(translation for information purposes)
1. Conclusion of contract and content of contract
For all contracts our written order confirmation with these general terms of delivery and payment are decisive. Buying conditions on the part of the customer are not binding for us even if we do not expressly object to them or the customer does not expressly declare approval to our conditions. This also applies to buying conditions on the part of the customer that are not included in our conditions. No later than by accepting the ordered goods the customer expresses agreement with the order confirmation and these terms. Our terms and conditions shall also apply without further reference to them in subsequent contracts. Any deviations from our terms, oral subsidiary agreements as well as promises made by employees require our written confirmation to be valid.
2. Credit Basis
A prerequisite for our obligation to deliver is the credibility of the customer, which he/she assures us by concluding the contract. If we receive information or if events occur following the conclusion of the contract which suggest that the granting of a credit for the amount resulting from the contract appears not to be completely safe, we shall be entitled to demand payment in advance, provision of security or payment in cash, without concern for conflicting previous agreements, and to refuse fulfilment of the contract until payment or securities have been received, or to withdraw from the contract or demand compensation on account of non-fulfilment. These terms and conditions shall apply to all our claims (see point 10a (1)).
Our offers are subject to change.
Prices are denominated in EUR (Euro) and are subject to change. They apply ex works excluding packaging, freight, postage and insurance. Contract works must be delivered to us free of freight costs. Different agreements always require our express written confirmation. Through remuneration of costs for tools that are necessary for manufacturing the ordered goods, the customer shall not acquire any rights or entitlement to the tools.
5. Delivery time
The delivery dates specified in the order confirmation are determined according to our best ability so they can be met as far as possible. Delivery times shall be calculated from the date of order confirmation or, at the earliest, from final agreement about order execution and the provision of any documents, approvals and clearances by the customer if necessary. Delays in delivery and services as a result of force majeure and events which make delivery considerably more difficult or impossible – this includes strikes, lock outs, orders issued by the authorities etc, even if they occur at our suppliers or sub-suppliers – shall not be attributed to us even if deadlines and delivery times have been agreed as binding. They entitle us to postpone the delivery or performance for the duration of the impediment plus an appropriate period for renewed start-up of operations or to withdraw in part or in full from that part of the contract which has not yet been fulfilled.
Claims for compensation for non-fulfilment or delayed fulfilment including delay are excluded, unless the delay occurred intentionally or through gross negligence on our part. In so far as we are responsible for failure to comply with agreed deadlines and dates, the customer shall be entitled to a delay compensation of of 0.5% for each full week of delay, however limited to a maximum of 5% of the invoice value for the deliveries and services affected by the delay. Any further claims are excluded unless the delay is intentional or due to gross negligence on our part.
We use customary packaging or packaging appropriate for the product. It is charged at cost price and cannot be returned.
Delivery and shipping is always ex factory at the customer’s account and risk. If no shipping instructions are given by the customer, we shall select the means of transport that we deem least expensive. No replacement for losses, confusion or damages that occur on the way from factory to recipient.
The customer must notify us in writing of any defects immediately or at least within one week upon receipt of the delivered item. Defects which cannot be discovered within this period even after thorough inspection are to be communicated in writing immediately. Any liability in respect of hidden defects will be excluded 6 months after delivery. If the customer does not provide samples of the rejected goods – or the rejected goods altogether – immediately or if any changes or repairs have been made on the goods without our explicit consent, all warranties shall become null and void if the customer does not disprove a correspondingly substantiated assertion claim that the defect was caused by one of these circumstances. Only in urgent cases and only with our written consent does the customer have the right to rectify the defect himself or by a third party. In case of justified complaints, we shall be obliged to supply a replacement free of charge or set up the goods so they ready to use. Further claims such as modification or diminution, reimbursement for damages which occurred on the delivered object itself, contractual penalties, wages, compensation for consequential damages are excluded. This shall not apply to claims for damages from warranted characteristics which are intended to protect the customer from the risk of consequential harm caused by a defect. We are entitled to refuse the elimination of defects as long as the customer has not fulfilled his obligations. Non-compliance with our terms of payment releases us from our warranty obligations. Warranty claims against us are only able by the customer and are not assignable.
9. Terms of payment
Our invoices are payable within 10 days from the date of invoice with 2% cash discount or within 30 days net from the date of invoice. Amounts under 25,56 EUR as well as invoices for commission orders (regrinding etc.) are payable immediately after receipt without any deductions. Different agreements and conditions always require our consent. Despite different provisions by the customer, we are entitled to credit payments to older debts first. We shall inform the customer of how the payment has been set-off. If costs and interests have already occurred, we are entitled to first credit the payment to the costs, then to the interest and finally to the main service.
