For use in relation with:
1. corporate entities or merchants for whom the contract is part of the operation of their commercial trade
Documentation relating to the quotation such as illustrations, drawings, weights and dimensions shall be deemed to be approximate only, unless they are expressly specified as being contractually binding. The supplier shall reserve the unrestricted right to ownership and copyright exploitation rights in cost estimates, drawings and any other documents; these must not be made accessible to third parties. The supplier shall undertake not to disclose drawings or information classified as confidential by the client to any third party without the client’s express permission.
II. Scope of delivery
The supplier's written order confirmation shall govern the actual scope of delivery, if a quotation by the supplier includes a fixed term and acceptance of the quotation within the agreed time limit, provided, however, no order confirmation has been issued in due time. Additional agreements and alterations shall require written confirmation from the supplier.
III. Price and payment
1. Unless otherwise agreed, all prices shall be exworks, including loading at the works, but excluding packaging. Value-added tax shall be added to the prices at the applicable legal rate.
2. In the absence of a special agreement, payment must be rendered in cash strictly net, free of charge to the supplier's paying agent, namely:
· 30 % advance payment following receipt of the order confirmation
· 30 % following the notification that the goods are ready for dispatch or delivery
· 30 % upon completion
· 10 % upon acceptance
3. Withholding of payments and offset due to possible counterclaims of the client disputed by the supplier shall not be permissible.
IV. Delivery time
1. The delivery period shall begin when the order confirmation is sent, however, only after all documentation, approvals and releases to be obtained by the client have been submitted, and after an agreed deposit has been paid.
2. The delivery period shall be deemed complied with, if the delivery item has left the supplier's factory before the expiry of this deadline, or if the supplier has notified the readiness for shipping on his part.
3. The delivery period shall be extended to a reasonable extent for measures taken in the context of industrial disputes, in particular strikes and lock-outs, and in the event of unforeseen obstacles that lie outside the influence of the supplier, in so far as such obstacles can be shown to have a significant influence on the production or dispatch of the item to be supplied. This shall also apply, if such circumstances occur at a subcontractor.
Aforementioned circumstances of the nature described shall not be the responsibility of the supplier, even if these occur during a delay already caused by other reasons. In important cases, the supplier shall notify the client of the onset and termination of such hindrances without delay.
4. Where the client sustains loss due to a delay for which the supplier is at fault, the client shall have the right, to the exclusion of all other claims, to claim default compensation. This shall be 0.5 % per full week of the delay, but may not exceed 5 % of the value of that part of the delivery that cannot be used in due time as a result of the delay.
5. In the event the dispatch is delayed upon the request of the client, the supplier shall charge him/her - commencing one month after notice of readiness for dispatch - the costs incurred for the storage at the supplier's works, at least though 0.5 percent of the invoice amount for every month. The supplier shall, however, be authorised - after having set a reasonable period which has elapsed without result - to dispose of the delivery item elsewhere, and to provide the client with an adequate extended delivery time.
6. Observance of the delivery period shall be in any case prerequisite for the fulfilment of the client's obligations.
V. Transfer of risk and acceptance
1. The risk shall be transferred to the client no later than at the time the delivery items are shipped, including partial shipments, or if the supplier has also agreed to other services, for example shipping costs or delivery and set-up. Upon request of the client, the delivery shall be insured by the supplier - at the cost of the client - against theft, breakage, transport and fire as well as water damage, and other insurable risks.
2. In the event that delivery is delayed as the result of circumstances for which the client is responsible, the risk shall pass to the client from the day on which the goods are declared ready to be shipped; however, the supplier shall be obliged to procure any insurance which the client requests at the client's expense.
3. Items supplied must be accepted by the client, even if there is evidence of minor faults, regardless of the rights arising from section VI.
4. Partial deliveries shall be allowed.
VI. Retention of title
1. The supplier shall reserve proprietary rights over the delivery item, until all payments based on the supply contract are received.
2. The supplier shall be entitled to insure the delivery item against theft, breakage, fire, water and other damage, unless the client has obtained the insurance him-/herself.
