Terms and Conditions
For the use with companies, corporate body under public law or a public fund asset.
Our terms and conditions of sale and delivery shall apply exclusively; terms and conditions set by the ordering party that are contrary to or deviate from our terms of sale and delivery will not be recognised, unless we should have expressly admitted their validity in writing. Our terms and conditions of sale and delivery shall also apply if, being aware of terms and conditions set by the ordering party that are contrary to or deviate from our terms and conditions of sale and delivery, we nonetheless carry out the delivery to the ordering party without express reservation.
It is essential that all agreements that have been made between us and the ordering party with a view to fulfilment of the terms of the contract of delivery must be set down in this contract in writing.
Our terms and conditions of sale and delivery shall likewise apply to all future transactions with the ordering party.
In case that the general terms and conditions circulate in several languages, the German version of the conditions with regard to the content regulation shall decide in case of doubt.
If the order is to be qualified as an offer, in keeping with § 155 of the BGB [Bürgerliches Gesetzbuch: German Civil Code], we may accept it within two weeks.
Our offers remain open and are without obligation. All contracts shall become effective on receipt of our written confirmation of the order, or at latest when delivery is carried out. The written confirmation of the order shall be definitive for the scope of the delivery. It is essential that any changes to the delivery and any collateral agreements should be confirmed by us in writing.
If no special agreement has been made to the contrary, the prices are to be taken as ex factory prices, with the exception of any charges based on the stipulations of public law. VAT shall be added to the prices at the level determined by statute.
In the absence of any special written agreements to the contrary, payment is to be made in cash without any deductions and free of charge to our accounts office. If the ordering party falls into arrears, we shall be entitled to claim interest on the arrears to the amount of 5% above the current basic interest rate per annum. If we are able to demonstrate that the actual damages caused by the delay in payment have been greater, we shall be entitled to assert a claim for this. The ordering party however shall likewise be entitled to demonstrate to us that no damages or lesser damages have arisen as a result of the delay in payment.
The ordering party shall only have the right to set off claims if his counterclaims have either been upheld as valid at law or are uncontested or acknowledged by us. Moreover he shall only be entitled to exercise the right to withhold payment in so far as its counterclaims are based on the same contractual relationship and have likewise either been upheld as valid at law or are uncontested or acknowledged by us.
The term of delivery shall not start until the ordering party supplies the documents, permits and authorisations that are to be provided, and until receipt of any advance payment that has been agreed to.
The term of delivery shall be regarded as having been adhered to if before the expiry of the term the delivery has left the factory or the ordering party has been notified that it is ready for dispatch.
The term of delivery shall be extended for an appropriate period in case of measures connected with industrial disputes, in particular strikes and lockouts, as well as in the eventuality of unforeseen hindrances beyond our power to control, if such hindrances can be demonstrated to have affected the delivery to a significant degree. The same principle shall apply if such circumstances should arise in connection with subcontracted deliveries. Nor are we to be held responsible for the circumstances mentioned above if they should arise when delivery has already been delayed. In cases of importance we will notify the ordering party of the start and finish of such hindrances at the earliest possible opportunity.
If after delivery has already been delayed the ordering party sets us an appropriate subsequent term for delivery, threatening to refuse the order, after this term shall have expired without effect he shall be entitled to withdraw from the contract. The ordering party shall be entitled to indemnification claims on grounds of non-fulfilment, to the amount of the foreseeable damages incurred, only if the delay has been caused by deliberate intent or gross negligence. In other respects the liability for damages overall shall be limited to a maximum of 5% of the value of that part of the entire delivery which as a result of the delay cannot be used at the required time or as determined by the contract.
If dispatch has been held up at the request of the ordering party, the cost of storing the goods, starting one day from the time when the ordering party is notified that the goods are ready for dispatch, shall be charged to him; in case the goods are stored at our factory this shall however be at least 0.5% of the invoicing amount per day, in so far as the ordering party does not demonstrate that lesser damages have been incurred. We shall be entitled, after having set an appropriate term and after this term shall have expired without effect, to dispose of the object of delivery elsewhere and to deliver to the ordering party at a later date as appropriate. Furthermore we shall be entitled to claim for the damages incurred by us including any additional outlay. In this case the risk of the object of delivery being accidentally damaged or destroyed shall pass to the ordering party at the time when the latter delays the receipt of the goods.
Adherence to the term of delivery shall be conditional on the fulfilment of the contractual obligations of the ordering party.
If in accordance with the stipulation given above we are released from the obligation of delivery in a case of force majeure, but the delivery is then after all carried out when the hindrance no longer exists, we shall be entitled to charge for any additional costs for the replacement of raw materials and/or to deviate from the composition and the guaranteed values, in so far as the hindrance makes this necessary and the interests of the ordering party are affected only to an inessential degree by this.
Samples and specimens serve for inspection and orientation purposes, and are not associated with a binding obligation. They show the approximate character and type of the goods. All analysis data, including those in which maximum and minimum limiting values are defined, are to be understood only as approximate values. With goods of foreign origin the designations and conditions that are standard in international trade shall apply exclusively. We cannot exclude the possibility of weight fluctuations of up to 5% more or less than the value stated. For the calculation of the weight, the weight that is determined at the place of dispatch shall be regarded as definitive.
