General terms and conditions
Carl-Benz- Strasse 14- 16
1. Scope of Validity
1.1 We supply all our goods and services exclusively in accordance with these terms and conditions of supply and payment. We do not accept any contradictory or deviating conditions imposed by the customer unless we have expressly approved their validity.
1.2 Our terms and conditions of supply and payment shall also be valid for future transactions even if they are not appended in a specific instance.
1.3 Our terms of business are only applicable to business contractors as defined in §§ 14
and 310 Section. 1 of the German Civil Code (BGB).
1.4 If we should enter into a specific contract with a customer and thereby agree to the validity of an Incoterm trade term, then the Incoterms 2000 shall apply. In case of doubt, the agreed Incoterm trade term shall take precedence over any deviating stipulation in our printed terms of business.
2. Quotations and Conclusion of Contract
2.1 Our quotations are without obligation and are not binding unless they are expressly described as a binding offer.
2.2 The order shall be filled in accordance with our written confirmation of order. If the customer has any objections to the contents of the confirmation of order, he must raise such objections immediately. Otherwise the contract is entered into in accordance with the confirmation of order.
2.3 Drawings, illustrations, measurements, weights and other performance data are only binding if this is expressly agreed.
2.4 In the event of any excusable errors made on our part when the contract is entered into, e.g. as a result of errors of communication, misunderstandings, etc., then compensation claims pursuant to. § 122 of the German Civil Code (BGB) are excluded on our part.
2.5 Express agreement is required for the transfer of the risk of procurement, also in the case of generic obligations and in general of guarantees pursuant to §443 of the German Civil Code (BGB)
3. The customer’s right of withdrawal
A breach of obligations by us does not entitle the customer to withdraw from the contract unless we are responsible for the breach. An exception to this is the right of withdrawal in the presence of a defect.
The prices shall be as stated in the confirmation of order. The prices are understood ex works Birkenfeld and do not include packing, freight, carriage, insurance, customs duty, other expenses or value added tax.
5.1 Delivery periods quoted by us are not binding unless they were expressly agreed as binding. Fixed deadlines must be expressly agreed as such.
5.2 We are not responsible for delays in delivery and performance due to force majeure and events unforeseeable by us and not caused by us, which hinder or render impossible the delivery of goods or services, even in the case of delivery periods and deadlines which were agreed as binding. They entitle us to post pone the delivery or services by the duration of the delay caused plus an appropriate additional preparation period. Should the cause of delay last longer than three months, the customer is entitled to withdraw from the contract after granting an appropriate extension. In this case compensation claims by the customer are excluded.
5.3 If we are in default of delivery, our liability with regard to compensation is limited in the case of minor negligence to foreseeable damage commensurate with the contract in lieu of performance. With regard to compensation arising from delay in performance our liability is limited in the case of minor negligence –inasmuch as no serious breach of contract is involved – for each full week of delay to a fixed compensation in the value of 1 % up to a maximum of 5 % of the value of the that part of the delivery which could not be used under the terms of the contract. The customer is at liberty to provide evidence of higher damages resulting from the delay. This assumes
however that we have been granted an appropriate extension of the deadline and that this has passed without delivery. This limitation of liability does not apply if a commercial fixed date transaction was agreed or if the customer can justifiably claim that his interest in the fulfilment of the contract has expired as a result of a delay in delivery for which we are responsible.
5.4 For technical reasons associated with production we are entitled to supply quantities which deviate from the order quantities by a permissible amount of plus/minus 10 %. The value of the deviation will be charged or credited accordingly.
6.1 Unless otherwise agreed, invoices are payable in Birkenfeld within 30 days net.
6.2 Payment is not deemed to have been made until we have access to the due amount.
6.3 Bills of exchange and cheques are only accepted as payment if this has been expressly agreed to. Discount charges and other costs are to be borne by the customer.
7. Counterclaims and Retention
The customer may only make counterclaims in the case of an undisputed or legally enforceable claim. A customer is only entitled to a right of retention if such a claim is based on the same contractual relationship and if the counter
claims on which it is based are undisputed or legally enforceable.
8. Transfer of risk/despatch
8.1. Goods shall be despatched and shipped at the cost and risk of the customer. The risk shall be transferred to the customer as soon as the goods leave our premises. The shall also apply in specific cases where we have agreed to deliver carriage paid.
8.2 If a delay in delivery occurs due to circumstance under the control of the customer, the risk shall be transferred to the customer from the day the goods are ready for despatch.
8.3 If we choose – in the absence of specific instructions from the customer - the method of despatch, the route or the person conveying the goods, we are liable only in the event of gross negligence in making the selection.