3. The client may neither pledge the delivery item, nor assign it for security purposes. In the event of seizure as well as confiscation or other orders by third parties, he/she must notify the supplier of such without delay.
4. Any lack of conformity with the contract on parts of the client, especially in the event of a delay in payment, the supplier shall be entitled to take back the items after notice is given, and the client shall be obliged to hand them over.
The assertion of retention of title, and the seizure of the delivery item by the supplier are not deemed to be a rescission of the contract, provided that the German Instalment Purchase Law does not apply.
5. Extended right of retention in the case of an on-going business relationship, and admissibility of the resale of reserved goods.
The supplier shall reserve the right of ownership on the delivery item, until all receivables of the supplier against the client out of the business connection are balanced, including the upcoming receivables also from concluded contracts of the same or a later time. This shall also apply, if individual or all claims of the supplier were included in a current invoice, and the balance is drawn and accepted. Any lack of conformity with the contract on parts of the client, especially in the event of a delay in payment, the supplier shall be entitled to take back the delivery item after notice is given, and the client shall be obliged to hand them over. Provided that the German Instalment Purchase Law does not apply, the taking-back and seizure of the delivery item by the supplier shall not constitute a rescission of the contract, unless the supplier expressly states this in writing. In the event of seizure or other third party interventions, the client shall be obliged to notify the supplier immediately in writing.
The client shall be entitled to resell the delivery item in the ordinary course of business. However, the client shall herewith assign all claims to the supplier which accrue from reselling against the consumer or against a third party, regardless whether the reserved goods are being resold with or without processing. The client shall be entitled to collect these claims also after the assignment. The supplier’s authority to collect the claims themselves, shall remain unaffected. The supplier may demand the client to disclose the assigned claims and their debtors, to give all necessary information for the collection, to submit all associated documents, and to notify the debtors about the assignment. If the delivery item is resold together with other goods which do not belong to the supplier, the claim held by the client against his buyer for the amount of the delivery price agreed between the supplier and the client shall be deemed to be assigned.
The processing and modification of reserved items shall always be carried out by the client on behalf of the supplier. In the event the reserved item is inseparably processed with other items which do not belong to the supplier, the supplier shall acquire joint title to the new item in the proportion of the value of the reserved item to the other processed items at the time of the processing. The same shall otherwise apply for the item created through the processing, as for the reserved item.
The supplier shall undertake to release the collateral security to which he/she is entitled to the extent that its value exceeds the debts to be secured, in so far as they are not yet settled, by more than 25%.
VII. Liability for defects in the delivery
For defects in the delivery, including the lack of assured characteristics, the supplier shall be liable as follows, excluding further claims notwithstanding section IX no. 4:
1. All those parts, at the reasonable discretion of and based on his/her choice, must be repaired or replaced by the supplier that are found to be unusable or have become significantly impaired in their working within 6 months (in case of multi-shift operation, within 3 months) from the time of commissioning as a result of circumstances prior to the transfer of risk - especially on account of defective manufacture or deficient design. The identification of such defects or shortcomings must be communicated to the supplier promptly in writing. The parts replaced shall become the property of the supplier.
If dispatch, installation or commissioning are delayed for reasons not attributable to the supplier, the liability shall cease at the latest 12 months after the transfer of risk.
For significant external products, the liability of the supplier is limited to the liability claims that the supplier is entitled to against the supplier of the external product.
2. The right of the client to enforce claims arising out of defects shall be limited in time, in all cases, to 6 months from the point of timely notification, but earliest with the expiry of the warranty period.
3. No warranty shall be provided for loss or damage that have arisen for the following reasons:
Unsuitable or improper use, faulty installation or commissioning by the client or third parties, natural wear and tear, incorrect or negligent handling, unsuitable fuels or consumables, replacement materials, chemical, electronic or electric influences provided that these are not attributable to any fault on the part of the supplier.
4. In order for the supplier to undertake the repairs or replacements which appear to be necessary at his/her discretion, the client shall notify the supplier, and allow sufficient time and opportunity, otherwise the supplier is released from liability for defect. Only in urgent cases of endangering the operational safety and to safeguard unreasonably great damage, in which case the supplier must be notified immediately, or if the supplier has defaulted in attending to and rectifying the defect, the client shall be entitled to rectify the defect on his own, or to have it rectified by a third party, and to demand reimbursement of the necessary costs incurred in the process.
