Cookie Disclosure
This website uses cookies. By continuing to use the website, you consent to the use of cookies.
Please click here for more information.
You are here:  |  Terms & Conditions of Sale

General Terms and Conditions of Contract, Delivery and Payment A 2009

Effective as per September 1, 2008

 

§ 1 Scope of Terms and Conditions, Exclusion of
Conflicting Terms and Conditions
1. Our General Terms and Conditions for sale and
delivery shall apply to all our offers, deliveries and
performances.
2. The following Terms and Conditions shall only apply
to entrepreneurs according to Section 14 German Civil
Code, legal entities under public law or an asset under
public law (hereinafter referred to as the "Customer").
Such Terms and Conditions shall also apply to all our
future offers, deliveries and performances relating to the
Customer without requiring any further reference or
agreement.
3. As a general rule, our General Terms and Conditions
apply exclusively. Any contradicting, conflicting or
additional general terms and conditions used by the
Customer are expressly excluded and rejected.
§ 2 Conclusion of Contract, Scope of the Delivery,
Prohibition of Assignment
1. Our offers are subject to change and are non-binding.
In order to become binding, any orders or agreements
require our written order confirmation or our delivery of
the goods. The same shall apply to any amendments,
changes or side agreements.
2. All information about our products, in particular pictures,
sizes, performance criteria and any other technical
data included in our offers and brochures shall be
regarded as approximate average values. Tolerances in
quantity, weight, number of pieces and dimensions
customary in this line of business are expressly reserved.
3. Our written order confirmation or, in the event of lack
of such order confirmation, our offer shall be relevant
determining the scope of delivery and/or the service to
be rendered.
4. Any agreement, side agreement, warranty or modification
to the contract must be reduced to writing in order
to be binding. The foregoing shall also apply to a waiver
of such written form requirement.
5. Any documents such as drawings, pictures, descriptions
and specifications of weight and dimensions which
form the basis of our offer shall only become an integral
part of the contract if they are expressly made a part of
the offer. We reserve the right to make modifications to
the extent such modifications are not essential and the
subject of the contract is not unreasonably impaired for
the Customer.
6. The Customer shall not be entitled to assign or to
transfer any claims or rights resulting from the business
relationship with us without our prior consent. The same
applies to any of the Customer's claims against us which
have directly arisen by operation of law.
§ 3 Prices, Payments, Set Off and Rights of
Retention
1. Our prices are net-prices and shall be on an Ex
Works Metzingen basis. VAT at the rate applicable at a
time (even if not separately shown), costs for packaging,
freight, assembly, postal charges, insurance costs,
customs duties, any costs for bank or payment transactions
as well as any other additional costs will have to be
paid in addition.
2. Our invoices are immediately due for payment. For
payments made within 14 days after the invoice date, we
grant a 3 % cash discount. The timeliness of the payments
is determined by the date the amount is credited
to the point of payment indicated by us. Where the
Customer is in delay with any payment, the invoice shall
be immediately due for payment without any discounts.
3. In the event of payments outstanding from the
Customer - also in relation to other contractual relationships
between the Customer and us – we are entitled to
make any further deliveries dependant on the complete
settlement of such outstanding payments.
4. Where our Customer is in delay with payments,
payment conditions are not met, insolvency proceedings
with regard to the assets of our Customer are filed for or
any other circumstances become known or apparent
that give cause to reasonable doubts with respect to the
Customer's creditworthiness, including such facts that
existed at the time of the conclusion of the contract
beyond our best knowledge, we shall be entitled to stop
any delivery and to demand advance payment or the
provision of securities acceptable for us with respect to
any outstanding deliveries. If such securities should not
be granted after an adequate grace period, we shall be
entitled to withdraw from the contract. Our further
statutory rights shall remain unaffected. The Customer
shall be liable for all damages arising from the resulting
non-performance of the contract.
