General terms and conditions of sale
1.1 These general terms and conditions apply only to contracts with companies in the sense of Section 14 BGB (German Civil Code), legal persons under public law or special funds under public law (‘customer ’).
1.2 The contract by between the customer and us is governed exclusively by these general terms and conditions. The customer’s deviating conditions are hereb y expressly ruled out. Only these conditions apply even if we deliver to the customer without reservation despite being aware of the customer’s conflicting or differing conditions.
1.3 Our general terms and conditions are subject to change, and these conditions shall be the basis of future contracts between us and the customer, without having to be included again.
2. Clarification of contract
2.1 Unless the circumstances dictat e otherwise, our offers only represent requests to the customer to submit a final contract offer (invitatio ad referendum). We are entitled to accept contract offers made by the customer within three weeks. During this period, the customer is bound to their contractual statements
2.2 In accepting an order, we assume the customer’s creditworthiness and reserve the right in individual cases to make the acceptance of the order fr om the customer dependent on the customer providing a bank guarantee or liquidity assurance from the customer’s bank in the amount of the anticipated invoice sum. If the lack of creditworthiness only becomes known after the conclusion of the contract, we may withdraw from the contract after consultation with the customer or demand the provision of a security within one week.
2.3 Contract offers on our part are subject to change except where indicated to the contrary in the order confirmation.
2.4 All agreements made between us and the customer relating to execution of this contract must be documented in writing.
2.5 The customer must not rely on the validity of agreements made with employees not having power of attorney as entered in the commercial register except in the case of written confirmation of the agreement by management.
3.1 Unless the order confirmation sta tes otherwise, our prices are net (without VAT) ex-works. VAT will be charged at the applicable rate.
3.2 All applicable taxes and other duties for goods and services in the destination country shall be borne by the customer.
3.3 Any discounts granted to the buyer shall apply only in the case of smooth settlement of business between the parties. They shall no longer be applicable, especially in the event of insolvency proceedings being instituted against the assets of the purchaser, the purchaser failing to discharge his debts within the specified period of payment or a legal dispute between the customer and us arising from or in connection with this contract.
3.4 Discounts granted to the customer are only valid in the case of smooth business transactions. They shall in particular be rendered invalid in the event insolvency proceedings concerning the assets of the customer should commence, in the event the customer fails to settle within the specified payment period , or in the event of pending legal action between the customer and us that results from or is in connection with this contract.
4. Payment terms
4.1 The customer must comply with our entitlements to payment immediately and without deduction. Cash discounts are subject to explicit written agreement. We accept drafts and checks only upon separate agreement and only in lieu of formal payment.
4.2 In addition, the customer is only authorised to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
4.3 We are entitled to assign claims from deliveries and services against the customer to the full extent permitted by law to third parties (for example, a bank or factorer). The customer permits the transfer of the data necessary for collection of the claims to the third party.
5. Delayed payment
5.1 Subject to a prior reminder, the customer shall automatically be in default no later than 14 days after due date and receipt of an invoice, or an equivalent payment request, without the need for a reminder.
6. Right of withdrawal
6.1 If there are indications after conclusion of the contract that our entitlement to the purchase price is at risk through insufficient ability of the customer to pay (e.g. due to an application for opening of insolvency proceedings) then according to the statutory provisions we are entitled to refuse service and – if applicable after setting a deadline – to withdraw from the contract (§ 321 German Civil Code (BGB)). In the case of contracts for the production of non-substitutable items (custom-built products) we may declare the cancellation immediately; the statutory provisions governing the dispensability of a time limit remain unaffected.
7. Customer’s liability for damages
7.1 Where, in line with statutory provisions, we make a claim against the customer for damages in lieu of performance, this shall be – while reserving our righ t to produce evidence of greater damage – at a fixed rate of 10% of the agreed purchase price; the flat rate for damages shall be credited against the damages actually incurred. The customer is entitled to prove that no damage has occurred or that the damage was significantly lower than the lump sum.
8.1 We shall establish and provide unloading standards to ensure efficient and streamlined delivery to the customer in accordance with the mutual interests of the parties.
8.2 We are entitled to over-/under-deliver in accordance with standard commercial practices. To the extent mentioned above, the customer is not entitled to refuse acceptance of the delivery.
9.1 The agreed delivery deadlines are approximate and subject to correct and punctual delivery by our own suppliers.
9.2 Compliance with our delivery obligations assumes timely and orderly fulfilment of all the customer’s obligations.
9.3 In case of force majeure or other factors beyond our control, e.g. work stoppages, strikes, lockouts, state prohibitions, war, energy and transport problems, interruption of operations, etc., the delivery deadlines shall be extended accordingly.
9.4 If the delivery proves to be impossible for the reasons stated in paragraphs 2 and 3 and for the duration of one month, without us being responsible for this, w e have the right to withdraw from the contract.
9.5 Failure to comply with delivery dates and deadlines taking into account an extension pursuant to paragraphs 2 and 3 shall entitle the customer to assert their legal r ights, in particular the right to withdraw, after the customer has granted us in writing a reasonable extension of at least 14 days.