5. Of the direct costs arising from the repair or replacement, provided that the complaint is proven to be justified, the supplier shall bear the costs of the parts replaced including the dispatch as well as reasonable costs of disassembly and installation. Moreover, in the event that this can be reasonably demanded in individual situations, the supplier shall also bear the costs for the provision of required service and support staff. Otherwise, the client shall bear the costs.
6. The warranty period for the replaced part and repair is three months, but it shall be at least until the expiry of the original warranty period for the delivery item. The period for defects liability for the delivery item shall be extended by the period of the operational interruption caused by the repair work.
7. If the client or third parties undertake improper modifications or repairs without prior consent from the supplier, liability for the resulting consequences shall be voided.
8. Any other claims made by the client, especially for claims to compensation for damage that have not occurred directly to the delivery item, shall be ruled out. This exclusion of liability shall not be applicable in case of wilful intent or gross negligence on the part of the owner or a managerial level employee. It shall also not be applicable, if properties or characteristics are absent that were expressly assured, if the assurance is aimed at safeguarding the client against damage that has not occurred to the delivery item directly.
VIII. Liability and secondary obligations
If based on the fault of the supplier, the item supplied cannot be used by the client in accordance with the contractual agreement as a result of omission of or defective implementation of proposals and advice prior to or after conclusion of the contractual agreement, as well as other secondary contractual obligations - especially instructions for operation and maintenance of the item supplied - the provisions of sections VI and IX shall apply accordingly, with the exclusion of further claims of the customer.
IX. Client's right of revocation, and other liabilities of the supplier
1. The client may withdraw from the contract, if the complete performance finally becomes impossible for the supplier before the transfer of risk. The same shall apply in the event of inability to perform on part of the supplier. The client may also withdraw from the contract if, for an order of identical items, the delivery of a part of the ordered items in terms of quantity becomes impossible, and the client has a justified interest in refusing a partial delivery; if this is not the case, the client shall have the right to reduce compensation accordingly.
2. If performance default exists within the meaning of section IV of the Terms and Conditions of Delivery, and the client grants the supplier in default a reasonable extension of time with the express declaration that he/she will refuse to accept performance after the expiry of this period, and the time extension is not complied with, the client shall be entitled to withdraw from the contract.
3. If the inability to perform occurs during the time of a default in acceptance, or by any fault on part of the client, the latter remains responsible to fulfil his/her obligations.
4. The client shall also be entitled to withdraw from the contract, if the supplier allows a reasonably extended deadline for the correction of a fault or replacement for any defect for which the supplier is responsible under the regulations of the delivery conditions pass without success for a reason due to his/her fault: The right of withdrawal from the contract shall also apply in other cases of failure of rework and replacement deliveries by the supplier.
5. All further claims by the client shall be excluded, and in particular for rescission, termination or price reduction, and for compensation for damages of whatever type, including for such damage as has been caused to items other than the supplied item itself.
This exclusion of liability shall not be applicable in case of wilful intent or gross negligence on the part the owner or a managerial level employee. It shall also not be applicable, if properties or characteristics are absent that were expressly assured, if the assurance is aimed at safeguarding the client against damage that has not occurred to the delivery item directly.
If the contract includes assembly by our company, separate Terms and Conditions of Assembly shall apply to all assembly work undertaken.
XI. Data protection
We shall be entitled to process such data concerning the client as we receive by way of the business relationship or in connection with the same in accordance with the provisions set out in the Federal Data Protection Act, irrespective of whether the data concerned comes from the client himself or herself or from third parties.
XII. Place of jurisdiction
For all disputes arising from the contractual relationship, legal proceedings shall, where the client is a merchant within the meaning of the German Commercial Code, a legal entity under public law or special assets constituted under public law provisions, be instituted at the court which is competent at the location of the main office of the supplier or at the supplier’s branch responsible for making the delivery. However, the supplier shall be entitled to file a lawsuit at the headquarters of the client.German Law shall apply exclusively.