General Terms and Conditions of Delivery and Performance
We contract only to our following General Terms and Conditions of Delivery and Performance. They also apply to all future business dealings, even should they not be explicitly agreed upon again. Deviations from these terms and conditions are only valid, if we have confirmed them in writing.
Business terms and conditions of the buyer, which we have not accepted in writing, are non-binding for us, even if we have not explicitly objected to them.
The buyer will be notified in writing of changes to these terms and conditions. They are deemed to be approved, if he raises no objection. We will particularly note this consequence to the buyer during notification. He must send the objection to us within one month of notification of the changes.
I. Quotes, Scope of Delivery
- Our quotes are non-binding. Oral and telephone agreements require our written confirmation in order to be valid.
- Documentation accompanying our quotes, such as illustrations and drawings, as well as weight and dimension data, are only to be seen as approximations, in as far as we have not expressly designated them as binding. We reserve title and copyright to cost quotations, drawings and other documents. These documents are not to be made accessible to third parties without our prior written consent.
- The parts to be delivered meet the applicable standards and regulations of the Federal Republic of Germany. The buyer is to provide possibly required testing and approval of the parts to be delivered to foreign technical standards and regulations. Should such testing be desired on our premises, this is to be conducted at the buyer's expense by an inspection organization authorized to work in the Federal Republic of Germany.
- The scope of delivery is established in our written order confirmation. If none exists, then our quote applies. Subsidiary agreements and changes require our written confirmation.
- The buyer is to carry all costs in connection with a change to an order after a contract has been closed. On written request, we will provide the buyer with a breakdown of the extra costs. The breakdown contains a non-binding cost estimate and is not to be seen as a firm quotation. The additional costs arising from the change in the order will be listed in the final invoice.
II. Prices and Payment Conditions
- Unless otherwise agreed, all prices apply ex works, inclusive of packaging. The value-added tax in the legally applicable amount will be added to the prices. Material and wage cost changes, which arise four months after the closing of the contract, entitle us to make appropriate price adjustments.
- In case of delivery to a foreign country, the buyer is to carry all costs for duties, fees, taxes, costs for technical inspection, etc. arising outside the Federal Republic of Germany. This also applies to costs for the possibly required legalization of certificates of origin, consular fees, etc..
- Unless otherwise agreed, the payment is to be made net cash free our payment office as follows:
1/3 down payment after receipt of the order confirmation
1/3 as soon as the buyer has been notified that the main parts are ready for shipment, the remainder within one month thereafter.
- Payment through bills of exchange and checks occurs contingent on performance. With the acceptance of bills of exchange whose payment is to occur in foreign countries or subordinate venues, we assume no liability for timely presentation and protesting. Discount expenses are assessed as of the due date of the invoiced amount. Is the buyer liable for failing to meet his payment obligations, in particular should he not honor his checks and bills of exchange or should he stop his payments, we are entitled to declare the total outstanding debt due, even if we have accepted checks and bills of exchange. Further, we then have the right to require prepayments.
- The withholding of payments or the set-off against possible counterclaims by the buyer which we dispute is not admissible.
- At the acceptance of the order, we assume that the buyer is credit-worthy. In as far as, after the closing of the contract, a significant worsening of the buyer's financial circumstances occurs, in particular if lasting seizures or other execution measures are undertaken against him or if judicial or out-of-court insolvency proceedings are opened, we can require prepayment of the agreed price or that security be furnished before delivery of the goods. Should the buyer refuse prepayment or to furnish security, we are entitled to withdraw from the contract. Independent of this, we can request the furnishing of security or cash redemption of current bills of exchange.
III. Delivery Time
- The due dates given in our order confirmations or otherwise agreed upon with the buyer are applicable. The adherence to these due dates presumes the timely receipt of all documentation to be supplied by the buyer and compliance with the agreed upon payment conditions and other obligations. If these prerequisites are not met in time, then the delivery due date is extended at least to the extent of the term of the delay.
- The due date is met if the operationally-ready shipment is despatched or collected within the delivery period. If the delivery is delayed for reasons for which the buyer is responsible, the due date is deemed to have been met upon notification of the completion or shipping readiness within the agreed upon period.
- Partial deliveries are allowable in as far as the buyer can be reasonably expected to allow them.
- The delivery term is accordingly extended in case of industrial action, in particular strikes and lockouts, as well as by the occurrence of unforeseen obstacles which can be proven to have a significant influence on the completion or delivery of the object to be delivered. This also applies when the circumstances occur with suppliers. We are also not responsible for the above mentioned circumstances when these occur during an already existing delay in performance.
- If the above mentioned circumstances occur with the buyer, the same legal consequences will apply with regard to his acceptance obligation.
- Each contracting party can only cite the named circumstances, if the other party is notified immediately.
- If shipping or delivery is delayed at the request of the buyer, we are entitled, beginning one month after notification of completion or readiness for shipping, to charge storage fees in the amount of one-half of one percent of the net invoice amount for each month started. The storage fees are limited to 5 % of the net invoice amount unless we document higher costs. Our delivery obligation is met by putting the goods in storage. The date on the warehouse receipt from the warehouse owner applies as the date of performance. The warehouse receipt applies as a document for the release of payment.
IV. Transfer of Risk and Receipt
- At the latest, risk is transfered to the buyer at the despatch of the parts to be delivered, even then, when partial deliveries are made or we have accepted to undertake further performance, such as shipping costs or cartage and installation. At the buyer's request and expense, the consignment will be insured against theft, breakage, transport, fire and water damage, as well as other insurable risks.
