General Terms of Business
General Terms and Conditions
(as of 2018-07-19)
All our deliveries and services to entrepreneurs are based on our subsequent General Terms and Conditions which are stipulated with acceptance of our performance also without express approval of the customer. General Terms and Conditions of the customer do not apply, even if we do not expressly contradict to them, and carry out the delivery. Deviations and amendments of the customer are effectively agreed only with our express written confirmation. They apply only to the transaction for which they are made. The subsequent terms and conditions apply to future agreements even if they are not expressly agreed in the future.
- Offer, Conclusion of Contract, Written Form
Our offers are always non-binding. After the customer’s order has been received, the contract is concluded by our written order confirmation, which occurs automatically and is also valid without signature and name, and/or by our delivery. Information given prior to the order within the scope of order processing, in particular on performance, consumption or individual data are only binding, if they are confirmed by us in writing together with the order confirmation or subsequently to it. Information in brochures and advertisements are not considered as an agreement on quality.
Our representatives are not authorised to assume any guarantees or make any agreements which differ from the General Terms and Conditions. Such possible agreements must be confirmed by us in writing in order to be valid.
The prices valid on the day of registration of the order apply, plus the value added tax valid on the day of invoicing. We reserve the right to make corresponding adjustments in the case of extraordinary changes in the raw material prices.
3.1 Shipping and Packing Charges
Generally, delivery is made ex works plus shipment and packaging charges. In the case of a special shipping requested by the customer, the charges are at the expense of the customer. If the goods are collected, there is no reimbursement of freight charges.
3.2 The minimum order value is EUR 100.00 net. For orders with a lower net value, EUR15.00 of proportionate costs are charged.
3.3 If between contract conclusion and delivery unforeseeable increases in material, wages or transport charges, taxes or duties occur, we are entitled to carry out an upward or downward price adjustment corresponding to these factors at our reasonable discretion, unless delivery shall be made within four months after contract conclusion. If the customer makes changes after contract conclusion, we can adjust the prices in accordance with the surplus cost incurred as a result of the changes.
- Dates and Terms
We will use our best efforts in order to comply with the delivery dates and terms specified in the order confirmation but they only represent the anticipated delivery time and not a fixed delivery time or a delivery time agreed upon by the calendar.
4.1 Delivery terms will start only after complete agreement on all details. Execution of deliveries requires the respective timely response of all questions, submission of all required or requested drawings and documents and/or components to be supplied, granting of all necessary clearances and approvals. Otherwise, the delivery time is extended accordingly.
4.2 The term and/or date shall be deemed to have been complied with, if the consignment is dispatched within the term and/or on the agreed upon date, its readiness for shipment has been advised and/or it has been collected.
4.3 We are only obliged to execution and delivery, if the customer has made all agreed upon payments. If payments are made late, we can extend the delivery terms accordingly.
4.4 If failure to comply with a term or date is caused by Force Majeure, mobilisation, war, uprising, strike, lock-out or any other unforeseeable impediments affecting our business operations, for which we are not responsible, and which have occurred and/or have become known to us after contract conclusion, the term and/or the date is extended adequately. This applies also in the case of unforeseeable events affecting the operations of our sub-suppliers and for which neither the sub-supplier nor we are responsible.
4.5 If shipment is delayed upon request of the customer or for any other reasons for which the customer is responsible, starting from the 4th calendar day after notification of readiness for shipment the fees incurred due to storage but at least EUR 1.00 for 10 kgs each and per day will be charged.
4.6 Partial deliveries are admissible.
4.7 Authoritative for the calculation are the quantities and weights which have been delivered ex works or provided for shipping by us.
4.8 In the case of intra-community supplies, the customer is obliged to specify its V.A.T.-ID to us and to provide the information necessary for verification of tax exemption and to make available the necessary documents. If the customer does not comply with these obligations in time, we will treat the delivery as a taxable supply. In that case, we are entitled to charge in addition and claim the value added tax incurred in each case. If, due to incorrect specifications by the customer, we have unlawfully assumed a delivery to be tax-exempt, the customer must indemnify us against the tax debt and bear all additional expenses.
- Shipment, Passing of Risk
In the case of deliveries ex-works, shipment is made at the customer’s risk. Insurance will be effected by us only on express request by the customer who bears the cost.
- Delivery, Software Usage
6.1 In the case of delivery of software, the customer is granted a non-exclusive and non-transferable right of use of the software and the associated documentation for the operation of the goods for which the software is delivered. Apart from a backup copy, the customer shall not be entitled to make any copies. Copyright notices, serial numbers and other features identifying the software must not be removed or modified.
6.2 The customer is obliged to prevent unauthorised access of third parties to the software and documentation by appropriate measures. It must keep the original data carriers and the backup copies in a place protected against unauthorised access of third parties. Its employees must be instructed in writing to comply with this condition of delivery and the provisions of copyright law.
