1.1 Any delivery, service and offer effected by us shall exclusively be executed on the basis of the present terms of sale They shall also apply to any future business, even if not expressly stipulated otherwise. We herewith oppose any counter-confirmation made by the purchaser referring to his terms of business and sale.
1.2 Any provision made between us and the purchaser in order to execute a contract shall be stipulated in a contract in writing.
2. Offer and conclusion of contract
2.1 Our offers are not binding, provided the binding force of the offer was not defintely stipulated in writing.
A contract shall only be concluded if the declaration of acceptance is confirmed by us in writing.
2.2 Drawings, illustrations, weights and measures, and other performance data shall only be binding if defintely stipulated in writing.
2.3 Our salesmen are not be entitled to make subsidiary verbal agreements or give verbal warranties exceeding the content of the contract concluded in writing.
3.1 Unless otherwise specified, we consider ourselves bound by the prices of our offers for four weeks beginning at the date of the offer. The prices specified in our confirmation of order plus the respective legal turnover tax shall be authoritive. Any additional delivery and service shall be invoiced separately.
3.2 The prices are to be understood from factory, unless otherwise agreed upon.
4. Time of delivery and performance
4.1 The date of or the term for the delivery require a written confirmation in order to be binding. In any other case the date of or the term for the delivery shall not be binding.
4.2 We will not be responsible for any delay in delivery or of performance being due to circumstances amounting to force majeure and events essentially impeding or rendering impossible the delivery, even if they occur with regard to our suppliers or their sub-suppliers. This shall also apply if term and date were bindingly stipulated. We shall hereby be entitled to postpone the delivery or service by the duration of the impediment plus an appropriate starting period or completely withdraw from the contract in whole or in part for the part not yet fulfilled.
4.3 Force majeure shall be an extraordinary, unforeseen or inevitable event (e.g. natural disaster, war, revolution, kidnapping, and fire), the consequences of which cannot be prevented by arrangements economic reasonable. This shall also apply to any official measure and act of government, provided they were not foreseeable or caused, also by contributory fault, by act or failure imputed to the supplier. Force majeure shall not apply to natural occurences periodically recurring, or illegal lockouts.
4.4 If the impediment under 4.3 takes a time exceeding three months, the purchaser shall be entitled to withdraw from the part of the contract not yet performed after having granted an additional period of time of reasonable length. In case the term for the delivery is prolonged or we are released from our obligation, the purchaser cannot derive any claim for damages. We can only invoke the aforementioned circumstances if we inform the purchaser hereof immediately.
4.5 We are entitled to perform part deliveries or services at any time.
4.6 Precondition for the adherence to our delivery and service commitments shall be that the purchaser performs his obligations properly and in time.
4.7 If the purchaser gets in default of acceptance, we shall be entitled to demand compensation for expenses incurred by us. On the occurence of the default of acceptance the risk of the accident worsening and the accident loss passes to the purchaser.
5. Passing of risk
The risk shall pass to the purchaser as soon as the goods consigned were handed over to the person performing the transport or when they left our warehouse for consignment (date of delivery). In case the consignment has become incapable of performance without any fault on our part, the risk shall pass to the purchaser on giving the information of the readiness for dispatch.
6.1 We warrant that our delivery or service is free of manufacturing defects and shortage of materials. The limitation period for purchasers in actions for breach of warranty shall be six months and begin on the date of delivery, unless otherwise stipulated.
6.2 If our operating or maintenance instructions are not observed, if alterations to the deliveries or services are effected, if parts are replaced, or if incidents are used not meeting the original specification, any warranty shall be cancelled.
6.3 The purchaser shall give written notice to us about any defect immediately, but within one week on receipt of the delivery or service at the latest. We shall be informed in writing about defects that cannot be discovered even after careful examination within this period of time immediately after detection.
6.4 In case of a written notice given by the purchaser about the disagreement of our deliveries or services with the warranty, we will decide to either rectify the defect or deliver a substitute at our expense.
If the purchaser demands to do warranty works at a place defined by him, we can fulfil this request; parts under warranty obligation shall not be invoiced while the hours worked and the travelling expenses shall be compensated to our standard rates.
6.5 If after an adequate period of time the rectification of defects fails and/or a replacement is impossible or unreasonable, the purchaser can decide to abate the compensation or withdraw from the contract.
6.6 The warranty of common wear and tear is excluded.
6.7 Warranty claims against us can only be raised by the direct purchaser and cannot be assigned.
6.8 The foregoing provisions finally include the warranty of delivery or service and exclude any other warranty claim.
7. Restriction on liability
Claims for damages for positive infringement of claims, culpa in contrahendo, or in tort against us or any person employed by us in performance of an obligation or any vicarious agent shall be excluded, provided no intentional action or gross negligence is found out or any essential contractual obligation of major services was injured.
