GENERAL CONDITIONS OF SALE
English version 1/2018 (download)I. Validity/Offers
These General Conditions of Sale (“Conditions”) shall apply to all
present and future contracts with entrepreneurs, governmental entities,
or special governmental estates in the meaning of sec. 310 para. 1 BGB
(German Civil Code) in regard to deliveries and other services rendered.
Buyer’s purchase conditions shall not be binding, even if we do not
expressly object to them again after their receipt.
2. Our offers
are subject to change without notice. Any agreements, especially oral
collateral agreements, promises, guaranties and other assurances given
by our sales staff before or at conclusion of the contract shall be
binding only once they have been confirmed by us in text form.
Commercial terms such as „EXW“, „FOB“ and „CIF“ shall be interpreted in
accordance with the INCOTERMS in their current version.II. Prices
Our prices are free our business, excluding packaging, unless something
else is agreed upon. Statutory Value Added Tax will be added.
If the items are to be delivered packaged, we will charge the packaging
at cost price. We will take back the packaging delivered according to
statutory provisions if it is returned to us freight free within a
reasonable period of time.III. Payment and Set-Off
Payment shall be made immediately without cash discounts so that we can
dispose of the sum on the due date. Unless otherwise agreed, our
invoices are due 14 days from date of invoice. . The payment must take
place so that the amount invoiced is available to us at the latest on
the due date. The Buyer will be in default at the latest 10 days after
payment is due and without the need for a reminder.
discount periods granted shall begin with the invoice date. Any cash
discount agreed to always applies to the value of the invoice excluding
freight and has a prerequisite that all amounts due by the Buyer have
been paid at the time of the discount.
3. Invoices for amounts
under EUR 50.00 as well as for assembly, repairs, forms and tooling
costs are due immediately without deductions.
which we have contested or which have not yet been legally determined to
be final and conclusive do not entitle Buyer to withhold or offset
payments. This shall not apply if the counterclaims result from the same
contractual relation and/or would entitle the Buyer to refuse the
fulfilment of his contractual obligations under Section 320 of the
German Civil Code.
5. When payment is not on time, at the latest
by default, we are authorized to invoice interest at the level of the
appropriate bank rate for overdraft credits, at a minimum, however, at
the statutory default interest. Additionally, we charge a default
allowance of EUR 40.00. A claim for further damages due to this delay
6. Should it become evident after the
conclusion of the contract, that payment is jeopardised by the Buyer’s
ability to perform, or should other circumstances arise which show a
material deterioration in the Buyer's ability to perform we are entitled
to refrain from any further performance and exercise the rights of Sec.
321 of the German Civil Code. This also applies in case the performance
of our contractual obligation is not yet due. In such cases, we are
also authorised to make due any and all of our accounts receivable
resulting from the same legal relationship. Buyer’s ability to perform
shall be deemed jeopardised also if the Buyer is for at least three
weeks in default with a considerable portion (10% or more) of the
amounts due; further, in case of a considerable downgrading of his
existing credit limit by our credit insurance.IV. Delivery Deadlines
1. Delivery deadlines and dates are considered to have been met when the goods have left our plant by the time due.
Our commitment to deliver is subject to our correct and timely
self-delivery unless we are responsible for the deficient or late
3. Force majeure events entitle us to postpone the
deliveries for the period of the hold-up and an appropriate start-up
time. This also applies if such events occur during a present default.
Force majeure is the equivalent of monetary or trade measures or other
acts of sovereignty, strikes, lockouts, breakdowns not caused by us,
obstruction of transport routes, delays in clearing the goods for import
and in customs clearance as well as of all other circumstances, that
essentially impede or render the deliveries and performances impossible,
without being caused by us. Thereby, it is irrelevant if the
circumstances occur at our place, the delivering plant or at another
presupplier. If performance becomes unacceptable for one of the parties
due to the abovementioned events, this party shall be able to withdraw
from the contract by instant declaration in text form.V. Retention of Title
All goods delivered by us remain our property (Reserved Property) until
all claims arising from our business contacts have been settled,
regardless of the origin of the claims and including future or
conditional claims (current account reservation). The current account
reservation is not applicable in in prepayment or delivery vs payment
cases.In these cases, the goods remain our property until the purchase
price for these goods has been paid in full.
