Conditions of Delivery and Terms of Payment
§1 General provisions / scope
- Our Terms of Delivery and Payment shall apply to all business relations with our customers and the Customer recognises them as being binding upon on placing an order.
- Any provisions deviating from the following and/or statutory regulations – in particular the Standard Purchasing Terms of the Buyer – shall only be binding upon us if confirmed in writing. The same shall apply to all terms not stipulated in our Terms of Delivery and Payment. The conditional delivery of goods or the acceptance of payments shall not imply any acceptance of divergent provisions on our part.
- All agreements reached between us and the Buyer for the purpose of implementing a contract shall be set down in writing in the agreement and in these Terms and Conditions that shall apply mutatis mutandis. Amendments, supplementations or the annulment of a contract or of these Terms and Conditions must be confirmed in writing to be effective.
- Our Terms of Delivery and Payment shall also apply for all subsequent orders.
- Our conditions of delivery and terms of payment count worldwide, except to the United States of America.
§2 Offers / offer documents
- Our orders are non-binding and subject to change, provided that nothing has been agreed to the contrary.
- All illustrations, drawings, calculations and other product-, application- or project-related documents shall remain our property and are subject to copyright law, even to the extent that they have been placed at the Buyer’s disposal; they may not be duplicated or made accessible to third parties without our explicit prior written consent.
§3 Prices / terms of payment
- Provided that nothing has been agreed to the contrary, all prices are quoted “Ex Works”. Packaging, insurance and freight costs as well as sales tax are not included in the prices and shall be invoiced separately. VAT shall be declared separately in the invoice in the statutory amount applicable on the date the invoice was issued. All consignments shall be insured by us worldwide at the Consignee’s expense provided that no prior written request to the contrary to dispatch the goods uninsured is received from the Consignee.
- In case of customised production, we shall be entitled to deliver 10% more or less than the order quantity and to bill this accordingly.
- In the case of orders valued at EUR 200 net or above, there is no EUR 25 mark-up for small-volume purchases.
- Provided that nothing is agreed to the contrary, the purchase price shall be due for payment net (without deductions) within 30 days from the invoice date. A cash discount may only be deducted given a separate written agreement to that effect.
- Should the customer default on payment, we shall be entitled to demand interest on arrears in the amount of 8 % above the respective base lending rate applicable in each case. De-pending on the dunning level, we shall be entitled to charge a fine of between EUR 30 and 60 for each written reminder.
- Falls nach Vertragsabschluss in den Vermögensverhältnissen des Käufers eine wesentliche Verschlechterung erkennbar wird, durch die unser Anspruch auf Gegenleistung gefährdet wird, können wir bei Bestehen einer Vorleistungspflicht unsere Leistung solange verweigern, bis die Gegenleistung bewirkt oder uns Sicherheit für sie geleistet ist. Ist der Käufer nach Ablauf von uns gesetzten angemessenen Frist weder zur „Zug-um-Zug-Erfüllung“ noch zur Sicherheitsleistung bereit, steht uns das Recht vom Rücktritt des Vertrages zu.
- The Buyer shall not be entitled to offset or withhold any payments in lieu of claims against us unless such counterclaims are not disputed or have been upheld pursuant to a final and absolute court decision. The Buyer may only assert a right of retention (lien) for claims based upon the same contractual relationship as the counterclaim.
§4 Delivery, Delivery periods, partial deliveries
- Compliance with our delivery commitment shall depend on the timely and proper fulfilment of the Buyer’s obligations; in particular adherence to the agreed terms of payment. We re-serve the right to enter defence of non-performance.
- The delivery deadlines agreed in writing shall commence on the date of our confirmation, however not before clarification of all technical and commercial details as well as submission of any permits as may be required. Any modifications to the design of the delivery item requested by the Buyer within the delivery period shall stop the expiry of the delivery period and extend it accordingly.
