§ 1 General – Scope
Our terms and conditions of sale apply exclusively; we do not acknowledge any terms and conditions of the buyer, which may be contradictory to, or deviate from, our own, unless we agree to them explicitly in writing.
Our terms and conditions of sale apply even in the event that we ship goods to the buyer unconditionally, even though we may be aware of any terms and conditions of the buyer which contradict or deviate from our own. All of the agreements which have been entered into by us and the buyer for the purpose of fulfilling this contract are set forth in writing herein. Our terms and conditions of sale apply to business enterprises only in the spirit of paragraph 310 of the BGB (Bundesgesetzbuch = Code of Federal Regulations ‘CFR’).
§ 2 Offers and Quotations
If the order can be classified as an offer in accordance with paragraph 145 of the CFR, we have the right to accept it within a period of 4 weeks. We retain all rights of ownership and copyrights to diagrams, drawings, calculations and other documentation. This also applies to written documents that are designated “confidential”. The buyer must obtain written consent from us before forwarding documentation to any third party or parties.
§ 3 Prices – Terms of Payment – Deductions
Insofar as nothing to the contrary is specified in the order confirmation, our prices are quoted “ex works” excluding packaging; packaging is invoiced as a separate item. Our prices do not include legally applicable value added tax; VAT is included in the invoice as a separate item in accordance with the legally specified rate on the date the invoice is issued.
The deduction of cash discounts is subject to special written agreement. Insofar as nothing to the contrary is specified in the order confirmation, the purchase price is due and payable (without deduction) within 30 days of the invoice date. If the buyer is in default of payment, we are entitled to claim interest on arrears at an annual rate of 8% higher than the bank base rate. We are also entitled to claim damages caused by delays that exceed this amount, if we are able to substantiate that such damages have been incurred. However, the buyer is entitled to provide us with proof that we have incurred no damage, or significantly less damage, as a result of default of payment. Checks and/or bills of exchange are only deemed valid payment after redemption. Bills of exchange can only be accepted after having obtaining written agreement from us. In the event that bills of exchange are accepted, bank discount charges and collection fees will be invoiced. These are immediately due and payable in cash.
The buyer is only entitled to set-off rights if his counterclaims are legally binding, undisputed or have been acknowledged by us. Furthermore, the buyer is only entitled to exercise any rights of retention to the extent that his counterclaim is based upon the same contractual relationship. Insofar as supplied goods are defective, the buyer is only entitled to withhold that portion of the invoice amount which is allocated to the defective parts or shipment. The remainder of the invoice amount is due and payable within the agreed upon payment terms. A new term of payment, identical in length to the originally agreed upon payment term, begins for the withheld portion of the payment after the defect has been resolved.
§ 4 Delivery
The delivery terms begin when the order confirmation is dispatched, but in any case not before the buyer has submitted any required documents, agreements, approvals or clearances, and not before receipt of any agreed upon down-payment.
The term of delivery is deemed adhered to if the buyer has been notified of readiness of shipment or the goods in question have left the factory before it has expired.
The term of delivery is extended in the event of measures resulting from labour disputes, in particular strikes and lockouts, as well as in the event of unforeseen hindrances, which are beyond our control, for example work stoppages and delayed receipt of essential materials, insofar as such hindrances have a verifiably significant influence on being able to supply the goods in question. This also applies in the event that our suppliers or sub-suppliers are affected by any of the above mentioned circumstances. The term of delivery is extended by an amount equal to the duration of such measures and hindrances. In any case, correct and punctual supply to ourselves is reserved.
Even in the event that they occur during an already existing delay, we cannot be held responsible for any of the above mentioned circumstances. We undertake to notify the buyer as quickly as possible of the beginning and the end of hindrances of this sort in cases that are deemed important.
Partial shipments within the terms of delivery specified by us are permissible, insofar as this does not result in any disadvantages related to use of the supplied goods.
§ 5 Scope of Delivery
The scope of delivery is specified on our written order confirmation.
The ordered goods are subject to engineering and/or dimensional changes which result from technological improvement or legal requirements insofar as the goods in question are not significantly modified and the changes are not unreasonable for the buyer.
§ 6 Packaging and Shipping
Packaging becomes the property of the buyer and is invoiced by us.
Packaging and shipping charges are included in the invoice as separate items. The shipping mode is selected to the best of the seller’s judgement.
