General
Terms of Delivery
§ 1
General – Scope
(1)
Our Terms of Sale apply exclusively. We do not admit
regulations on the contrary or terms differing from our Terms of
Sale, provided that we have expressly agreed to their validity
in writing. Our Terms of Sale do also apply if we execute the
delivery to the Buyer unreserved although we know about
regulations on the contrary or terms of the Buyer differing from
our Terms of Sale.
(2)
All agreements made between us and the Buyer in relation
to the execution of this contract are put into writing in this
contract.
(3)
Our Terms of Sale do only apply for contractors in terms
of § 310 Para. 1 German Civil Code.
(4)
Our Terms of Sale do also apply for all future businesses
with the Buyer.
§ 2
Offer – Offering Documents
(1)
If the order can be qualified as offer in accordance with
§ 145 German Civil Code, we can accept it within 2 weeks.
(2)
We shall retain full title and copyright of illustrations,
drawings, costing and other documents. This shall also apply for
such written documents which are marked as being “confidential“.
For the transfer to any third party, the Buyer requires our
express written agreement.
§ 3
Prices – Terms of Payment
(1)
Provided that the order acknowledgement does not state
something else, our prices are ex works excluding packaging;
packing extra.
(2)
We retain full right to change our prices if cost
reductions or increases occur after the conclusion of the
contract, especially as a result of labour agreements of
material price changes. For those, we will provide evidence to
the Buyer on request.
(3)
The legal value added tax is not included in our prices;
it is shown separately on the invoice in legal amount of the day
of issuance of the invoice, unless other payment terms shall
have been agreed.
(4)
The deduction of any discount shall be especially agreed
upon in writing.
(5)
Provided that the order acknowledgement does not state
something else, the purchase prices are net cash amounts and
payable free of any deduction within 30 days after the
receipt of the invoice. The legal requirements apply for the
consequences of any delay of payment.
(6)
The Buyer shall have the right to set off only if the
underlying counterclaims have been conclusively determined by a
court, are indisputable or were expressly acknowledged by us.
Furthermore, he is entitled to exercise the right to set off
insofar as his counterclaim is based on the same
contractual relationship.
§ 4
Delivery Period
(1)
The beginning of the delivery period stated by us implies
the clarification of all technical problems.
(2)
The compliance with our delivery obligation implies the
timely and proper compliance of the obligations of the Buyer. We
retain the right of defences of the contract not fulfilled.
(3)
If the Buyer is in default of acceptance or if he
culpably breaches other duties to cooperate, we are entitled to
claim the arising damages including possible additional
expenditures. The right for further claims is reserved.
(4)
If the requirements of Para. (3) are met, the risk
of accidental break-up or accidental degradation of the goods is
transferred to the Buyer at the moment the Buyer got into
default of acceptance or default of payment.
(5)
We are liable in accordance with the legal regulations as
far as the underlying contract is a firm deal pursuant to
§ 286 Para. 2 No. 4 German Civil Code or to
§ 376 German Commercial Code. We are also liable in
accordance with the legal regulations as far as the Buyer is
entitled to exercise that his interest in a further fulfilment
of a contract is discontinued as a consequence of a default of
delivery caused by us.
(6)
Furthermore, we are liable in accordance with the legal
regulations as far as the default of delivery is based upon a
wilful or grossly negligent default caused by us; we are
responsible for any default of our agents or assignees. As far
as the delay of delivery is not based upon a wilful default
caused by us, our liability for damages is limited to the
predictable, typically occurring damage.
(7)
We are also liable in accordance with the legal
regulations as far as the delay of delivery caused by us is
based upon the culpable breach of a material contractual
obligation; in this case, however, the liability for damages is
limited to the predictable, typically occurring damage.
(8) Further legal
claims or rights of the Buyer are reserved.
§ 5
Transfer of Perils – Packing Cost
(1)
Provided that the order acknowledgement does not state
something else, the agreed delivery is considered to be ex works.
