1. GENERAL
1.1 (Conflicting Conditions, Written Form, Subsidiary Agreements) These General Terms and Conditions shall apply to the contract; no other conditions shall become part of the contract, even if we do not expressly object to them. The customer may only refer to collateral agreements before and at the time of conclusion of the contract if they are confirmed in writing without delay. These terms and conditions also include the notes printed after the price list.
1.2 (Subject to change, data collection) Our offers are subject to change; we reserve the right to make technical improvements to our products. We may store data on EDP which is important for the processing of the contract.
1.3 (Offsetting, retention) Offsetting or retention by the customer shall only be permissible with undisputed or legally established counterclaims.
1.4 (Place of performance, place of jurisdiction, choice of law) The place of performance shall be our plant in Wertheim, the place of jurisdiction shall be, at our option, Wertheim/Mosbach or the court having jurisdiction over the customer’s place of business. German law shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
2. RISK, SHIPPING COSTS
2.1 The risk shall pass to the customer when the delivered goods leave our works, even if we are responsible for shipment, export or installation.
2.2 The customer shall bear transport, packaging and insurance costs.
2.3 In the case of call orders, the total quantity ordered must be taken within 12 months, whereby we may deliver the remainder of the call quantity to the customer after expiry of the deadline.
3. DELIVERY PERIODS, DELAY, DAMAGE CAUSED BY DELAY
3.1 Delivery periods shall be ex works. They shall only start to run after clarification of the technical questions still open at the time of conclusion of the contract, after receipt of documents to be provided by the customer such as drawings and approvals and/or after advance payments to be made as well as production releases.
3.2 Force majeure, as well as strikes, lockouts, operational disruptions, supply deficiencies and/or delayed/failed delivery by upstream suppliers for which we are not responsible shall extend the delivery periods by the delay time caused thereby. The same shall apply in the event of additional or modified services requested by the customer.
3.3 Our delay in delivery shall in any case require a reminder from the customer with a reasonable grace period.
3.4 We shall only be liable for consequences of default in the event of intent or gross negligence. In this case, our liability shall be limited to the damage typically foreseeable by us at the time of conclusion of the contract. The customer shall inform us immediately in writing of any impending consequences of default.
4. PRICES, TERMS OF PAYMENT, PROVISION OF SECURITY
4.1 Our prices do not include statutory value added tax and are ex works. If more than 4 months elapse between conclusion of the contract and delivery, we may, in accordance with § 315 of the German Civil Code (BGB), at our reasonable discretion, demand a reasonable price increase corresponding to our cost increase up to the time of delivery.
4.2 Invoices are – subject to a special written agreement – due without deduction. We accept bills of exchange and checks only on account of performance and at the expense of the customer.
4.3 In the event of default in payment and/or reasonable doubt as to the creditworthiness of the customer, we may make each individual delivery dependent on its advance payment or a security deposit in the amount of its invoice.
5. RESERVATION OF TITLE, ASSIGNMENT IN ADVANCE
5.1 The delivered goods shall remain our property until they have been paid for in full and without restriction. If we have further claims against the customer, the reservation of title shall remain in force until payment thereof.
5.2 The customer may resell goods subject to retention of title – in the ordinary course of business – only if he has not assigned, pledged or otherwise encumbered his claims arising from the resale.
5.3 The customer may not combine goods subject to retention of title with other items to which third parties have rights. If goods subject to retention of title nevertheless become part of a new (total) item as a result of their combination with other items, we shall immediately become co-owners of this item on a pro rata basis, even if it is to be regarded as the main item. Our co-ownership quota shall be based on the ratio of the invoice value of the reserved goods to the value of the new item at the time of combination.
5.4 The customer assigns to us in advance by way of security the claims against its customers arising from the sale of goods subject to retention of title (clause 5.1) and/or newly formed items (clause 5.3) in the amount of our invoice for the goods subject to retention of title. As long as the customer is not in default of payment for the reserved goods, he may collect the assigned claims in the ordinary course of business. However, he may only use the proportionate proceeds to pay us for the reserved goods.
5.5 At the customer’s request, we shall release securities of our choice if and to the extent that the nominal value of the securities exceeds 120% of the nominal value of our outstanding claims against the customer.
5.6 In the event of default, we shall be entitled to withdraw from the contract, to demand the return of any reserved goods still in the customer’s possession and to collect the assigned claims ourselves.
In order to establish our rights, we may have all documents/books of the customer relating to our reserved rights inspected by a person bound to professional secrecy.
6. CLAIMS FOR DEFECTS AND COMPENSATION
6.1 We shall be liable for ensuring that our delivery goods are free of defects at the time of transfer of risk. The owed quality, durability and use of our delivery goods shall be based exclusively on the specification, product description and/or operating instructions agreed in writing. Any further information, in particular in preliminary discussions, advertising and/or industrial standards referred to, shall only become part of the contract if expressly included in writing.
If the customer wishes to use the delivered goods for purposes other than those agreed, he must carefully check the suitability for this and/or the permissibility on his own responsibility. We exclude liability for any usability not expressly confirmed by us in writing.
In the case of material or design specifications of the customer, we shall not be liable for the suitability or admissibility of the desired materials or design and shall have no special duty to inspect in this respect.
6.2 Our liability for defects shall in principle be limited to subsequent performance. Subsequent performance shall be, at our option, rectification of defects or delivery of goods free of defects. Further claims for defects shall only exist in the event of rejection, impossibility or failure of subsequent performance.
6.3 The customer shall carefully inspect the delivered goods immediately upon receipt – also with regard to product safety – and shall immediately notify us in writing of any obvious defects; hidden defects shall be notified immediately upon discovery. The customer shall immediately notify the carrier of any transport damage. In the event of non-compliance with the obligation to inspect and give notice of defects, claims for defects on the part of the customer shall be excluded.
6.4 Furthermore, we shall not be liable for the consequences of improper handling, use, maintenance and operation of the delivered goods by the customer or his assistants as well as normal wear and tear. This shall also apply in particular with regard to the consequences of chemical, electrochemical or electrical influences, as well as violations of our operating instructions.
6.5 We shall only be liable for compensation for property damage and financial loss in the event of intent or gross negligence. We shall only be liable for damage to property and financial loss not occurring on the delivered goods themselves if the customer points out their possible risk to us in writing when the contract is concluded and we assume a special obligation to indemnify in writing with regard to this. In this respect, our liability shall be limited to the damage typically foreseeable by us at the time of conclusion of the contract.
6.6 Claims for defects against us shall become time-barred within one year after delivery of the goods to the customer. The same shall apply with regard to claims arising from a breach of ancillary obligations and/or for compensation for damage to property or financial loss not occurring on the delivered goods themselves.
7. INDUSTRIAL PROPERTY RIGHTS, SECRECY
7.1 We retain ownership and all industrial property rights and copyrights for our designs, samples, illustrations, technical documents, cost estimates or offers, even if the customer has assumed the costs for the designs etc.. The customer may only use the designs etc. in the manner agreed with us. He may not produce the delivered goods himself or have them produced by third parties without our written consent.
7.2 If we deliver goods according to designs prescribed by the customer, the customer shall be liable to us for ensuring that industrial property rights and other rights of third parties are not infringed by their production and delivery. He shall compensate us for all damages resulting from such infringements.
7.3 Molds, tools or other equipment manufactured or provided by us shall remain our property, even if the customer has assumed the costs for them in part or in full.
7.4 The customer shall keep secret from third parties all knowledge gained from the business relationship with us that is not in the public domain.