a) Our goods and service deliveries shall be governed exclusively by the following General Terms and Conditions of Sale. Terms and conditions of the Buyer that are in conflict with or in contradiction to our General Terms and Conditions of Sale shall not be accepted by us unless we have given our express written consent to their applicability. Our General Terms and Conditions of Sale shall also apply if we, being aware of terms of the Buyer that do contradict or are in conflict with our General Terms and Conditions of Sale, execute the delivery to the Buyer without raising objections.
b) All agreements made between us and the Buyer with regard to the execution of this contract have been set forth in writing in said contract.
c) Our General Terms and Conditions of Sale shall apply only to business relationships with entrepreneurs pursuant to § 310 Section BGB (German Civil Code).
d) Our General Terms and Conditions of Sale shall also apply to all future business transactions with the Buyer.
e) We reserve all intellectual property and copyrights inherent in images, drawings, calculations and other documentation. This shall also apply to such written documentation that is designated as confidential. The sharing of any such documentation by the Buyer with third parties shall be subject to our prior express written consent.
2. Order Confirmation and Rescission
a) We shall make all orders received contingent upon complete technical and commercial clarification.
b) Until an order has been confirmed by way of a written order confirmation, all quotations submitted by us shall be subject to change. Upon receipt and acceptance of an order, we shall simultaneously initiate production with the aim of delivering at the earliest possible date. Consequently, changes or cancelations shall not be possible. Retroactive change requests are therefore possible only subject to reimbursement of any costs already incurred at the time of the change request.
c) The brochures, promotional material, catalogues, images, price lists etc. pertaining to our products and the data they contain shall be non-binding unless they have been expressly designated as binding by us. Any minor changes in engineering, form or design resulting from technical progress shall not be grounds for claims or rescission from the contract.
d) In the event that the Buyer should rescind from the contract for reasons we are not responsible for, or if the Buyer refrains from contractual commitments in any other way, we shall have the right to demand 40 % of the contract value to compensate for lost profits and for costs incurred, unless the Buyer can render proof that no damages or significantly lower damages were incurred. This shall be without prejudice to our right to charge the concrete amount of damages incurred.
a) Provided the order confirmation does not contain anything to the contrary, our prices shall be understood ex factory. These prices shall be applicable in the event that production can proceed without interruptions and provided the entire order is shipped completely at one time. Partial shipments of orders initiated by the Buyer translate into additional expenditures, which shall be billed to the Buyer.
b) In the event that fixed price agreements have not been made, we shall bill the prices in effect on the date of delivery. However, we do reserve the right to adjust our prices by reasonable amounts if upon completion of the contract cost reductions or cost increases should occur, especially based on union negotiated wage agreements or material price changes. Upon request, we shall document the occurrence of such changes to the Buyer.
c) Applicable value added tax is not included in our prices; the amount required by law in effect on the billing date shall be charged additionally and will be specified separately in the invoice.
d) In the event that a foreign jurisdiction buyer within the intra-European market should fail to meet buyer’s sales tax obligations, our prices shall be increased by the respective sales tax amount in effect in the Federal Republic of Germany (VAT) at the time.
b) The deduction of a cash discount shall be subject to a prior specific written agreement.
c) All payments shall be made directly to us only. Once received, they shall first be applied to any costs and interest incurred and subsequently to the oldest pending receivables. Bank drafts, checks or other payment instruments shall be accepted only in lieu of cash payment. Discount and bank draft fees as well as any other costs charged by our bank shall be for the account of the Buyer.
d) Only individuals who carry a written power of attorney to collect payments on our behalf shall be authorized to receive payments made to us and shall be required to use our pre-printed receipt forms.
e) In the event that the Buyer should be in default of payment, we shall have the option to charge late payment interest in an amount of 9 % above the respective prime rate published by the German Federal Bank p.a. If we are in a position to prove higher damages resulting from the late payment, we shall have the right to claim same.
f) In the event Buyer’s payment default, all other receivables owed to us by the Buyer from all legal transactions shall be rendered due for immediate payment, even if we have accepted checks or bank drafts for same. This shall also apply if the Buyer is only in default of payment of partial receivables.
g) The Buyer shall have the right to set off own receivables against our receivables only if Buyer’s counter claims have been found legally effective by a court of law, or if same are undisputed or have been accepted by us. In all other cases Buyer shall not have the right to refuse performance or to execute any withholding rights.
