§ 1 Scope
(1) Our deliveries, services, contracts and offers (hereinafter “deliveries”) are made exclusively on the basis of these terms of delivery and payment. These apply only to companies, legal entities under public law or special funds under public law, within the meaning of § 310 Paragraph 1 German Civil Code (BGB).
(2) These terms of delivery and payment apply in their respective version as part of a framework agreement. It also applies to all future transactions with the customer as far as legal transactions of a related nature are concerned.
§ 2 Offer and contract conclusion
(1) Our offers are non-binding. The order of the goods by the customer is considered a binding contract offer. If an order is to be regarded as an offer, in accordance with § 145 of the German Civil Code (BGB), we are entitled to accept this contract offer, within 14 days of our receipt. Acceptance can be declared in writing, by order confirmation or by delivery of the goods to the customer. Written form is satisfied with a transmission by fax or remote data transmission. Please note that our sales agents are not authorised to enter into ancillary agreements or to make any representations that go beyond the content of the written agreements. Accordingly, statements made by our representatives regarding our legal validity require our written confirmation.
(2) Documents and information relating to the offer in sample books, price lists, prospectuses and other documents, such as drawings, assembly sketches, illustrations, descriptions, dimensions and weights or other performance data are values determined to the best of our knowledge. They become binding only when stipulated in the order confirmations. The same applies to details of the work.
(3) By call-i[ orders, we shall be entitled to obtain the material for the entire order and to make the entire order quantity immediately. Any changes requested by the customer can no longer be considered after the order, unless this has been expressly agreed.
§ 3 Samples, test parts, tools, costs and property
(1) We reserve the right to charge the cost of samples and test pieces. Payment is due after acceptance of the initial sample, test parts or tools., if in doubt.
(2) All tools and devices which we have manufactured or purchased remain our property, even if their procurement or production costs of the customer are wholly or partially assumed. We are not obliged to release tools and devices.
(3) We reserve ownership and intellectual property rights of all order-related documentation provided to the customer, such as calculations, drawings, etc. These documents may not be disclosed to third parties, unless we grant express written consent. If we do not accept the customer offer, these documents must be returned to us immediately.
§ 4 Prices and payment
(1) Unless otherwise agreed in writing, our prices are in euros, FOB our warehouse include packaging and VAT, in the respective applicable amount.
(2) Unforeseen and raw material, wage, energy and other cost changes for which we are not responsible entitle us to appropriate price adjustments. The respective change will be announced to the customer in writing. At the same time, the customer is expressly informed that the change will be the subject of the existing contract if the customer does not dispute this change in writing within two weeks from notification of the change. If the customer objects, each party has the right to terminate the contract in writing subject to a notice period of ten working days. A price adjustment as per the above rule is not possible if it relates to a price increase for goods or services which is to be delivered or provided within four months after conclusion of the contract.
(3) For partial deliveries, each delivery can be billed separately. If prices are not agreed upon by the conclusion of the contract, our prices valid on the day of delivery shall apply.
(4) Unless otherwise agreed in writing, our invoices are due 30 days after date of invoice net, without any deductions. . The date of receipt of payment is the day on which the amount is received by us or credited to our bank account. If the customer delays payment, we are entitled to interest of 8 percentage points p.a., above the respective base interest rate. This does not limit our right to claim further compensation claims or design rights.
(5) We do not pay interest on any advance or instalment payments.
§ 5 Set-off and rights of retention
(1) The customer is allowed to offset payments only for undisputed or legally-enforced counter-claims.
(2) The purchaser is only authorised to exercise a right of retention, to the extent that his counter-claim is based on the same contractual relationship.
§ 6 Delivery time & transfer of risk upon shipment
(1) The beginning of the delivery time specified by us requires the timely and proper fulfilment of the obligations of the customer.
(2) Our written order confirmation constitutes the scope of delivery. In the case of an offer with time commitment, timely acceptance of the offer constitutes this, if a timely order confirmation is not present.
(3) Delivery is made FOB our warehouse, which is the place of fulfilment. The goods can be shipped to another destination (dispatch purchase) upon the customer’s request, with costs borne by the customer.
(4) Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, shipping route, packaging). The goods are insured at the request and cost of the customer.
(5) The risk of accidental loss and accidental deterioration of the goods shall be transferred to the customer upon delivery of the goods to the carrier, the freight forwarder or the person or institution otherwise designated to perform the shipment.
(6) Delivery times are – even if a delivery date has been agreed with the customer – only approximate and non-binding, unless the delivery date has been expressly agreed. The delivery period begins with the dispatch of the order confirmation, but not before the supply of the technical data, documents, permits, approvals to be provided by the customer, and before receipt of an agreed down payment. The delivery period is complied with if the delivery item has left the factory until its expiry or the readiness for dispatch has been communicated.