2. With regard to
processing or manufacturing of the Reserved Property, we shall be deemed
to be manufacturer within the meaning of § 950 BGB (German Civil Code)
without committing us in any way. The processed or manufactured goods
shall be regarded as Reserved Property within the meaning of clause V/1
of these Conditions. When the Buyer processes, combines or mixes the
reserved goods with other goods, we retain co-ownership in the new
product in the relation of the invoice value of the reserved goods to
the invoice value of the other goods produced. If our property
disappears due to combination or mixture, the Buyer transfers to us
already his property rights in the new goods or items in relationship to
the invoice value of the reserved goods and will retain them for us
without cost. The resulting co-ownership counts as Reserved Property in
the meaning of Section V/1 of these Conditions.
3. The Buyer may
re-sell the Reserved Property only in his normal business relations and
to normal business conditions as long as he is not in arrears and only
on the condition that the claims from the related sale are transferred
to us according to Sections V/4 to V/6 of these Conditions. He is not
authorized to use the Reserved Property for any other purpose.
The claims of the Buyer from the further sale of the Reserved Property
count already as transferred to us. They count, in the same
relationship, as security as does the Reserved Property. If the Reserved
Property is sold by the Buyer together with other goods not sold by us,
the assignment of the claim from the further sale is only in the amount
of the sales value of the Reserved Property. With the sale of goods on
which we have co-ownership according to Section V/2 of these Conditions,
the assignment of the claim is in the amount of this co-ownership.
The Buyer is authorized to collect claims from the further sale until
we exercise our rights of revocation at any time. In addition, when
Buyer defaults in payment we are entitled, after expiration of an
appropriate extension period, to take back the goods delivered and to
request that they not be sold or processed. This taking back shall not
constitute a withdrawal from the contract. At our request, the Buyer is
required to inform his customers immediately about the assignment to us –
as far as we do not do it ourselves – and to provide us with the
necessary information and details to accomplish collection.
6. The Buyer must inform us immediately about any seizure or other adverse actions on the part of third parties.
Should the value of the existing securities exceed the value of the
secured claims by more than 50 %, we are required to release securities
of our choice upon demand of the Buyer.VI. Carrying out Deliveries
When the goods are handed over to a forwarding agent or a carrier, at
the latest, however, when the goods leave the warehouse or – with direct
sales – the supplying plant, the risk is transferred to the Buyer in
all cases, even those which are prepaid or free house deliveries. The
Buyer must bear the responsibilities and costs of unloading. We shall
obtain insurance only at the instruction of and at the cost of the
2. We are permitted to make partial deliveries in
reasonable amounts. With goods we produce, deliveries are permitted
which are up to 10 % more or less than the quantity ordered.
With call contracts, we are permitted to produce or have the total
quantity produced at one time. Any changes desired cannot be considered
after the order has been given unless this has been specifically agreed
to. Unless there is a firm agreement, call up times and quantities can
only take place according to our supply or manufacturing capabilities.
Should the goods not be called according to the contract, after a
reasonable additional period of time we are authorized to invoice them
as having been delivered.
4. For business with continuous
deliveries we must receive release orders and type categories for
roughly the same amount per month. If the release orders or type
categories are not given on time, we are entitled after the expiry of a
fixed period to make the type categories and deliver the goods or to
cancel the outstanding part of the contract and demand compensation
instead of payment. At the end of the contract, Buyer has to accept and
pay for the remaining goods on stock.VII. Liability for Defects
Any of properties of the goods, in particular to their quality, grade
and measures will follow the agreed standards and, in default of such an
agreement, any DIN and EN-standards which may be applicable at the time
of the conclusion of the contract, and in absence of such standards the
trade use and practice. Any reference to standards and to similar
guidelines as well as to quality, grade, measure, weight and usage of
the goods, any information given in drawings and illustrations as well
as any predictions given in our advertising material shall not be
regarded as representations or guaranties, unless we have expressly
referred to them in text form. The same shall apply to declarations of
conformity and to similar characteristics such as CE and GS signs. The
Buyer shall bare any risks as to the suitability and usage of the goods.
