These General Conditions shall apply to all sales and deliveries – also to future deliveries – unless the Contracting Parties agree otherwise in individual cases. Any terms and conditions of the Buyer differing from those specified herein will not be binding on the Seller even in case of acceptance of an order, unless the Seller confirms in individual cases expressly acceptance thereof in writing.
2. Quotations, Extent of Delivery
2.1 The offers of the Seller are without engagement. Technical details and illustrations in catalogues, product descriptions and the like are not binding.
2.2 The Seller’s written order confirmation shall be conclusive in determining the extent of deliveries and performances. Collateral agreements or amendments shall not be effective unless accepted by the Seller in writing.
2.3. The Seller shall be entitled to effect partial deliveries and partial invoices.
2.4. Insofar as any modifications requested by the Buyer after placing the order result in increased expenditure for the Seller, the Seller shall be entitled to claim an appropriate increase in price and a postponement of the delivery date.
3. Prices and Payment
3.1 Failing specific agreement to the contrary, the Seller’s prices are always for deliveries ex works. In case of an order according to a price list, the prices valid at the time of delivery shall apply.
3.2 In the absence of any other specific agreement payment shall be made without any deductions within 30 days from date of invoice free of charge to the account of the Seller.
3.3 The Buyers obligations to effect payment to the Seller are only considered as fulfilled if and when the amount invoiced by the Seller is fully and irrevocably credited to the Seller’s account. If any payment owed by the Buyer is not made when due, the Seller shall be entitled to claim a late charge to be calculated from the due date at the rate of 9% per annum above the current Deutsche Bundesbank base interest rate.
3.4 The Buyer is neither entitled to withhold any payments nor to offset any payments with counter-claims unless these counter-claims are not disputed or have been legally ascertained.
3.5 If the Buyer’s financial position substantially deteriorates, creating a risk that any sum payable to the Seller might not be paid, than the Seller shall be entitled to suspend deliveries until payment has been effected or adequate security supplied.
4. Time of Delivery, Delay
4.1 Time of delivery is specified in the agreements of the contracting Parties.
4.2 The observation of the delivery time is subject to the correct and timely delivery by Sellers subcontractors and to the timely receipt of an agreed down/advance payment. The Seller shall not be liable if he does not obtain an export license or not in due time.
4.3 The delivery time shall be deemed to have been observed if, by the time of its expiry, the Contract products have left the works of the Seller, or if the Buyer has been notified of their readiness for shipment.
4.4 The delivery time or deadline shall be reasonably extended in case of any delay arising out of an industrial dispute, in case of energy and raw materials shortages and of any other unavoidable obstacle to the Seller’s performance of the contract (force majeure). This shall also apply where such circumstances arise on the side of any subcontractors.
4.5 Should the Buyer suffer damage or loss as a result of a delay in delivery for which the Seller is responsible, the Buyer shall be entitled to claim a compensation. Such compensation shall amount up to 0.5 % for each full week of delay, but limited to a maximum of 5 % of the value of the delayed part of delivery. In case of significant delay the Buyer shall be entitled to fix by registered mail to the management a reasonable final deadline for delivery. Should the Seller fail to meet such final deadline for a reason for which he is responsible, the Buyer shall be entitled to terminate the contract. Further remedies with respect to Seller’s delay shall only be in accordance with clause 9.
5. Delivery, Passing of Risk
5.1 The sales terms agreed between the Contracting Parties shall be construed in accordance with the current version of the INCOTERMS as applicable at the time of contract formation. Failing specific contractual arrangements the contract products shall be deemed delivered ex works of the Seller (EXW).
5.2 The risk of loss during transportation is always on the Buyer’s account, even in case of deliveries carriage paid or deliveries free domicile except when such deliveries are carried out by the Seller with own vehicles from his factory or warehouse. If delivery is delayed or omitted by reasons not attributable to the Seller, the risk shall pass to the Buyer when the Buyer has been notified of the readiness for shipment.
6. Reservation of title
6.1. The Seller reserves the title to the delivered products until all the claims of the Seller under the business relationship have been settled in full.
6.2 The Buyer shall neither pledge nor transfer title to the delivered products as security. He shall inform the Seller without delay if any rights of attachment or confiscation or any other rights of disposal by third parties are exercised.
6.3 If the Buyer does not comply with the contract, in particular with respect to delay of payment, the Seller shall after a reminder be entitled to the recall and redemption of the products. The Seller’s assertion of the reservation of title and his levy of execution of the item to be delivered shall not be considered as rescission of contract.