9.6 If we fail to deliver on time, the customer is entitled to claim for damages arising from this delay as a lump sum. The lump sum for each completed calendar week of default is 0.5% of the net price (delivery value), however the total claim shall not exceed a maximum of 5% of the delivery value affected by the delay. We reserve the right to prove that the customer has suffered no loss at all or only a substantially smaller loss than the aforementioned lump sum.
9.7 Should the customer fail to pick up the goods from the plac e of performance within 14 days, despite having been notified of the availability of the goods for dispatch, we are entitled to withdraw from the contract and sell the goods elsewhere. Customer shall bear the costs and risk of stor age.
10. Place of performance, transfer of risk, delivery
10.1 Unless otherwise agreed , delivery is effected ex works (EXW) Germersheim as per Incoterms 2010.
10.2 If, in an particular case, we have agreed to a delivery, we shall deliver the goods by unloading them from the means of transport on which they arrive and making them available to the customer at the designated unloading point in the ramp or picking area.
11. Nominal quality of the goods
11.1 The nominal quality of the goods depends on the contractual agreement. Except where expressly determined, we accept no strict liability for this. This also applies to references to DIN standards.
11.2 Typical variations in execution, structure, colours and dimensions of the purchased goods due to the nature of the materials used do not entitle the customer to asser t warranty claims, provided that the value of the purchased goods or their suitability for general or contr actually agreed use is only slightly impaired
12. Obligation to give notice of defects
12.1 The warranty claims of the customer require that he has fulfilled his statutory obligations regarding inspection and complaint notification (§§ 377, 381 German Commercial Code (HGB)). If the customer fails to carry out the proper inspection and / or provide timely reporting of defects, our liability for the unreported defect is excluded.
12.2 The customer shall inspect our goods immediately, i.e. at the latest within three working days after delivery.
12.3 The customer fulfils his inspection obligations if, without opening the packaging, he inspects the goods for externally visible quantitative or qualitative defects by suitable methods (hereinafter “suitable methods of inspection”). Suitable methods of inspection include, but are not limited to, (i) inspection of the quantity of goods delivered, (ii) visual inspection of the packaging and (iii) examination of the goods for externally visible transport or other damage.
12.4 The customer must notify us of defects immediately, at the latest within two working days. Timely dispatch of the notice of defect is sufficient to observe the period of notice.
12.5 Every notice of defect must be provided in writing.
13.1 The statutory provisions, unless otherwise stated below, shall apply for the rights of the customer in the case of material and legal errors (including incorrect and incomplete deliveries as well as improper installation or incorrect assembly instructions). In all cases, the special statutory provisions on final delivery of the goods to a consumer remain unaffected (supplier recourse in accordance with §§ 478, 479 German Civil Code (BGB)).
13.2 If the delivered goods are defective, we are first entitled at our own discretion to comply with the warranty by repairing the defect (rectification) or delivering replacement goods in perfect condition (replacement delivery). The right to refuse supplementary performance under statutory provisions remains unaffected.
13.3 We are entitled to make the supplementary performance owed dependent on the customer’s payment of the due purchase price. However, the customer is entitled to retain an appropriate portion of the purchase price in relation to the defect.
13.4 The customer must give us the time and opportunity required to provide the owed supplementary performance and, in particular, hand over the rejected goods for inspection. In the case of a replacement delivery, the customer must return the defective item in accordance with the statutory provisions.
13.5 The costs for inspection and supplementary performance, in particular transport, removal, travel, labour and material costs, shall be borne by us if there is actually a defect. Otherwise, we may demand compensation for the costs incurred by the customer due to the unjustified request for removal of the defect(s) (in particular inspection and transport costs), unless the lack of defectiveness could not have been recognised by the customer.
13.6 If the supplementary performance has failed or a reasonable deadline set by the customer for the supplementary performance to be completed has expired without success, or is dispensable in accordance with statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of a minor defect, however, there is no right of withdrawal.
13.7 Claims by the customer for damages or reimbursement of futile expenses are applicable, even in the case of defects, only as described in Section 14 and are otherwise excluded.
14.1 Our liability is restricted on the merits and to the extent of claims for damages by the customer resulting from loss of life, bodily injury, damage to health or violations of cardinal obligations (i.e. obligations upon whose fulfilment the execution of the contract hinges, and on which the customer regularly trusts or is entitled to trust) and for other damages due to intentional or grossly negligent breach of duty by our legal representatives or vicarious agents.
14.2 Insofar as the damage is covered by an insurance policy taken out by the customer for the relevant risk, we shall only be liable for any associated losses suffered by the customer, e.g. higher insurance premiums or interest payable until the settlement of the claim by the insurance company.
14.3 Any claims by the customer for damages arising directly or indirectly in association with the purchased goods and their delivery, irrespective of the legal grounds, are hereby excluded unless otherwise specified above.
14.4 The limitations of this Section 14 shall not apply to our liability for wilful behaviour, for guaranteed characteristics of products, for loss of life, bodily injury, damage to health, or under the German Product Liability Act.