If the payment terms are not met, we shall be entitled to charge interests from the appropriate point in time in the amount of 4% above the respective rate of the European Central Bank for general compensation. Interests must be fixed at a lower rate if the customer proves a lower charge; we are permitted to prove that damage is higher. Cash discount is not permitted if the customer is in arrears with other receivables or if the delivery is paid via bill exchange. The acceptance of bill exchanges is subject to special agreements. Discount charges are to be paid by the issuer. The customer is only entitled to offset or withhold payment if the counterclaim has been deemed indisputable or legally enforceable. This also applies if notice of defects or counterclaims were put forward. However, the customer shall also be entitled to withhold payment on the basis of counterclaims arising from the same contractual relationship. If the customer ceases payment or is insolvent, in the event of non-compliance with the terms of contracted payment deadlines or the occurrence of circumstances that call the customer’s creditworthiness into question, especially if a cheque is not cleared, we are entitled to render all claims due immediately including bills receivables. In this case we shall also be entitled to demand advance payment or provision of security.
10. Reservation of ownership and assignment of claims
a) All goods supplied by us shall remain our property until the complete fulfilment of all our entitled claims towards the customer. This includes future claims resulting from the business relation. This also applies when the purchase price has been paid for certain goods designated by the customer. In case of a current account the reserve applies to our balance claim. Our rights resulting from the reservation of ownership shall continue to be valid until released from all and any obligations taken over in customer’s interest, especially guarantees and acceptance liabilities. The customer shall be obliged to store the reserved goods separately. He shall look after the products as a custodian on our behalf with commercial care. The customer performs possible handling or processing of the reserved goods for us without any obligations arising for us. If the customer combines or mixes our reserved goods with other objects to form a unit, we acquire co-ownership of the new object in proportion to the value of the processed reserved goods to the other goods at the time of processing or machining. The customer hereby transfers to us his co-ownership shares resulting from any joining, intermingling or blending the reserved goods with other goods. The customer must only sell the goods delivered and the items resulting from their handling or processing, their combining, blending or mixing, in the proper course of business under the condition that the purchase price is transferred to us in accordance with b). The customer is not entitled to any other dispositions of the reserved goods, especially trust receipt transactions or pledging.
b) Any claims arising for the customer from any operations concerning our reserved goods, especially from resale and installation with or without handling or processing, whether connected with others or resold to one or multiple customers are hereby assigned to safeguard all our claims (cf. a) (1)). The customer shall have the right to collect the claim in the proper course of business as long as he fulfils his obligations. Our collection authority remains unaffected by the collection authority of the customer.
c) Should the value of the securities exceed the claims listed under a)(1) by more than 20%, we shall be obliged to release or transfer back the no longer required securities upon customer’s request. However, we are entitled and also obliged upon customer’s request to select the securities verified to us. The claim is not assignable.
d) If the customer is no longer authorised to collect in accordance with b) or conditions occur that justify doubts of his creditworthiness (clause 2), he must record and keep incoming payments separately and immediately transfer them to us. The customer is also obliged upon request to provide a written report of outstanding receivables including recipient of the goods, invoice number, amount, date and payments and to confirm it in accordance with §259 BGB (Bürgerliches Gesetzbuch) and to inform the debtors of the assignment. Blanket assignments and assignment exclusions have to be indicated for customers. Under the same conditions, especially upon non-compliance with payment terms, the customer’s rights of disposal, handling, processing as well as combination of reserved goods shall expire. We shall, at all times, be entitled to inspect the customer’s warehouse, claim reserved goods against taking into account the value of utilisation and take immediate possession or seize the goods in a way we deem appropriate. If we make use of such right, this shall only constitute withdraw from the contract if we expressly declare so in writing. Storage, transport and other costs resulting from the withdraw or seizure shall be borne by the customer. The customer has to avert impending or executed accessing of reserved goods or previously assigned claims by third parties, notify us immediately and provide the documents required for intervention. The costs of the intervention shall be borne by the customer. The rights under §46 KO (Konkursordnung) and §26 Vergl. O remain unaffected; the customer shall waive the rights under §50 Vergl. O.
11. Approval and protective rights
If the goods are to be tested under particular circumstances, the acceptance test shall take place at our factory. Material acceptance costs shall be borne by us, personal travel and accommodation expenses of the inspector shall be borne by the customer. If the customer fails to carry out the acceptance test, the goods shall be deemed delivered according to contract. If deliveries are made on the basis of drawings or other information supplied by the customer, the customer shall be responsible for ensuring that no protective rights of third parties are violated through execution of the order. In case of a claim by a third party for protective right infringement the customer shall release us from all claims. As far as the customer owns protective rights he cannot claim infringement through our execution of the order. A violation of the customer’s protective rights by use of his drawings or any other information at a different point in time and/or through execution for other purposes than those in the customer’s interest is only acceptable if the customer pointed out to us that protective rights exist when the drawings or other information were given to us.
12. Place of fulfilment and place of jurisdiction
Place of fulfilment for all obligations resulting from contracts and place of jurisdiction is our registered office, Leopoldshöhe, or the registered office of the customer. Our registered office shall also be place of payment for legal actions on bills of exchange or cheques. With the jurisdiction of the district court, the jurisdiction of the local court is deemed agreed The contractual relationship is governed by the law of the Federal Republic of Germany.