As to the Buyer’s obligations to examine the goods and to notify us of
any defects, the statutory provisions of the German HGB (Commercial
Code) shall apply, subject to the following conditions:
The Buyer shall examine the goods immediately after delivery
with regard to the properties relevant for the use of the goods and
shall notify us in text form of any defects of the goods immediately
thereafter. In case the Buyer intends to install the goods into another
object or attach the goods to another object, the properties relevant
for the installation or the attachment include the inner properties of
the goods. The Buyer’s obligation to examine the goods exists even in
cases where an inspection certificate or any other material certificate
is provided. Defects which, even upon most careful inspection, cannot be
discovered immediately after delivery must be notified to us in text
form immediately after their discovery.
In case the Buyer, in the
event of an installation of the goods into another object or attachment
of the goods to another object, fails to inspect the properties of the
goods relevant for the designated end use at least at random prior to
installation resp. attachment (e.g. by function tests or a trial
installation), this represents a particularly grave disregard of the
care required in the ordinary course of business (gross negligence) in
relation to us. In such a
case, the Buyer may assert any rights in relation to these properties
only if the defect had been deliberately concealed or in case of a
guarantee for the respective quality of the goods.
3. In case the Buyer discovers defects of the goods when
inspecting the goods or thereafter, he shall make the defective goods or
samples thereof available to us in order to give us the possibility to
convince ourselves of the defect within a reasonable period of time.
Otherwise, the Buyer cannot claim that the goods are defective.
4. In case the goods are deficient, the Buyer shall be entitled
to his statutory rights under the German BGB (Civil Code) - subject to
the conditions that we shall be entitled to choose between repair and
delivery of substitute goods and that minor (insignificant) defects
shall limit the Buyer’s rights only to reduce the purchase price
5. In case the Buyer has installed the goods, in accordance
with the goods’ type and designated use, into another object or attached
the goods to another object, he may claim reimbursement of his
necessary costs for the dismantling of the defective goods and the
installation or attachment of goods free from defects (“dismantling and
installation costs”) only in accordance with the following provisions.
dismantling and installation costs are only those, which directly
result from the dismantling resp. removal of the defective goods and the
installation resp. attachment of identical goods, have accrued on the
basis of competitive market prices and have been proven by the Buyer by
appropriate documents in text form.
Additional costs of the
Buyer for consequential damages such as e.g. loss of profit, down time
costs or additional costs for cover purchases are no dismantling and
installation costs and therefore not recoverable under Sect. 439 para. 3
of the German Civil Code. The same applies for sorting costs and for
supplementary costs resulting from the fact that the sold and delivered
goods are at a place other than the agreed place of delivery.
The Buyer is not entitled to request advance payments for dismantling and installations cost or other expenses required for the remedy of the defective delivery.
In case, on an individual basis, the costs incurred by the Buyer for
the remedy of the defective delivery are disproportionate, namely with
regard to the purchase price of the goods being free from defects and
under consideration of the importance of the infringement of the
contract, we are entitled to refuse the reimbursement of such costs.
Disproportionate costs are especially given in case the costs requested
by the Buyer, in particular dismantling and installation costs, exceed
150 % of the purchase price of the goods invoiced by us or 200 % of the
value of the defective merchandise.
7. In accordance with Section
VIII of these Conditions, additional claims are not acceptable. This
applies in particular to claims for
damages which did not occur to the goods themselves (consequential damages),
costs of the Buyer related to the self-remedy of defects without the legal requirements being fulfilled and
and installation costs, in case due to a transformation undertaken by
the buyer before the installation of the goods into another object or
before attachment of the goods to another object, the installed or
attached goods provide substantially different features than the
original goods delivered by us or have been transformed to new products.