5. In the event of substantial increases of material
prices, salaries or energy costs between the time of the
conclusion of the contract and the delivery date, we are
entitled to unilaterally raise the prices reasonably
(Section 315 German Civil Code), if and to the extent the
period of time between the time of the conclusion of the
contract and the delivery date is longer than 4 months.
6. With respect to orders under framework agreements,
delivery on demand or call orders that have not been
placed yet, we reserve the right to adjust the prices in the
event substantial changes in material prices should
occur during the term of such framework agreements or
delivery on demand/call orders. Such adjustments require
a notice period of 4 weeks and can only be made if our
costs (in particular caused by increases of material
prices, salaries or energy costs) should increase more
than 5 percentage points in the aggregate. If the resulting
increase in price should exceed 10 percentage points,
the Customer is entitled to rescind the contract.
7. Without requiring a prior reminder, we shall be
entitled to demand interest payable from the due date at
an annual rate of at least 5 percentage points above the
base interest rate.
8. The Customer may only offset receivables due to us
with counter claims or claim a retention right, if such
counter claims are undisputed or have been established
by a court of law in an unappealable manner. Notices of
defect furnished by the Customer shall neither affect the
Customer's payment obligations nor the date a payment
falls due. The Customer hereby waives any right to
refuse performance as well as any retention right.
Such waiver shall not apply if we, our representatives or
our vicarious agents have committed a fundamental breach of contract or the Customer's counterclaims
which form the basis for the right to refuse performance
or the retention right, are undisputed or have been
established by a court of law in an unappealable
manner.
9. 30 days after the receipt of the invoice the Customer
shall be deemed in delay unless circumstances exist
(e.g. reminder or terms of payment determinable by
calendar) that cause the Customer to be deemed in
delay earlier. When the Customer is in delay with payment,
our receivables shall bear and the Customer shall
pay interest at a rate of annually 8 percentage points
above the base interest rate.
10. The minimum net order value is € 100,-, in the event
of custom-made products € 250,-.
11. Cheques and drafts will only be accepted after previous
agreement and only on account of performance.
Interest and costs shall be borne by the Customer.
§ 4 Delivery Time, Partial Deliveries, Deviations in
Quantity
1. If a term of delivery is agreed, such term shall begin
with the date of our order confirmation, however, not
before complete delivery of the documents to be provided
by the Customer and/or receipt of any advance
payments that may have been agreed upon. If we should
be unable to make a delivery due to reasons caused by
the Customer, a term of delivery shall be deemed
complied with if the item to be delivered has left our
premises or has been notified to the Customer as ready
for dispatch before such term of delivery has expired.
2. A term of delivery shall be extended appropriately in
the event of Force Majeure or any unforeseen obstacles
such as unrest, strike, lock-out, fire, confiscation, embargo,
statutory or official constraints of energy consumption or
incorrect and/or not timely self-supply, if and to the extent
such obstacles have not been culpably caused by us
and - despite reasonable care - we were unable to avert
such obstacles and such obstacles have influence on
our ability to timely fulfil our obligations under the contract.
If due to such circumstances the extension of the
term of delivery should exceed a reasonable time, and
after a reasonable grace period defined by the Customer
has expired unsuccessfully, the Customer shall be
entitled to withdraw from the entire contract or, if the
Customer is interested in partial performance of the
contract, withdraw from such part of the contract that is
yet unfulfilled. If we have already performed in part, the
Customer may only withdraw from the entire contract if
the Customer can evidence that he has no interest in
partial performance.
3. If we should be in delay of delivery and after a
reasonable grace period defined by the Customer has
expired unsuccessfully, the Customer shall be entitled to
withdraw from the entire contract or, if the Customer is
interested in partial performance of the contract, withdraw
from such part of the contract that is yet unfulfilled. If we
have already performed in part, the Customer may only
withdraw from the entire contract if the Customer can
evidence that he has no interest in partial performance.
Further claims of any kind, in particular claims for
damages including consequential damages, shall be
excluded. § 9 remains unaffected hereby.
