General Terms and Conditions of Business
0. General information
0.1. All of our current and future business relationships are governed by the following Terms and Conditions of Business. Any amendments, addendums and other verbal agreements of any kind whatsoever, particularly orders and contracts, shall only be effective if confirmed by us in writing.
0.2. We herewith explicitly reject any deviating terms and conditions of the Customer. We shall not require to raise any further objections in the future, particularly when concluding an agreement, receiving the Customer’s order or approving the goods or other services.
The documents related to the offer, such as images, drawings, weights and measurements, shall only be regarded as approximations unless explicitly stated as binding. The Supplier reserves all property rights and copyright in cost estimates, drawings and other documents. The latter shall not be made available to third parties. The Supplier shall only be permitted to make plans marked as confidential by the Customer available to third parties with the Customer’s consent. Our offers are non-binding.
2. Scope of delivery
The scope of delivery is conclusively specified in the written order confirmation of the Supplier. In the event of the Supplier submitting a time-limited offer and approval within the deadline, the scope of delivery is stated in the offer if no order confirmation has been submitted within the deadline. Any additional agreements and amendments shall be confirmed in writing by the Supplier to become effective.
3. Prices and payment
3.1. All prices are ex works including loading at the plant but excluding packaging and transport costs, unless agreed otherwise and in writing. The prices exclude statutory VAT.
3.2. Payments shall be made in cash and without incurring any fees to the paying office of the Supplier: 30 days from date of invoice and in full. Cash discounts are only granted upon written agreement between the Customer and Supplier.
3.3. In the event of the Customer defaulting on a payment, we may request interest in the amount of around 3% above the respective Bundesbank discount rate. This shall not affect the assertion of additional damages for delay exceeding this amount.
3.4. The Customer may not retain payments or offset them against alleged counterclaims that have been disputed by the Supplier.
4. Delivery period
4.1. The delivery period starts at the time the order confirmation is dispatched but not before the provision of the documents and authorisations to be produced by the customer and not until any agreed payments have been received.
4.2. The delivery period is deemed to have been complied with if the items have left the plant, or if a notice has been sent that the items are ready for dispatch, before the expiry date of the delivery period.
4.3. The delivery period shall be extended appropriately in the event of industrial action, particularly strikes and lock-outs, and unforeseen difficulties that fall outside the scope of control of the Supplier, as long as such difficulties evidently have a crucial impact on the completion or delivery of the items. This shall also apply if such circumstances are experienced by subcontractors. The Supplier shall not assume liability for the above circumstances even if they occur during an existing delay. The Supplier shall notify the Customer as soon as possible of the start and end of such difficulties.
4.4. In the event of the Customer incurring damages due to a delay which falls within the scope of control of the Supplier, the Customer may request damages for delay to the exclusion of further claims. Such damages for delay shall amount to 0.5%, but total no more than 5%, of the value of the part of the full delivery which cannot be used on time or as contractually agreed due to the delay.
4.5. If the dispatch is delayed upon request by the Customer, the costs arising from the storage of the items at the Supplier’s plant shall be invoiced to the Customer, starting one month from the notification of readiness for dispatch being sent and amounting to at least 0.5% of the invoiced amount for each month. However, the Supplier may dispose of the items otherwise and deliver items to the Customer within an appropriately extended delivery period if the Supplier grants a reasonable period of grace and this period expires without any action having been taken.
4.6. Compliance with the delivery period shall be based on the Customer fulfilling its contractual obligations.
5. Risk transfer and acceptance of items
5.1. The risk is transferred to the Customer at the latest upon dispatch of the items, even in the event of partial deliveries or the Supplier has agreed to provide other services, such as shipping costs or transport and installation. Upon the Customer’s request and at the Customer’s costs, the Supplier shall insure the delivery against theft, breakages and damages caused by transport, fire and water as well as other various risks.
5.2. In the event of the dispatch being delayed due to circumstances within the Customer’s scope of control, the risk shall be transferred to the Customer as from the date on which the items are ready for dispatch. However, the Supplier shall obtain any insurance requested by the customer at the customer’s cost.
