§ 1 General information
Our goods and services are provided exclusively on the basis of the respective order confirmation and the terms and conditions below. Conditions to the contrary, in particular purchasing conditions, do not apply or only obligate us if we have expressly declared in writing that we agree with them.
Offers are non-binding. An order only applies as accepted if it is confirmed by us in writing. Agreements that deviate from the content of the order confirmation or that are not included in the order confirmation required our written confirmation to be effective. Specifications we publish in text or drawing form, for instance in catalogs, descriptions, illustrations and drawings, dimensions, weight and performance specifications, as well as project planning instructions describe the condition of our products only. They do not constitute any assurance of characteristics or guarantee. We reserve the right to make changes in the technical data and in the designs in the interest of technical progress.
These terms and conditions apply also apply for all future goods and services, regardless of whether they are agreed again, as long as they are in effect in this form.
§ 2 Prices and payment terms
The prices are always ex works and do not include packaging, freight, postage, insurance, and the legal value added tax, unless otherwise agreed.
Payment shall be made in cash without discount to the designated account of the Supplier within 30 days. Provided that there are no invoices outstanding, we grant a 2% discount for payments that we receive within 14 days after the invoice date; exceptions in this regard include repair parts and spare parts shipments, which shall be due and payable, strictly net cash, immediately. Checks and bills of exchange shall be valid as payment only when they are honored; whereby we reserve the right to refuse payment by bills of exchange.
If after preparing our order confirmation, we become aware of a significant deterioration in the financial position of the Purchaser, then our accounts receivable shall become immediately due and payable. Moreover we are entitled to execute outstanding deliveries or performances, also in deviation from the order confirmation only against advance payment or provision of security, and to withdraw from the contract after a reasonable grace period.
The same shall apply for failure to comply with our payment terms, even if failure to comply with our payment terms affects other orders arising from the mutual business relationship.
Offsetting against claims that are contested by us or that have not been established with legal force shall be excluded.
§ 3 Retention of title
Our deliveries occur exclusively with retention of title. The delivered goods shall remain our property until the Purchaser has settled in full all claims arising from the mutual business relations. This shall also apply if the purchase price for specific deliveries of goods, designated by the Purchaser, is paid.
The Purchaser shall be obligated to store the goods belonging to us, free of charge for us with the diligence of a prudent business person.
If there is a current account, the reserved property shall apply as security for our payment balance request.
If the Purchaser falls into arrears, on our request the Purchaser shall be permitted to hold the goods stored by the Purchaser and supplied by us, in stock. In the event serious violation of obligations on the part of the Purchaser, in particular delay in payment, we shall be entitled to withdraw from the contract.
The Purchaser shall be entitled to resell the delivered goods in the regular course of business. Resale on the part of Purchaser likewise must occur with retention of title. Seizure, charging as security or other acts of disposal is prohibited.
If the Purchaser sells the goods delivered by us – irrespective of the condition of these goods – then Purchaser hereby assigns to us the accounts receivable against Purchaser’s buyers arising for Purchaser from the sale, up to the amount of the value of the goods from us built into the sold object, until complete payback of all accounts receivable arising from the mutual business relationship, along with all ancillary rights. The Purchaser is authorized to collect theses receivables.
No other assignments are permitted. Collected revenues shall be paid out to us without delay in the amount of the amount of the assignment from the date the receivables become due. The entitlement to resale and collection of receivables can be revoked, if the Purchaser is in default of payment or if the Purchaser’s financial circumstances or credit worthiness significantly deteriorates. If we so demand, the Purchaser shall be obligated to notify his customers of the assignment – if we do not notify the Purchaser’s customers ourselves – give us the necessary information and surrender any documents for the assertion of our rights against the Purchaser’s customers. We are authorized to collect the receivables ourselves.
We are entitled to demand handover of the objects to which we hold title, if circumstances become known to us that give us reason to believe that our claims cannot be fulfilled by the Purchaser. The Purchaser hereby declares his consent that, for this purpose, the persons commissioned by us to collect can enter and drive onto the property where the objects are located. On Purchaser’s request, we shall be obligated to release the securities in so far that the realizable value of said securities does not exceed our accounts receivable by more than 20%. We reserve the right no select the securities to be released. In the case of returned goods based on our reservation of title, we are only obligated to grant credit for the invoice value, less the intervening depreciation, as well as the return and dismantling costs. The Purchaser is obligated to immediately notify us of any threat to ownership due to an imminent or completed attachment, retention or other impairments through third parties, and to inform the enforcement officer of our ownership. He is liable for the damage arising from the omission and for any intervention costs.
§ 4 Period of delivery and performance
The goods or services are provided within the calendar week cited in the order confirmation, however, not before full clarification of all execution details.
The agreed delivery period or date of delivery or performance shall be appropriately extended, without prejudice to our rights resulting from arrears of payment on the part of the Purchaser by the period of time by which the Purchaser is in arrears with Purchaser’s obligations to us arising from this contract or another contract. The term of delivery shall be extended appropriately should unforeseen obstacles arise which are beyond our control – regardless of whether they occur at our factory or at the premises of our sub-suppliers, e.g. cases of force majeure, governmental measures, and other delays in the completion of delivery items through no fault of our own, operational disruptions, defective products, delays in the delivery of essential parts and raw materials, insofar as such obstacles can be proven to exercise a considerable influence on the completion or delivery of the delivery item or our performance. We shall not be liable for these types of hindrances, if they occur during an existing delay of delivery.