4. We are entitled to deliver before the expiry of the
delivery date and to deliver in partial deliveries, provided
that any conflicting interests of the Customer are not
affected in an unacceptable manner.
5. In the event of custom-made products, the ordered
number of items cannot always be adhered to because
of considerations concerning production and the aligned
risk of deficient products. We reserve the right to minor
excess deliveries and short deliveries which shall lead to
a proportionate reduction or increase of our remuneration;
these deliveries do not represent a defect in terms
of the German Civil Code.
§ 5 Passing of Risk, Delivery, Packaging
1. Unless agreed upon otherwise, our deliveries are
carried out on an Ex Works basis.
2. The risk including the risk of seizure passes in all
events, even if the delivery is free of transportation
charges, to the Customer no later than when the delivery
item is handed over to the person in charge of the
transport. This shall also apply when we ourselves are in
charge of the transport or if we engage a third party with
the transport even if we have assumed the duty to
transport or to deliver on our own costs. If the delivery is
delayed due to reasons caused by the Customer, the risk
already passes to the Customer on the day we have
informed the Customer that the delivery item is ready for
dispatch.
§ 6 Retention of Title
1. We retain the title to the goods delivered until complete
fulfilment of all claims resulting from the business
connection with the Customer including claims resulting
from cheques and drafts and any claims for recourse
resulting from payments of cheques and drafts accepted
only on account of performance. If payment is agreed
upon with the Customer on the basis of cheque-draftprocedure,
the retention of title shall last until the danger
of recourse resulting from the drafts issued by us has
ceased to exist.
2. Any reprocessing or change of the delivered goods
by the Customer will be done for us without creating any
obligations for us. If the delivered item is connected,
mixed, mingled or processed with other items not belonging
to us, we acquire joint ownership of the new
goods. The share of the joint ownership corresponds to
the relation of the invoice value of the delivered item to
the value of the new product. The Customer is authorized
to connect, mix, mingle or process the delivered item in
the regular course of business, provided that the aforementioned
security interests are preserved.
3. The Customer is only entitled to sell the delivered
items and the items coming into existence from them
according to subsection 2 above (hereinafter collectively
referred to as "goods subject to retention of title") in the
ordinary course of business provided that the extended
retention of title (assignment of claims according to
subsection 4) is ensured. Any other acts of disposal, in
particular pledge, lease, rent or transfers by way of
security shall not be permitted.
4. The Customer hereby assigns to us all claims
including any future claims resulting from the resale or other use of the goods subject to retention of title. We
hereby accept this assignment. If the good subject to
retention of title is jointly owned by us, such assignment
shall only relate to the amount of the claim which corresponds
to the proportionate value of our joint ownership.
5. The Customer is only authorized dispose, process,
connect, mix or mingle the good subject to retention of
title and to collect the assigned claims in the ordinary
course of business and only revocably. Any revocation
may only occur if the Customer has not correctly fulfilled
his duties, in particular his payment duties, if he is insolvent
or heavily indebted or the opening of an insolvency
proceeding has been applied for. In such an event, the
Customer shall notify the debtor of the assignment upon
our request, furthermore we are entitled to disclose the
extended retention of title to the Customer's client. If the
permission to collect has been revoked, the Customer
shall inform us about the name and address of his
Customer.
6. The Customer's authorization to dispose of, to process,
to connect, to mix or to mingle the good subject to
retention of title and to collect the assigned claims shall
terminate without express revocation in the event of
insolvency, cessation of payments, a filing for insolvency
concerning the Customer's assets by the Customer or a
third party or in the event of establishment of over-indebtedness.
7. In the event of subsection 5 and 6, we are entitled to
request the return of the good subject to retention of title
after reminder and fruitless expiry of an appropriate
additional respite. The Customer is obliged to release
such goods. The Customer shall immediately disclose to
us the name of the assigned claim's debtor. We are also
authorized to disclose the extended retention of title to
the Customer's client.