Bills of exchange and cheques will be accepted only with a view to performance; any costs arising are to be borne by the ordering party, and shall fall due for payment on the receipt of the bill of exchange or cheque.
In case there should be good grounds for doubting the ordering party's ability to pay, in particular in a case of arrears of payment, we may, with reservation in respect of further claims, revoke payment targets that have been allowed to the ordering party so that our claims, including claims for bills of exchange, shall immediately fall due for payment. Furthermore we may call for advance payments or the provision of sureties for any further deliveries. Mutual accounting arrangements that have been agreed to may be terminated with immediate and retrospective effect. The ordering party shall then no longer be liable on the basis of the account balance but shall be obliged to pay for the individual deliveries.
In other respects the risk shall pass to the ordering party at latest at the time when the delivery is dispatched. This shall also apply in a case where partial deliveries are carried out or where we have taken on responsibility for further services, e.g. by assuming the cost of dispatch or carriage. At the request of the ordering party the shipment may be insured, at the ordering party's cost, against damages caused
during transport, breakage, theft, damage by fire or water and other risks that may be insured against.
Without prejudice to the further rights of the ordering party, the latter is to accept delivery of the object of delivery even if it is found to have insignificant defects.
Partial deliveries are allowed in reasonable dimension.
With deliveries under 100 kg, billing of the cost of dispatch shall be subject to reservation, even if no other agreement has been made. Additional haulage charges for specially requested forms of transformation or such other forms of transportation as shall prove necessary shall be at the cost of the ordering party. For the dispatch or delivery, the weight as determined at our works at the time of dispatch shall be
The rights of the ordering party under guarantee shall be conditional on the due fulfilment by the latter of his obligations of inspection and complaint to which he is bound by statute. The delivery is to be inspected within two hours from the time of receipt. Any defects are to be pointed out within 24 hours. In a case of hidden defects this term shall begin when they are discovered.
We cannot provide any guarantee that the delivery is suitable for the purposes envisaged by the ordering party. In case a defect should be complained of, a quantity of at least 50 kg is to be taken from the goods delivered and made available to us for examination. In storing and transporting this sample any temperature specifications that have been laid down must be adhered to. In case it should be impossible to send back the goods, a report must be submitted by a publicly appointed expert acting under oath, giving details of the reason, scope and quantity of the alleged defect. Complaints that have been acknowledged by us will only be recompensed at our discretion in kind or in cash to the amount of the quantity sent back to us. With important products supplied by others, our liability shall be restricted to the assignment of the liability claim to which we are entitled in relation towards the supplier of the product. When official inspection of goods supplied by us takes place, we are in all cases to be given the possibility of carrying out a counterinspection; to this end we must be notified promptly and original samples for counterchecking must be put at our disposal.
The term of the guarantee shall apply also to any claims for the indemnification of consequential damages, in so far as no claims on the basis of inappropriate handling shall be asserted.
We admit no liability for damages incurred by the object of delivery as a result of unsuitable or inappropriate use, faulty or careless treatment, unsuitable operating resources or chemical, electrochemical or electrical factors, in so far as we cannot be held responsible for these.
In a case of subsequent delivery, in so far as the complaint is justified we will assume the costs of the replacement delivery including those of dispatch. In other respects the costs shall be borne by the ordering party.
Any further claims on the part of the ordering party, in particular to indemnification for damages that have not been incurred by the object of delivery directly, are hereby excluded. In particular we will admit no liability for loss of profit or other forms of economic loss suffered by the ordering party. The above exclusion of liability shall not apply in so far as the cause of the damage shall be based on deliberate intent or gross negligence. Nor shall it apply if the ordering party shall successfully assert claims to indemnification on grounds of non-fulfilment because the goods are lacking a characteristic that has been expressly guaranteed. In so far as we should negligently violate a cardinal obligation of the contract, our obligation to pay compensation for damage to persons and property shall be restricted to the total sum insured under our product liability insurance policy.
In so far as our liability is excluded or restricted as stated above, the same shall also apply to the personal liability of our staff, workers, employees, representatives and vicarious agents.
In so far as we are not the manufacturer of the object of delivery, claims may be made against us – without prejudice to the above stipulations – only to the same extent to which the manufacturer admits liability in relation to us.
The above stipulations shall apply similarly if through fault of ours the object of delivery cannot be used by the ordering party as envisaged by the contract, if this is the result of the failure to execute or faulty execution of suggestions and advice and other incidental contractual obligations either before or after the conclusion of the contract.
We will admit unlimited liability for damage to life and limb or deterioration of health, where such results from the negligent violation of an obligation on our part or from the deliberate or negligent violation of an obligation by one of our legal representatives or vicarious agents.
The ordering party may withdraw from the contract if performance as a whole should finally be impossible for us to carry out before the passing of the risk to the ordering party. The ordering party may also withdraw from the contract if when a number of similar objects are ordered the execution of a part of the delivery in quantitative terms is impossible, and the ordering party has a legitimate reason to refuse to accept a partial delivery. If this is not the case, the ordering party may make a corresponding reduction in the counterperformance.