Changes desired by the Purchaser retroactively shall result in an interruption of the period of delivery or performance, which shall start over again after notification of the desired change. Compensation for delay shall not be granted.
If we fall into arrears, the Purchaser – insofar as the Purchaser can credibly establish damages – can request compensation amounting to a maximum of 0.5% for each complete week of delivery delay, however a total of 5% maximum of the net price for that part of the delivery or performance, which could not be put into useful operation due to the delay. This limitation shall not apply insofar as liability is obligatory in cases of intent, gross negligence, or of injury of life, body and health. Nor does it apply if the timeliness is one of the essential contractual obligations. In these cases our liability shall be limited to the foreseeable damage resulting from delay that is typical of the contract. The Purchaser shall be entitled to withdraw from the contract within the framework of statutory regulations if we are responsible for the delay in the delivery of goods or services.
§ 5 Transfer of risk
The risk shall pass to the customer at transfer to the forwarding agent or the carrier, however when the goods leave the plant or the warehouse at the latest. This also applies if on an exceptional basis carriage paid or carriage and duty paid has been agreed. If dispatching the goods is delayed due to circumstances for which the Purchaser is responsible, then risk shall pass on the day of notification of readiness for dispatch.
§ 6 Project planning
When selecting our products the Purchaser shall note the respective condition information of our products and shall particularly check the technical data of our products for agreement with the Purchaser’s requirements. In the event that incorrect, technical or other requirements on the part of the Purchaser are communicated, we shall take responsibility for the selection of the product or the performance, only in so far as the selection or the performance must occur in accordance with the actually communicated requirements.
Change requests relative to the request profile after receipt of the order confirmation do not obligated us to change the content of the order.
§ 7 Defects and liability
If defects are present, the Purchaser initially shall only have a claim to subsequent fulfillment, which at our discretion we shall provide through rectification of the defect, or delivery of a defect-free object. If the subsequent fulfillment fails (§ 440 of the German Civil Code (BGB)) the Purchaser shall be entitled to have the purchase price reduced or to withdraw from the contract at his discretion.
The Purchaser shall be obligated to grant the required time and opportunity for execution of the subsequent performance, without charge. Parts complained about shall only be returned on our request to do so and, if required, in good packaging and by enclosing a packing list specifying the order number. The freight costs must be submitted by the Purchaser. Reimbursement only takes place in the event of legitimate notice of defects.
No liability is accepted for defects that occur for the following reasons, and in the absence of a violation of obligation on our part and for which we have not given a warranty:
Inappropriate or improper use after transfer of risk, particularly excessive use, incorrect assembly or startup by the Purchaser or third party despite the provision of appropriate installation instructions, natural wear, incorrect or negligent handling, unsuitable operating material, replacement materials, inadequate implementation conditions, failure to comply with the project planning instructions, failure to comply with the operating and construction instructions.
The assignment of the Purchaser’s warranty claims to third parties is not permitted. For reports of defects, Purchaser’s payments may only be withheld to an extent which is in reasonable proportion to the material defects that have occurred.
The Purchaser’s claim for damage compensation or reimbursement of expenses due to violation of an obligation or arising from any other legal grounds shall be categorically excluded. Claims arising from injury of life, body or health are excluded from the above if we are responsible for the violation of obligation, as is other damage caused by us through deliberate or grossly negligent violation of obligation. A violation of obligation on our part is the same as a violation on the part of our legal representative or of our vicarious agents. Moreover, this exclusion of liability cited does not apply, for culpable breach of contractual obligations. In these cases our liability shall be limited to the foreseeable damage that is typical of the contract. The limitation period for claims arising from defects or other contractual claims for damages shall be 1 year from commencement of the statutory limitation period.
§ 8 Right of withdrawal and other rights
Unforeseen events as defined in § 4, above, that result in exceeding the agreed period of delivery or performance, shall entitle us, except in the event of any claim whatsoever on the part of the Purchaser, to withdraw from the contract fully or partially, except if, since placement of the order, the financial circumstances of the Purchaser have changed so significantly that fulfilment cannot reasonably be expected of us. This shall also apply if initially an extension of the period of delivery or performance was agreed.
Other than the claims defined in § 7 the Purchaser cannot assert any compensation claims or other rights valid, due to any disadvantages in conjunction with the delivery contract or performance contract, or with the delivery item and for which we are not at fault. In particular the Purchaser can exercise withdrawal, regardless of the legal grounds he invokes.
If suspension or cancellation of the contract is agreed, we reserve the right to bill the Purchaser for the costs that we have incurred, as cancellation costs.
§ 9 Place of fulfillment and jurisdiction
Place of fulfillment for both parts shall be the registered of office of the Supplier. If the contractual partner is a business entity, the sole place of jurisdiction for any disputes arising directly or indirectly from this contractual relationship shall be Böblingen.
§ 10 Applicable law
German law applies exclusively also for into or from the foreign country. The validity of the international trade law of the United Nations (CISG – Convention on Contracts for the International Sale of Goods) is waived.