8. If the realisable value of the securities allowed according
to the above-stated regulations exceeds our claims
more than 20 %, we will at our discretion release our
securities upon the Customer's request.
9. The Customer shall immediately inform us in writing
about any future or past third parties' access to the
goods subject to retention of title or the assigned claims
by handing us out all documents necessary for an
intervention. Any intervention costs, including costs of
litigation, shall be borne in the relationship between us
and the Customer by the Customer.
§ 7 Warranty
1. We are to be held responsible for material defects
and defects of title according to the following provisions.
2. Certain characteristics shall only be considered as
warranted if expressly confirmed in writing. A guarantee
shall only be deemed issued if expressly denominated
as "guaranteed" in writing.
3. The Customer shall immediately give notice in writing
of any kind of obvious material defects, deviations in
quantity and false deliveries, at the latest within one week
after delivery, in any case before connection, mixture,
processing or installation.
4. The Customer shall immediately give notice in writing
of any hidden material defects, at the latest within
7 days after their discovery.
5. The Customer shall give us the opportunity to jointly
assess the notified complaints and to be present at any
withdrawal for material examination.
6. Unless provided otherwise, all claims for defects are
subject to a limitation period of 12 months after the
passing of risk. There shall be no reduction of the limitation
if the delivered item is used for a building according
to its intended use and has caused the building's
defectiveness, as well as for claims according to Section
478 German Civil Code (right of recourse); instead, the
statutory provisions on limitation periods shall apply.
7. Unless provided otherwise in this § 7, our warranty
for defects of quality and for defects of title shall be
limited to supplementary performance. Within the scope
of our supplementary performance obligation, we are
entitled, at our discretion, either to remedy the defect
(subsequent improvement) or to the delivery of faultless
material (replacement). If our supplementary performance
is delayed beyond a commensurate period of time or if
the supplementary performance is unsuccessful despite
repeated efforts, the Customer is entitled to demand a
reduction of the purchase price or to withdraw from the
contract. A withdrawal from the contract is excluded if the
defect is irrelevant. Furthermore, in the event of faultless
partial deliveries, the Customer may only withdraw from
the entire contract if he can evidence that he has no
interest in the partial performance. Further claims, in
particular claims for reimbursement of expenses and for
damages, are excluded unless provided otherwise in the
following § 9. Replaced parts shall be returned to us
upon our request.
8. The Customer shall return the defective good to us
for subsequent improvement or replacement, unless a
reshipment is not possible because of the kind of
delivery. We shall bear the costs for transportation due to
supplementary performance, however only from the
place where the good has been delivered to according
to the terms of contract and limited by the amount of the
purchase price. We shall take title to the replaced
delivery items or parts thereof or, as the case may be,
they remain our property.
9. The Customer has to give us the necessary time and
opportunity for supplementary performance. Only in the
event of urgent cases of risk to the plant safety, the
protection against unreasonably high damages or delay
with the removal of defects, the Customer shall be
entitled to cure the defect by himself or by a third party
after prior notice and to demand from us restitution of the
necessary costs.
10. Claims for recourse according to Sections 478, 479
German Civil Code are excluded, unless the claim by the
consumer was legitimate and only within the limits of
statutory regulations except for gestures of goodwill
which were not coordinated with us. Such claims require
the observation of own duties of the person entitled to
recourse, in particular the observation of the requirement
to make a complaint in respect of a defect immediately
on receipt of goods.
11. The processing or installation of delivered items is
always deemed to be a waiver of the notice of defects to
the extent the defect was obvious.12. In the event of legitimate notices of defects,
payments by the Customer may only be withheld in an
adequate proportion to the material defects occurred. In
the event of an unjustified notice of defects, we are
entitled to demand from the Customer reimbursement of
the expenses resulting therefrom.
13. Claims based on defects shall be excluded in the
event of minor deviations from the agreed or usual
characteristics or utility.
