I. Scope of Application
Subject to subsection 2, these General Terms and Conditions of Business (GT&Cs) shall apply to all contracts, including future contracts, with companies, legal entities under public law and special funds under public law concerning delivery and other services, including contracts for work and services and including delivery of non-fungible items. These shall also apply to all future business relations, even if not expressly agreed upon again. Terms and conditions of the other party to the contract (hereinafter: ordering party) that deviate herefrom, and that we have not expressly accepted, shall not be binding upon us, even if we do not expressly object to such terms and conditions. The following terms and conditions of sale shall apply even if we carry out the purchase order unconditionally, knowing of conflicting or deviating terms and conditions.
These GT&Cs shall, also in the cases specified in subsection 1, be inapplicable insofar as our quotation is submitted within the framework of an invitation for tenders in accordance with the VOB/A [Construction Tendering and Contract Regulations, Part A] or any other public contract award procedures.
II. Quotation and Conclusion of a Contract
Our quotations shall be subject to change without notice and be non-binding, unless we have expressly referred to our quotations as being binding. Verbal agreements and any assurance given by our employees in connection with the conclusion of the contract shall become binding only upon our written confirmation.
Details provided in the acknowledgement of the order shall take precedence over the following provisions.
A purchase order from the ordering party that is to be classified as an offer for the conclusion of a purchase contract may be accepted by us within two weeks by sending an acknowledgement of the order or dispatching the ordered products within the same period, unless any shorter or longer binding period has been expressly agreed upon.
All agreements made between the ordering party and ourselves relating to the implementation, supplementation and/or amendment of the contract shall be binding only if made or confirmed in writing. Nullification of this written form agreement must likewise be in writing.
Prospectus details, samples or specimens shall not constitute guarantees regarding qualities or durability, unless expressly agreed upon in writing.
We shall retain our rights of title, copyrights and other property rights in all illustrations, calculations, drawings and other documents. The ordering party shall pass these on to third parties only with our written consent, regardless of whether we have designated these as confidential.
The prices and terms & conditions agreed upon at the time of the conclusion of the contract shall apply. Prices shall be net prices exclusive of value-added tax, which shall, in principle, be added at the rate valid on the day of invoicing.
Prices shall, unless otherwise agreed upon, be ex manufacturing plant or place of storage, and shall exclude packaging, freight charges, postage, insurance, unloading and assembly.
As we procure the goods from different manufacturing plants or places of storage, prices may differ in individual cases. Specific details can be obtained from us on request.
If levies or other external costs included in the agreed price are altered later than four weeks after the conclusion of the contract, or if such levies or costs arise anew, we shall be entitled to alter the price to a corresponding extent.
IV. Payment Terms
Unless otherwise agreed upon or stated in our invoices, the amount receivable shall be due, without the deduction of a cash discount, within 30 calendar days of delivery, and shall be paid in such a manner that the amount is available to us on the due date. The cost of the payment transaction shall be borne by the ordering party.
Deduction of a cash discount shall be permissible only if specifically agreed upon in writing. In the case of payments by cheque, payment shall be deemed made only when the cheque is cashed.
The purchaser shall be entitled to set off only if its counterclaims have been determined by a final and non-appealable court judgement, have been accepted by us or are undisputed. The ordering party shall be authorised to exercise a right of retention only if its counterclaim is based on the same contractual relationship.
V. Delivery and Performance Period
Unless otherwise agreed upon, delivery dates or periods shall relate to the date of shipment or collection of the goods.
Unless expressly agreed upon as binding, delivery dates or periods shall constitute merely non-binding indications.
The delivery period indicated by us shall not begin until all technical issues have been cleared up.
If a non-binding delivery date cannot be adhered to, the ordering party shall set a reasonable grace period of at least 3 weeks for delivery.
If the underlying contract is a transaction where time is of the essence as defined by Section 286 (2), No. 4 BGB [German Civil Code] or Section 376 HGB [German Commercial Code], we shall be liable in accordance with the statutory provisions. The same shall apply, if, as a result of any default in delivery for which we are at fault, the ordering party is entitled to claim that its interest in the further performance of the contract has ceased to exist. In such case, our liability shall be limited to the foreseeable loss typically occurring, unless default in delivery is due to any intentional breach of contract for which we are at fault. In this respect, fault on the part of our representatives or authorised agents shall be attributable to us.
If we enter into default as described above, and a loss is incurred upon the ordering party as a result thereof, damages shall be limited to 0.5 % per commenced delivery week, in total however to 5 % of the value of the part of the whole delivery that cannot be used in due time, or in conformity with the contract, as a result of the delay for which we at fault.
