1. Application
1.1
The following Terms of Delivery and Payment apply for all products and services provided by us to companies as defined by § 13 BGB.
1.2
Contradictory conditions of purchase or other conditions of business of the customer will not apply, even where these have not been explicitly contradicted by us. Alternative arrangements will apply only if agreed in writing.
1.3
These Terms of Delivery and Payment apply for all future contractual relationships between the contracting parties without any explicit reference being made to this fact in individual cases.
2. Conclusion and modification of contract
2.1
Unless expressly stated to be binding, our quotations are made without engagement. A fully effective contract comes into being only with our acknowledgement of the customer‘s order. This may be by delivery of the goods ordered or by performance of the agreed services.
2.2
The content of the contract is defined solely by our order acknowledgement. This may take the form of an invoice enclosed with the products.
2.3.
Should the customer have any objection to the content of our order acknowledgement, he should notify us of this immediately.
2.4
Alterations and additions to the contract become effective only when acknowledged by us in writing.
3. Prices
3.1
Unless otherwise agreed in writing, the prices indicated in the price list or catalogue in force at the time of conclusion of the contract apply.
3.2
All prices indicated in price lists and catalogues are in Euros. The prices apply „ex works“ Ispringen and do not include packaging, value-added tax, dispatch and insurance costs. The costs of transit insurance and dispatch will be borne by the customer in accordance with the special regulations published in our catalogues and price lists.
3.3
We reserve the ri. to make an additional charge for the supply of small orders, and to charge a processing fee for delivery to an address requested by the customer which differs from that of the invoice address. The limit in value for small orders and the amounts of additional charges and fees are indicated in our catalogues and price lists.
4. Delivery periods
4.1 Unless otherwise explicitly agreed, the delivery times stated by us are without obligation.
4.2
An explicitly agreed delivery time is considered to be fulfilled when the products are dispatched from our plant in Ispringen before its expiry, or we have notified the customer of readiness for dispatch before its expiry.
4.3
The delivery period will be extended automatically by a reasonable amount in case of force majeur, strike, lockout, delay in delivery by sub-suppliers, action by public authorities and other unusual circumstances not attributable to us where these have an effect on the date of delivery. Should these circumstances persist for longer than four months, the contracting parties will be entitled to withdraw from the con-tract. If requested to do so by the customer, we must declare whether we intend to withdraw from the contract or deliver within a period of time to be set by us. Any claims for compensation in this respect will not be accepted.
4.4
In case of delay in performance, we will not be deemed to be in arrears where this is due to circumstances which were not reasonably foreseeable and impossible to avoid by reasonable action on our part.
4.5
Should the delay in delivery be attributable to us, the customer will be entitled to withdraw from the contract after setting us a reasonable period of notice in writing and we have failed to deliver before expiry of this period.
4.6
We are entitled to withhold performance in cases where the customer has not fulfilled his obligations arising from this or any other contract, or any other legal obligation.
5. Partial delivery, delivery by call
5.1
We reserve the ri. to fulfil our obligations by delivering partial quantities where this can be reasonably expected of the customer. These partial deliveries are regarded as independent transactions which are payable separately in accordance with section 7. Should payment of such a partial delivery not be received punctually, we will be entitled to refuse to make any further deliveries.
5.2
In case of products ordered on call-off, the customer must call these off in full within six months unless an alternative period has been agreed by contract. The products must be called-off within a reasonable period before the date of delivery.
6. Transport and transfer of risk
6.1
Unless otherwise agreed, the products will be dispatched and transported at the customer‘s cost. The transit risk will be borne by the customer even in exceptional cases where we have assumed dispatch and transport costs.
6.2
Unless otherwise agreed, the means of transport will be determined by us. We accept no responsibility for selection of the most economical or fastest means of transport.
6.3
Except in cases of gross negligence or criminal intent, claims for damage resulting from failure to comply with dispatch instructions or defective packaging of the product will not be accepted by us.
6.4
The risk will pass to the customer at the moment of transfer of the product to the carrier in Ispringen.
In case of delay in collection, delivery or dispatch of the product for reasons attributable solely to the customer, or of failure by the customer to place his call-off orders in time, all risks, including the risk of deterioration or irreparable damage to the product, will pass to the customer upon notification of readiness for dispatch. If, in such cases, the product is placed in storage, the customer will pay reasonable costs of storage unless he is able to demonstrate that low. or no storage costs have been incurred. Should the product be stored by third parties, he will be responsible for the actual costs incurred.