6.4 A petition to open insolvency proceedings shall entitle the Seller to rescind the contract and to claim the immediate return of the delivered product.
7.1 The Buyer must inspect the goods and the packing with respect to type of goods, quantity and apparent defects upon delivery without delay. The Buyer shall notify the Seller by fax within five (5) days after receipt of the goods of defects discovered during inspection.
7.2 If a defect appears later which was not ascertainable despite a careful inspection on receipt of goods (hidden defect), such defect shall be notified without delay within eight (8) days after its recovery by fax. Otherwise the goods shall be deemed to be insofar according the contract.
7.3 The Seller shall not be liable for the fitness of the delivered goods for the purposes intended by the Buyer. Consultations regarding application, advice or recommendations made by the Seller are to the best of Seller’s knowledge. They are without obligation, because the real application is beyond the influence of the Seller and all its conditions cannot be foreseen by him.
7.4 The Seller shall not be liable for defects caused by inappropriate use, improper assembly and commissioning, normal wear and tear, improper operation and maintenance, faulty repairs carried out by the Buyer or the end-user, unsuitable operating materials or electrical influences, if they are not the fault of the Seller.
7.5 If defects occur the Buyer shall send to the Seller a defects report proving the defects (preferably by photos). The Buyer shall keep the defective parts and return to the Seller on his demand at cost of the Seller. If the complaint is proven to be justified, the defective parts shall be replaced by the Seller free of charge. The Seller is not obliged to remove the defective part und to install the replacing part. If a repair by replacing the defective parts is not possible, the Seller shall repair the delivered object by a Sellers mechanic at the Buyers or the Sellers premises free of charge. Travel and accommodation costs of fitters are borne by the buyer.
7.6 If the Seller does not remedy defects or deliver replacement parts within a reasonable extension of time set by the Buyer or if the supplementary performance fails or if the Seller refuses supplementary performance or such supplementary performance cannot reasonably be expected, the Buyer shall have the right to withdraw from the contract concerning the defective object or to reduce the payment. Further remedies with respect to warranty shall only be permissible within the limits of clause 9. The right to withdraw shall not apply in case of insignificant defects. If the Buyer intends to withdraw from contract the Buyer shall fix in a registered letter to the general manager of the Seller a reasonable term for the fulfilment of the Seller’s obligation expressing the possibility of withdrawal.
7.7 The limitation period for warranty claims is 12 months. It begins with the delivery by the buyer to the end customer, but no later than one year after delivery by the seller to the buyer.
8. Protected rights of third parties
Should the Sellers delivery infringe any protected rights of third parties, then - wherever economically justifiable - he shall at his expense, but at his option either obtain a shared right of use for the Buyer or replace the protected part of the delivered products/works so that infringement no longer exists; this to the exclusion of any further remedies as per section 9 below. If the Seller is unable to do so, the rights as per section 7.6 above will be available to the Buyer.
9.1 Any liability of the Seller – for whatever legal reasons - for loss or damage not occurred to the delivered products shall only be accepted by the Seller if such loss or damage is caused by slight negligence of a substantial contract obligation or by gross negligence or intent or malice of the Seller or if the Seller has guaranteed the absence of a defect. If the Seller shall be liable for the slight negligence of a substantial contract obligation the liability of the Seller shall be limited to such loss or damage which might typically be predicted.
9.2 Moreover the Seller shall be liable for claims according to the Product Liability Act for personal injury or property damage to privately used goods and for damages because of culpable injury to life, body or health.
9.3 Any other claims are excluded.
10. Other points
10.1 Both parties shall be obliged to keep secret all confidential business information of the other party obtained during their cooperation; this shall also apply after the end of the cooperation. The confidential information includes also offers, drawings and cost estimates.
10.2 All claims of the Buyer – for whatever legal reason - shall be time-barred after 12 months. For claims resulting out of deliberate or malicious acts or for claims according to the Product Liability Act the legal periods shall apply.
10.3 The German law shall apply. The legal venue shall be the place of business of the Seller.
If the place of business of the Buyer is outside the European Union the suing party may have the possibility that all disputes arising in connection with the delivery contract or its validity shall be finally settled in accordance with the Arbitration Rules of the German Institution of Arbitration e.V. (DIS) by one arbitrator without recourse to the ordinary courts of law. If the value in dispute exceeds EUR 50.000,00 the arbitral tribunal shall have three arbitrators.