Scope of Application Our deliveries and services are performed solely and exclusively on the basis of the following terms and conditions, provided that the Buyer is an entrepreneur within the sense of Section 14 BGB [German Commercial Code], a publiclaw legal entity or a special fund under public law. Objection is hereby raised to the application of any general terms and conditions of business of the Buyer. Our Terms and Conditions of Sale apply in the version in effect at the point in time of the Buyer placing its order.
Conclusion of Contract 2.1 Our offers are subject to change. 2.2 All orders we receive constitute binding offers for the conclusion of a contract. We may accept such offers within ten workdays after we have received them. Our acceptance is expressed in the form of an order confirmation sent to the Buyer in text form or the delivery of the goods to the Buyer.
Terms and Conditions of Payment 3.1 The purchase price is due and payable immediately. Our invoices must be settled within 30 days after receipt. Upon expiration of this period, the Buyer will be deemed in debtor’s default. The invoice shall be deemed as received two days after we have sent it. 3.2 If it has been agreed that the Buyer is to release the goods for shipment within a certain period after our notification of readiness for shipment (release order), we are entitled to issue the invoice for the goods as of the point in time at which they are ready for shipment. 3.3 Payment (excluding any cash discount) shall be made in such a way that we can dispose of the amount on the final day of the payment period at the latest. 3.4 The Buyer may not offset any of its claims against us unless such claims are undisputed or have been finally adjudicated. The Buyer is entitled to retention rights solely if they arise from the same contractual relationship. 3.5 If the payment deadline is exceeded (cf. Clause 3.1), we are entitled to the statutory rights for debtor’s default. In particular, we are entitled to charge default interest in the amount of 9% p.a. above the current basic interest rate. 3.6 If and when our claim to payment is jeopardised by later circumstances resulting in a significant worsening of the Buyer’s assets, we are entitled to request immediate payment of any and all outstanding amounts. 3.7 In the circumstances described in Clause 3.6 and Clause 5.8, we may revoke the direct debit authorisation (Clause 5.7) and request advance payment for any pending deliveries. 3.8 The Buyer may ward off the legal consequences specified in Clause 3.6 and Clause 5.8 by providing security in the amount of our jeopardised payment claim. If, in the circumstances described in Clause 3.6 or Clause 5.8, the Buyer submits neither advance payment nor security in the amount of our jeopardised payment claim, we are entitled to cancel the contract, excluding any claims for damages by the Buyer.
Security We have a claim to security of the usual nature and scope for our claims, even if they are contingent or of limited term.
Retention of Title 5.1 We retain title of ownership to any and all delivered goods until all claims, in particular the current outstanding balances, to which we are entitled within the framework of the business relationship (reserved goods) have been satisfied. The above provision applies as well to future and contingent claims. 5.2 Any machining or processing of the reserved goods is deemed as undertaken on our behalf as manufacturers within the sense of Section 950 BGB, but does not establish any obligation for us. The machined and processed goods shall be deemed reserved goods within the sense of Clause 5.1. 5.3 If the Buyer processes, combines and mixes the reserved goods with other goods, we will be entitled to co-ownership of the new product in the ratio of the invoice value of the reserved goods to the invoice value of the other processed goods. If our title of ownership is nullified by combining, mixing or processing, the Buyer assigns to us here and now the ownership and/or expectant rights to the new stock or product to which the Buyer is entitled in the amount of the invoice value of the reserved goods (in the event of processing, in the ratio of the invoice value of the reserve goods to the invoice value of the other goods used in the processing) and safeguards them on our behalf free of charge. Our co-ownership rights shall be deemed reserved goods within the sense of Clause 5.1. 5.4 The Buyer may resell the reserved goods solely at its usual terms and conditions of business during the course of ordinary business and as long as the Buyer is not in default, provided that the Buyer has retained title and the claims from the resale are transferred to us pursuant to Clauses 5.5 and 5.6. The Buyer is not entitled to any other disposal of the reserved goods. The use of the reserved goods for the fulfilment of contracts for works and delivery of works shall be deemed resale within the sense of this provision. 5.5 Claims accruing to the Buyer from the resale of the reserved goods are hereby assigned to us here and now. We hereby accept the assignment. They serve in the same scope as security for the reserved goods within the sense of Clause 5.1. 5.6 If the Buyer resells the reserved goods together with other goods, the claims arising from the resale are hereby assigned to us in the ratio of the invoice value of the reserved goods to the other goods. We hereby accept the assignment. In the event of the resale of goods to which we have joint title pursuant to Clause 5.3, a part of the claim corresponding to our share of the joint title is assigned to us. 5.7 The Buyer is authorised to collect the claims from the resale unless we revoke the direct debit authorisation in the cases described in Clause 3.6 and Clause 5.8. Upon our request, the Buyer is obliged to advise its customers immediately of the assignment to us — unless we notify them ourselves — and provide us with the requisite documents and information for recovery. The Buyer is not entitled to pledge the claim under any circumstances; this provision applies equally to any and all types of factoring transactions that are also not permitted to the Buyer pursuant to our direct debit authorisation. 5.8 If and when the Buyer is in default of payment and this default indicates there is a threat to the realisability of more than a minor part of our claim, we are entitled to prohibit the further processing of the delivered goods, to collect the goods and, as necessary, to enter the Buyer’s premises. Repossession of the goods does not represent cancellation of the contract. Section 449 (2) BGB is to this extent set aside. 5.9 The Buyer must inform us immediately of any attachment or any other adverse action by third parties. 5.10 If and when the value of the securities that we hold exceeds that of the secured claims by more than 10%, we are obligated, at the Buyer's request, to release the excess value of the securities at our option.