An unjustified request to remedy an alleged defect entitles us to claim
compensation for damages or costs incurred if the Buyer could have
recognized upon careful inspection that the goods were not defective.
VIII. General Limitations of Liability and Statute of Limitations
We are liable for breach of contractual and non-contractual duties,
especially those due to impossibility, delay, false advice, culpa in
contrahendo and tortuous acts – also those of our managerial staff and
other personnel – only in cases of intent or gross negligence and shall
in case of gross negligence be limited to forseeable losses and damages
characteristic for the type of contract in question.
restrictions in VIII.1 shall not apply to such cases where we breach our
essential contractual obligations. Considered essential to the contract
are the obligations for prompt supply free of defects and duties of
consultation, protection and care which serve the purpose of protecting
Buyer or its personnel against considerable damages. The restrictions
shall neither pertain to damages to life, to the body or to health
caused by our fault nor to any cases where we have guaranteed certain
characteristics of the goods. Nor shall such clause affect our statutory
liability laid down in the Product Liability Act. Any statutory rules
regarding the burden of proof shall remain unaffected by the aforesaid.
Should we default on a delivery of performance, the Buyer shall be
entitled to damages due to this delay; in case of slight negligence,
however, the claim of the Buyer is restricted to maximum 10 % of the
agreed purchase price for the performance in default. The rights of the
Buyer for damages instead of performance in accordance with No. VIII.1
and VIII.3 remain unaffected by the aforesaid.
otherwise agreed to, any contractual claims which the Buyer is entitled
to in connection with the delivery of the goods shall fall under the
statute of limitations within a period of one year after the goods have
been delivered to the Buyer. This shall not apply insofar as Section 438
para. 1 No. 2, Section 478, 479 or Section 634 lit a) para. 1 No. 2 of
the German Civil Code BGB require longer limitation periods, in cases of
injuries to life, body and health, breaches of contract caused by our
wrongful intent or by our gross negligence or in cases where a defect is
fraudulently concealed. Our substitute deliveries shall not cause the
renewal of the initial limitation period.
We reserve our property and our copyrights of all cost estimates,
drafts, drawings and other supporting papers. They may be made available
to third parties only after our agreement. Drawings and other
supporting documents relating to offers must be returned at our request.
So far as we have delivered items according to drawings, models,
samples or other supporting documents supplied by the Buyer, he takes
over the liability that protected rights of third parties have not been
damaged. If third parties, with reference to protected rights, do not
permit the manufacture and delivery of those types of items, we are
permitted – without being required to check the legal situation – to
stop all further activities and to request damages when the Buyer is
liable. In addition, the Buyer is responsible to immediately hold us
free from all claims of third parties in this connection.
X. Test Parts, Forms, Tooling
If the Buyer is required to provide parts to complete the order, they
must be delivered free of cost to the place of production in the
required quantity, or with an additional quantity to cover any scrap, on
time, without cost and free of any defects. If this does not occur, any
resulting costs and other consequences will be for his account.
2. The construction of experimental parts, including the costs for forms and tools are for the account of the Buyer.
Our liability for tools, forms and other manufacturing devices provided
by the Buyer is limited to the care which we would normally apply in
our own affairs. The Buyer takes over the cost for maintenance and
repair. Our safekeeping responsibility ends – independently of the
ownership rights of the Buyer – at the latest two years after the last
manufacturing using the form or tool.
XI. Place of Performance, Jurisdiction and Applicable Law
The place of performance for our deliveries, for subsequent performance
and for payments of the Buyer is the place of our warehouse. The place
of jurisdiction is the location of our main place of business. We may
also sue the Buyer at his domicile.
2. In addition to these
Conditions, German law shall apply for the legal relationships between
us and the Buyer, excluding the provisions of the United Nations
Convention on Contracts for the International Sale of Goods from
XII. Authoritative Version
In case of doubt, the German version of these General Conditions of Sale shall prevail.