This limitation of liability shall also apply to damage claims asserted under the statutory provisions, as well as to poor performance and/or to claims to compensation for expenditure incurred in vain.
This limitation of liability shall not apply to loss incurred as a result of any grossly negligent or intentional breach of duty, or to loss arising from culpable mortal injury, physical harm or health damage.
Our duty to deliver shall be suspended as long as the ordering party is in arrears with any due payment. Unforeseeable operational disruptions, default in delivery or non-delivery on the part of our suppliers, labour disputes, energy or raw material shortages, strikes, lockouts, difficulties in obtaining means of transportation, transport disruptions, official decrees or cases of force majeure shall, for the duration of the disruptions and to the extent of their impact, release the party affected thereby from its obligation to deliver or accept the goods ordered.
Further liability for any default in delivery for which we are at fault is hereby excluded. Any further statutory claims and rights of the ordering party, in addition to any damage claim, to which it is entitled on account of default in delivery for which we are at fault shall remain unaffected.
We shall be entitled to make sub-deliveries at any time, insofar as this is reasonable for the ordering party.
VI. Passage of Risk/Shipment/Packaging
Loading and shipment shall take place on an uninsured basis and at the ordering party's risk.
Extra costs caused by special shipment-related requests made by the ordering party shall be borne by the ordering party.
The risk of destruction, loss or damage in respect of the goods shall pass to the ordering party upon the goods being dispatched from the manufacturing plant/place of storage or, in the case of collection by the ordering party, upon the goods being made available for collection.
If delivery to the building site is agreed upon by way of exception, such agreement must be express and in writing.
Apart from pallets, we shall not take back transportation material or any other packaging under the Verpackungsverordnung [Packaging Regulation]. The ordering party shall take care of the disposal of packaging at its own expense.
At the ordering party's request and expense, we shall take out transportation insurance for the delivery.
Defect-related claims of the ordering party shall exist only if the ordering party has properly met its obligations to inspect the goods and give notice of defects in accordance with Section 377 HGB [German Commercial Code].
In the event of justified notices of defects, we shall, with the exclusion of the ordering party's rights to rescind the contract or reduce the price (reduction of price), render supplementary performance, unless we are entitled to refuse to do so on account of the statutory provisions. The ordering party shall grant us a reasonable period for supplementary performance. At the ordering party's option, supplementary performance may be rendered by either eliminating defects (rectification) or delivering new goods. In the case of elimination of defects, we shall bear all necessary expenses, insofar as these do not increase as a result of the contractual item being situated at a place other than the place of performance.
In the case of the additional delivery of a defect-free item, we shall not bear the cost of disassembling and transporting away the defective item or the cost of installing the new item delivered as a replacement.
If supplementary performance fails, the ordering party may, at its option, demand a reduction in the purchase price (reduction of price) or declare rescission of the contract. Supplementary performance shall be deemed failed once a second attempt has been made in vain, unless further rectification attempts would be appropriate, and reasonable for the ordering party, in view of the contractual item. Damage claims on the following terms and conditions owing to a defect may be asserted by the ordering party only if supplementary performance has failed. The ordering party's right to assert further damage claims on the following terms and conditions shall remain unaffected hereby.
The ordering party's warranty claims shall become statute-barred one year after the goods have been delivered at the ordering party, unless we have fraudulently concealed a defect. In such case, the statutory provisions shall apply.
Regardless of the limitations of liability above and below, we shall be liable under the statutory provisions for mortal injury, physical harm and health damage resulting from any negligent or intentional breach of duty on the part of ourselves, our statutory representatives or our authorised agents, as well as for loss covered by liability under the Produkthaftungsgesetz [Product Liability Act]. We shall be liable under the statutory provisions for loss that is not covered by sentence 1, and that results from any intentional or grossly negligent breach of contract, or fraud, on the part of ourselves, our statutory representatives or our authorised agents.
In such case, however, liability for damages shall be limited to the foreseeable loss typically occurring, unless we, our statutory representatives or our authorised agents have acted with wrongful intent. Insofar as we have given a guarantee regarding qualities and/or durability in respect of the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall be liable for loss resulting from the absence of guaranteed qualities or durability, but not resulting directly from the goods themselves, only if the risk of such loss is evidently covered by the guarantee regarding qualities and/or durability.
We shall also be liable for any loss caused by us as a result of any ordinary negligent breach of contractual obligations that need to be fulfilled in order for the contract to be properly implemented in the first place, and upon the performance of which the ordering party normally relies and may rely. However, we shall be liable only to the extent that such loss is typically associated with the contract and is foreseeable.