5. Packaging/Delivery/Transfer of Risks
b) In the event that the Buyer should explicitly request a special mode of shipping, we shall bill all related additional costs.
c) Unless otherwise stipulated in the order confirmation, ex factory delivery shall be deemed to have been agreed upon. Shipment shall occur with freight due at the destination unless otherwise agreed upon in writing.
d) The risk of accidental loss or accidental decline of the condition of the goods ordered from us shall transfer to the Buyer once the goods have been loaded at our end, even if we absorb the transportation costs or even if transportation is being handled by one of our own vehicles. It shall be the Buyer’s responsibility to obtain transportation insurance if so desired.
e) The Buyer shall be responsible for the unloading of the merchandise. Unloading shall be performed immediately upon arrival. Excessively long unloading and waiting times lead to additional expenses, which will have to be reimbursed by the Buyer. In the event that transportation damages or losses should be discovered, the Buyer shall, with the assistance of the driver, compile an inbound inspection log. If the damages are substantial, the Buyer shall notify us immediately and if necessary involve an insurance damage assessment officer for the evaluation of the damages.
f) We shall have the option to make partial shipments and bill for same.
6. Delivery Times
b) The effective time frame for any delivery time quoted by us shall be contingent upon the clarification of all technical issues.
c) The compliance with delivery obligations on our part shall furthermore be contingent upon the timely and proper fulfilment of any obligations or duties of the Buyer. This shall be subject to the objection of non-fulfilment of contractual obligations. In particular, we shall have the right to withhold shipments if the Buyer is in default of payment for an earlier delivery and we shall not be liable for compensation of any damages incurred as a result of such action.
d) In the event that the Buyer should be in default of acceptance or if Buyer should culpably breach any other participation obligations, we shall have the right to demand reimbursement for any damages we have incurred as a result, including any added expenses. This shall be without prejudice to any further claims we may have.
e) In the event that any of the prerequisites cited in Section (d) should have occurred, the risk for accidental loss or accidental decline of the purchase object shall transfer to the Buyer at the time the latter has defaulted on acceptance or payment of a debt.
f) In the event that the Buyer should refuse acceptance of goods, which we are also installing or for which we are supposed to render any other works, without justification, the works shall be deemed accepted at the time such an unjustified refusal of acceptance is announced.
g) We shall assume liability as required by law, provided the purchase agreement the claim is based upon is a fixed transaction pursuant to § 286 Section 2 No. 4 BGB or § 376 HGB. We shall also accept liability in compliance with the statutory requirements if the Buyer, because of a late delivery we are responsible for, has a right to claim that Buyer’s interest in the continued fulfilment of the contract should have been voided.
h) We shall furthermore accept liability in compliance with the statutory provisions if the late delivery is the result of an intentional or grossly negligent breach of contract we are responsible for or if same was caused by a representative or agent of our company, which shall be deemed our liability also. In the event that the delayed delivery should not be based on an intentional breach of contract we are responsible for, our liability for damages shall be limited to the foreseeable, typically incurred damages.
i) We shall also accept liability in compliance with the statutory provisions if the delay in delivery we are responsible for is based on the culpable breach of a cardinal contractual duty. Cardinal shall be any obligation whose fulfilment makes the proper performance of the contract even possible and which our contracting partner may expect us to meet at all times. In the event that we should be held liable for such breaches of duty, our liability for damages shall be limited to the foreseeable damages typically incurred in such cases.
j) Incidentally, in the event of late delivery, we shall assume liability at our discretion for each completed week of delay only within the scope of lump sum late payment reimbursements in an amount of 0.5 % of the value of the goods delivered not to exceed a maximum of 5 % of the goods delivery.