- Damages due to Breach of Duty
7.1 We shall not be liable for loss of profit. Damages are limited for each completed week of delay to 1 % and/or in total 10 % of the net order value. Damages instead of performance is limited to 10 % of the net order value. Insofar as we are obliged to pay damages, this obligation is always limited to the damage foreseeable at the time of contract conclusion.
7.2 This limitation of liability according to Clause 7.1 applies also, if we are liable by way of a recourse because the last contract in the supply chain is a consumer goods’ purchase.
7.3 Even in the event that the last contract in the supply chain is a consumer goods’ purchase and we are liable by way of recourse, these limitations of liability do not apply, if a commercial transaction for delivery by a fixed date has been agreed, we are liable for intent or gross negligence or the breach of essential contractual obligations or a liability exists for injury to body, life and health.
7.4 Claims due to breaches of duty from the contractual obligation, if these are no essential contractual obligations, become time-barred within the same period of time than the warranty rights (unless we are liable by way of recourse because the last contract in the supply chain is a consumer goods’ purchase; in that case, the limitation period is four years at the latest after the goods have been delivered to the customer). As a compensation (four instead of five years), the limitation of liability according to Clause 7.1 does not apply.
7.5 Claims for negligent lack of information on negative material characteristics of our products are excluded insofar as this does not constitute a material defect as a result. Our statutory liability according to the Product Liability Law remains unaffected by the above mentioned provisions.
7.6 Our liability for the loss or change of data is limited to the typical recovery expenses which would have occurred for the creation of backup copies at regular intervals commensurate with the risk.
7.7 The statutory liability provisions apply to alternative service.
- Notifications of Defects and Warranty
The notification of defects stipulated according to Sections 377, 381 subsection 2 HGB [German Commercial Code] (commercial duty to inspect and give notice of defects) must promptly be made in writing upon receipt of the goods at the place of destination by indicating the number of the delivery note and/or the invoice number.
8.1 If the notification of defects has been made in time, the customer can request at its option subsequent performance (elimination of the defect or delivery of an object free from defects), at our option, if the last contract in the supply chain is a consumer goods’ purchase, and we are liable by way of recourse at his option. If two attempts of subsequent performance are unsuccessful (failed subsequent performance) or if we refuse subsequent performance or if the subsequent performance is unreasonable, the customer can withdraw from contract or reduce the purchase price or request compensation for damages instead of delivery. The customer is obliged to grant us the necessary time and opportunity for subsequent performance.
8.2 In the case of a justified notification of defects, the customer must allow us to remove and install at our expenses the defective object, if consistent with its nature and intended purpose, it had been mounted into another object or attached to another object. If we do not exercise this option within an adequate period of time after the customer’s request to carry out the option, we have to reimburse to the customer the necessary expenses for removal of the defective object and installation or attachment of the reworked or delivered object free from defects but limited to ….. x-times of the net value of the goods.
The above provisions pursuant to sentence 1 and sentence 2 apply, if we are liable by way of recourse because the last contract in the supply chain is a consumer goods’ purchase and we are liable by way of recourse that the limitation amounts to …. x-times of the net value of the goods.
8.3 No guarantee is assumed for impairments of the delivery object due to natural wear and tear, damage after passing of risk or improper handling.
8.4 Our liability expires, if the customer itself or a third party has done rework or modifications on our delivery without our prior approval or if parts have been used which have not been delivered and/or approved by us.
8.5 Acceptance of returned goods on a goodwill basis
In the case of appropriate performance of contract, we are not obligated to accept returned goods. If this is made in individual cases on a goodwill basis, the following terms and conditions shall apply:
a) The goods are in their original packing and labelled in an identifiable manner and technically and optically in good order and condition.
b) The net value of the returned goods is at least EUR 100.00.
c) The goods have been verifiable produced by us within the last 6 months (order confirmation, delivery note, invoice).
d) Timely prior written notice of the returned goods with RMA No. and coordination of the terms and conditions has been made.
e) Re-storage fees depending on the value will be charged.
f) Freight costs will be charged.
If we agree to accept returned goods on a goodwill basis, the returned goods must be announced to us and the returning must be carried out at the expense of the customer.
- Payment Terms
Invoicing will be made upon shipment. If shipment cannot be made for reasons, which fall in the sphere of risk of the customer, the invoice will be prepared nevertheless and becomes due. Our invoices are payable net 14 days after date of issue.
9.1 In the event of default we are entitled to request default interest in the statutory amount (presently 9 percentage points above the base interest rate according to Section 288 BGB [German Civil Code]) without proof of a loss, and a flat charge of EUR 40.00. The assertion of further damage is not excluded. The customer is permitted to prove that a damage did not occur or a damage significantly lower than the flat charge has occurred. Payments will always be used for settlement of the oldest debt due including corresponding default interest, unless the customer makes any other express provision. Allocation is at first made on interest.
9.2 The customer can make any offset only against undisputed claims or claims declared final and absolute or exercise a right of retention with respect to such claims, unless the customer makes any objections due to material defects. If payments are retained, the customer’s claim must be based on the same contractual relationship.
