the assignment.
3. Should the buyer have disposed of the goods and/or services bought in breach of contract then the next buyer's purchase price payment/s received or to be received or their goods and/or services received or to be received in lieu shall replace the goods and/or services aforementioned. The buyer herewith assigns all claims arising out of any sale to us. The buyer is not entitled to collect such claim/s. The buyer must cooperate in revealing the assignment to the next buyer as part of the assignment provision/s and cause them to make payment to us as supplier.
Should the buyer be an entrepreneur within the meaning of §14 German Civil Code (BGB), a legal person in public law or a public separate estate then the following shall apply deviant to clause 7 number 3.
If the buyer's claim/s has/have been credited a current account then the buyer herewith assigns their claim/s arising out of that current account toward their own buyer/s to us. This assignment is in the amount we invoiced our buyer for the goods and/or services subject to our reservation of title sold on.
4. In the event of distraint on the goods at the buyer's we are to be advised by sending us a record of such distraint and a statutory declaration that the goods concerned were subject to our reservation of title.
Clause 7 number 6 below only applies if the buyer is an entrepreneur under §14 BGB, a legal person in public law or a public separate estate.
If the value of the security as above exceeds that of the claim/s still open by over twenty percent then the buyer is entitled to demand their release to the extent of that excess.
8. Right of withdrawal
We are entitled to withdraw from the contract for the reasons below.
1. If the buyer turns out not to be creditworthy contrary to assumptions made on making contract. Lack of creditworthiness may be assumed if payment ceases, the buyer applies for insolvency, bankruptcy proceedings are opened against their assets or enforcement of any debt judgement against them fails. This need not concern relations between the buyer and ourselves.
2. If the buyer makes incorrect but significant assertions on their creditworthiness.
9. Transfer of risk
If the buyer is an entrepreneur under §14 BGB, a legal person in public law or a public separate estate then the following applies.
1. The risk in carriage paid shipments moves to the buyer when the goods are handed over to the shipping/forwarding agent. The same applies to factory traffic and when goods are picked up by the buyer.
2. If shipment is delayed for reasons for which the buyer can be held liable then the risk moves to the buyer when readiness for shipment is advised.
3. Shipment is ex works or warehouse on the buyer's account and risk.
If the buyer is a consumer per § 13 BGB then the risk moves per § 446 BGB to the buyer when the goods and/or services are handed over to them.
10. Guarantee
1. If the goods and/or services are defective when the risk transfers then the buyer has the right to delayed performance (remedy or supplementary shipment). The buyer may choose either remedy or replacement. Delayed performance may be refused if unreasonably expensive. If delayed performance fails or is impossible then the buyer may reduce the purchase price or withdraw from the contract under current law.
2. Defects due to improper use for which the buyer can be held liable are excluded from the guarantee.
3. The guarantee term for new goods and/or services is two years. If they are second hand then the guarantee term is one year. The guarantee term begins when the risk moves to the buyer.
4. Defects must be complained of in writing and be accompanied by the goods affected (brief damage/defect report).
5. Return shipment should be in the original packaging if possible with a copy of the original invoice. The whole should be in additional packaging, carriage paid or ready for pickup.
To meet client guarantee requirements promptly defects should be advised without delay when detected.
Should the buyer be an entrepreneur within the meaning of §14 German Civil Code (BGB), a legal person in public law or a public separate estate then the following clause shall wholly replace clause 10.
11. Defect complaint
1. The buyer has a duty to inspect the goods and/or services rendered on receipt and advise any extant defect within seven days of receipt in writing. Defects advised later are excluded from the guarantee.
2. Defect complaints will only be accepted if in writing. Complaints made to field sales force staff, shippers/forwarders or other third parties are not considered punctual or in correct form.
3. The buyer has the following rights in the case of a defect advised effectively.
a) If the defect existed when the risk transferred then the buyer has the right to demand delayed performance.
b) We decide whether to supply new goods and/or services or a remedy at our discretion.
c) Only if a repeat attempted remedy fails does the buyer have the right to withdraw from the contract or reduce the purchase price.
4. The guarantee term for new and used goods is one year from the date the risk transfers. The buyer always bears the burden of proving that a defect existed on shipment.
12. Liability
1. Liability for damage due to simple negligence is excluded if no major contractual obligation, risk to life and limb, guarantee or claim under product liability law is involved.
2. The same applies to any breach of contractual obligation/s by our vicarious agents.
3. If any major contractual obligation is breached then liability in the event of simple negligence is confined to the damage typically associated with the contract and foreseeable. Claims for damage due to delay or proven claims for recompense under § 284 BGB are restricted to twice the purchase price paid.
13. Place of judicature, place of performance and applicable law
1. This agreement is made solely in German law excluding all international and supranational conventions such as the UN Convention on the International Sale of Goods.
2. Place of judicature is Ulm, Germany, if the buyer is an entrepreneur. We are also entitled to institute legal proceedings against the buyer at their registered place of business.
3. Should any provision herein be or become null and void either in whole or in part for any reason whatsoever this shall not affect the remainder.