If a delay in performance as defined by the above Terms and Conditions has taken place, and the ordering party has set us an appropriate subsequent term for delivery with an express declaration that on the expiry of this term he will decline to accept performance, and if the term should not be adhered to, the ordering party shall be entitled to withdraw from the contract.
If delivery becomes impossible at a time when acceptance of the goods has been delayed or through the fault of the ordering party, the latter shall remain obliged to effect counterperformance.
The ordering party shall further have a right to withdraw from the contract if we allow an appropriate subsequent term that has been assigned us, in respect of a fault for which we may be held responsible on the basis of the terms and conditions of delivery, to expire without effect. The right of the ordering party to withdraw from the contract shall also hold good in other cases where the delivery of replacement goods by us miscarries.
Any claims on the part of the ordering party that extend further than this are hereby expressly excluded, in particular any claims to rescission, termination or diminution and indemnification claims for damages of whatever kind, this including such damages as have not been incurred by the object of delivery directly. This exclusion of liability shall be subject to limitation in the same way as under section 5 above.
Packaging materials loaned to the ordering party (e.g. transport crates, containers, plastic packaging, barrels, boxes, pallets etc.) shall remain our sole property without restriction. After they have been used for the intended purpose they are to be promptly returned to us by the ordering party, in clean and impeccable condition. Otherwise we shall be entitled to charge the costs of cleaning or replacement to
the ordering party.
We reserve to ourselves the property rights in respect of the object of the delivery until the receipt of all payments which we are entitled to claim from the ordering party on the basis of our present and future business relationship. If the behaviour of the ordering party should conflict with the terms of the contract, in particular in a case of delayed payment, we shall be entitled to take back the object of delivery. The taking back of the object of delivery by us shall not entail a withdrawal from the contract, unless we should have made an express declaration in writing to this effect. The compulsory seizure by us of the object of delivery shall always entail a withdrawal from the contract. After taking back the object of delivery we shall be entitled to exploit it. The resulting profit shall be counted against the outstanding liabilities of the ordering party, with the deduction of an appropriate amount representing the cost of
The ordering party shall be obliged to treat the object of delivery with due care. In particular he shall be obliged to insure the object of delivery at his own cost against damage by fire and water and loss by theft for the value of the goods when new, in so far as it is not intended for immediate use.
In case of compulsory seizures or other interventions by third parties the ordering party is to inform us in writing forthwith. If the third party is not in a position to reimburse us for the costs incurred in court and out of court in the defence of our rights, the ordering party shall be liable to us for the resulting deficit.
The ordering party shall be entitled to sell on the object of delivery in the proper course of business; he shall however assign to us in advance all claims to the amount of the final sum billed for, including statutory VAT, such as he may be entitled to in relation to his customers or other third parties as a result of the further sale; this shall be the case without reference to the question whether or not the object of delivery has been subjected to further processing before being sold on. The ordering party shall still be empowered to recover this claim even after the assignment. Our entitlement to recover the claim in person shall remain unaffected by this. We shall however undertake not to recover the claim so long as the ordering party fulfils his obligations of payment to us and does not fall into arrears, and in particular so long as no application for the opening of insolvency or composition proceedings has been made and payments have not come to a stop. If however this should be the case, we may insist that the ordering party make known to us the claims that have been assigned and the debtors in question, giving us all the information required for recovery of the claims, sending us the associated documentation and notifying the debtor or third party of the assignment.
The processing of the object of delivery by the ordering party will always be carried out for us. If the object of delivery should be combined with other objects that do not belong to us, we shall acquire a share in the ownership of the new object in proportion to the value of the object of delivery to the other objects with which it has been combined at the time of the combination. For the new article resulting from the combination, the same terms in other respects shall apply as to the object delivered subject to reservation. The ordering party shall safeguard this new object for us.
We hereby undertake to release the sureties that have been granted us at the request of the ordering party to the extent that the value of our sureties shall exceed the claims that are to be thereby guaranteed by more than 20%. The selection of the sureties to be released shall be our responsibility. The reference value shall be the purchase price in each case.
An invoice or bank statement shall be regarded as having been approved if a written objection has not been made to us within the term of one week. For adherence to this term the date of receipt by us shall be definitive.
If the ordering party is a entrepreneur, the responsible court of law shall be that of our main place of business. We shall however also be entitled to bring suit against the ordering party at the place of jurisdiction to which he is subject.
In so far as no written agreement to the contrary stipulates otherwise, the place of fulfilment shall be our main place of business. Business relations and all legal relations with us shall be exclusively subject to the law of the Federal Republic of Germany under exclusion of the CISG= Convention on Contracts for the International Sale of Goods.
We shall be entitled to store data relating to the ordering party on EDP data carriers in the context of our business relationship, and to process and make use of these data for our business purposes within the limits set by statutory injunctions.
If a stipulation included in these General Terms and Conditions of Business or included in any other agreements should be or become ineffective, the effectiveness of all other stipulations or agreements shall not be affected by this. The present document replaces and cancels all earlier terms and conditions of delivery and payment.