9.3 Drafts will be accepted by us only after express prior approval. The acceptance of drafts or cheques is always made on account of performance.
9.4 In the case of contracts for work, unconditional payment of our invoice is considered as an unconditional acceptance of our service and as a waiver of a contractual penalty which might arise.
- Retention of Title
10.1 The goods supplied by us remain our property until full payment of all claims from the business relationship between us and the customer.
10.2 The customer shall be entitled to resell and/or process the goods under retention of title in the ordinary course of business, unless otherwise provided in the following. But the customer is not entitled to pledging of the goods or transfer by way of security.
10.3 In the case of processing, joining, mixing or blending of the goods under retention of title with other goods or objects not owned by us, we are entitled to the co-ownership share occurring in the new object in proportion of the invoice value of the goods under retention of title to the other processed goods or objects at the time of processing, joining, mixing or blending. If the customer acquires sole ownership of the new object, the contractual partners agree already now that the customer grants us co-ownership in the new object in proportion of the invoice value of the processed and/or joined, mixed or blended goods under retention of title to the invoice value of the other processed goods or objects. Direct labour cost, overhead costs and other theoretical cost factors are disregarded when calculating our co-ownership share. The customer is obliged to disclose to us at any time upon request the calculations of its cost of sales for determination of our co-ownership share. Gratuitous custody of the objects co-owned by us for us by the customer is already agreed now.
10.4 The customer assigns to us as collateral already now all claims from resale of our goods under retention of title in the amount of the purchase price agreed upon with us. We accept this assignment. We only agree to resale, if due to the above declaration of assignment, an effective assignment of claim can occur. If the goods under retention of title are resold together with other goods, no matter whether without or after processing, joining, mixing or blending, the above mentioned assignment in advance is applicable only in the amount of the invoice value of the goods under retention of title which are resold together with the other goods.
10.5 In the case of contracts on service or work, on the performance of which our retention of title expires, the wage claim of the customer is assigned to us already now in the amount of the invoice value of the processed goods under retention of title. We accept this assignment.
10.6 Until revoked by us, the customer is entitled to collect the claims assigned to us in advance for our account in its own name. The collection authority expires also without our express revocation, if the customer does not comply with its obligations towards us or falls into a financial collapse, in particular, insolvency proceedings are filed or it is to be feared that amounts collected cannot be paid out to us. In the case of advance payments to wage claims partially assigned to us, the customer is obliged to offset the advance payment at first against the portion of the claim which has not been assigned to us. Between us and the customer, at first always the partial amount not assigned to us is considered to be redeemed in the case of advance payments collected by the customer.
10.7 The collection authority does not authorise factoring. Neither do we agree to the assignment of the resale or wage claim assigned to us within the scope of a genuine factoring agreement.
10.8 In the case of payments in cheque-draft-transaction, our retention of title and security interests remain unaffected and are maintained until our liability from cheque or draft has ended.
10.9 Upon our request, the customer is obliged to give information in writing at any time with respect to the whereabouts of the goods subject to our retention of title rights. The customer is obliged to provide us with the names of other parties having a claim to title as well as the debtors of the claims assigned to us, to provide us any information on the claims assigned required for collection, to make available the documents required for collection, in particular contractual documents and invoices, and to inform the debtor of the assignment upon our request which may be made at any time. The customer must make available to us at any time notices of assignment. The customer is obliged to promptly inform us on any impairment of our retention of title rights or other securities, in particular pledging.
10.10 In the case of behaviour by the customer contrary to the contract, in particular in the case of default of payment of a claim from the business relationship and if the customer falls into a financial collapse, stops its payments, insolvency proceedings are filed against it or if it asks its creditors for a settlement out of court, we can withdraw from contract and demand return of the goods after setting a reasonable period of grace.
10.11 We engage ourselves to release securities to which we are entitled upon request of the customer insofar as the realisable value of our securities exceeds the claims to be secured by more than 20 %. We are entitled to select the securities to be released.
- Modifications of Design and Programme
We reserve ownership and copyrights in cost estimates, drawings and other documents. They must not be made available to third parties without our express approval. We reserve the right of modifications in design and execution in view of more recent experience and improvements.
- Further Delivery of Goods Abroad
In the case of further delivery of goods abroad by a domestic buyer, the customer must verify under its own responsibility as to whether the goods to be exported are subject to restrictions of the foreign trade law of the Federal Republic of Germany, the Dual-Use Regulation of the EU or the US foreign trade law.
- Place of Performance, Place of Jurisdiction, Final Provisions
Place of performance for all liabilities from the present contract, in particular for payment of the purchase price as well as place of jurisdiction is Stuttgart, if the customer is a merchant within the meaning of Section 38 subsection 1 ZPO [German Code of Civil Procedure]. This restriction does not apply, if the customer has no place of general jurisdiction within the country. But we are entitled to file a suit at the customer’s registered office. The laws of the Federal Republic of Germany shall apply exclusively. Validity of the uniform United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.