Our general terms of business
1.1 Our General Terms & Conditions shall apply exclusively; we will not acknowledge terms & conditions of the Purchaser that contradict or deviate from our Terms & Conditions unless we have expressly agreed to their application in writing. Our Terms & Conditions shall apply even if we execute a delivery to the Purchaser without reservation in knowledge of terms & conditions of the Purchaser that contradict or deviate from our Terms & Conditions.
1.2 Our Terms & Conditions shall apply only vis-à-vis entrepreneurs within the meaning of § 310 of the German civil code [BGB].
1.3 The relevant version of our Terms & Conditions shall also be considered a framework agreement in all future transactions of any kind with the Purchaser, without us having to refer to them again in each individual case; in this case, we will inform the Purchaser of any changes immediately.
§2 Quotes, prices
2.1 Our quotes shall be non-binding and subject to confirmation unless, by way of exception, the quote expressly includes an intention to enter into a legally binding relationship. A contract shall come into being only upon receipt of order confirmation from us, and exclusively under the conditions confirmed by us in writing. This shall also apply to orders and other data sent to us in electronic form, which shall be considered received only with the content that reaches us. Verbal side agreements and guarantees shall require our written confirmation in order to be effective.
2.2 Prices are exclusive of statutory value-added tax for delivery ex works (Incoterms 2010) Benzstraße 9, 49076 Osnabrück, Germany. We are entitled to increase the agreed price of deliveries if the costs of raw materials, energy, wages and salaries, freight, customs, duties, etc. have increased between issue of order and delivery, making manufacturing of the delivery more expensive. Any price increase shall be communicated to the Purchaser in advance; he may object to the price increase within seven days of receiving such notification. In the event of objection we may choose between withdrawing from the contract or delivering at the price originally agreed. We must inform the Purchaser of our decision immediately. Should we declare that we intend to withdraw from the contract, further claims of the Purchaser shall be excluded.
§3 Delivery, execution
3.1 Compliance with all of our delivery and execution obligations depend upon the Purchaser's timely and correct fulfilment of his obligations.
3.2 Unless otherwise agreed, delivery of all products and goods are ex works (Incoterms 2010) Benzstraße 9,49076 Osnabrück, Germany, even if we deliver carriage paid.
3.3 Partial deliveries are permitted if:
• the partial delivery can be used by the Purchaser within the scope of the contractual intended use,
• delivery of the remainder of the ordered item is guaranteed, and
• the Purchaser incurs no significant additional expenses or costs (unless
we declare that we are prepared to cover such costs).
3.4 Customary deviations of the delivered item from order confirmations, quotes, samples, brochures, datasheets, trial deliveries and advance deliveries are permitted in line with the applicable DIN/EN standards or other applicable technical standards.
3.5 Should the outdoor temperatures be too high in the summer months, we reserve the right to stop deliveries temporarily. During this time we will not dispatch any goods. Orders will delivered at the next possible date. We will inform you of any such hold on deliveries immediately.
3.6 Delivered items from correctly implemented deliveries may be returned only if we agree to take them back. In this event, the Purchaser shall bear the cost of making the return.
3.7 Force majeure, official regulations and other circumstances for which we are not responsible – particularly traffic disruptions, malfunctions, industrial disputes, material shortages, fire damage, war, states of emergency and other cases of force majeure – shall free us from our obligation to deliver and execute for the duration of effects. We are entitled to withdraw from the contract if fulfilment of the contract is no longer reasonable for us for the aforementioned reasons. No compensation may be claimed from us in such an event.
3.8.1 In the event of impossibility of or delay in performance, we are liable in line with the statutory provisions if such is due to intent or gross negligence, including intent or gross negligence by our representatives or vicarious agents. In cases of gross negligence, however, our liability is limited to contract-typical foreseeable damage.
3.8.2 In the case of minor negligence, our liability for impossibility is limited to compensation and reimbursement of wasted expenses, and again to contract-typical foreseeable damage. Further claims of the Purchaser based on impossibility of performance are excluded. The Purchaser's right to withdraw from the contract will remain unaffected.