5.3. Delivered items shall be accepted by the Customer, even if they have immaterial defects and notwithstanding the rights stated in Section 7.
5.4. Partial deliveries are permitted.
6. Retention of title
6.1. All items delivered by us shall remain our property until the Customer has paid all of its receivables due to us. In the event of several items being delivered, the retention of tile in a specific item shall not expire if the Customer stated a specific purpose for use when making payment as long as other receivables are still outstanding.
6.2. The Supplier may insure the items against theft, breakages, fire, water and other damages at the cost of the Customer, unless the Customer has evidently concluded its own insurance.
6.3. The Customer shall not pledge the items or use them as collateral. The Customer shall notify the Supplier immediately of any seizure or garnishment or other disposition of the items by third parties.
6.4. In the event of the Customer violating the agreement, particularly if defaulting on payment, the Supplier may request the return of the items after sending a written warning and the Customer shall be obliged to return the items. The Supplier’s assertion of its retention of title and its seizure of the items shall not be deemed to be a withdrawal from the agreement, unless the German instalment purchase law (Abzahlungsgesetz) applies in the situation.
6.5. If the item is combined and thus becomes part of another item owned by the Customer, it shall herewith be agreed for the Customer to transfer co-ownership in the new item to us and store the new item for us free of charge. Our co-ownership share shall be determined on the basis of the value of the item compared with the value of the new item.
6.6. The Customer shall herewith already transfer to us all receivables arising from the sale of the items subject to retention of title to its own customers. In the event of the items subject to retention of title being sold together with other items not belonging to us, the customer shall transfer to us the share from the receivables created by the sale corresponding to the value of the items subject to retention of title. In the event of the items subject to retention of title in which we only have co-ownership being sold, the transferred share of the receivable created by the sale shall be based on our co-ownership share.
6.7. The Customer shall remain entitled to collect the receivables arising from the sale. This entitlement may be revoked. Upon request, the Customer shall notify its own customers of the assignment of the receivables and provide us with all information and documents which we require for asserting our rights.
6.8. We shall undertake to release any securities due to us if they exceed the value of the receivables to be secured by more than 20%.
6.9. The assertion of the retention of title shall not be deemed to be a withdrawal from the agreement. In the event of payment delay, the Customer shall release the items subject to retention of title upon our request.
6.10. The Customer shall notify us immediately in the event of the items subject to retention of title being seized or our rights being otherwise violated by third parties.
7. Liability for defective deliveries
The Supplier shall assume liability as follows for defective deliveries, including a lack of explicitly assured properties, to the exclusion of additional claims and notwithstanding Section 9:
7.1. Any parts that are found to be unusable or significantly impaired in their usability due to an event prior to the risk transfer, particularly due to defective construction, poor quality materials or inadequate design, within six months from start-up (within three months from start-up in multi-shift operations) shall be repaired or re-delivered free of charge at the discretion of the Supplier. The Customer shall notify the Supplier immediately of any such defects found. Replaced parts shall become the property of the Supplier.
In the event of dispatch, installation or start-up being delayed due to actions caused by the Supplier, liability shall expire at the latest 12 months from risk transfer. For material third-party items, the Supplier’s liability shall be limited to the assignment of liability claims which it is entitled to assert against the supplier of the third-party items.
7.2. The Customer’s right to assert claims for defects shall always expire by limitation within six months from the date of a timely complaint, but no earlier than the expiry date of the warranty period.
7.3. No liability shall be assumed for tools and diamonds subject to ordinary wear and tear and damages caused by the following actions: Improper or unprofessional use, incorrect installation and/or start-up by the customer or third parties, ordinary wear and tear, incorrect or negligent handling, unsuitable equipment and consumables, replacements materials, defective construction work, unsuitable subsoil, chemical, electrochemical or electrical impact, unless caused by the Supplier.
7.4. The Customer shall refer with the Supplier and provide sufficient time and opportunity for the implementation of all repairs and replacement deliveries deemed necessary by the Supplier at its discretion. Failure to do so shall indemnify the Supplier from all liability for defects. The Customer may only rectify, or engage third parties to rectify, the defect and request for the Supplier to reimburse the costs incurred by such actions in emergencies where occupational health and safety is compromised and where action needs to be taken to prevent disproportionate damage or if the Supplier is delayed in the rectification of defects. The Supplier shall be notified immediately of such emergency measures taken.
