Terms of Delivery and PaymentTHIS IS AN ENGLISH TRANSLATION FOR INFORMATION PURPOSES ONLY. FOR ALL LEGAL PURPOSES REFERENCE SHOULD BE MADE TO THE GERMAN ORIGINAL.
The terms of delivery and payment specified hereafter shall immediately become effective for all supplies and services delivered, unless expressly stipulated otherwise in writing. Our terms are exclusive; any other terms stated by the purchaser are void. The application of the United Nations Convention on the International Sale of Goods shall be excluded.
§ 1 Scope
(1) All delivery transactions, agreements and offers in the commercial business dealings are exclusively based on the following terms in their valid form, even if the seller does not expressly refer to them anymore. The buyer agrees on accepting them by ordering or accepting the delivery.
(2) All amendments or supplements to these terms have to be agreed on in writing.
(3) These terms shall also apply if the buyer has communicated his own general business terms differing from those stipulated hereafter or if he has presented them in writing. The buyer’s terms shall not become a subject matter of contract without the seller’s explicit consent or that of a person acting on his behalf.
§ 2 Completion of a contract
(1) All offers shall be non-binding, reserving the correct and timely self-delivery.
(2) Any samples of the products distributed by us shall be regarded as specimen from which no warranty whatsoever can be derived without express agreement with regards to this subject. The valid tolerance ranges shall be born in mind.
(3) The buyer shall place orders in writing by mail or telefax. Orders may also be placed by way of electronic data transmission such as e-mail, provided that the person ordering can be identified clearly as sender according to common standards.
(4) In case that the order confirmation differs from the order itself, the content of the letter of confirmation shall be valid, unless the buyer objects in writing within 8 days after the order has been posted.
(5) The seller reserves all proprietary rights and copyrights to illustrations, drawings, calculations and other documents made available to the buyer. The respective documents may not be made accessible to third parties without the buyer’s explicit consent.
(6) In case of make-and-take-orders, a request for delivery shall have to be made by the buyer with at least 8 weeks notice prior to the requested delivery date, unless otherwise agreed upon in writing.
(7) A request for delivery shall have to be made by the buyer within 12 months at the latest from the day of order confirmation on. After expiry of an appropriate final deadline set by us the seller shall be entitled to deliver and invoice the goods or to withdraw from the contract or to claim damages for non-performance.
§ 3 Prices / Payment
(1) All prices, including those stated in the order confirmation, are non-binding ex works. They do not include packaging, freight, insurance, duties and VAT. The calculation and payment of prices shall be effected in EURO (€). Any additional costs occurring due to payment in foreign currencies shall have to be borne by the buyer.
(2) In case any circumstances occur four months after completion of the contract which substantially affect the calculation base in an unforeseeable way and which are beyond the seller’s sphere of influence, the seller shall be entitled to adapt the agreed price exclusively to account for these circumstances. This particularly applies to law amendments, measures taken by authorities, etc.. The price adapted in this way shall be based on the same calculation base as the original and does not serve for increasing the profit.
(3) Invoices shall always be due 30 days after invoicing.
(4) In case of payment after the date laid down in paragraph 3 the buyer shall have to pay interest for delay in the amount of 5 % per year calculated above the basic interest rate (§§ 288,247 BGB, German Civil Code). The seller reserves the right to assertion of further costs occurring through late payment.
(5) Cheques shall only be accepted on condition of fulfillment; bills of exchange shall also be accepted on condition of fulfillment and on individual agreement only. The seller’s retention of title shall be rendered inapplicable upon fulfillment of all bills receivable.
(6) The buyer can only assert setoff rights and rights of retention through undisputed, acknowledged or final and conclusive claims.
(7) The buyer shall only be entitled to exert his right of retention if his counterclaim arises from the same contractual relationship.
§ 4 Delivery Period
(1) Delivery periods and dates stated by the seller shall be non-binding unless they have been agreed upon as binding in writing. Even any delivery dates agreed upon as binding shall not be regarded as fixed dates unless they have expressly been defined as such. These dates shall apply on condition of correct and timely self-delivery.
(2) Partial deliveries shall be admissible provided that this is not unreasonable for the buyer.
(3) The agreed delivery period shall be regarded as met if the goods ordered have been dispatched ex stock, or, in case of dispatch ex works, have left the manufacturer’s works until expiry of the deadline or if readiness for dispatch has been communicated to the buyer.
(4) If the buyer still has to complete activities or provide conditions which are necessary for delivery by the seller and rendering other services, the delivery term shall be delayed or extended by the respective period of time. In such a case delivery dates have to be agreed on anew in writing.
