§ 1 General Terms – Scope of Validity
(1) Our terms of sale are valid exclusively, We do not accept terms of the purchaser opposing our terms of sale or differing from them, with the exception of terms to which we have expressly given written consent.
(2) Our terms of business are also valid in case we should, without reservation, carry out deliveries to customers whose terms are contrary to or differing from our terms and are known to us.
(3) All arrangements which are made between us and the purchaser for the purpose of the execution of an agreement are recorded in writing in such
(4) Our terms of sale are only valid for entrepreneurs as defined in § 310, paragraph 1, of the Civil Code of the Federal Republic of Germany.
(5) Our terms of sale shall also be valid in their currently applicable version for all further business transactions with the purchaser.
§ 2 Sales Offers and Conclusion of Agreement
(1) Our sales offers are without engagement and not binding.
(2) The statement of acceptance and all orders placed by the customer shall not be legally valid unless we acknowledge them in writing. We reserve the right of technical alterations.
(3) We can accept offers and orders of the customer within four weeks.
(4) We reserve title of property and copyrights to all samples. models, figures, drawings, calculations and other documents; those items must not be disclosed to third parties. This shall especially apply to such written documents which are marked confidential; the disclosure of such documents to third parties is not allowed without our previous express approval in writing.
§ 3 Prices – Terms of Payment
Unless otherwise stated in the acknowledgement of order, our prices and those of our subcontractors are ExWorks; packaging, freight, insurance, customs clearance and other fees excluded. Such fees will be invoiced separately.
Installation of the machines, start-up and training are not covered by our prices.
(2) Our prices do not include the regulated value-added tax; it will be quoted separately in our invoice at its current rate on the date of invoicing.
(3) Unless otherwise agreed upon, the purchase price is to be paid by the
purchase at his own risk as follows:
1/3 upon conclusion of the agreement
1/3 upon notification that the goods are ready for delivery
1/3 upon delivery or the occurrence of the purchaser’s failure to accept.
In any other respect, the legal provisions about delay or default in payment shall apply.
(4) The invoicing of the goods and payments to the seller must be made in Euro. The costs caused by or arising from invoicing and settlement are to be paid by the purchaser.
(5) The purchase shall not have the right to set-off unless his counterclaims have been legally determined and are undisputed or have been acknowledged by us. Additionally, he shall have the right of retention if his counterclaim is based on the same agreement.
§ 4 Period of Delivery and Period of Performance
(1) Delivery dates and deadlines which are agreed upon as binding or not binding shall state the dates on which the goods are ready for delivery on the seller’s or subcontractor’s premises.
(2) The beginning of the period of delivery quoted by us requires the clarification of all technical questions.
(3) The compliance with our delivery obligations also requires the compliance with the obligations of the purchase in due time and according to the applicable provisions. The right to plea against an unperformed agreement is reserved.
(4) The period of delivery can be extended in the case of measures within the scope of labour disputes, especially strike and lockout, or in the case of
occurrence of unpredictable obstacles beyond our intention and responsibility, e.g. standstill, delays in the supply of important materials if there is evidence that such obstacles have considerable effect on the delivery of the subject of delivery. The same shall apply if such circumstances occur on the subcontractor’s premises. The period of delivery shall be extended according to the duration of such measures and obstacles. We shall neither be responsible for the aforesaid circumstances if they occur within the duration of an already existing delay. If the delay has a duration of more than two months, the purchaser, after fixing an adequate period of extension, shall have the right to rescind from that part of the agreement which has not yet been fulfilled. The seller can only invoke the aforesaid circumstance if he has informed the purchaser about such circumstances immediately.
(5) We shall, at any time, have the right to carry out part consignments or part performance.
(6) If the purchaser is in delay of acceptance or if he culpably violates other obligations of cooperation, we shall have the right to claim compensation of the damage caused to us by such an event, including potential additional expenses. We also reserve the right of further claims.
(7) If the preconditions mentioned in paragraph (6) exist, the risk of an accidental loss or destruction, or of an accidental deterioration of the subject of purchase shall pass to the purchaser on the date on which he falls into default of acceptance or payment.
(8) We undertake the liability for the products according to the applicable legal provisions if the purchase agreement on which such liability is based is a short sale agreement as defined in § 268, paragraph 2, no. 4 of the Civil Code of the Federal Republic of Germany, or in § 376 of the Commercial Code of the Federal Republic of Germany. We also undertake the liability in compliance with the applicable legal provisions if the purchaser, as a consequence of a delay in delivery within our responsibility, is entitled to claim that his interest in a further performance of the agreement has expired. In such a case, our liability shall be limited to the predictable, typically occurring damage.
(9) We also undertake the liability in compliance with the legal provisions if the delay in delivery is based on an infringement due to our willful act or gross negligence. We may also be held liable if a representative or agent of ours is responsible for a delay. Our compensation liability is limited to the predictable, typically occurring damage unless the delay in delivery is based on a willful infringement within our responsibility.