§ 7 Cancellation Costs
If the buyer withdraws from an already issued order without justification, we are entitled to insist upon fulfilment of the contract or to demand compensation for damages. In the event that we choose to demand compensation for damages, we are entitled to claim lump sum compensation amounting to 10% of the sales price, notwithstanding our option to claim larger amounts in the event that actual damages are greater than 10% of the sales price. The buyer reserves his right to prove lesser damages.
§ 8 Acceptance and Transfer of Risk
In the event that machinery is supplied to the buyer, he is entitled to examine the ordered goods at the seller’s facility within 14 days after receipt of notification of readiness to ship, or any other notification of completion. The buyer is obligated to accept the goods within the same period of time, unless he is temporarily impeded from issuing such acceptance for reasons beyond his control.
If the buyer is in default of acceptance or violates any other obligations to cooperate, we are entitled to claim compensation for damages incurred by us as a result, including any additional expenses. The seller reserves his right to assert further claims as well.
In particular, we are entitled to extend the buyer’s deadline by 14 days, after whose expiration we are entitled to withdraw from the contract or claim compensation for damages due to non-fulfilment. There is no need to extend the buyer’s deadline if he earnestly or conclusively refuses acceptance, or if he is obviously unable to pay the purchase price, even within this period of time. Risk is transferred to the buyer as soon as the goods are handed over to the freight forwarder or leave our factory or warehouse, or upon receipt of notification of readiness for shipment in the event that shipment or acceptance is delayed for reasons beyond our control. If the buyer declares that he will not accept the goods, the risk of accidental loss or deterioration of the goods is transferred to the buyer at the point in time of refusal.
§ 9 Warranty
The customer´s warranty claims require that he has fulfilled his inspection and complaint obligations in accordance to § 377 HGB (Commercial Code). If the object of sale shows a defect, we are with regard to supplementary performance at our discretion entitled to remedy the defect or to deliver a new object of sale free of defects. We shall be entitled in general to three attempts at subsequent performance. If we remedy the defect, we are bound to bear all expenditures necessary, i.e. transport, material and labour costs, unless these are made higher by the object of sale having been transported to another place that is not the place of fulfilment. If the supplementary performance should fail, the customer can choose either withdrawal or reduction at his discretion.
We are liable in accordance with legal regulations, if the customer claims for damages arising from intention or gross negligence by our representatives or one of our vicarious agents. If the customer does not assert any wilful breach of contract on our part, our liability is limited to a typical damage of the sort in question. We are liable in accordance with legal regulations if we are responsible for a culpable breach of an integral provision of the contract, in which case our liability shall, however, be limited to a typical damage of the sort in question. Integral contractual obligations of the contract are particularly those which are required in order to achieve the purpose of the contract. This is without prejudice to our liability for a culpable injury to life, limb or health. This does also apply to the compulsory liability arising from the product liability act.
Unless otherwise agreed in the above, any liability is excluded.
The statute of limitations for complaints expires after 12 months from transfer of risk.
§ 10 Total Liability
Any further liability for damages other than set forth in paragraphs § 9 – without consideration of the legal nature of the asserted claim – is hereby excluded. This does apply to claims for damages from culpability at the conclusion of the contract, other breaches of duty or for tort actions for property damages pursuant to § 823 BGB (Civil Code). This limitation as stated above does also apply in case of a claim for damages the customer demands the reimbursement of useless expenditures.
Insofar as claims for damage are restricted or excluded vis-à-vis ourselves, this also applies with regard to the personal liability for damages of all of our employees, representatives and agents.
§ 11 Retention of Title, Security
We retain title to all supplied goods until payment has been effected in full.
The buyer is entitled to resell the supplied goods during the ordinary course of business; however, he transfers to us, effective immediately, all claims to the amount of the agreed purchase price (including value-added tax) that result from selling the equipment to a third party, regardless of whether the objects are sold in the original state or modified before resale
§ 12 Court of Jurisdiction and Place of Fulfilment
Insofar as the buyer is a merchant who has been entered as such to the commercial register, any disputes arising hereunder shall be settled before a competent court of law which presides over our place of business; however, we are entitled to take legal action against the buyer at his own place of business as well. Insofar as nothing to the contrary is specified in the order confirmation, the place of fulfilment is our place of business.
German law applies exclusively to the exclusion of laws governing the international sale of movable goods, even if the buyer’s place of business is outside of Germany.
§ 13 Miscellaneous
No transfer of the rights and obligations of the buyer resulting from the contract entered into with us is permissible without our written consent.
In the event that any of the stipulations included in this contract is or should become invalid, this shall have no effect on the validity of any other stipulations.