- If despatch is delayed due to circumstances for which the buyer can be held accountable, risk is transferred to the buyer from the date of readiness for shipping; we are only obliged, upon request and at the expense of the buyer, to effect the insurance which he desires.
- Delivered parts, even if they show insignificant flaws, are to be accepted by the buyer without detriment to the rights in Section VI.
- Partial deliveries are expressly allowed.
V. Reservation of Title
- The goods delivered remain our property until complete payment of the agreed price. In case of delivery to traders, title is transferred upon settlement of all claims arising from the business relationship and future claims, as well as, after the cashing of bills of exchange and checks. With current accounts, the reserved title serves as security for our outstanding balance claims.
- Should the buyer pay by check and we issue him a refinancing bill of exchange for this, the reservation of title only expires when claims can no longer be made against us on the basis of the bill.
- The buyer is allowed to resell the parts within the framework of business transactions in accordance with all regulations. He already assigns to ourselves his claims out of the resale of the reserved goods, in particular the payment claim against his customer. We accept this assignment. The buyer is obligated to notify his debtor of the assignment at our request. We are to be informed of the claims and the names of the buyer's debtors.
- The collateral assignment of goods to which we have reserved title is not allowed. In cases of action with regard to the reserved goods by third parties, especially seizures, the buyer will cite our title to the goods and inform us immediately by transmission of a copy of the report of the attachment proceedings.
- In case of payment default of the buyer or other non-performance of contractual obligations by the same, we are entitled, after requesting payment and setting an appropriate payment deadline, to take back the goods we delivered. This repossession does not constitute a withdrawal from the contract, in as far as the Consumer Credit Law does not apply. Further, if the buyer does not discharge his liabilities when due, we are authorized to utilize the reserved goods and other security, with the greatest possible consideration of the interests of the buyer, at any time and without court proceedings. The utilization may only occur if we have given prior warning to the buyer at least 14 days in advance.
- Should the value of the security granted exceed our claims by more than 20%, we are obligated to the retransfer or release of security of our choice in this amount at the request of the buyer.
VI. Claims based on defects
- If he is an entrepreneur, the buyer only has claims based on defects if he has properly fulfilled his obligations of inspection and notification in accordance with § 377 HGB. The warranty obligation is limited to the flawless mechanical functioning of the delivered object in agreement with the technical specification presented. A warranty with regard to product-specific quality criteria is excluded.
- We herewith transfer our claims against the suppliers of significant sub-contracted parts to the buyer. The buyer can make us liable for defects in significant sub-contracted parts only if previous recourse to the sub-contracted supplier was unsuccessful. If the buyer is an entrepreneur, he can make us liable for defects in significant sub-contracted parts only if he has previously tried unsuccessfully to take legal recourse against the sub-contracted supplier.
- If the buyer is an entrepreneur, we will be entitled to effect subsequent performance at our option in the form of rectification of defects or substitute delivery.
- If the buyer is a consumer, the buyer may choose between subsequent performance by improvement or substitute delivery. However, we will be entitled to refuse the chosen method of subsequent performance if this is only possible at disproportionate expense and the other type of subsequent performance does not present any considerable disadvantage to the buyer.
- If the buyer is an entrepreneur, the condition of the purchased item will generally be governed only by the product description of the manufacturer. Public utterances, recommendations or advertising of the manufacturer does not represent any contractual indication as to the condition of the goods.
- If the buyer asserts claims for compensation based on intent or gross negligence or based on the intent or gross negligence of one of our representatives or vicarious agents, we will be liable in accordance with statutory provisions. If we are not accused of any intentional or grossly negligent breach of duties, our liability for damages will be limited to the loss typically occurring. This does not apply to the liability for culpable loss of life, physical injury or damage to health, nor to mandatory liability under the Product Liability Act.
- The limitation period for claims based on defects brought by the buyer which are not subject to the time limit of § 438 Para. 1 No. 2 BGB is 1 year from delivery of the goods if the buyer is an entrepreneur and has properly fulfilled the obligation to notify defects regulated in Number 1. If the buyer is a consumer, the limitation period for claims based on defects which are not subject to the time period of § 438 Para. 1 No. 2 BGB is 2 years from delivery of the goods.
- We do not give the buyer guarantees in the legal sense. This does not affect manufacturers' guarantees.
- By inexpert alteration or repair work conducted by the buyer or a third party contracted by him without our prior written authorization, the liability for consequences resulting therefrom is annulled.
VII. Limitations of liability
In the case of other claims for compensation, we will be liable in the case of a slightly negligent breach of duty only for the loss typically occurring according to the nature of the item bought. This also applies in the case of the slightly negligent breach of duty by our statutory representatives or vicarious agents. Liability for culpable loss of life, physical injury or damage to health and mandatory liability under the Product Liability Act are not affected.
VIII. Transfer of Software
Our "Supplements to the General Terms and Conditions of Delivery and Performance applying to the Transfer of Software" are valid for the delivery of software.
IX. Place of Performance, Legal Venue and Applicable Law
- Place of performance for all obligations arising from the contractual relationship is Bielefeld. Place of payment is Bielefeld.
- If the buyer is a trader, a corporate body or a public owned common fund account or if the buyer has his headquarters in a foreign country, the legal venue is Bielefeld. We, however, have the right to call on a court at the buyer's headquarters.
- Only German law is applicable. The application of the Accord of the United Nation concerning contracts dealing with the International Sale of Goods of 11. April 1980 is excluded.
- Should disputes arise, the original German version of these terms and conditions will be deemed to be definitive.
X. Data Protection
We are authorized to store, transmit, change and delete personal data of the buyer. The buyer is herewith informed as per § 26 of the Federal Data Protection Law.
Status: March 2003