(10) We also undertake the liability in compliance with the legal provisions if the delay in delivery within our responsibility was caused by our culpable violation of an essential obligation under an agreement. In such a case, however, the compensation liability is limited to the predictable, typically occurring damage.
(11) The adequate period of extension which the purchaser has to grant according to §§ 281, 323 of the Civil Code of the Federal Republic of Germany in the case of a delay in delivery shall be at least four weeks.
§ 5 Passing of Risk – Dispatch
(1) The risk shall pass to the purchaser in the moment in which the consignment has been transferred to the person which is to carry out the transport, or has left the stocks of the seller or his subcontractor for the purpose of delivery regardless of the fact which one of the partners has to bear the transport costs.
(2) If the delivery becomes impossible beyond the seller’s responsibility, the risk shall pass to the purchaser in the moment in which he is notified that the goods are ready for dispatch.
(3) The seller shall have the right to choose the way of delivery, unless the purchaser gives special instructions.
§ 6 Liability for Defects
(1) The purchaser’s rights in the case of defects require his compliance with his due obligations of inspection and complaint according to the provisions of § 377 of the Commercial Code of the Federal Republic of Germany.
(2) If there is a defect of the subject of purchase, we shall have the right of improvement by eliminating the damage or by providing a new item which is free of defects, at our own choice.
(3) In the case of an elimination of damage, the purchaser shall, at our expense and choice 1.send the defective part or device to us for the purpose of repair and return; or 2.provide the defective part of device at the place of delivery where a service engineer ordered by us will carry out the repair.
If we cannot be held responsible for an asserted defect, we shall have the right to charge to the purchaser the time and costs which were required.
(4) If the purchaser demands that the defects are eliminated on another site which is determined by him, the seller may comply with this demand. The purchaser shall then pay the additional costs caused by the determination of another site.
(5) If the improvement should fail, the purchaser shall have the right to claim a discount or rescission from the agreement, at his own choice.
(6) If the seller’s instruction for start-up, operation or maintenance are not complied with, uncustomary or inadequate materials are used, alterations of the products are carried out, parts are replaced or expendable materials are used which do not comply with the seller’s original specifications or recommendations, any liability for defects shall be excluded, unless the purchaser is able to refute a corresponding, substantiated claim that such defects was caused only by one of these circumstances.
(7) We undertake liability according to the provisions of the laws, if the purchaser raises claims of damages which are based on willful act or gross negligence, including willful acts or gross negligence by our representatives or agents. Our liability for defects shall be limited to the predictable, typically occurring damage unless claims due to willful infringement are raised against us.
(8) We undertake liability according to the provisions of the laws in cases of our culpable noncompliance with essential obligations under an agreement; in such cases, however, the liability for defects shall be limited to the predictable, typically occurring damage.
(9) Liability due to culpable injury to life, body or health shall not be affected; this shall also apply to the compulsory liability according to the product liability law.
(10) Any liability shall be excluded unless otherwise provided in the foregoing paragraphs.
(11) The period of expiration of claims of defects shall be 12 months from the date of passing of risk.
§ 7 Approval Inspection and Instruction
(1) Approval inspections and instructions which if agreed upon, will be carried out in the plant of the seller or, at the seller’s choice, in the plant of the respective subcontractor. In such inspections and instructions, the customary materials shall be used. The purchaser has to provide such materials at his own costs.
§ 8 Trademarks and Copyrights
(1) If the manufacturing of the subject of order is carried out according to the specifications of the purchaser, he shall guarantee us that the subject of order which is manufactured according to his specifications does not affect the trademarks and copyrights of third parties. If a third party should, totally or in part, prohibit our manufacturing of a subject of order, due to a copyright to which he has title, we shall have the right to refrain from the manufacturing and/or the delivery of the subject of order without a verification of the legal conditions. All costs which have been or will be incurred by us due to the violation and/or claim of copyright shall be paid by the purchaser.
§ 9 General Liability
(1) Any additional liability for damage which is not provided in the foregoing terms shall be excluded, without consideration of the legal kind of the asserted claim. This shall apply especially to claims of damages of property due to culpable acts in the conclusion of an agreement, other noncompliance with obligations or an offense according to § 823 of the Civil Code of the Federal Republic of Germany.
(2) If our liability for damages is excluded or restricted, this shall also apply in respect to any personal liability for claims of damages against our employees, partners, representatives and agents.
§ 10 Reservation of Title
(1) Until all claims of the seller are settled (including all current account balance claims) to which the seller, at present or in the future, has or will have title towards the purchaser due to any legal condition, the seller is granted the following securities which he will release upon request and at his own choice, if their value on the long run exceeds the claims by more than 10%.
(2) The goods shall remain the property of the seller. Processing or modification are always carried out on the behalf of the seller as the manufacturer, but without any obligation to him. If the title of property – also including collective property – shall expire due to combination or connection, it is agreed upon already now that the title of property on the resulting uniform item shall pass to the seller at the respective rate (invoice value). The purchaser shall keep the property of the seller free of charge. Goods to which the seller has title of property, is hereinafter referred to as reserved goods, and the purchaser has to keep them insured su
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