Our general terms and conditions form part of each contract that is concluded between us and our customers. We hereby expressly object any terms and conditions of purchase of the buyer which run contrary to the sales terms and conditions for the sale of goods below. All agreements which are made between us and the ordering party in connection with the performance of the contract must be made in writing.
Quotations and conclusion of the contract
Product specimens and brochures merely represent non-binding visual documentation and in terms of analysis and characteristics, they are only approximate. With regard to the weight, volumes and/or dimensions of our goods, the weight, volumes and dimensions established with the dispatch shall apply.
Quotations and conclusion of the contract
If fixed prices are agreed, the applicable prices on the delivery date shall apply. Additionally, in the case of confirmed orders, we reserve the right to increase prices proportionately if, after the contract is concluded yet before delivery takes place, cost factors change relating to force majeure, a lack of raw materials/labour, industrial disputes, administrative provisions, disruptions to transportation or difficulties in procuring the means of transport and where these factors actually have an impact at our expense. The applicable VAT is not included in our prices. In each case, it is charged separately.
Unless agreed otherwise, our invoices are due for payment without deductions once delivery has been made to the customer and the invoice has been received. The customer defaults if, without a further request for a payment to be made, he does not fulfil his obligation to make the payment within 30 days of the due date. A payment is only made when we have access to the funds. Offsetting and retention is only permitted in conjunction with indisputable or legally established claims. If the customer is not an entrepreneur in accordance with the provisions of the German Commercial Code or an entity under public law, the customer shall not be entitled to any right of retention under the aforementioned limitation if it is based on the same contractual relationship. If the period allowed for payment is exceeded, notwithstanding other rights, we are entitled to demand default interest in accordance with sect. 288 para. 1 German Civil Code, as amended. If there are legitimate grounds to doubt the ability of the buyer to pay or the credit worthiness of the buyer, we are entitled to demand securities or advance payments for outstanding deliveries and declare all claims from the business relationship as immediately due.
Right of retention
The goods shall remain our property until full payment has been made. If the customer is an entrepreneur in accordance with the provisions of the German Commercial Code or an entity under public law, the retention of title only expires when all (balance) receivables which we are due from the business relationship (either now or in the future) with regard to the customer are settled, irrespective of the legal basis. Processing, installation and alterations always take place for us as a manufacturer, however without any obligation on our part. If ownership lapses as a result of the goods being used in combination with others or processed, it is hereby agreed that the customer’s ownership of the single item shall pass to us as percentage of the value (using the invoiced value as a basis). The customer shall keep the (joint) property safe free of charge. In the following section, goods which we are entitled to as (joint) property shall be referred to as goods subject to the retention of title. The buyer is entitled to process and sell the goods subject to the retention of title in the proper course of business as long as he does not default with his obligations to make a payment. Any pledging of goods or conveyancing of securities are not permitted. As a security, the buyer hereby cedes receivables arising from the resale or any other legal basis (insurance, civil offences) to us in full. We clear the ceded receivables in cases where the realisable value of the receivables ceded in advance exceed the secured claim by 10 % and above. The buyer shall authorise us to recover the receivables ceded to us in our name at the buyer’s expense. We are obliged however not to recover the receivables as long as the buyer fulfils his obligations to make payments from the agreed proceeds, does not default and in particular, is not presented with an application to open insolvency proceedings or where payments are stopped. If this is the case, we can demand that the buyer discloses the ceded receivables, discloses all of the necessary information for the recovery, surrenders the corresponding documents and informs garnishees of the cession. In the case of sharing of the goods subject to the retention of title, the buyer shall point out our property rights and inform us straight away. The buyer shall bear any costs and damages that may arise.