(2)
Transport and all other packaging material pursuant to
the packaging ordinance shall not be taken back; with the
exception of pallets. The Buyer is obliged to care for the
disposal of the packaging on his own expense.
(3)
At the Buyer’s option we shall cover the delivery with
a transportation insurance; the Buyer shall bear the arising
expenses.
§ 6
Liability for Defects and Limitation of Time
(1)
Claims of the Buyer due to defects require that he has
properly fulfilled his due duty to inspection and objection in
accordance with § 377 German Commercial Code.
(2)
Insofar a defect of the goods is at hand, the Buyer has
the option for rectification of defects in the form of removal
of defects or for delivery of a new object free from defects. In
case of the removal of defects we are obliged to bear all
expenses for the purpose of the removal of defects, especially
transport, work and material expenses as far as those are not
increased by the fact that the goods have to be placed at
another place than the place of delivery.
(3)
If the rectification of defects fails, the Buyer is
authorised at the Buyer’s option to request rescission or
abatement.
(4)
We are liable in accordance with the legal regulations as
far as the Buyer claims for damages which are based on wilful
misconduct or gross negligence, including wilful misconduct or
gross negligence of our agents or assignees. As far as we are
not charged with wilful breach of contract, the liability for
damages is limited to the predictable, typically occurring
damage.
(5)
We are liable in accordance with the legal regulations as
far as we culpably breach a material contractual obligation; in
this case, however, our liability for damages is limited to the
predictable, typically occurring damage.
(6) The liability
due to culpable bodily harm with fatal consequences, bodily harm
and harm of health will remain unaffected; this does also apply
for the imperative liability according to the product liability
law.
(7)
Unless otherwise expressly agreed in writing, the
liability is excluded.
(8)
The statute of limitation for claims and rights due to
defects of deliveries
– not matter on which legal ground - is one year. This,
however, does not apply for cases of § 438 Para. 1 No. 1 German
Civil Code (defects of title of immobile objects), § 438 Para.
1 No. 2 German Civil Code (buildings, objects for buildings or
§ 634 a Para. 1 No.
2 German Civil Code (building or work whose success consists in
the supply of planning or inspection services therefor). The
statutes of limitation mentioned in the above clause are subject
to a statute of limitation of 3 years. Likewise, the statute of
limitation determined in Clause 1 does not apply in case of a
delivery recourse in accordance with §§ 478, 479 German
Civil Code. The statute of limitation mentioned there remains
unaffected; it is five years, calculated from the handover of
the defective object.
(9)
The statutes of limitation in accordance with Para. 8 do
also apply for all claims for damages against the consignee/vendor
associated with the defect –
independent of the legal basis of the claim. As far as claims
for damages of any kind exist against the consignee/vendor not
associated with a defect, the statute of limitation of Para. 8
Clause 1 applies.
(10)
The statutes of limitation in accordance with Para. 8 and
9 apply with the following proviso:
a)
The statutes of limitation do
generally not apply in case of wilful misconduct.
b)
The statutes of limitation do
neither apply if the consignee/vendor
has fraudulently concealed the defect or as far as the
consignee/vendor has issued a guaranty for the nature of the
delivery. If the consignee/vendor
has fraudulently concealed the defect, the statutory
statutes of limitation apply which would also be applicable if
no fraudulency would exist in accordance with §§ 438 Para. 1
No. 1 to 3 and 634 a Para. 1 No. 1 and 2 German Civil Code to
the exclusion of the extension of time in case of fraudulency in
accordance with §§ 438 Para. 3 or 634 a Para. 3 German Civil
Code.
c)
The statutes of limitation do
neither apply for claims for damages in the cases of bodily harm
with fatal consequences, bodily harm and harm of health or
freedom, for claims in accordance with the product liability law,
in case of a grossly negligent breach of duty or in case of
breach of material contractual obligations.