6.5
In case of loss or damage of the product in transit, the customer must arrange immediately for an investigation to be made by the carrier or transport company.
6.6
Raw materials and partially finished products supplied for the purpose of processing will be transported at the cost and risk of the customer.
7. Conditions of payment
7.1
Unless otherwise agreed, our invoices are payable net within 30 days of the transfer of risk in accordance with section 6.4. 2% discount on the net value of the product will be granted for payment received within ten days.
Spare parts, special products, labour costs and repair work are payable immediately in ful
l. This also applies for small orders (for value limits, please refer to the provisions contained in our price lists and catalogues).
7.2
Without the necessity of an explicit agreement, the customer is responsible for all costs arising in connection with payment such as collection charges, fees for discount and bills of exchange etc. Payment by check or bill of exchange must be agreed in advance. These means of payment will be accepted only with a view to payment. No discount will be granted in case of payment by bill of exchange.
7.3
By exceeding the agreed payment deadline, the customer will be deemed to be in arrears. In such cases, we will be entitled to payment of interest amounting to 8% above the standard rate. This will have no effect on our entitlement to claim further compensation for damages.
In case of arrears in payment, we reserve the ri. to offset any payment made by the customer against previously existing debts.
7.4
Should the customer be in arrears of payment or should, after conclusion of the contract, circumstances become known to us which throw serious doubt on his solvency or credit wothiness (e.g. diminution of assets, suspension of payment, indebtedness, protested bills of exchange or checks, application for initiation of insolvency proceedings, or initiation or refusal of such) we will be entitled to withdraw from the contract. Such withdrawal will have no effect on our entitlement to claim further compensation for damages. Claims for compensation on the part of the customer will not be accepted.
In case of such deterioration in the assets of the customer, all claims arising from the current business relationship (including postponed payments) will become due for immediate payment. Moreover, we reserve the ri. to refuse to make further delivery of products or provide other services, to require advance payment or reasonable securities for our counter claim.
7.5
Only in the case of undisputed or legally binding claims may the customer offset any claims against us or make use of his ri. to withhold payment. The ri. of the customer to withhold a reasonable portion of the payment because of a deficiency in the product or service provided by us will however remain unaffected.
8. Reservation of title
8.1
We reserve title to all the products supplied by us until full payment of the pur-chase price has been made and all other claims against the customer have been fulfilled.
If, in view of the customer‘s payment obligation, we hold him liable for bills of exchange, the reservation of title will not expire until all bills of exchange have been honoured in full.
8.2
During the reservation of title, the customer is entitled to possession of the product. He is also entitled to dispose of the product within the context of his ordinary business activity. Extraordinary dispositions such as transfer of security, mortgage and assignment of any kind are excepted.
8.3
In case of sale, the customer hereby transfers the resulting claim for payment of the value of the products (final invoice sum including statutory value-added tax) as well as all other claims and subsidiary ri.s to us. The customer is entitled to collection of the claim. Our own ri. to collection will remain unaffected.
8.4
In case of infringement of the contract on the part of the customer, in particular in case of arrears of payment, we will be entitled to take possession of the product and revoke authorisation to collect any claims arising from re-sale of the product. In such a case, the customer must, on request, provide us with all the information necessary for the assertion of his ri.s and notify the debtors of the transfer of his claim.
8.5
The customer undertakes to inform us immediately in writing of any distraint, disposition, or other intervention by third parties or any action taken by public authorities. The customer is responsible for payment of all costs arising in connection with the reversal of such intervention and recovery of the delivered product inasmuch as this cannot be distrained upon by the third party.
8.6
Any processing by the customer of products subject to reservation of title is done on our behalf. In accordance with § 950 BGB, we are considered to be the manufacturer. Should the products subject to reservation of title be inseparably mixed, blended or connected to other objects not belonging to us, in such a way that they become an important part of a unit, we acquire title to the new object up to an amount corresponding to the relation between the sum finally invoiced (i.e. including statutory value-added tax) for the products supplied, and the purchase or manufacturing price of the new object at the time of processing. If such processing is such that the object of the customer should be regarded as the main object, we will acquire a proportion of the title to the object as defined above.
8.7
Should the value of the securities exceed the claims by more than 10%, we will, on request, release securities at our discretion.
9. ri.s of the customer in case of defect of material and title (guarantee)
9.1
The customer undertakes to examine the product immediately on receipt and to notify immediately in writing any apparent defects. Should a defect not be apparent at delivery, he must notify such defect immediately upon its discovery. The customer will lose his ri. to claim against such defect if he fails to notify it in writing with an exact description immediately after he has discovered, or should have discovered the defect.