Where the buyer is an entrepreneur in accordance with the provisions of the German Commercial Code or an entity under public law, he must check whether the supplied goods are faultless and, as the case may be, establish whether they are suitable for the intended purpose by means of trial processing. Accordingly, complaints and notices of defects will only be recognised if they are made to us in writing (or by fax) straight away after the shipment has been received (in the case of concealed defects, immediately after they are discovered), however 6 months following delivery of the goods to the shipment address at the latest. Where the buyer is not an entrepreneur in accordance with the provisions of the German Commercial Code or an entity under public law, he must likewise check whether the supplied goods are faultless and, as the case may be, establish whether they are suitable for the intended purpose by means of trial processing. Accordingly, in the case of exposed defects, complaints and notices of defects will only be recognised if they are made to us within two weeks after the shipment has been received (in the case of concealed defects, within 6 months following receipt of the goods). If there is a defect related to the purchased object which we are responsible for, we are entitled, to choose whether to rectify the defect or deliver a replacement. If the rectification of the defect /replacement delivery fails, the buyer is entitled to choose whether to demand cancellation of the sale or to reduce the price that is paid. If the purchased object is lacking an assured characteristic, we are liable to pay compensation due to failure to fulfil obligations (in accordance with the statutory provisions of sects. 463, 480 para. 2 German Civil Code). This does not apply if the purpose of the respective assurance merely extends to the contractuality of the delivery in question, not to the risk of consequential harm caused by a defect. The warranty does not encompass the type of damage which, after the transfer of risk, arises as a result of improper treatment or storage or due to external influences which are not assumed by the contract. We are liable in accordance with the statutory provisions if the buyer asserts claims for damages which are based on intent or gross negligence on our part (including the intent or gross negligence of our representatives or vicarious agents). In as far as we are not charged with any intentional breach of contract, our liability to pay damages is limited to foreseeable damage that may typically occur. Furthermore, we are liable in accordance with the statutory provisions, if we culpably breach a fundamental contractual obligation; in this case however, our liability to pay damages is limited to foreseeable damage that may typically occur. For the rest, we are not liable to pay damages and in this respect, we are not liable for damages which do not arise from the article of sale itself. The mandatory provisions of the Product Liability Act remain unaffected. German law relating to warranties and compensation shall apply exclusively. Other than German law, the application of any other laws relating to warranties and compensation is hereby excluded.
We offer our application-related, technical consultancy services to the best of our knowledge and experience. They do not absolve the buyer from his duty of care to check our application recommendations with regard to the respective operational conditions through his own trials. With regard to our application-related, technical consultancy services, for which no separate charge is made on our part, we are only liable in the case of intent or gross negligence on our part (including the intent or gross negligence of our representatives or vicarious agents). In as far as we are not charged with any intentional breach of contract, our liability to pay damages is limited to foreseeable damage that may typically occur.
Regardless of the legal nature of the asserted claim, we hereby rule out liability for damages that goes beyond sects. 5, 6 and 7[u1] . In particular, this applies to claims for damages that arise out of fault when concluding a contract, a positive breach of contract or tort claims in accordance with sect 823 et seqq. German Civil Code. Claims for damages due to impossibility or inability remain unaffected. The same applies if the liability is mandatory, due to the provisions of the Product Liability Act. If the liability for damages is ruled out on our part or restricted, this also applies with regard to the personal liability (for damages) of our staff, representatives and vicarious agents.
The place of performance and the place of jurisdiction shall be Dillingen. We reserve the right however to take out legal action against the, customer at his main place of business or at a place where his branch office(s) is/are located. The law of the Federal Republic of Germany shall exclusively apply to the business relationship between us and the customer. The UN convention on contracts for the international sale of goods (CISG) shall not apply. Reference is made to the fact that the delivered goods may, if necessary, need approval in accordance with German export law and/or may be subject to the export restrictions of the USA or the atomic weapons non-proliferation treaty. These rules must be followed when exporting the delivered goods and/or selling the delivered goods on.
If one of the aforementioned provisions (or part thereof) is or becomes ineffective, the effectiveness of the remaining provisions shall remain unaffected. Zewe