Leopoldsweg 4 a
61348 Bad Homburg
T: +49 6172 76198 40
F: +49 6172 76198 70
§ 1 General
(1) The order placed with us and all future orders will be executed exclusively in accordance with the following conditions and which are deemed as acknowledged by virtue of placing the order, bur no later than when the delivery is accepted.
(2) Arrangements deviating from these conditions, also those agreed with our representatives, require our written confirmation to be effective, as do also deviating conditions of the buyer.
§ 2 Contract conclusion
(1) Our proposals are invariably non-committal.
(2) Unless explicitly assured otherwise in writing, the descriptions of our products, samples, test results and specimens represent average values gained from experience and deviations from them are possible in individual cases.
(3) We reserve all proprietary rights and copyrights in costs estimates, drawings and other documents. They may not be disclosed or made accessible to third parties.
§ 3 Delivery and performance time
(1) We comply with stated delivery times whenever possible, but these times are not binding unless explicitly agreed otherwise in writing.
(2) In the event that we are impeded in the fulfilment of our obligations by unforeseeable unusual occurrences that we cannot avert despite talking all reasonable care under the circumstances – irrespective of whether these happen in the works of the supplier or his sub-suppliers – e.g. operating disruptions, interventions by public authorities, delays in the delivery of essential commodities and construction materials, energy supply problems, then the delivery time prolongs appropriately inasmuch as delivery or performance is impossible. We are released from the obligation to deliver if the aforesaid circumstances render delivery impossible. The same applies correspondingly in the event of strikes and lockouts. If the delivery time prolongs or we are released from the obligation to deliver in the aforesaid cases, then any damage compensation claims and withdrawal rights of the buyer inferred from such circumstances shall be void. However, we can only plead the cases named here if we inform the buyer immediately. The legal consequences in our favour do not apply if we neglect this obligation to inform promptly.
(3) Our performance obligations are invariably subject to delivery to us by our own suppliers.
(4) Partial deliveries are admissible.
(5) Compliance with delivery times presupposes that the buyer fulfils his contractual obligations.
(6) Inasmuch as we are answerable for failure to comply with bindingly assured times and dates, the buyer shall be entitled to default compensation amounting to ½% for each completed week of default, but at most up to 5% of the invoice value of the deliveries and performances affected by the default. Further-reaching claims, especially damage compensation claims of any kind whatsoever, are excluded.
§ 4 Passage of risk and acceptance of delivery
(1) Risk passes o the buyer as soon as the consignment has been handed over to the person undertaking the transportation or has left our storage for the purpose of shipment, and even then in the event of partial deliveries or if we have assumed additional performances, e.g. shipment costs or delivery and setup. If the buyer so wishes, we insure the consignment at his cost against theft, breakage, transport, fire and water damage and against other insurable risks.
(2) If shipment is delayed due to circumstances for which the buyer is answerable, then risk passes to the buyer as from the day of readiness for dispatch; but at the wish and cost of the buyer we are obligated to take out the insurance demanded by the buyer.
(3) Notwithstanding his warranty claims, the buyer must accept delivery of items even if they contain insignificant deficiencies.
§ 5 Conditions of payment
(1) Our prices are understood as net, exclusive VAT to the amount in effect on the day of delivery. Additionally invoiced will be any insurance costs, special packagings, other incidental costs e.g. unloading or discharging costs and surcharges in this connection or in connection with special freight transport conditions, such as lacking exchangeable palettes.
(2) Even for confirmed orders, we reserve the right to proportionally increase prices if cost factors change after contract conclusion but before delivery, e.g. because our costs increase due to currency fluctuations or wage increases.
(3) Our invoices are payable net within 30 days reckoned as from invoice date. In the event that the payment due date is overrun, then notwithstanding other rights we shall be entitled to charge interest amounting to 4% above the then applicable Bundesbank discount rate.
(4) Bills of exchange and cheques are only accepted on account of payment. Discount, collection or other expenses are charged to the buyer. In the case of cheque or promissory note coverage, payment is not deemed to be already finally made when the cheque is redeemed.
(5) Without explicit written authority, our field sales employees are not entitled to receive payments or payment documents on account of performance or to allow other remunerations, e.g. deferrals etc.
(6) The buyer can only offset with claims that are uncontested or established with lawful finality any can only assert a withholding right for such a reason.
§ 6 Retention of title
(1) The goods remain our property until the buyer has paid all accounts receivable from the business relationship, also claims arising in future, e.g. also conditional claims from cheque or promissory note coverage. The retention of title also serves to secure the balance in the event that deliveries are performed on current account.