(7) If we are unable to comply with binding delivery periods for reasons for which we are not responsible, we will inform the customer immediately and at the same time communicate the expected new delivery deadline. If the service is not available even within the new delivery period, we are entitled to rescind the contract in whole or in part, we will immediately refund an already rendered consideration of the customer. A case of non-availability of the service in this sense applies in particular if there is self-delivery by our suppliers, if we have concluded a congruent covering transaction, in which neither we nor our suppliers are culpable, or we are not obligated to procurement in an individual case.
(8) The rights of the customer as per clause 8 of these general terms of delivery and payment, as well as our legal rights in the event of exclusion of the obligation (for example due to impossibility or unreasonableness of the performance and/or supplementary performance) remain unaffected.
§ 7 Retention of title
(1) Until all our current and future payments from the purchase contract and an ongoing business relationship, including any ancillary claims (secured receivables) are fully paid, we retain ownership of the goods sold (reserved goods). In the case of an ongoing invoice, the reserved property is regarded as security for the balance of our claims. This also applies to all future deliveries, even if we do not always expressly refer to them.
(2) The reserved goods may not be pledged to third parties or transferred for security prior to the full payment of the secured claims. The customer must inform us immediately in writing if and to the extent that access third party requests are made to the goods belonging to us.
(3) The customer is entitled to sell the reserved goods in the normal course of business. The customer already assigns to us the receivables from the resale of the reserved goods in the amount of the invoice amount agreed with us (including value added tax). This assignment applies irrespective of whether the purchased item has been resold, without or after processing. The customer remains authorised to collect the claim even after the assignment. Our authority to collect the claim remains unaffected. However, we will not collect the claim as long as the customer fulfils his payment obligations from the proceeds received, is not in default of payment and in particular an application has not been made for the opening of insolvency proceedings or suspension of payment.
(4) The customer is entitled to sell, process or mix the reserved goods within the scope of his ordinary business operation. In this case, the following provisions shall apply.
(5) Purchase and processing or transformation of the purchased goods by the customer occurs in our name and always on behalf of us. In this case, the customer’s entitlement to the purchased goods shall continue on the processed item. If the purchased item is processed with other items not belonging to us, we acquire co-ownership of the new item, in the ratio of the objective value of our purchased goods, at the time of processing. The same applies to the case of mixing. If the mixing takes place in such a way that the product is primarily the customer’s, it is agreed that the customer transfers proportionate co-ownership to us and that the sole property or co-ownership.
§ 8 Warranty
(1) Legal regulations apply to the rights of the customer in case of defects in property and law (including false and inaccurate delivery, as well as improper assembly or faulty assembly instructions), unless otherwise specified, in the following. In all cases, the statutory special provisions for the delivery of the goods to a consumer remain unaffected.
(2) The customer’s claims for defects require that he has complied with his statutory examination and complaint obligations. If a defect is found in examination or later, you must immediately notify us of this in writing.
(3) We do not warranty any design defects if drawings and plans have been provided by the customer or if the defect is due to the violation of operating, maintenance and installation regulations, inappropriate or improper use or storage, faulty or negligent treatment, assembly or commissioning, natural wear or interference made by the customer or third parties in the delivery item.
(4) If the delivered goods are defective, we can first choose whether we can repair the defect (rectification) or by supplying a defect-free item (replacement delivery). Our right to waive subsequent repairs under legal provisions remains unaffected.
(5) We are entitled to make the following delivery dependent on the fact that the customer pays the due purchase price. The
customer is, however, entitled to retain a portion of the purchase price proportionate to the defect.
(6) The expenses required for the purpose of testing and supplementary performance, in particular transport, road, labour and material costs (non-expansion and installation costs), are borne by us if there is actually a defect. However, if the customer’s complaint about defects is found to be unjustified, we may demand the resulting costs to be replaced by the customer.
§ 9 Limitation period
(1) Claims for defects shall lapse within 12 months after delivery of the goods delivered to our customer by us. The statutory limitation period shall apply to claims for damages, in the case of intent and gross negligence, as well as in the event of injury to life, body and health which are based on intentional or negligent breach of duty by of the user.
(2) If the law requires a longer deadline, these deadlines apply.
§ 10 Industrial property rights
(1) If we have been commissioned for drawings and plans submitted by the customer, the customer warranties that any intellectual property rights, copyrights or other rights of third parties are not infringed and not violate any legal or official prohibitions.
(2) The customer is obligated to indemnify us from all claims made against us by third parties in connection with deliveries.
(3) The customer’s obligation to provide exemption also extends to all applications arising from or in connection to the claim by a third party.
§ 11 Liability
(1) Unless otherwise stipulated in these terms and conditions, we shall be liable in the event of a breach of contractual and non-contractual obligations, in accordance with the law.