9.2
Should the product be defective at the time of transfer of risk, we will be enti-tled to fulfil our contractual obligation by removing the defect or by supplying a defect-free product in exchange for the defective product supplied.
In cases where it is no longer possible to fulfil our obligation, where such fulfilment has failed or would be unreasonable for the customer, or where we have refused such fulfilment or allowed a reasonable period of notice set by the customer to expire without compliance, the customer will be entitled to reduce payment or withdraw from the contract at his discretion. Should the defect be of an insignificant nature, the customer will be entitled only to reduce the payment.
The cost of repair or reworking of defective products by the customer or third parties will be borne by us only with our prior explicit consent. Repair or reworking of defective products without our consent will invalidate any claim on the part of the customer.
9.3
The ri.s of the customer with regard to defects will expire 24 months after provision of the product or service. In cases where the acceptance of the product is delayed for reasons not attributable to us, notification of readiness for dispatch will be regarded as the date of provision.
9.4
Claims under guarantee will not be accepted if a defect is attributable to unsuitable or improper use, negligent or incorrect treatment, installation or start-up by the customer or third parties, reasonable wear and tear, inexpert maintenance, incorrect repair or modification, or disregard of operating instructions or any other product information provided by us.
No guarantee exists for material supplied by the customer or purchased in accordance with his specification or designs provided by him.
9.5
In cases where we fraudulently conceal a defect or explicitly assume a guarantee for the quality of the product, the provisions of the law will apply.
9.6
For claims for compensation due to defect of material or title, the limitation of liability defined in section 10 will apply.
10. Liability
10.1
The following liability provisions apply for all claims for compensation by the customer regardless of their legal reason.
10.2
Our liability is limited to criminal intent and gross negligence. In cases of slight negligence, we will be liable only in case of infringement of a significant contractual obligation.
10.3
No other claims on the part of the customer will be accepted, regardless of their legal reason. This includes in particular all claims for compensation, claims in lieu of performance, remuneration of fruitless expenses and compensation for damages of all kinds incurred in the preparation, conclusion or execution of the contract, and in connection with the infringement of precontractual or contractual obligations and subsidiary obligations or prohibited action or guarantee.
10.4
Except in cases of criminal intent or gross negligence, our liability is limited to compensation for damage sustained in a manner typical of normal execution of the contract, or which are reasonably predictable in the course of normal business and which are documented individually.
10.5
No claims for damage by the customer which are based on delay will be accepted unless such delay is attributable to criminal intent or gross negligence.
10.6
Limitations of liability will not apply in cases where a guarantee has been explicitly assumed, in cases of fraud, and in cases of statutory product liability for damage or injury. This will not apply for claims for compensation based on intentional or negligent damage to life, limb or health.
11. Special products – infringement of proprietary ri.s
11.1
In cases where the product or other service is provided in accordance with drawings, samples or other specifications or using parts provided by the customer (special product), the customer must ensure that no commercial proprietary ri.s of third parties are violated thereby. The customer undertakes to hold us harmless against any claims by third parties arising from the violation of proprietary ri.s and to compensate us for damage sustained thereby as well as other expenses including legal and attorney‘s fees.
11.2
Special products will not be exchanged or returned.
11.3
We undertake to retain equipment and moulds for subsequent orders. This obligation of safekeeping will expire if no other orders are placed by the customer for an identical object within a period of two years after the previous order. The obligation of safekeeping will expire forthwith in case of delay in payment of products supplied.
12. Proprietary ri.s, copyri. etc.
12.1
All sales documents (catalogues, price lists) drawings, samples, patterns and other documents made available to the customer remain our property. All ri.s therein, in particular copyri., patent ri.s and other industrial proprietary ri.s as well as all ri.s in inventions remain with us alone. The customer must not make these available to third parties and must return them on demand.
12.2
The customer may use our trademarks and other markings only with our prior written consent and only in our interest. 13. Applicable law, place of fulfilment, legal domicile
13.1
The contractual relationship is subject only to the law of the Federal Republic of Germany. International commercial law will not apply.
13.2 Place of fulfilment for supplies and payments will be Pforzheim-Ispringen.
13.3
Where the customer is a businessman, a civil-law entity or a special public fund, or the customer has no general legal domicile in the Federal Republic of Germany, Pforzheim will be the legal domicile for all disputes arising from this contractual relationship, its conclusion and effectiveness, and all disputes involving checks and bills of exchange. We reserve the ri. to take legal action at the customer‘s legal domicile.