7.5. The Supplier shall carry the direct costs for repairs and/or replacement deliveries, insofar as the complaint is proven to be justified, the costs for the replacement items, including transport, as well as reasonable costs for removal and installation, plus the costs for any fitters and assistants required, if this can be justly requested under the individual circumstances. The Customer shall carry all other costs.
7.6. The warranty period for replacement items and repairs is three months and remains effective at least until the expiry date of the original warranty period for the item. The defect liability period for the item shall be extended by the duration of the disruptions to operations caused by the repairs.
7.7. Any improper modifications or repairs performed by the Customer or third parties without consent from the supplier shall invalidate liability for the consequences.
7.8. Any further claims of the Customer, particularly claims for damages that have not occurred on the item itself, shall be excluded.
This exclusion of liability shall not apply in the event of acts of malicious intent or gross negligence being performed by the company owner or managing employee and in cases where liability is in effect for personal injury or physical damage caused by defects of items that are privately used in accordance with product liability law. It shall further not apply to the lack of properties that have been explicitly assured if such assurance has effectively secured the Customer against damages that have not occurred on the item itself.
8. Liability for accessory obligations
If the Customer cannot use the delivered item as contractually intended due to failure to perform, or the incorrect performance of, proposals or advice given before or after the conclusion of the agreement as well as other contractual accessory obligations, particularly operating and maintenance instructions for the item, the provisions of Sections 7 and 9 shall apply accordingly to the exclusion of further claims by the customer.
9. Right of the customer to withdrawal and other liability of the Supplier
9.1. The Customer may withdraw from the agreement if the Supplier becomes ultimately unable to provide the entire service prior to risk transfer. The same shall apply if the Supplier becomes unable to fulfil the agreement. The Customer may also withdraw from the agreement if it becomes impossible to supply the correct number of items in the event of an order containing similar items and the Customer has a justified interest in rejecting a partial delivery. Should this not be the case, the Customer may reduce its payment accordingly.
9.2. The Customer may withdraw from the agreement if a delivery is delayed within the meaning of Section 4 of the terms and conditions of delivery and if the Customer grants the delayed Supplier a reasonable period of grace with the explicit statement that the Customer shall only reject the service once this period has expired and if the Supplier fails to comply with this period of grace.
9.3. If the inability to provide the service occurs during a period of delayed acceptance of the items or due to actions performed by the Customer, the latter shall remain obliged to pay for the service.
9.4. The Customer may further withdraw from the agreement if the Supplier fails to perform repairs to, or deliver replacement items for, defective items that fall within its scope of control within the meaning of the terms and conditions of delivery during a reasonable period of grace granted by the Customer. The Customer’s right to withdraw from the agreement shall also apply in other cases where the Supplier fails to repair or replace the defective items.
9.5. All other further-reaching claims of the Customer shall be excluded, particularly regarding conversion, termination or reduction as well as compensation for damages of any kind, including such damages that have not occurred on the item itself. This exclusion of liability shall not apply in the event of acts of malicious intent or gross negligence being performed by the company owner or managing employee and in cases where liability is in effect for personal injury or physical damage caused by defects of items that are privately used in accordance with product liability law. It shall further not apply to the lack of properties that have been explicitly assured if such assurance has effectively secured the Customer against damages that have not occurred on the item itself.
10. Place of jurisdiction
All disputes arising from the contractual relationship shall be taken before the court responsible for the head office or the delivering branch of the Supplier if the Customer is a business person, legal entity under public law or special trust under public law. The Supplier may also take a dispute before the court at the head office of the Customer.
11. Severability clause
If individual provisions of these Terms and Conditions of Purchase or the supply agreement are or become ineffective, this shall not affect the effectiveness of the remaining provisions. The Contracting Parties shall replace the ineffective provision with a new provision which comes closest in meaning to the purpose of the ineffective provision.
Greiz, 3 January 2000