- The occurrence of unforeseen events, force majeure and non-delivery for which our upstream suppliers are not responsible, shall entitle us to postpone delivery for the duration of the hindrance plus a reasonable start-up period.
- Partial deliveries shall be permissible to a reasonable extent.
- In the event of delayed delivery, the Buyer shall be entitled to set us a reasonable period of grace for delivery in writing. Should we fail to dispatch the delivery item during this period of grace, the Buyer shall be entitled to withdraw from the contract for those parts of the delivery that have not been dispatched prior to the expiry of the period of grace. We shall be liable for any damage demonstrably suffered by the Buyer as the result of a delay for which we were responsible. Our liability shall be limited to the extent that the Buyer may demand 0.5 per cent of the price of that part of the delivery that cannot be put into operation for the intended purpose as a result of the delay for each full week of delay, however, 5 per cent at the most. This is not connected with a modification of the burden of proof to the detriment of the Buyer. This shall not affect the Buyer’s statutory right of withdrawal.
- In the event of delivery being delayed owing to reasons for which the Buyer is to blame, we reserve the right to charge the Buyer storage charges in the amount of 0.5 per cent of the price of the objects, for each commenced month, however 5 per cent at the most. Upon expiry of a reasonable period of grace we shall be entitled to dispose of the delivery item other-wise as we see fit and the delivery to the Buyer with an extended delivery period. The parties to the agreement reserve the right to demonstrate that lower, higher or no storage costs were incurred. This shall not affect the statutory rights to with-draw from the contract and to claim damages.
- In the event of the Buyer delaying acceptance or breaching any other duties to cooperate incumbent upon him, we shall be entitled to demand compensation of any losses sustained by us including any additional costs incurred. We reserve the right to assert further claims.
§5 Dispatch, passing of risk
- Unless agreed to the contrary, delivery shall be effected at our option by the most appropriate means of dispatch. All deliveries shall be effected ex works, for the account and risk of the Consignee. At the Buyer’s request and against reimbursement of the extra costs we can also carry out other means off dispatch (e.g. express delivery) or partial delivery.
§6 Notification of defects, warranty, liability
- The Buyer must inspect the delivered goods following receipt with the necessary care and notify us in writing of any defects discovered in the course of the inspection immediately, however, not later than seven days following delivery (apparent defects) or discovery (hidden defects). Otherwise the delivered goods shall be deemed to have been accepted.
- Warranty claims shall not exist in the event of natural wear and tear or damage caused after the passing of risk as a result of incorrect or careless handling, excessive use, unsuitable resources or due to external influences that are not anticipated according to the contract. Likewise, no warranty claims shall arise for any improper modifications or maintenance work carried out by the Buyer or third parties or any resulting consequences.
- Given the existence of defects for which we are responsible, we shall at our option be entitled to remedy the defect or pro-vide a replacement.
- In the event of our refusing to remedy the defect or provide a replacement, if such remedial activities may be deemed unreasonable for the Buyer or if they fail, the Buyer may at his option either withdraw from the contract or reduce the purchase price by a reasonable amount. This shall, however, assume that there is no doubt as to the Buyer’s right to issue notice of defects. If the notice of defects is unjustified, we shall be entitled to demand the reimbursement by the Buyer of any costs incurred by us.
- Unless stipulated to the contrary in the following, all other warranty claims, in particular claims for damages in lieu or performance shall be excluded. Thus, we shall not be liable for damages not sustained by the delivery item directly; in particular, we shall not be liable for lost profits or other financial losses on the part of the Buyer.
- The aforementioned exemption from liability shall not apply to the extent that the damage is attributable to a grossly negligent or intentional breach of obligations or losses are asserted resulting from death, physical injury or impairments of health, or if the Buyer claims damages due to the absence of guaranteed quality. In the latter case, claims for damages may only be asserted to the extent that the guaranteed qualities covers the risk of consequential damages and the loss occurring is attributable to its absence.