This shall also apply to any claim for damages for non-performance, but only insofar as replacement for indirect damages or damages resulting from defects is claimed, unless, the liability is based on a warranty covering the risk of those damages borne by the purchaser. Any liability shall be restricted to the damage foreseeable at the conclusion of the contract. In any case our liability according to the product liability law and any other claim based on product liability shall be unaffected.
8. Reservation of title
8.1 Until the satisfaction of all claims (inclusive of any current accounts receivable) that are or will be due to us against the purchaser on any legal ground, the following securities that we will decide to release on request either wholly or in part will be provided as far as their value exceeds the claims by more than 20 %.
8.2 We retain title to the goods (goods in reservation of title). Any processing or transformation shall be performed for the benefit of us being the manufacturer, but without any obligation to be imposed on us. The co-ownership in the new thing relative to the value of the goods in reservation of title (invoice value) in proportion to the new thing shall be due to us. In this case the purchaser keeps the goods for us without remuneration. If the purchaser resells the new thing Figure 8.3 shall apply accordingly.
8.3 The purchaser shall be entitled to process and resell the goods in reservation of title in the ordinary course of business unless he is in default. Pledging or chattel mortgages shall be inadmissible. The purchaser shall be obliged to insure the goods in reservation of title against the common risks. The purchaser assigns to us the claims arising from the resale or any other legal reason (insurance, tortious act) with regard to the goods in reservation of title (inclusive of any current accounts receivable) by way of securitity to the full extent. We authorize the purchaser until revoked to collect in his own name the claims assigned to us for our account. The direct debit authorization may only be revoked if the purchaser does not meet his financial obligations properly.
8.4 If third parties have access to the goods in reservation of title, notably by levy of attachment, the purchaser will refer to the goods owned by us and inform us immediately so that we can assert our titles. Unless the third party is capable of reimbursing the judicial and extra-judicial costs resulting in this context, the purchaser will be liable for it.
9.1 Unless otherwise stipulated, our invoices shall be paid in full within 15 days from the date of the invoice.
We are entitled to appropriate, except as otherwise stated by the purchaser, payments to his previous debts and we will inform the purchaser of the way of clearing. If cost and interest have already incurred, we will be entitled to appropriate the payment at first to the cost, then to the interest and finally to the main service.
9.2 A payment shall only be considered as paid if we can dispose of the sum. In case of payment by cheque and/or taking in of bills the payment shall only be considered to be paid if the cheque and/or the bill is credited.
9.3 If the purchaser defaults in payment, we will be entitled to claim global damages in form of an interest rate exceeding the respective discount rate of the German Federal Bank by 4 % from the time in question. The assertion of any claim for damages going beyond that remains unaffected hereof.
9.4 If we are informed of circumstances challenging the creditworthiness of the purchaser, notably if a cheque and/or a bill is not credited or payments are suspended, we will be entitled to accelerate the total balance of debt even if we accepted the payment by cheque. In this case we are also entitled to demand advance payment or provision of security.
9.5 The purchaser shall only be entitled to claim set-off, retention or reduction, even if complaints were filed or counterclaims were set up, if the counterclaims became res judicata or if they are indisputable. The assignment of claims against us to a third party will be excluded.
10. Industrial property right and Copyright
10.1 In case claims for infringement of an industrial property right or a copyright were entered against the purchaser since he uses our delivery/service, we will bind ourselves to get the right to further use for it. The prerequisite for this shall be that the purchaser immediately briefs us in writing on those claims entered by third parties and that we can reserve the right to any defensive and extra-judicial measure. Should under these conditions any further use of our delivery/service not be possible on terms economically justifiable, it shall be considered as agreed that we either modify or replace the delivery/service to remedy the defect of title at our choice or take back the delivery/service and refund the purchase price we received deducting a sum in consideration of the age of the delivery/service.
10.2 Further claims for infringement of an industrial property right or a copyright shall not be due to the purchaser. We will not be under obligation if infringements of a right are caused by using our delivery/service in a different manner than offered by us or together with a delivery/service unlike ours.
10.3 We will not be liable for infringements of a right in respect of any delivery/service performed on the basis of design documents or other data given by the purchaser.
Unless otherwise expressly stipulated in writing, the information submitted to us with regard to any order shall not be considered as confidential.
12. Applicable law, jurisdiction
12.1 The Law of the Federal Republic of Germany shall apply to the business relations hereinbefore and the entire legal relationship between us and the purchaser to the exclusion of the UN-Convention on Contracts for the International Sale of Goods.
12.2 If the purchaser is a merchant as defined by the Commercial Code, a legal person under public law or Federal Special Fund, the seat of our company shall be exclusive jurisdiction as to any dispute arising out of the contract directly or indirectly, unless, another jurisdiction is mandatory.