§ 7
Joint and Several Liability
(1)
Any further liability for compensation as provided for
in § 6 – irrespective of the legal nature of the
asserted claim – is excluded. This especially applies to
claims for damages due to negligence at conclusion of contract,
other breach of duty or tortious claims for damages to property
in accordance with § 823
German Civil Code.
(2)
As far as the liability for compensation to us is
excluded or limited, this does also apply as to personal
liability for compensation of our executives, employees,
employee associates, agents and assignees.
§ 8
Retention of Title
(1)
We shall retain full
title of the goods until the Buyer has discharged all
claims arising from the business relationship. If the buyer
shall be in breach of contract, in particular in payment default,
we are entitled to repossess the goods. Any repossession of the
goods shall not be regarded as a rescission of this contract,
unless we would have declared this expressly
in writing. Any enforcement proceedings with regard to
the goods shall always be regarded as a rescission of this
contract. After the repossession of the goods we are entitled to
utilise them; the utilisation proceeds shall be credited against
the commitments of the Buyer – less reasonable utilisation
expenses.
(2)
The Buyer is obliged to handle the goods with care;
especially, it is obliged to insure the goods at its own expense
against damage by fire, water and theft adequately for the
reinstatement value. As far as maintenance and inspection works
are required, the Buyer shall carry them out at his own expense
in due time.
(3)
In case of enforcement proceedings and other
interventions of third parties, the Buyer shall inform us
promptly in writing, so that we can file a suit in accordance
with § 771 ZPO. As far as the third party is not able to
reimburse the juridical and extrajuridical expenses of a suit in
accordance with § 771 ZPO, the Buyer is liable for the
incidental loss.
(4)
The Buyer shall have the right to dispose of the goods
within the ordinary course of business; he hereby assigns to us
all claims in the amount of the invoice final amount (including
VAT) of our claim arising from the resale against his purchaser
independent of the fact whether the goods were resold before or
after the procession. The Buyer remains authorised to collect
the receivables even after the assignation. Our authorisation to
collect the receivables ourselves shall remain unaffected. We
are, however, obliged to not collect the receivables as long as
the Buyer shall meet his obligations from the collected proceeds,
does not get into delay of payment and especially does not file
an application for opening bankruptcy, composition or insolvency
proceedings or cessation of payment. If this is the case, we can
request that the Buyer discloses to us the assigned claims an
their defaulters, gives full particulars required for the
collection, passes on the corresponding documents and reports
the assignment to defaulters (third parties).
(5)
The processing or transformation of the goods by the
Buyer shall always be undertaken on our behalf. If the goods are
processed together with other objects which are not owned by us,
we acquire co-ownership of the new object in due proportion of
the value of the goods (invoice final amount, including VAT) to
the other processed objects at the point of
time of the processing. For the objects emerging from the
processing, the same applies as for the goods delivered under
retention of title.
(6)
If the goods are intermixed inseparably with objects not
belonging to us, we acquire co-ownership of the new object in
due proportion of the value of the goods (invoice final amount,
including VAT) to the other intermixed objects at the point of
time of the intermixing. If the objects are intermixed in
such a way that the object of the Buyer is to be regarded as
principal object, it is agreed that the Buyer confers to us
averaged co-ownership. The Buyer shall keep the arising sole
ownership or co-ownership for us.
(7)
The Buyer shall also assign the claims for securing our
claims against him to us which arise when the goods are
connected with a plot of land against a third party.
(8)
Where our claims shall be secured through the assignment
by more than 10 %, any surplus of receivables shall be released
in accordance with our choice upon demand of the Buyer.
§ 9
Jurisdiction – Place of Performance
(1)
If the Buyer is merchant, our place of business is the
place of jurisdiction. We are, however, also entitled to sue the
Buyer at the jurisdiction at his place of business.
(2)
The laws of Germany shall apply; international UN
purchase laws shall not apply.
(3)
Provided that the order acknowledgement does not state
something else, our place of business is place of performance.
September
2004
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