Terms & Conditions
Delivery and Payment Terms and Conditions
- General Provisions
- Our general business conditions shall apply to all delivery contracts, even where no specific order acknowledgment is issued within the scope on an on-going business relationship. Such apply to contracts concluded with customers which are deemed merchants under §14 German Civil Code (BGB) as well as to public legal entities or special entities pursuant thereto, as well as to contracts with consumers pursuant to § 13 German Civil Code (GBG). Changes or modifications to our terms and conditions must be mutually agreed upon in writing. Such also applies to collateral agreements, assurances, amendments or supplements. Differing terms and conditions shall be incorporated in the order acknowledgment.
- General business conditions of Purchaser, even if referred to in its order, shall not become contractually binding, even where we have not explicitly rejected same.
- Should a term or condition of these Delivery and Payment Terms and Conditions or a term or condition of other agreements within the scope of the on-going business relationship between Purchaser and ourselves be deemed void or invalid, such shall not affect the validity of the other agreed upon terms and conditions. In such event the contractual parties are obligated to agree to a new term or condition which corresponds to the commercial intent and purpose of the invalid or void term or condition.
- Prices and Terms of Payment
- The prices quoted in our order confirmation shall be binding and excludes Added Value Tax which shall be added separately. In the event of an unexpected increase in raw material costs or wage or transport costs of more than 10% in the period between order acknowledgment and delivery, we are authorized to renegotiate an increased contract price. The Purchaser shall bear all customs, governmental inspection, currency or foreign exchange costs or fees as well as any other costs or fees due any governmental or other pubic agency.
- Packaging and transport costs shall be billed separately at our corresponding costs.
- Invoices are payable with a 2% discount allowance if payment is made within 10 days of invoice date or are to be paid in full without allowance within 30 days. The Purchaser may only avail itself of the discount if it is not in default in payment of previous deliveries at such time. Any costs or expenses we suffer due to the delay of Purchaser in taking timely delivery shall be borne by Purchaser.
- We shall only accept discountable and taxed bills of exchange or other drafts as payment where a special agreement with Purchaser exists. Payment credit based upon bills of exchange or other drafts or cheques are issued under reservation less fees and expenses calculated on the date such funds are credited to our disposal in our account. We are authorized to demand payment in full, even where we have accepted a bill of exchange or other draft or cheque, for any outstanding sums due us should Purchaser not meet his payment obligations in full or stop payments or where other circumstances become known to us which negatively affect the creditworthiness or Purchaser. We furthermore are entitled to demand pre-payment or down-payment.
- In the event payment deadlines are not met, we are entitled to charge interest at a rate of 8% above the prime lending rate. We reserve the right to claim higher damages in the event of payment default. The Purchaser is entitled to prove that the damages in the event of default do not exceed the above stated amounts. The provisions of §353 German Commercial Code (HGB) remain unaffected.
- Purchaser is not authorized to a payment set-off for claims which we dispute or which are not conclusively determined in a court of law. The Purchaser may only claim a right of retention or other lien right insofar as such relates directly to claims under the purchase contract. In the event Purchaser raises a defective goods claim, Purchaser may only withhold payment of a sum which reasonably corresponds to the value of the defective goods.
- Delivery Dates and Delays
- Delivery dates and deadlines are only deemed as binding between the parties if we have expressly agreed to such. The delivery date begins upon conclusion of the purchase agreement, however not before Purchaser submits the required documentation, approvals, product releases, etc., as well as reception of agreed pre-payments or down-payments or other matters Purchaser is required to complete. The delivery dates shall be correspondingly extended to match the period of any delays caused by Purchaser in failing to fulfill such obligations.
- Delivery dates shall likewise be extended in the event of lawful labour disputes, especially strikes or lock-outs, as well as in the event of unforeseen circumstances which are outside of our influence or relate to our suppliers, insofar as such hindrances are proven to influence the delivery of the purchased goods.
- Such likewise applies in the event we do not receive timely deliveries from our suppliers. We are entitled to rescind the purchase agreement in the event our suppliers cannot supply us, unless we are at fault in causing such failure to supply. We are not liable for any damages resulting from the late delivery or failure to supply by our suppliers, except as regards selection of a supplier or the monitoring of same.
- Precondition to meeting delivery dates is the fulfillment of all contractual obligations of Purchaser.
- We are authorized, in addition to the statutory deadline as fixed by §286 Para.3 German Civil Code (BGB), to set the Purchaser a differing calendar date payment deadline in accordance with §286 Para.2 BGB (German Civil Code).
- Return Shipments
A return shipment of goods can only be made with our advance written approval and free of cost to us. The value to be credited shall be reduced by a handling fee insofar as the goods are in perfect condition. The return shipment handling fee shall as a rule be 25%, with a minimum charge of at least € 75.--. Any additionally required test or handling charges shall be billed separately. Certain goods, namely a single component or replacement parts, specially made products or instrumentation or devices the production of which has ceased or which are no longer carried in stores, shall not be credited.
- Risk of Loss and Transport
- Should the Purchaser be deemed a merchant under §14 German Civil Code (BGB) or a public legal entity or special entity pursuant thereto, where freight forwarding is agreed upon, risk of loss shall pass to Purchaser upon transfer of the goods to the carrier or shipper, at the latest upon leaving the warehouse, or in the event of direct shipment ex works upon leaving our works. Such finds application even where we have agreed to provide further services or where partial shipments are made.
- Should shipment be delayed due to circumstances for which Purchaser is responsible, in such event risk of loss passes to the Purchaser on the day we offer to ship the goods.