3.8.3 Our liability for delay in performance caused by minor negligence is limited to a total of 10 % for compensation alongside performance and to a total of 10 % of the value of performance for compensation instead of performance. Further claims of the Purchaser based on delay in performance are excluded, including after expiry of a period granted for us to render performance. These regulations also apply to reimbursement of wasted expenses.
3.8.4 The limitations of the present § 3, Item 7 do not apply if we are liable due to death, injury or impaired health or due to violation of key contractual obligations. Key contractual obligations are those whose fulfilment shapes the contract and in which the Purchaser may trust. The above regulations are not associated with a change in the burden of proof to the disadvantage of the Purchaser.
4.1 Unless otherwise agreed, we must receive the invoice amount – strictly net – 30 days after the invoice date at the latest; the date of effective receipt (value date) in our account will be decisive.
4.2 Payments should be made only by bank transfer or SEPA direct debit.
4.3 For payments using the SEPA direct debit method, the Purchaser must provide us with a SEPA company mandate. The direct debit will generally be taken one day after the invoice date. The period for pre-notification will be shortened to two days. The Purchaser undertakes to ensure that the account has sufficient funds. Costs incurred as a result of the direct debit being dishonoured or reversed shall be borne by the Purchaser, as long as we are not responsible for such.
4.4 The Parties may agree that the Purchaser must conclude a documentary credit arrangement with his bank (or a [different] bank that is acceptable to us). In this event it is noted that the opening of the letter of credit must be carried out in accordance with the Uniform Customs and Practice for Documentary Credits, Revision 2007, ICC Publication No. 600 ("UCP").
4.5 The Purchaser shall only have a right to offset or a right of retention if his counter-claims are legally established, undisputed or recognised by us, or insofar as such affects counter-performance resulting from the contractual relationship, particularly in the event of a counter-claim that has arisen from a claim for performance in kind that involves a right to refuse performance. The Purchaser is entitled to exercise his right of retention only insofar as his counter-claim concerns the same contractual relationship.
§5 Self-supply clause
We do not assume the procurement risk. If, despite concluding a corresponding purchase contract, we do not receive the item in full for delivery, or if we receive said item without essential parts, we are entitled to withdraw from the contract with the Purchaser. Our responsibility for intent and negligence remain unaffected. We will inform the Purchaser of the unavailability or untimely availability of the item for delivery immediately and, should we intend to withdraw, exercise our right of withdrawal immediately. In the event of withdrawal, we will return any counter-performance rendered by the Purchaser immediately.
§6 Due date, interest, consequences of default
6.1 In the event of payment after the payment deadline of 30 days, or a different, individually agreed payment deadline, due default interest shall be paid to us in the amount prescribed by law. Claims for compensation going beyond this will not be affected.
6.2 We are not obligated to make further deliveries – regardless of the legal grounds on which our obligation to deliver is based – for as long as the Purchaser is in default on payment.
6.3 Should the Purchaser’s asset situation deteriorate significantly – particularly if an application to launch insolvency proceedings is submitted – we may request cash payment or another security for outstanding deliveries before dispatching the item for delivery; the payment deadline will no longer apply.
6.4 Further, if the Parties have agreed that payment will be made in instalments and/or on account, the following shall apply: Should the Purchaser be behind on payment of all or part of an instalment or account payment for longer than three days, the remaining outstanding balance shall be due immediately and in full.
6.5 Should the Purchaser be in default on acceptance on the due date, he shall still have to pay the purchase price. In such cases we will store the item for delivery at the Purchaser's risk and expense.
6.6 If a security for payment of the purchase price has been provided by a bank or other third party and the item cannot be delivered for reasons for which we are not responsible, we are also entitled to claim the total purchase price still outstanding from the bank or third party upon presentation of evidence that the item for delivery has been stored. Such storage shall be at the Purchaser's expense and risk. The date on which we put the item into storage shall be considered the delivery date. All delivery documents and other documents that we must hand over to obtain payment from a bank or other third party must be provided to us immediately by the issuer of said documents.