15. Retention of title
15.1 All deliveries are effected subject to right of retention. The delivered goods shall remain our property until payment all of our present or future claims against the customer have been settled in full. We hereby grant the customer the revocable right to process or sell the goods supplied to it in the ordinary course of business activities. In the event of a breach of contract by the customer, in particular in the case of default in payment, we are entitled to withdraw from the purchase contract and demand the surrender of the reserved goods.
15.2 If the goods subject to the right of retention are processed to create a new chattel, said processing occurs on our account, but without any obligation on our accoun t. The new chattel then becomes our property. If the goods subject to the right of retention are processed together with other objects that do not belong to us, we then acquire co-ownership of the new object in the ratio of the value of our goods subjec t to the right of retention to the other processed objects at the time of processing. T he conditions that applied to the goods delivered subject to the right of retention shall then apply to the new chattels created by said processing.
15.3 If the goods subject to the right of retention are combined or mixed with other objects not belonging to us, we shall become the co-owner in line with legal r egulations. If said mixing occurs in such a way that the customer’s object must be regarded as the main item, it is agreed that the cust omer shall transfer proportionate ownership to us. The customer shall store the objects owned or co-owned by us free of charge.
15.4 Should the goods subject to the right of r etention be sold, the customer cedes to us any and all claims against its customers or third parties arising from the sale of the goods , regardless of whether the goods have been sold with or without processing; we hereby accept this cession. If the sold goods subject to the right of retention are co-owned by us, then the cession of claims extends to the amount corresponding to the proportionate value of our co-ownership. If the customer is unable to agree to a corresponding cession to the preceding provisions, in particular as a result of prior cession to a third party, any on-going sale shall not be regarded as a transaction in the or dinary course of business activities in the sense of this provision. The customer is entitled to collect the claim ceded to us subject to revocation. Our entitlement to collect the claim ourselves shall remain unaffected. Ho wever, we pledge not to collect the claim as long as the customer meets their payment obligations from the collected earnings, is not in default, and – in particular – no application for opening an insolvency proceedings or cessation of payments has occurred. However, if this is the case, we can require the customer to inform us of the ceded claims and their debtors, provide all inf ormation necessary for collection hand over the appropriate documents, and inform the debtors (third parties) of the cession. We are also entitled to notify the debtor of the cession.
15.5 The customer must inform us without delay of enforcement actions or other interventions by third parties relating to the goods subject to the right of r etention or the ceded claims; the customer must also hand over the documents necessary for legal proceedings. If the third party is unable to reimburse us for the judicial and extrajudicial costs, the customer is liable for the loss incurred.
15.6 Suspension of payments, or the filing or opening of bankruptcy proceedings or of any other comparable extra legal proceedings renders the following null and void: the right to resell, use, or install any goods subject to reservation of ownership, as well as direct debit authorization for transferred receivables; direct debit authorization is likewise rendered null and void in the event of a rejected check or bank draft.
15.7 If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the customer’s request.
16. Reservation of contractual penalty
16.1 A contractual penalty agreed between us and the customer in an individual case, to be enforceable, requires a declaration of this reservation in writing by the customer upon acceptance of the goods.
16.2 A reservation of contractual penalty must be addressed to us directly. Our employees, drivers or other third parties are not authorised to receive a reservation of contractual penalty.
17. Ineffective terms and conditions of the customer
17.1 Provisions in the General Terms and Conditions of the Customer are ineffective if they are in breach of legal provisions, in particular (i) if we are unduly discriminated against the requirements of good faith, (ii) if they are not clear and comprehensible, (iii) if they deviate from statutory rules and are incompatible with essential principles of these statutory rules, or (iv) if they restrict material rights or obligations of us arising from the nature of the contract to such an extent that the achievement of the purpose of the contract is endangered (hereinafter collectively the "ineffective contract partners -CONDITIONS").
17.2 The customer agrees to us to refrain from (i) providing us ineffective contractual partner terms, (ii) including ineffective contractual partner terms in contracts with us or (iii) making or enforcing rights or claims from ineffective contractual partner terms against us.
18. Place of performance
18.1 Unless stated to the contrary in these terms and conditions and in any confirmation of order, our registered offices shall be the place of performance for all obligations entered into.
19. Applicable law
19.1 The law of the Federal Republic of Germany shall prevail for all legal relationships entered into between us and the customer under or in connection with this contract, to the exclusion of UN Sales Convention.
20.1 The place of jurisdiction for all disputes between us and domestic customers under or in connection with this contract is our registered offices, or at our option the general or special jurisdiction of the customer, provided that the customer is a company, a legal person under public law or a special fund under public law, and provided that the dispute does not relate to non-property dispute which is assigned to a local court with no consideration given to the value of the matter in dispute, and provided that no exclusive court jurisdiction is founded. This applies in kind to legal disputes with persons who have transferred their domicile or habitual residence out of the scope of validity of Code of Civil Procedure after the conclusion of the contract, or whose domicile or ordinary residence is unknown at the time of legal action
21. Data protection
21.1 Pursuant to Section 33 of the German data protection act (Bundesdatenschutzgesetz) we hereby give notice that data resulting from or in connection with the business relationship will be stored in files.