Further liability shall, regardless of the legal nature of the claim asserted, be excluded. In particular, this shall also apply to tort claims and claims to compensation for expenditure incurred in vain, in lieu of performance. Insofar as our liability is excluded or limited, this shall apply also to the personal liability of our employees, workers, personnel, representatives and authorised agents.
Defect-related damage claims of the ordering party shall become statute-barred one year after the delivery of the goods. If we, our statutory representatives or our authorised agents are at fault for mortal injury, physical harm or health damage, or if we or our statutory representatives have acted with wrongful intent or gross negligence, or if our ordinary authorised agents have acted with wrongful intent, the statutory limitation periods shall apply to the ordering party's damage claims.
VIII. Retention of Title
Until all claims have been satisfied, including all outstanding open account balances to which we are entitled against the ordering party now or in future, the goods delivered (goods under retention of title) shall remain our property. If the ordering party acts in breach of the contract, e.g. by defaulting on payment, we shall, after having set a reasonable time limit beforehand, have the right to repossess the goods that are under retention of title. If we repossess the goods that are under retention of title, this shall constitute rescission of the contract. If we attach the goods that are under retention of title, this shall constitute rescission of the contract. Following repossession, we shall be entitled to realise the goods that are under retention of title. After the deduction of a reasonable amount for realisation costs, the proceeds from realisation shall be set off against the amounts owed to us by the ordering party.
The ordering party shall treat with care the goods under retention of title. Essential servicing and inspection work shall be carried out by the ordering party in due time at its own expense.
The ordering party shall be entitled to sell and/or use in the proper course of its business the goods under retention of title, as long as the ordering party is not in arrears with any payment. Pledging or assignment as collateral shall not be permissible. The ordering party hereby fully assigns to us as collateral the claims (including all outstanding open account balances) resulting from on-selling, or on any other legal basis (insurance, tort), in respect of the goods under retention of title. We hereby accept this assignment. We hereby revocably authorise the ordering party to collect for its own account, in its own name, the claims assigned to us. This authorisation to collect may be revoked at any time, if the ordering party fails to properly meet its payment obligations. Furthermore, the ordering party shall not be authorised to assign such claim for the purpose of debt collection by way of factoring, unless the factor is at the same time placed under an obligation to provide directly to us the consideration in the sum of the claims as long as we still have claims against the ordering party.
Any processing or remodelling of the goods that are under retention of title by the ordering party shall, in any event, be deemed to have been carried out on our behalf. Insofar as the goods under retention of title are processed together with other items not belonging to us, we shall acquire joint title to the new item in the ratio of the value of the goods under retention of title (final amount invoiced, including value-added tax) to the other processed items at the time of processing. The terms applicable to the goods under retention of title shall equally apply to the new item arising from such processing. Insofar as the goods under retention of title are inseparably mixed with other items not belonging to us, we shall acquire joint title to the new item in the ratio of the value of the goods under retention of title (final amount invoiced, including value-added tax) to the other mixed items at the time of mixing. In case the ordering party's item is to be regarded as the main item as a consequence of such mixing, we and the ordering party hereby agree that the ordering party shall transfer joint title to this item to us on a pro-rata basis. We hereby accept this transfer. The ordering party shall hold in safekeeping for us our resulting sole or joint title to such item.
If a third party seizes goods that are under reservation of title, particularly by attachment, the ordering party shall point out our rights of title and promptly notify us, so that we can enforce our rights of title. Insofar as such third party is not in a position to reimburse us for the court costs or out-of-court costs arising in this connection, the ordering party shall be liable for these.
The collateral to which we are entitled shall be released by us insofar as the realisable value of our collateral exceeds by more than 10 % the claims to be secured. In this respect, we shall be responsible for selecting the collateral to be released.
IX. Place of Performance/Place of Jurisdiction/Applicable Law
Montabaur is the place of performance and the exclusive place of jurisdiction for deliveries and payments (including legal action based on a cheque or a bill of exchange), as well as all for all disputes ensuing between ourselves and the ordering party from the contracts concluded between ourselves and the ordering party.
The relations between the parties to the contract shall be governed exclusively by the laws applicable in the Federal Republic of Germany.
X. Severability Clause
If any provision in this contract is or becomes ineffective, the legal effectiveness of the other provisions shall be unaffected hereby.
The parties hereto undertake to replace any ineffective provision with an effective provision that, in terms of its purpose, reflects as closely as possible the purpose of the provision that has ceased to apply. The same shall apply, if the contract contains an omission.