General Terms and Conditions for Delivery and Payment
Unless other terms or conditions have been agreed upon in writing, solely the following terms and conditions are valid for all present and future deliveries and services (subsequently jointly referred to as “deliveries”). The customer’s terms and conditions are valid only to the extent that we agree to them in writing.
1.1 Offers are not binding. Contracts come into being only through our confirmation of the order in writing or by delivery. In particular, our employees must confirm in writing oral collateral agreements or promises going beyond the contents of the written contract or changing these General Terms of Delivery and Payment to our disadvantage.
1.2 Unless they are explicitly referred to as binding, those illustrations, drawings, and details concerning color, weight, or size included in the offer are only approximations.
2.1 Our prices are ex works without packaging or the applicable value added tax.
2.2 Should the delivery period exceed 2 months, and there be significant changes in wage, salary, material, or raw material expenses after conclusion of the contract, and we not be responsible for these changes, we have the right to increase or decrease the agreed-upon prices correspondingly. Should a price increase exceed 5%, the customer has the right to withdraw from the contract within 2 weeks after notification of the price increase.
3.1 Payments must be made to our designated account without deductions or fees within 10 days of the invoice date. Payments are valid only to the extent that we can freely dispose them at our bank. We accept checks and bills of exchange only on account. The customer bears banking charges. Banking charges are due at once.
3.2 Should payment be delayed, we will charge interest on the overdue amount of 8 per cent or of 10%, whichever is greater.
3.3 Withholding payment or offsetting claims is allowed only to the extent that the counterclaim is undisputed or legally binding.
4. Assumption of Risk and Partial Deliveries
4.1 The customer assumes risk as soon as we have turned the goods over to the carrier, or, should shipment be delayed for reasons that are not our fault, as soon as we have notified the customer that the goods are ready to ship. This condition applies even in those cases in which we perform other services, e.g., assumption of shipping expenses or delivery and installation by our own transportation personnel.
4.2 We have the right to make reasonable partial deliveries.
5. Delivery Period
5.1 The delivery period begins with the dispatch of the order confirmation, but not before clarification of all details of the execution of the order and of all technical questions, and before receipt of any agreed-upon partial payment. The delivery deadline has been met when the goods have left the factory before the deadline or, when shipment has been delayed for reasons that are not our fault, when the customer has been notified that the goods are ready to ship.
5.2 Customer’s modification requests extend the period of delivery until we have evaluated their feasibility and for the period of time necessary to implement the new manufacturing instructions. Should the implementation of the modification request interrupt an ongoing production, we may give priority to and finish other orders. We are not required to reserve production capacity during the delay.
5.3 Should delivery be delayed, our liability is limited in cases of ordinary negligence to a lump sum compensation of 0,5% of the invoice value of the delayed goods for every full week of delay and to a maximum 5% of the invoice value of the delayed goods. Claims for damages instead of performance according to Clause 11.1 are not affected by this clause. The customer must inform us no later than at the time the contract is concluded about his liability concerning contractual penalties to his customers.
5.4 Should shipment be delayed for reasons that are not our fault, we may charge at least 0,5% of the invoiced value of the stored goods per month for storage at our plant.
6. Reservation Concerning Our Being Supplied
To the extent that we have concluded a corresponding covering transaction, one of our suppliers has not fulfilled his obligations, and we are not responsible for this failure to deliver, our delivery is subject to our being punctually and correctly supplied by our suppliers.
7. Force majeure
7.1 Events that are unforeseen, unavoidable or beyond our control (e.g., force majeure; strikes and lockouts; stoppages; difficulties in obtaining materials or energy; transportation delays; labor, energy, or raw material shortages; actions by administrative bodies; as well as difficulties in obtaining authorizations, in particular import and export licenses) extend the delivery period for the length of the disturbance and its effects. This extension of the delivery period also applies when the difficulties affect our suppliers or occur during an existing delay.
7.2 Should the difficulty not only be temporary, both parties to the contract have the right to withdraw from the contract. Claims for damages are excluded in those cases listed in Clause 7.1.
We accept returned transport packaging at our place of business during our usual opening hours. The customer bears the disposal expenses. The packaging must be returned clean, free of foreign substances, and sorted according to type.