(5) If the seller is inhibited from fulfilling his obligations due to circumstances beyond his control (Acts of God) which could not have been foreseen at the time of completion of the contract, e.g. labor disputes, strikes, lockouts, unforeseeable shortage of raw material as well as similar circumstances which the seller himself cannot influence, he shall be exempted from his contractual obligations for as long as these disturbances persist. Any delivery dates agreed on shall be extended for the of the disturbances. In circumstances such as those mentioned above, the buyer shall not be entitled to any compensation claims. However, the seller shall be obliged to inform the buyer immediately about the beginning and the end of such Acts of God in terms of these stipulations.
(6) If the delivery is delayed due to a situation induced by the buyer, the buyer shall be obliged to compensate for all and any additional expenditures emerging from this situation.
§ 5 Passing of Risk / Shipment
(1) The buyer shall bear the price risk as soon as the goods have been handed over to the person entrusted with the shipment.
(2) Upon the buyer’s request, the seller shall insure the goods against theft, breakage, transport damages, fire and water damages and other insurable hazards.
(3) Partial deliveries shall be admissible as far as they are not unacceptable for the buyer.
(4) If the buyer culpably declines acceptance of the goods, he shall be obliged to pay the seller compensation amounting to5 % of the net order price. The seller reserves the right to compensation exceeding this amount, whereas the buyer shall have the right to bear evidence that the damage occurred is lower.
§ 6 Reservation of Ownership
(1) The seller reserves the right of property to the delivery item until receipt of all payments arising from the business relations with the buyer. The reservation of ownership shall also include acknowledged account balances in as far as the seller enters claims towards the buyer into current accounts (current account reservation).
(2) The seller shall be entitled to recover the delivery item if the buyer breaches the contract, especially in case of delay in payment. The buyer shall be obliged to restore possession to the seller. Provided that the terms of the BGB (German Civil Code) for consumer credits are not applicable, the recovery of the delivery item by the seller does not represent a revocation of the contract, unless the buyer has expressly declared so in writing. The seizure of the delivery item always entails a revocation of the contract. In case of seizures or any other interferences by third parties, the buyer shall be obliged to inform the seller immediately in writing so that the seller can file a suit according to § 771 ZPO (German Code of Civil Procedure). As far as the third party is not able to reimburse the seller for the court fees and extrajudicial costs arising from the suit, the buyer shall be liable for the seller’s losses.
(3) The buyer shall have the right to resell the delivery item in an ordinary course of business. He already assigns to the seller all receivables amounting to the final invoice amount (including VAT) which result from the resale to his sub-purchasers or third parties, irrespective of whether the delivery item has been sold according to the agreement or without any agreement. The buyer shall be entitled to collect this claim even after its assignment. The seller is authorized to collect the claim himself; however, he shall refrain from collecting the claim as long as the seller duly fulfils his liabilities to pay and not defaults in payment. In this case the seller shall be entitled to demand that the buyer informs the seller about the claims assigned and their debtors, that he discloses all information required to collect the claims, hands over the respective documents and notifies the debtors (third parties) about the assignment.
(4) Should the delivery item be inseparably connected or mixed with other items which do not belong to the seller, the seller shall acquire joint title to the new item in proportion of the value of the delivery item to the other connected items at the time of connection or mixing. If the items are connected or mixed in such a way that the buyer’s delivery item has to be considered as the main issue, it is considered as agreed that the buyer shall transfer prorated co-ownership to the seller. The buyer shall hold in custody the sole ownership or the co-ownership for the seller. To secure the seller’s claim against the buyer, the buyer hereby also assigns the claims accruing to the buyer against third parties through the combining of the delivery item with a property.
(5) The buyer shall be entitled to the release of provisional ownership if the securities exceed 110 % of the liquidable value. The buyer shall also be entitled to claim the release if the estimated value of the goods transferred by way of security exceeds 155 % of the claims to be ensured.
§ 7 Notice of Defects, Warranty
(1) The buyer shall be obliged to inspect the goods in accordance with § 377 HGB (German Code of Commercial Law) and to notify the seller of any apparent defects or other lacks of conformity within 3 days after receipt of the shipment. Any notice of defects given later than 3 days after delivery of the goods will not be accepted. The buyer shall give notice of any latent defects by registered letter immediately after these have been revealed, but no later than 3 days. The notice of defects shall be addressed exclusively to the seller.
(2) If the buyer has given notice of a defect in time the seller has the choice either to replace the defective goods or to rectify the defects. Should the subsequent improvement be unacceptable or if it fails, the buyer shall be entitled to demand an abatement or reversed transaction of the contract.
(3) The claim of subsequent performance will lapse 12 months after delivery.
(4) Any parts of the item which have been exchanged by the seller during subsequent improvements shall become the seller’s property.