§7 Retention of title
7.1 We reserve ownership of the delivered item until fulfilment of all claims that we have against the Purchaser under the business relationship. In the event that the Purchaser behaves in a manner that is contrary to the contract – particularly being in default on payment – we are entitled to withdraw from the contract upon expiry of a reasonable grace period. After withdrawing from the contract we are entitled to reclaim the delivered item, sell on the delivered item, or otherwise dispose of the delivered item.
7.2 The Purchaser shall handle the delivered item with care; in particular, he shall ensure that it is sufficiently insured at its reinstatement value against damage caused by fire, water and theft, at his own expense.
7.3 Despite the retention of title, the Purchaser is entitled to sell on the delivered item as part of normal business transactions. The Purchaser hereby cedes receivables from the customer under the sale of the delivered item to us in the amount of the final invoice amount agreed with us (including value-added tax). Such cession shall apply regardless of whether the delivered item has been modified before being sold. The Purchaser remains authorised to collect the receivables, even after cession. Our authority to collect such receivables ourselves are not affected. However, we will not collect receivables as long as the Purchaser meets his payment obligations from the received income, is not in default on payment and, particularly, has not applied to launch insolvency proceedings or is bankrupt.
7.4 The Purchaser must inform us immediately and in writing of seizure or other interventions by third parties so that we may take legal action in accordance with § 771 of the German code of civil procedure [ZPO]. If the third party is unable to reimburse us for the costs of the action incurred both in and out of court, in accordance with § 771 ZPO, the Purchaser shall be responsible for our losses.
7.5 The Purchaser's modification or restructuring of the delivered item shall always be on our behalf. If the delivered item is modified along with other items that do not belong to us, we shall obtain co-ownership of the new item in a proportion that corresponds to the value of the delivered item (final invoice amount including value-added tax) as compared with the other modified objects at the time of modification. The same applies to the modified item as applies to the item delivered under retention of title.
7.6 If the delivered item is permanently combined with other items that do not belong to us, we shall obtain co-ownership of the new item in a proportion that corresponds to the value of the delivered item (final invoice amount including value-added tax) as compared with the other combined objects at the time of combination. Should combination be carried out in such a way that the Purchaser's item would be considered the main item, it is agreed that the Purchaser shall grant us proportional co-ownership. The Purchaser shall keep the resulting solely owned or co-owned item for us.
7.7 We undertake to release the securities due to us at the Purchaser's request if the realisable value of our securities exceeds the receivables to be covered by more than 10 %. We will select the securities to be released at our own discretion.
§8 Notification of defects, claims for defects, compensation
8.1 Claims for defects by the Purchaser shall depend upon him meeting his obligations to inspect and provide notification in accordance with § 377 of the German commercial code [HGB].
8.2 No warranty shall be provided for special items, e.g. "B goods".
8.3 Weights, dimensions, performance specifications and other information specified in sales brochures, advertisements and other similar documents should be considered simply as a guide. The same shall apply to any samples shown or provided.
8.4 If there is a defect in the delivered item for which we are responsible, we are entitled to choose between rendering supplementary performance, in the form of remedying the defect, or supplying a new, defect-free item. In the case of remedying of the defect we will bear all expenses required to implement such, namely transport, tolls, labour and material costs, insofar as these are not increased due to the delivered item being taken to a location other than the place of performance.
8.5 Should the supplementary performance fail, which will be considered the case after the second attempt at improvement or supplementary performance at the earliest, the Purchaser is entitled to choose between withdrawing from the contract and requesting a reduction. Unless specified otherwise below (§§ 8.6, 8.7 and 8.8) further claims of the Purchaser – on whatever legal grounds – are excluded. As such, we will not be liable for damage not caused to the delivered item itself; in particular, we will not be liable for production downtime, service interruption, the costs of any recall campaign, lost profit or other pecuniary damages suffered by the Purchaser.
8.6 We will be liable in line with the statutory provisions if the Purchaser asserts claims for compensation based on intent or gross negligence, including intent or gross negligence by our representatives or vicarious agents. As long as we are not guilty of deliberate violation of contract, liability for compensation shall be limited to foreseeable, typical damage.
8.7 We will be liable in line with the statutory provisions if we culpably violate a key contractual obligation; key contractual obligations are those the fulfilment of which shapes the contract and in which the Purchaser may trust. In this event , however, our liability for compensation will be limited to foreseeable, typical damage.