(2) If the buyer processes our goods, then this processing is done on our behalf, but without obligation for us; our proprietary rights therefore also extend accordingly to include the products created through the processing of our goods.
(3) If our conditional goods are processed, conjoined, compounded or comingled with other goods not belonging to us, then we are entitled to the co-ownership portion so arising in the new item in the ratio of the invoice value of the conditional goods to that of the other processed goods at the time of comingling. If the buyer acquires sole ownership in the new item, then the contract partners are agreed that the buyer concedes to us co-ownership in the new item in the ratio of the invoice value of the processed, conjoined, compounded or comingled conditional goods and holds this co-ownership gratuitously for us in custody.
(4) The buyer is only entitled to sell, process or comingle goods in our ownership with other products within the context of orderly business transactions. The status of orderly business transactions is no longer given if the buyer is in default toward us. The receivables of the buyer from reselling our goods, regardless of whether these goods are processed or unprocessed, are herewith already assigned to us as security; however, in the case goods on the basis of a contract for work or another contract, then the buyer herewith already assigns to us the claims he has against his partner, also those claims concerning remuneration for the performance of work, or for third party goods, etc. Compensation claims against insurers or against third parties arising from damage to the goods under reservation of title are also herewith assigned to us. Until further notice, the buyer is entitled and obligated to collect the counter-value for the resold goods and which automatically becomes our property, and to keep this counter-value for us segregated from his other means of payment. The buyer is also obligated to give us information at any time concerning his debtors and the amount of the receivables transferred to us.
(5) If the value of our collateral exceeds our receivables by more than 25%, then we shall on demand release that collateral exceeding our receivables plus 25%.
(6) Assertion of the retention of title does not constitute withdrawal from the contract. If the goods are repossessed on the basis of the retention of title, then 15% of the respective order price will be reimbursed to us as flat rate compensation for the costs we incur in connection with the repossession.
(7) The buyer is obligated to insure our conditional goods subject to retention of title against usual risks, especially burglary, fire and deterioration. This applies particularly in the case of taking our goods in a consignment storage. The buyer must immediately inform us of compulsory execution measures by third parties in the conditional goods or in the receivables assigned in advance and must simultaneously hand over to us the documents necessary for an intervention.
§ 7 Warranty and liability
(1) The buyer is obligated to examine the goods immediately upon delivery to determine whether the goods contain deficiencies, as the case may be by taking random samples and processing of a sample. The recipient of deliveries in tank trucks or silo vehicles must extract samples and investigate them for their characteristics before such deliveries are unloaded.
(2) Any occurring faults must be reported to us promptly in writing or via telegraph no later than within one week after the goods arrive, and concealed defects must be reported to us immediately upon discovery.
(3) In the event that the purchase item contains a deficiency, then the seller is entitled as he chooses to perform subsequent fulfilment in the form of fault remedy or to deliver a new item free from defects. In the event of fault remedy or replacement delivery, we are obligated to assume all expenditure necessary for the purpose of subsequent fulfilment, especially transport costs, personnel travel costs, labour and materials costs, unless these costs increase because the purchase item has been brought to a location other than the place of fulfilment.
(4) If the subsequent fulfilment fails, then the buyer may as he chooses demand either withdrawal or reduction.
(5) We are liable in accordance with the statutory provisions if the buyer asserts damage compensation claims founded in wilful conduct or gross negligence on the part of our representatives or vicarious agents. Inasmuch as we are not charged with wilful breach of contract, then our liability for damages is limited to the foreseeable typically occurring damage.
(6) We are liable in accordance with the statutory provisions if we culpably breach an essential contract obligation; but also in this case our liability for damages is limited to the foreseeable typically occurring damage.
(7) Liability for culpable injury to life, limb or health and mandatory liability according to the Product Liability Act remain unaffected.
§ 8 Concluding provisions
(1) The legal relations between us and the buyer are subject to German law. Uniform purchase law is excluded.
(2) Place of jurisdiction and place of fulfilment is Frankfurt am Main, or also if we so choose the domicile of the buyer or the place of his branch establishment. The statutory place of jurisdiction also applies for cheque and bill of exchange protests.
(3) If one or several of the forgoing provisions is or becomes invalid, this shall not impair the validity of the other provisions. The invalid provision shall be replaced with a regulation approximating closest to the intended economic result.
(4) We reserve the right to store data of the buyer given to us within the context of the contractual relationship and, in the event of taking out credit insurance, to communicate to the insurer data of the customer necessary for this purpose.