- The warranty period shall be one year commencing on the passing of risk (section 5).
- The aforementioned provisions shall not affect claims arising from personal injury or damage to privately used objects according to the product liability act.
- On principle we shall take back originally-packed and unused goods within a period of five weeks following the receipt of the goods and pursuant to our prior agreement. On taking back originally-packed goods, we charge 25 % of the net value of the goods. In the event of our agreeing to take back goods not packed in their original packaging, any handling fees will be charged on a time and materials basis, but shall in any case amount to at least 20 % of the net value of the goods.
- Returned goods can only be accepted with the Lot-number.
- Special orders and custom-made products as well as sterile goods are generally non-returnable.
§8 Retention of title
- The delivered goods shall remain our property until all claims on our part against the Buyer arising in connection with the business relationship have been satisfied in full (reserved goods).
- In the event of breaches of duty on the part of the Buyer – in particular, should he default on payment – we shall be entitled to withdraw from the contract and take back the reserved goods; the Buyer shall be under obligation to hand over the goods. The taking back of goods or assertion of the right of retention shall not require the supplier to withdraw from the contract; these acts or the garnishment of the reserved goods on our part shall not constitute a withdrawal from the con-tract unless we explicitly pronounce this.
- Parties, irrespective or whether the goods were sold unprocessed or following further processing. The Buyer shall be entitled to collect this claim, even following assignment. This shall not affect our authority to collect the claim ourselves. We shall, however, undertake to refrain from collecting the claim as long as the Buyer meets his payment obligations from the proceeds received, does not fall into arrears and in particular no petition of bankruptcy has been filed or payments have been suspended. If this is the case, we shall be entitled to demand that the Buyer notifies us of the assigned claims and their debtors, furnishes us with all information necessary to collect the debt and submits too us all appropriate documents and notifies the debtors (third parties) of the assignment.
- During the reservation of title, the Buyer shall not be permitted to pledge or transfer the goods by way of security. The Buyer must notify us immediately in the event of distraint or seizure of the goods or any other disposal or third-party intervention, so that we may assert our rights. Insofar as the third party is unable to reimburse the court and out-of-court costs expenses of a lawsuit pursuant to § 771 Code of Civil Procedure (ZPO), the Buyer shall be liable for any loss incur-red by us.
- The Buyer shall be under obligation to take good care of the object of sale and shall in particular be under obligation to insure the same sufficiently against fire damage, water damage and theft at the replacement value at his own expense. If and to the extent that maintenance and inspection work becomes necessary, the Buyer must carry these out at his own expense in a timely fashion.
- The processing or remodelling of the object of purchase by the Buyer shall take place for us. If the object of purchase is processed or inseparably commingled with objects not belonging to us, then we shall obtain co-ownership of the new object in a ratio of the value of the object of purchase (invoice amount, including VAT) to the value of the other objects at the time of processing or commingling. For the rest, the same shall apply to the object resulting from the processing or commingling as for the object of purchase delivered conditionally. If the commingling is effected in a manner that the object of the Buyer may be seen as the main thing, it is agreed that the Buyer shall assign to us pro rata co-ownership. The Buyer shall keep the resulting sole or co-ownership on our behalf.
§9 Effectiveness of the contract
- Should one or more provisions of these General Terms of Delivery and Payment be or become ineffective, this shall not affect the remaining provisions. Rather the ineffective provisions shall be replaced by provisions coming as close as possible to the perceivable interests.
§10 Place of performance, jurisdictions and applicable law
- Our place of business shall be the place of performance and jurisdiction for all rights arising in connection with our deliveries and services. We shall at our option be entitled to bring action at the Buyer’s place of business.
- These Terms and Conditions shall be governed exclusively by the law of the Federal Republic of Germany, with the exclusion of the UN law on sales (CISG).
- The data provided by the Buyer shall, to the extent that this is permissible in accordance with the data protection law, be stored and processed electronically.