(2) We have unlimited liability for damages which we have caused intentionally or by gross negligence, or caused by our legal representatives or our vicarious agents.
(3) In the case of simple negligence, we are only liable
a) for damage, from the injury to life, body or health that we, our legal representatives or our vicarious agents have to represent
b) for damages arising from breaches of an essential contractual obligation (obligation, the fulfilment of which allows the proper implementation of the contract in the first place and on whose observance the contractual partner may regularly trust and trust, so-called cardinal obligation) by us, our legal representatives or our vicarious agents. In this case, however, our liability is limited to the reason and the amount of such damages whose occurrence we could reasonably have foreseen, whose occurrence we could have reasonably foreseen at the contract conclusion under the circumstances.
(4) The aforementioned limitations of liability do not apply if we have fraudulently concealed a defect or have taken over a guarantee for the quality of the goods. The same applies to claims of the buyer according to the Product Liability Act.
§ 12 Secrecy
(1) All information, formulas, drawings, models, tools, technical records, process methods, software and other technical and commercial know-how made available by us or brought to us by the customer, as well as in results achieved in this context (hereinafter:
“confidential Information”) shall be kept secret by the customer from third parties and may not be used in the customer’s own company for purposes beyond the specific contractual purpose of the contract concluded with us and exclusively to such persons, who in the context of the business relationship, must have knowledge of the confidential information and have been obligated to secrecy in accordance with this rule. All knowledge, information and inventions of a technical and business nature – except advertising material – which we have made available to the customer within the framework of the business connections, in particular cost estimates, drafts,
design drawings, experience reports, procedural descriptions and material analyses, are confidential and may not be altered, duplicated or made available to third parties directly or indirectly, without our permission. In particular, he may not register the patent himself or give third parties the opportunity to do so. Otherwise the customer shall be liable for all damage caused to us.
(2) The obligation of secrecy shall also extend beyond the duration of the business relationship as long as and if the customer cannot provide proof that the confidential information at the time of its obtaining was already known to him or that it was manifest or become apparent later, without his fault. We reserve all rights of ownership and copyright in the documents which we disclose.
(3) Any drawings or other documents submitted by us must be returned at our request at any time and in any case if the order is not allocated to us, at the latest at the end of the supply relationship. Any type of licence relating to confidential information must be in writing. The customer is not entitled to a right of retention in respect of confidential information or corresponding documents or materials.
§ 13 Compliance, export controls
(1) The customer guarantees neither directly nor indirectly to conduct business or other agreements with terrorists, terrorist groups or other criminal or unconstitutional organizations. In particular, the customer shall, through appropriate organisational measures, ensure the implementation of EU Directives No. 2580/2001, No. 753/2011 and 881/2002, as well as supply relationships applicable US and/or other corresponding provisions, within the framework of its business operations. As soon as our goods have left our respective premises, the customer is solely responsible for complying with the above-mentioned regulations and will be liable to us if there is a relevant legal violation by the customer, its associated companies or employees, representatives and/or vicarious agents, for reasonable attorneys ‘ fees or administrative fees or fines which result from said violations of the law.
(2) We would point out that our offer or the customer’s order is valid subject to the granting of an export permit by the authorities. A promised delivery date is also subject to an export permit. Therefore, when placing an order, the customer should take into account that delivery time delays can occur due to factors outside of our control. In the case of subsequent export, the customer is responsible for complying with the applicable export control regulations, e.g., checking the receiver or the final user. For further export to embargoed countries, respective foreign economic provisions must be observed, e.g, the currently valid Iran embargo regulation and its corresponding amending regulations.
§ 14 Applicable law, place of fulfilment and jurisdiction
(1) The law of the Federal Republic of Germany applies exclusively to these general terms of delivery and payment and the entire legal relationship between us and the customer. Application of the Uniform UN Sales Law (Convention on Contracts for the International Sale of Goods (C.I.S.G.)) and other bilateral or multilateral agreements serving to standardise international purchases is excluded.
(2) The place of fulfilment for all rights and liabilities arising from the contractual relationship, in particular from our deliveries, is the respective location from which the delivery is executed. Jurisdiction for all rights and liabilities, arising from the contractual relationships is Grasbrunn near Munich / Upper Bavaria. However, we are also entitled, at our discretion, to sue the customer at any other general or special jurisdiction.
(3) If the L customer is located outside the Federal Republic of Germany, we are also entitled, to choose the to have all claims, disputes or disagreements arising from business relations with the customer arbitrated in accordance with the Rules of Arbitration of the Chamber of Industry and Commerce for Munich and Upper Bavaria (IHK), under exclusion of the legal proceedings finally and decisively. The arbitration court is located in Munich. The arbitration proceedings will be held in German or English. The law of the Federal Republic of Germany is applicable to the exclusion of the United Nations Convention on the Sale of Goods.