Delivery Periods, Delivery Dates 6.1 Delivery is made ex works on the agreed delivery date or within the agreed delivery period. 6.2 Delivery periods commence with the date of our order confirmation, but not before complete clarification of all details of the order; this applies mutatis mutandis to delivery dates. All delivery periods and dates are subject to change due to unforeseeable production disruptions and to timely delivery by our own suppliers with whom we have concluded a congruent covering transaction. 6.3 In the case of release orders, we must receive the Buyer’s release in good time before the desired delivery date. 6.4 If the Buyer assumes or arranges transport of the goods, or if their shipment is delayed because of reasons for which the Buyer is accountable, our notification of readiness for shipment is sufficient for compliance with the delivery period. 6.5 If the Buyer does not fulfil contractual obligations — including, but not limited to, cooperation or ancillary obligations such as the opening of a letter of credit, presentation of German or foreign certificates, payment of an advance or similar actions — in good time, we are entitled to extend delivery periods and dates — without prejudice to our rights pursuant to Buyer’s default — as required by the circumstances of our production process. 6.6 Determination of compliance with delivery periods and dates is governed by the point in time of notification of readiness for shipment or shipment ex works. 6.7 In the event of force majeure, delivery periods will be extended or delivery dates will be postponed by a reasonable amount. Force majeure also includes industrial action in our own and thirdparty operations, transport delays, machine breakage, government actions and any other circumstances for which we are not accountable. We will notify our Buyer without delay of the occurrence of force majeure. The Buyer is entitled to cancel the contract no earlier than six weeks after receipt of this notification. 6.8 In the event of our failure to comply with delivery periods, the Buyer is not entitled to exercise the rights pursuant to Sections 281 and 323 BGB until it has set for us a reasonable period for delivery that — to this extent, in abrogation of Sections 281 and 323 BGB — is accompanied by the declaration that it will refuse acceptance of the performance after the expiration of the period. Following the fruitless expiration of the period, any claims to fulfilment are excluded.
Dimensions, Weight, Quality Deviations from dimensions, weight and quality are permissible in accordance with DIN or the applicable standard (±10%). Weights are determined by the use of calibrated scales and are decisive for billing. Verification of weight is provided by presentation of the weighing record. Unless individual weighing is usual, the total weight of each consignment is valid.
Shipping, Packaging and Passing of Risk 8.1 Unless otherwise agreed, we will determine the shipping agent or freight carrier. 8.2 If the loading or transport of the goods is delayed due to reasons for which the Buyer is accountable, we are entitled, at our reasonable discretion and at the Buyer’s expense and risk, to store the goods, to initiate any and all measures that appear expedient for the preservation of the goods and to issue the invoice for the goods as delivered. The above provision applies as well if goods that have been reported as ready for shipment are not released within four days. The above provision is without prejudice to statutory provisions regarding default of acceptance. 8.3 If the shipment of the goods is replaced by notification of readiness for shipment (Clause 6.4), the risk of accidental loss or accidental worsening of the goods passes to the Buyer three workdays after the sending of the notification of readiness for shipment. 8.4 We deliver the goods in packaging to the extent usual in trade at the Buyer’s expense. To the extent legally permissible, packaging and protective and transport aids are not returnable; deposit, loading and transport materials are excepted. Any packaging beyond what is needed for transport or any other special protection (e.g. for longerterm safekeeping or storage of the goods) is subject to express agreement. 8.5 If damage has occurred during transport, the Buyer shall immediately request preparation of a record from the responsible positions. 8.6 The conclusion of transport or other insurance is the Buyer’s responsibility.
