General Terms of Business
(As at: February 2011)
1. Scope of Application
1.1 These general terms of business apply to businesses, legal entities under public law and to a special public asset.
1.2 We supply exclusively under the following terms. Differing or broader terms of business of the orderer shall not be not recognized, even if we do not expressly protest. Amendments and additions must be in writing unless it is made sufficiently clear during the explanations in another form that that they should apply irrespective of the written requirement.
1.3 Provided that we have referred to them, our terms shall be regarded as recognized at the latest at the time of acceptance of delivery even if this is not confirmed by the orderer.
2. Offers, Conclusion of Contract
2.1 All our offers are non-binding. We reserve the right to prior sale, technical modifications and price changes as long as the supply contract has not yet come into force.
2.2 Our offer and our written confirmation of order shall be the sole criteria for the content of the contract. Supplementary agreements and amendments require our written confirmation in order to be valid.
2.3 An order shall not be regarded as accepted until we have confirmed it in writing or the delivery has been made.
3. Transfer of Risk, Shipping and Packaging, Delay
3.1 The risk shall be transferred to the orderer when we start loading the items of the consignment or pass them to the carrier, even if the consignment is delivered carriage paid.
3.2 Consignments shall be shipped and packed in an appropriate manner of our choice.
3.3 The delivery times stated by us are non-binding. If, in an exceptional case, we state a binding delivery time, this shall not begin until all technical queries have been resolved.
3.4 We shall not be liable in the case of an ordinarily negligent breach of the obligation to deliver on time. This shall not apply to damages arising from harm to life, limb or health. The exclusion of liability for damages on account of delay shall also not apply if the delay is based upon a culpable breach of a significant contractual obligation. However, in such a case, the claim for damages shall be limited to the damage that foreseeably and typically occurs.
4. Prices, Terms of Payment
4.1 The prices are ex works in euros excluding packaging, the orderer shall bear the costs of transport, such as freight, loading, transport insurance and customs duties etc. If carriage paid delivery has been agreed, any extra costs for shipping requests by the orderer that differ from our price offer shall be borne by the orderer.
4.2 Costing shall be based on euros at the generally applicable prices on the day of delivery unless specific prices have been agreed. If the delivery is made according to contract or for reasons for which the orderer is responsible more than three months after the contract comes into force, then we shall be entitled to adjust the agreed prices in accordance with the changes in our general delivery prices within the scope of a fair market price development.
4.3 The payments shall be made to our registered office in the agreed currency exclusive of expenses..
4.4 Payments shall be made without deduction within thirty (30) days of date of invoice and dispatch or readiness for dispatch. Legally applicable interest shall be charged in the case of delayed payment. Remittances shall be regarded as paid from the time we receive the credit note or check, provided that payment is honored.
4.5 Money orders and bills of exchange shall only be accepted subject to special agreement, and, as in the case of checks, only for the purposes of payment. Recovery and discount charges shall be borne by the orderer. Transfer or prolongation shall not be regarded as fulfillment.
4.6 Discounts such as settlement discounts or other reductions shall only be granted subject to special agreement. The orderer may only deduct an agreed settlement discount if he is not in default with us for other liabilities.
4.7 The orderer can only offset against our receivables or assert a right of retention in the case of claims which are undisputed or which have been legally and bindingly determined.
4.8 Delays in payment or our becoming aware of a significant worsening of the financial circumstances of the orderer shall entitle us, as the supplier, to demand immediate full payment or adequate deposit sureties without restriction of our right of withdrawal in this case.
4.9 An assignment of the receivables due to us shall be excluded.
5. Call Orders
5.1 In cases of doubt, call orders are to be accepted by the customer and paid in full within twelve months of award of order at the latest.
5.2 If a more favorable sliding-scale price is agreed because of the overall call quantity, we shall be entitled to adjust the price correspondingly to the quantity scale if the orderer does not take the total quantity at the right time for reasons for which he is responsible.
5.3 After expiry of the period for a call order, we shall be entitled, after setting the orderer a period of extension in writing, to withdraw from the contract and/or to demand damages instead of the delivery.
6. Reservation of Ownership
6.1 We shall reserve the ownership of the goods delivered by us until all the claims to which we are entitled as a result of the business relationship have been paid..
6.2 In case of conduct by the orderer which is contrary to the terms of the contract, we shall be entitled to reclaim the reserved good, particularly in case of delay of payment or a breach of an obligation under these general terms of business.
6.3 The orderer shall store the reserved good for us without charge. He must insure it against the customary risks, such as fire, theft and water, to the customary extent.