14. The recognition of a material defect always requires
the written form.
15. There shall be no warranty obligation if the intended
use of the delivery item by the Customer deviates from
the common use, unless agreed upon in writing.
§ 8 Withdrawal, Impossibility of Performance
1. Irrespective of other provisions in these General
Terms and Conditions, the Customer may withdraw from
the contract in writing, if and to the extent the
performance of the contract has become entirely
impossible before the passing of the risk. In the event of
partial impossibility of performance, the Customer may
only withdraw from the contract if he can evidence that
he has no interest in the partial delivery or partial
performance – otherwise, the Customer may demand a
commensurate reduction of the purchase price. Further
claims of the Customer are excluded unless provided
otherwise in the following § 9. Furthermore, the Customer
may only withdraw from the contract if the breach of duty
is substantial.
2. In the event that no party is responsible for the
impossibility of performance, we are entitled to demand
a part of the purchase price in proportion to the part of
the contract already performed.
§ 9 Liability
1. Our liability for damages, out of which legal reasons
whatsoever, is limited to
a) our acts of intent or gross negligence including acts
of our leading employees and vicarious agents
b) culpable injury of life, body, health
c) culpable material breach of contract
d) if we have intentionally misrepresented the defect by
silence or if we have guaranteed the absence of defects
e) to the extent we are liable for personal and material
damages with respect to privately used items under the
German Product Liability Act.
2. Further claims for damages are excluded.
3. In the event of a culpable material breach of
contract, our liability is limited to losses reasonably
foreseeable and typical for this kind of contract. The
foreseeable loss typical for this kind of contract shall
generally be the amount of the contract value of the
particular performance.
4. If the risk of loss foreseeable and typical for this kind
of contract according to § 9 subsection (3) above is
covered by a liability insurance, our liability including the
liability of our legal representatives and vicarious agents
is limited to the insurance payments. To the extent the
insurer is not liable to pay, we shall pay compensation
limited by the amount of the insurance sum.
§ 10 Intellectual Property Rights, Tools
1. We reserve all title and rights including copyrights
and other intellectual property rights in application
recommendations, drafts, drawings and other
documents. These documents may not be passed to
third parties without our consent and they have to be
returned to us upon request.
2. If we have delivered products according to drawings,
samples or other documents supplied by the Customer,
the Customer warrants that these documents are free of
any third party rights. If any third party rights are
infringed, the Customer shall immediately defend us,
hold us harmless and indemnify us against all loss,
damages, costs and expenses awarded against or
incurred by us. The Customer shall reimburse us all
expenses including attorney's fees incurred due to such
claims.
3. Tools, necessary for the production of the delivery
item and manufactured by us, remain our property, even
if we are charging the Customer for the costs on a prorata
basis.
§ 11 Assembly
With respect to assembly, the standard terms of
assembly of the "Verein Deutscher Maschinenanstalten
e.V.", Frankfurt, Germany, shall apply.
§ 12 Place of Performance, Place of Jurisdiction,
Applicable Law
1. For all claims arising out of the business relationship,
the place of performance shall be 72555 Metzingen,
Germany.
2. The exclusive place of jurisdiction for all claims
resulting from the business relationship including claims
from cheques and drafts shall be with the court locally
competent for our principal place of business. We are
also authorized, however, to sue our Customer at his
general place of jurisdiction.
3. These General Terms and Conditions shall
exclusively be governed by German law excluding the
rules of the United Nations Convention on Contracts for
the International Sale of Goods (CISG) and international
private law.
4. Should one or another provision of these General
Terms and Conditions be or become fully or partly
invalid, the validity of the remaining provisions shall
remain unaffected hereby. The parties shall undertake to
replace such provision by a valid provision the business
purpose of which is as close as possible to that other
cancelled provision.
5. Any changes of these General Terms and
Conditions require the written form. This applies mutatis
mutandis to a waiver of the written form.