9. Retention of Title
9.1 We retain title on the delivered goods until all payments due under the business relationship with the customer have been received and all checks and bills of exchange have been irrevocably credited to our account. Should an open account relationship with the customer exist, retention of title applies to the acknowledged balance.
9.2 The customer must maintain the conditional goods and handle them with care. In particular, he must insure them at his own expense against loss and damage for their replacement value. He must show us the insurance policy as well as proof of payment of the insurance premiums on request. He cedes any claims arising from the insurance policies to us in advance.
9.3 Treatment and processing of the conditional goods are carried out by the customer on our behalf without creating any liability on our part. Should the conditional goods be mixed with or incorporated into other goods, we acquire title to the new goods in the proportion of the invoiced value of the conditional goods to the invoiced value of the other materials.
9.4 The customer has the right to sell the conditional goods in the course of normal business transactions. However, the customer assigns us in full and in advance all claims against a customer or against a third party that result from further sales or use on a customer’s behalf.
9.5 As long as he meets his payment obligations to us from these proceeds, the customer has the right to himself collect the claims assigned to us.
9.6 Should the customer no longer meet his payment obligations to us, we may revoke our permission to further sell or use the conditional goods and demand that the customer informs us about his assignment of claims and the corresponding debtors, give us all information necessary for the collection of our claims, surrender the documents belonging to these claims, and inform his debtors about the assignment of claims. Repossession of the conditional goods does not constitute withdrawal from the contract. Should we withdraw from the contract, we have the right to sell the conditional goods on the open market.
9.7 The customer must notify us without delay of third-party actions against the conditional goods. To the extent that the customer cannot recover the expenses resulting from such an action from a third party, he must bear them himself.
9.8 Should the value of collateral exceed our claims by more than 10%, and should the customer so request, we will release collateral of our choice to this extent.
10. Liability for Defects
10.1 Defects must be reported to us in writing without delay, in any case within one week after receipt of the goods; hidden defects, within 3 days after discovery. Should these deadlines be exceeded, all claims and rights arising from liability for defects expire. Unless we have violated our responsibilities grossly, or deliberately or fraudulently concealed the defect, the period of limitations is 12 months after delivery.
10.2 Violation of third party intellectual property rights is a defect only when these rights are valid in the Federal Republic of Germany.
10.3 Should there be legitimate complaints, we have the choice between delivering replacement goods or repairing the goods. Should a replacement delivery also be defective or the repair be unsuccessful, or refused or delayed without good reason, the customer may, after a reasonable additional extension period has expired without remedy, demand a reduction in price or, by not insignificant defects, withdraw from the contract and demand damages instead of performance according to Clause 11.1. We assume no supplementary performance expenses arising because the purchased item has been moved to a location other than the customer’s place of business.
10.4 To the extent that the defect has been caused by a significant non-EIMA product, we have the right to restrict our liability at first to the surrender of our claims for and rights of liability for defects against the supplier of the non-EIMA product. Should the settlement from the surrendered claims or rights come to nothing or for other reasons not be able to be enforced, the customer is entitled to the rights in Clause 10.3.
11. General Liability
11.1 Claims for damages of any sort against us are excluded when we, our lawful representatives, or our vicarious agents have caused the damage by ordinary negligence. This exclusion of liability does not apply should there be bodily damage, should a contractual guarantee have been assumed, or should important contractual obligations have been violated in a way that endangers the fulfillment of the contract. In such cases, our liability is limited to the extent of the guarantee, or, by ordinary negligent violation of important contractual obligations, to customary and foreseeable damages. Claims arising from product liability law are not affected by this clause.
11.2 With the exception of claims arising from liability for material defects, claims arising from product liability law, and claims due to death, bodily injury, or damages to health, claims for damages expire one year after the customer learns about the damage and our liability for damages or, should, without gross negligence, have learned about the damage or liability.
12. Place of Fulfillment, Place of Jurisdiction, Choice of Law
12.1 The place of fulfillment for all services resulting from the delivery contracts is our place of business.
12.2 The place of jurisdiction for all disputes arising from the delivery contract is our place of business. However, we also have the right to sue at the customer’s place of business.
12.3 German law applies.