6.4 The orderer shall not be permitted to pledge the reserved good or transfer its ownership as collateral. The orderer must inform us without delay in the case of attachments or other third party measures which affect our rights adversely or in the case of his cessation of payment, application for or opening of an insolvency procedure over his assets, and he must give us all the information we required in order to exercise our rights.
6.5 The orderer shall be entitled to resell the good which is our property in the proper course of business. At this point, he shall assign all receivables to the amount of the invoice which he has gained through the resale to a third party.
6.6 The treatment and processing of the good by the orderer shall always take place on behalf of and by order of us. If processing takes place with objects that do not belong to us, then we shall gain joint ownership of the new object in the relation of the value of the good delivered by us to the other processed objects. The same shall apply if the good is mixed with other objects which do not belong to us.
6.7 If the value of the securities owed by us exceeds the value of the receivable to be secured by more than 10 percent, then we shall be obliged to release our sureties correspondingly at the request of the orderer.
6.8 In as far as a good is taken back on account of the reservation of ownership, it shall be sold on account of the orderer. Provided that there is further reaching damage, we shall be entitled to invoice 15 percent of the loss on the sale as a flat rate charge.
7. Warranty and Liability for Damages
7.1 The orderer must check the delivered good for defects immediately. Defects detectable by proper checking must be reported to us in writing without delay, at the latest within eight days of receipt of the good (exclusion limit).
7.2 Our statements regarding the properties of our products correspond to the results of our calculations, experiments and tests. In so doing, we are not giving guarantees in the legal sense. Public statements, recommendations or our advertising do not represent any contractual quality description of the good. The following shall also not be regarded as defects: such faults that arise from unsuitable or improper use of our good, impermissible modifications, incorrect assembly or incorrect installation and start up, normal wear and tear, incorrect or negligent handling, unsuitable working materials, alternative materials, chemical, electro-chemical or electrical effects. The following shall also not be regarded as defects: such faults that arise from measures or designs that the orderer has expressly demanded or which occur in materials or products that the orderer has supplied.
7.3 In the case of defects, we first fulfill warranty by means of later fulfillment which shall at our choice consist of subsequent improvement or a replacement delivery. If the later fulfillment is unsuccessful, the orderer may on principle at his choice demand reduction of the payment (abatement) or cancellation of the contract (rescission). However, the orderer shall have no right of recission in the case of a merely insignificant breach of contract.
7.4 Should the orderer choose to withdraw from the contract on account of a defect in title or material defect after unsuccessful later fulfillment, he shall not be entitled to any other claims for damages on account of the defect.
7.5 Should the orderer receive inadequate assembly instructions then we shall only be obliged to supply adequate assembly instructions, and this only if the inadequacy in the assembly instructions is an impediment to correct assembly.
7.6 Claims for damages on account of material defects and defects in title shall be excluded in a case of ordinary negligence of our obligation to provide a faultless delivery. This shall not apply to claims arising from product liability or to damages arising from harm to life, limb or health.
7.7 Claims by the orderer on account of a defect shall lapse one year after delivery of the good. This shall not apply if we can be accused of fraud or malice.
8.1 We shall not be liable for an ordinarily negligent breach of insignificant contractual obligations.
8.2 The limitations of liability shall not affect the claims of the orderer arising from product liability.
9. Tax and Customs Regulations
The orderer shall be liable for damage which we incur as a result of the orderer making incorrect or late statements concerning tax or customs treatment, in particular in respect of value added tax. We shall not be obliged to check these statements ourselves.
10. Export control:
European laws and regulations are to be respected on one's own responsibility regarding foreign trade control and securing a reliable supply chain.
Silence has to be maintained especially about negotiations and their results, confidential documents and shipping data.
11. Place of Performance, Place of Jurisdiction, Applicable Law
11.1 The place of fulfillment for all obligations arising from the contractual relationship shall be Aalen/Württ./Germany.
11.2The place of jurisdiction for all disputes arising from the contractual relationship shall be Aalen/Württ, Germany. This shall also apply to claims arising from bills of exchange or checks which have been given for the fulfillment of contractual obligations. We shall however be entitled to sue the orderer in another responsible court.
11.3The law of the Federal Republic of Germany shall apply. The terms of the UN sales law shall not be applicable.
12. Saving Clause
Should individual terms of the contract with the orderer including these general terms of business be or become invalid in whole or in part, then this shall hereby not affect the validity of the remaining terms. The wholly or partly invalid provision shall in such a case be replaced by a provision that comes as near as possible to the commercial success of the invalid provision.
Within the meaning of the Federal Data Protection Act, we are entitled to process the data concerning the orderer which we obtain from the orderer himself or from third parties within the scope of or in connection with the business relationship.