- Delivered goods are to be accepted by Purchaser, even if they have minor defects; nevertheless the rights granted under the following Para. 6 shall remain in full force and effect.
- We reserve the right to choose the method and circumstance of shipping in the event nothing different is agreed upon.
- Notification of Defects and Warranties
- The Purchaser shall immediately inspect delivered goods for defects, condition and warranted characteristics. Notification of patent defects is to be immediately made. Should the purchase agreement be deemed a commercial transaction, in such event §377 German Commercial Code (HGB) shall apply with the proviso that we are to be notified of the known defects in writing within the following 14 day period.
- Any goods which are unusable or the usage of which is substantially impaired, especially as related to defective manufacture, defective materials or defective workmanship, the circumstances of which occurred prior to transfer of risk, shall, at our sole election, either be replaced or repaired free of charge. Replaced parts become our property. In the event we exchange the entire lot of goods purchased as a supplementary performance, we are entitled to a non-restricted claim for wear and tear compensation.
- The right of Purchaser to make a warranty claim is statutorily barred in any event in 12 months after transfer of risk of loss, except as concerns consumer transactions.
- We shall have no warranty obligations for defective goods where such defects where caused by inappropriate or faulty usage, defective assembly or taking into operation by Purchaser or third parties, or caused by lack of maintenance where such is customary and/or suggested by the manufacturer, or caused by normal wear and tear, improper or negligent handling, unsuitable tooling or replacement materials, defective manufacture or construction, chemical or electronic or electrical influences, insofar as we bear no responsibility for such.
- The Purchaser shall grant us a reasonable period in which to remedy the defects. Should the Purchaser or any third party undertake improper modifications or repairs without our prior approval, our liability for any and all resulting damages in annulled and voided.
- Retention of Title
- We exclusively retain title to all goods delivered. Title to all goods remains with us until all our claims resulting from the business transaction are fulfilled including any future or conditional claims.
- Should the Purchaser make payment by means of cheque whereby we issue a refinance bank draft, our retention of title rights are first cancelled when we no longer have any liabilities under such bank draft.
- The Purchaser is authorized to resell the goods in the normal course of business. The payment claims of the Purchaser arising from the resale are immediately deemed assigned to us in the amount of the final invoice price (plus Added Value Tax). Should goods where we retain title be resold jointly with other goods not originating from us, the amount deemed assigned to us shall only equal the value of our invoice in relation to the jointly resold goods. Purchaser is obliged at our request to notify his customers of said assignment. Purchaser shall inform us of the name of such customers and the amount duly owed to Purchaser.
- Purchaser is authorized to collect payment for the resold goods. Should the Purchaser be in payment arrears to us or should we become aware of circumstances, which in applying reasonable commercial judgment, reduce the creditworthiness of Purchaser, we are authorized to revoke this right to collect such payments .
- The reworking or processing of goods in which we retain title is deemed undertaken in our behalf pursuant to § 950 German Civil Code (BGB) without our assuming any liability in regard thereto. Should the goods for which we retain title be processed together with other goods not belonging to us, we are deemed to have acquired co-ownership in the resulting new goods in the ratio of the invoice value of the goods for which we retain title to the invoice value of the goods not belonging to us at the time of processing.
- Goods in which we have retained title may not be assigned as security or pledged in any fashion. Should third parties levy against goods in which we retain title, especially legal attachments or the like, the Purchaser is obliged to notify such third party of our ownership rights and shall immediately notify us of any such action and submit to us copies of all legal papers the Purchaser has been served in such regards.
- Should Purchaser be in payment arrears or in default of any terms or conditions of the purchase agreement, we are authorized, after putting Purchaser on notice and granting a reasonable time to remedy, to repossess the goods we have delivered. The repossession of goods in which we have retained title does not constitute a contract rescission. We are furthermore authorized, should the Purchaser be in payment arrears, to resell or otherwise dispose of such repossessed goods or any other security interests without judicial proceedings at any time while protecting the interests of Purchaser as best as possible. We shall give Purchaser a 14 day notification period before we resell or otherwise dispose of such repossessed goods or other security interests.
- Should the value of any securities Purchaser grants us exceed our claims by more than 20%, upon the request of Purchaser we shall, at our sole election, retransfer or release any excess securities.
- Weight and Measurements
The weights and measurements given in our documentation and offers are approximate values. Pictures and drawings are non-binding and not absolutely final insofar such have not been identified as absolutely final. We reserve the right to make construction and form changes in the deliverable goods insofar as the deliverable good is not substantially changed and any such change constitutes a reasonable change which the Purchaser could accept.
- Confidential Information and Proprietary Rights
- Offers and documents such as plans, drawings, sketches, conceptual designs, etc. shall not be revealed to third parties without our approval.
- We retain title and all proprietary rights in such documents. Title to plans, sketches and drawings made for instrumentation or devices to be delivered to customer passes to customer at the time title to such goods passes to customer.
- Place of Performance
- Place of performance and judicial jurisdiction for all deliveries and payments as well as for all disputes eventually arising between the parties shall exclusively be the locality of our headquarters, except as concerns consumer transactions.
- The entire contractual relationship is exclusively subject to the laws of the Federal Republic of Germany to the exclusion of UN-commercial laws.
- In the event the English translation of our Payment Terms and Conditions conflict with our German version, the German version always governs to the exclusion of the English translation.
Edition January 2005
All prices given in our offers, price lists and other documentation are ex works and do not include Added Value Tax or packing.