9.1 The customer is under obligation to inspect each delivery immediately on receipt and to notify us immediately in writing, within one week at the latest, of any noticeable defects. Latent defects must be reported in writing immediately upon their discovery. Otherwise the delivery is deemed to have been approved.
9.2 The customer is obliged to obtain proof of the defects and to give us the opportunity to check the claim.
10.1 In the event of a justified complaint we are obliged to make an adjustment. In this we have the choice between repair and the supply of fault - free goods. If the attempt to rectify the situation fails, if we should refuse to do so, or if it is unacceptable to the customer, the customer is entitled to reduce the price or to with draw from the contract. Further claims – in particular compensation claims or claims for expenses incurred as a result of defects or consequential damages arising from defects – are only valid pursuant to paragraph 11 of these terms and conditions.
10.2 A guarantee for normal wear and tear is excluded. Deviations in colour caused by the nature of the material and tolerances of strength, shape and size due to characteristics of the material do not justify guarantee claims by the customer.
10.3 The claims set out in § 437 No. 1 and No. 3 of the German Civil Code (BGB) (of adjustment, compensation and reimbursement of unnecessary expenditure) are limited to one year, inasmuch as the law does not make provision for longer periods for commercial regress and in the event of fraud. With regard to price reduction and withdrawal, the right to alter the terms shall remain as set out by statute ( § 438 section IV and V of the German Civil Code (BGB)).
10.4 Guarantees of specific properties of our products pursuant to § 443 of the German Civil Code (BGB) must be expressly agreed as such. The guarantee must be given in writing.
11.Limitation of liability / compensation
11.1 We accept liability
1. without reservation in the event of intentional or gross negligence on the part of our management, executives and their agents;
2. without reservation in the event of intentional or grossly negligent harm to life, body or health;
3. for malintent and negligence if we are in breach of a major contractual obligation; in the event of minor negligence our liability is however limited to compensation for foreseeable damage commensurate with the contract;
4. within the terms of a guarantee given by us ( § 443 German Civil Code (BGB) ) and without reservation if we are guilty of malicious silence with regard to a defect;
5. inasmuch as we are liable in tort under product liability law for defects in the goods delivered which result in death, injury, harm to health or damage to mainly privately used articles.
6. In the event of default of delivery as set out in item 5.3 of these terms and conditions.
11.2 All further claims for compensation against us are excluded irrespective of their legal nature. This shall also pply to claims arising from non-contractual liability.
11.3 Inasmuch as our liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and agents.
11.4 In the area of liability for defects, claims for compensation and the reimbursement of unnecessary expenditure expire as set out in section 10.3 of these terms and conditions.
12. Reservation of title
12.1 The goods delivered remain our property until all amounts due as a result of our business relationship, including all incidental receivables, have been paid in full and until all bills of exchange and cheques have been honoured. In the case of current accounting, the reservation of title secures our claim to the balance of account. If in connection with the payment a liability is deemed to arise from a bill, the reservation to title remains in force until our claim from the bill is excluded.
12.2 In the event of attachments or other interventions by third parties, the customer shall inform us immediately in writing thereof. The customer shall bear all costs which need to be defrayed in order to ensure that such intervention is discontinued and to ensure the recovery of the goods delivered, inasmuch as they can not be claimed by the third party.
12.3 The customer undertakes to adequately insure the goods subject to reservation to title at his cost and to our benefit against any loss or damage. Any insurance claims arising in the event of a claim for damages are hereby already assigned to us.
12.4 The customer is entitled, unless we countermand this right for any admissible and compelling reason, to dispose of the goods in accordance with the normal course of his business. In particular it is impermissible to use
the goods as pledge or security. In the event of the goods being resold the customer hereby already assigns to us all claims from the resale, in particular claims for payment, but also all other claims in connection with the sale, to the value of the amount payable on the invoice (including value added tax), irrespective of whether the goods were sold in their original form or after processing. Unless countermanded by us for an admissible and compelling reason, the customer is entitled to collect the claims assigned to us in a fiduciary capacity. The sale of accounts receivable under the terms of actual factoring requires our prior consent. For compelling reasons we are also entitled to inform third party debtors in the name of the customer of the assignment of rights. When a third party debtor is informed of the assignment, the right of the customer to collect the debt expires. If permission to collect the debt is cancelled we can require the customer to inform us of the rights assigned and the debtors, to provide all details required for collection and to hand over to us the relevant documents and to inform the debtors of the assignment.
12.5 Processing and treatment of the goods by the customer is always undertaken on our behalf. We are deemed manufacturers pursuant to § 950 of the German Civil Code (BGB) without any further obligation. If the goods supplied by us are processed together with other goods not belonging to us, we acquire joint ownership of the new item in the ratio of the value of the invoice amount to the purchase price of the other.