Claims Due to Defects 9.1 The goods are in compliance with the contract if they do not deviate or deviate only slightly from the agreed specifications at the time of the passing of risk. Compliance with the contract and freedom from defects of our goods are determined solely and exclusively by the express agreements concerning quality and quantity of the ordered goods. A warranty for a specific intended purpose or a specific suitability is assumed solely to the extent that such a warranty has been expressly agreed; in all other respects, the Buyer bears exclusively the risk of suitability and use. 9.2 Content of the agreed specification and any expressly agreed intended use do not establish any warranty; the assumption of a warranty is subject to written agreement. 9.3 The Buyer shall inspect received goods immediately after their receipt. Claims due to defects are possible solely if written complaint of the defects is submitted immediately; complaint of hidden defects must be submitted immediately upon their discovery. If an agreed acceptance procedure has been carried out, complaint due to defects that could have been determined during this acceptance are excluded. 9.4 In the event of complaints, the Buyer shall immediately give us an opportunity to inspect the goods that are the subject of the complaint; upon request, the goods that are the subject of the complaint or a sample of the goods shall be made available to us at our expense. If the complaints prove to be unjustified, we reserve the right to charge the Buyer for the freight and transshipment costs as well as the expenses for the inspection. 9.5 If the goods have been sold as declassified material (e.g. socalled IIa material), the Buyer is not entitled to any warranty claims regarding the stipulated defects and any defects which it must normally expect to find in declassified material. 9.6 In the event of the existence of a defect, we will at our discretion — taking into account the Buyer’s interests — provide subsequent performance either through replacement delivery or subsequent improvement. If we are unable to carry out the subsequent performance successfully within a reasonable period of time, the Buyer may set for us a reasonable period for subsequent performance and, following its fruitless lapse, either reduce the purchase price or cancel the contract. 9.7 The warranty period in the event of defective delivery is one year from the passing of risk. The above provision is without prejudice to the statutory warranty periods for goods that have been used in the construction of a structure corresponding to their usual use and have caused the defectiveness of the structure. The above provisions are also without prejudice to any claims for damage compensation pursuant to Clause 10 below. 9.8 Buyer’s recourse claims pursuant to Section 478 BGB against us are limited to the statutory scope of the thirdparty claims due to defects asserted against the Buyer and presume that the Buyer has satisfied its obligation to submit complaint pursuant to Section 377 HGB [German Commercial Code] in its relationship to us.
Liability 10.1 Unless otherwise regulated in these terms and conditions, we are liable to pay damages solely in cases of wilful intent or gross negligence as well as of culpable breach of major contractual obligations; in all other respects, liability for simple negligence is excluded. Major contractual obligations are any and all obligations which must be fulfilled if the contract is to be performed properly at all and which the contract partner can normally expect to be fulfilled. In the event of culpable breach of major contractual obligations, we are liable — except in cases of wilful intent and of gross negligence — solely for damage or loss which is typical of the contract and foreseeable. 10.2 The above limitation of liability does not apply to injury to life, body and health. The above provisions are without prejudice to claims based on the Product Liability Act. 10.3 The above limitations of liability also apply to culpability of our legal representatives or vicarious agents.
Special Features of Export 11.1 The Buyer is obligated to obtain information regarding any possible restrictions on exports, in particular, but not limited to, embargoes against specific countries, companies or individuals, and to comply with said restrictions. The Buyer covenants to comply with any and all pertinent requirements and, as appropriate, to request compliance from its own customers as well. 11.2 We expressly point out that the export of some of the goods in which we trade are subject to approval by the German Federal Office for Economic Affairs and Export Control (BAFA). Our customers covenant to apply for the appropriate permit — if required — when exporting materials purchased from us. 11.3 Should a buyer domiciled outside the Federal Republic of Germany (foreign customer) or its agent collect the goods or ship them abroad, the Buyer must provide us with the export certificate required for tax purposes. If this certificate is not be presented, the Buyer must pay VAT on the invoice amount for deliveries within the Federal Republic of Germany.
Final Provisions 12.1 Any and all contractual relationships between us and the Buyer are governed solely and exclusively by the laws of the Federal Republic of Germany, excluding application of the United Nations Convention on the International Sale of Goods of 11 April 1980. 12.2 Place of performance and venue for both parties is Stelle. We are also entitled to file suit against the Buyer at courts having general jurisdiction at the latter’s registered office. 12.3 Amendments to and modifications of the contract and subsidiary agreements shall not be binding on the parties unless in writing. The above provision also applies to the waiver of this clause requiring written form. 12.4 If individual provisions of these Terms and Conditions of Sale are invalid, the effectiveness of the Terms and Conditions of Sale as a whole shall not be affected. 12.5. The German version of these Terms and Conditions of Sale is authoritative. Any versions in other languages are solely translations.