(5) Subject to reasonableness, the buyer shall be obliged to give the seller the opportunity to carry out subsequent improvements. If the buyer is in delay with the necessary actions with regards to subsequent rectifications, the seller does not assume liability for any damages that may occur.
(6) The seller shall have the possibility to enter into additional agreements with the buyer with regards to guarantees.
(7) Should the buyer have sustained damages resulting from defects of the goods delivered by the seller, § 8 of this agreement applies. The seller shall not assume any liability – including, but not limited to –
- for the fitness of the product for a particular purpose, unless expressly agreed upon in writing;
- for defects having occurred after transfer of risk, e.g. due to incorrect operation (noncompliance with the specified instructions for use or with the specified operating conditions), damage or other external effects,
- in case of delayed notice of defects or
- towards persons other than the buyer
(8) Any warranty claims are subject to a period of limitation of 12 months. The period of limitation begins with shipment to the buyer or upon the buyer’s default in taking delivery. If the manufacturer of the goods gives a warranty for a longer period of time, the seller will assign this warranty to the buyer upon the buyer’s request, provided the manufacturer agrees hereto.
§ 8 Exclusion / Limitation of liability
(1) The seller shall be held liable in case of intent or gross negligence on the part of his legal representatives, employees or performing agents.
(2) Other than that, the seller is exempt from any liabilities, on whatever legal grounds (including, but not limited to, impossibility of performance of contract, fault during the conclusion of the contract, breach of contractual or legal secondary obligations, warranty, unlawful acts).
(3) This disclaimer shall not be valid in case of claims arising from injury to life, body or health, claims according to the Product Liability Act; in case of violation of a warranty given in writing, with respect to the damaged covered by the warranty; in case of neglect of essential contractual obligations or default in delivery.
(4) In case of violation of an essential contractual obligation or default in delivery, the seller’s liability for ordinary negligence on the merits to foreseeable and direct damages shall be limited to the maximum amount of EUR 50,000 unless a higher scope of liability has specifically been agreed upon. In such cases the seller is particularly not liable for the buyer’s loss of profit or for any unforeseeable indirect consequential damages. The limitation of liability as set forth in the two preceding sentences shall also apply if a damage is due to gross negligence or intent on the part of an employee or representative who is not among the seller’s senior executives.
§ 9 Cancellation of Contract
(1) The seller shall be entitled to cancel the contract if, after completion of the contract, the circumstances essential for the course of the contract have developed without any possibility of interference by the seller in a way which makes it impossible or unacceptable for the seller to provide the service (e.g. if, through no fault of the seller, the seller’s supplier does not deliver) or if delivery can only take place under extremely difficult conditions).
(2) The seller may also withdraw from the contract in case of a substantial violation of the contractual obligations on the buyer’s part, especially in case of a breach of the duty of care with regards to the handling of the goods delivered under reservation of ownership.
(3) The seller shall also have the right to withdraw from the contract if the buyer makes false statements concerning his creditworthiness. This also applies if the buyer is objectively not credit-worthy and if therefore the seller’s payment claim seems to be at risk. The same is valid if the buyer has filed a statutory declaration.
(4) Apart from this, the buyer’s and seller’s right to withdraw from the contract is subject to the legal requirements.
§ 10 Life-sustaining Systems
(1) If not expressly agreed to the contrary in writing, the delivery items are not suitable for application in life-sustaining devices or systems, human implants, nuclear plants or systems or other applications in which a failure of the product could put life in danger or bring about disastrous consequential damages.
(2) The buyer will indemnify the seller from any claims by third parties which result from a breach of this stipulation.
§ 11 Export
(1) All and any goods delivered by the seller are intended to remain in the country delivered to and agreed on with the buyer.
(2) Resale or other use of the goods and the relevant technologies and documentation is subject to the export control regulations (laws, provisions and regulations, guidelines, rulings, administrative acts) of the United States of America, the contracting parties’ countries of origin and the European Union and may also be subject to the export- and/or import regulations of other countries.
(3) The buyer is obliged to make himself familiar and comply with these regulations and, if necessary, to apply for and obtain any relevant export, re-export or import licenses.
(4) Herewith, the seller declares that a breach of these regulations makes the buyer liable for prosecution.
§ 12 Choice of Law / Place of Jurisdiction
(1) All legal relations between the parties arising from or in connection with this contract shall exclusively be governed by German Law, explicitly excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
(2) The sole place of jurisdiction for any legal disputes emerging directly or indirectly from the contractual relations shall be Braunschweig. However, the seller shall also be entitled to file suits against the buyer at the buyer’s location.
§ 13 Severability
If one or more provisions of this agreement are held to be unenforceable under applicable law, the remaining parts of this contract shall continue to apply, except in cases in which the enforcement of the contract would represent an unacceptable hardship for one of the parties.