8.8 Liability for culpable death, injury or impaired health shall remain unaffected; this shall also apply to mandatory liability in accordance with the German product liability act [ProdHaftG].
§9 Rights to intellectual property and industrial property rights, confidentiality
9.1 All rights to intellectual property and industrial property rights regarding products, estimates, drafts, drawings and other documents, e.g. patents, utility models, designs, copyrights and labelling rights, shall remain with us. The Purchaser shall assert no rights to intellectual property or industrial property rights to products or alterations to products.
9.2 Any further liability of our company based on violation of the rights listed in § 9.1 of third parties is excluded, except in the event of gross negligence or intent. Under no circumstances will we be liable towards third parties for claims based on violation of the rights listed in § 9.1 if the claims are associated with illustrations, drawings, catalogues, specifications or other materials supplied to us by the Purchaser or on his behalf.
9.3 Subject to the aforementioned limitations of liability, we will defend the Purchaser against any claims derived from a violation of the rights listed in § 9.1 through contractually compliant use of our products, and assume costs and compensation payments imposed upon the Purchaser, if he informs us of such claims immediately and in writing and we retain responsibility for all defensive measures and settlement negotiations.
9.4 All information and documents that we supply to the Purchaser shall remain our property, must not be copied or disclosed to third parties by the Purchaser, and must be used only for the agreed purposes. Drawings and other documents belonging to quotes must be returned to us upon request.
9.5 If we have delivered items based on drawings, models, samples or other documents provided by the Purchaser, he shall assume responsibility for property rights of third parties not having been violated. Should a third party call upon property rights to prohibit us from, in particular, manufacturing and delivering such items, we will – without being obligated to investigate the legal situation – be entitled to cease further activity and request compensation in the event of culpability by the Purchaser. Further, the Purchaser undertakes to indemnify us immediately for all associated claims of third parties.
§10 Exclusion of further liability
10.1 Liability for compensation that goes further than that specifically foreseen in the above provisions is excluded, regardless of the legal nature of the asserted claim. This applies particularly to claims for compensation based on culpa in contrahendo or other violations of obligation, or claims for compensation for material damage under tort in accordance with § 823 BGB. In addition, we will not be liable if a claim is asserted against the Purchaser under the provisions of industrial property law.
10.2 The limitation set out in § 10.1 also applies if the Purchaser requests compensation for wasted expenses instead of claiming damages in place of performance.
10.3 If our liability for compensation is excluded or limited, this shall also apply with regard to the personal liability for compensation of our employees and staff, employee representatives and vicarious agents.
Claims of the Purchaser against us – on whatever legal grounds – shall expire one year after they arise. This shall not apply in cases that fall under §§ 438 Para. 1 No. 2 and 634a Para. 1 No. 2 BGB. It shall also not apply in the case of intent or fraudulent concealment of a defect, or if we have assumed a guarantee. In addition, this limitation period shall not apply to claims for compensation in the event of death, injury, impaired health, violation of liberty, claims under the German product liability act, violation of obligations through gross negligence, or violation of key contractual obligations; key contractual obligations are those the fulfilment of which shapes the contract and in which the Purchaser may trust. The above regulations are not associated with a change in the burden of proof to the disadvantage of the Purchaser.
12.1The place of jurisdiction shall be 49076 Osnabrück, Federal Republic of Germany. We are also entitled to take legal action at the court responsible for the Purchaser, or at any other court that may be responsible under national or international law.
12.2 The Purchaser declares that he agrees to our saving data in accordance with the German data protection act [BDSG].
12.3 The Purchaser shall not transfer any guarantee or warranty rights or other rights granted to him within the scope of the contractual relationship with us unless we have agreed to such transfer in writing.
12.4 If the Purchaser sells the delivered item to a third party, or exports it, he shall always observe the importing and exporting laws applicable to such sales.
12.5 These Terms & Conditions are subject to the law of the Federal Republic of Germany, to the exclusion of the conflict of law rules of German Private International Law and the UN Convention on Contracts for the International Sale of Goods.