1. CONCLUSION OF A CONTRACT
a) Our General Terms and Conditions are exclusively applicable for all contracts concluded by us. Conditions of customers which are inconsistent with these general terms and conditions are not binding on us.
b) Our offers are not binding. A contract is not concluded until we have confirmed it.
c) All concluded contracts are subject to the granting of required export licences or other licenses or authorizations officially required.
d) Diverging agreements, side agreements as well as alterations and supplements to the contract require the written form.
2. PRICES
a) If not otherwise agreed, the customer has to pay the price valid on the delivery day plus VAT.
b) We are entitled to charge to the customer any increase , of freight charges, mailing expenses, insurance premiums, duties like taxes or customs occurring after conclusion of the contract .
3. TERMS OF PAYMENT
a) All payments are to be made net against invoice and/or documents by free of charge remittance on one of our accounts.
The negotiation of a bill of exchange requires our prior permission and will be accepted in each case only on account of performance.
b) In case of default of the customer, we are without prejudice to further claims, entitled to claim interest amounting to the usual bank debit-interest, at least amounting to 8% above the respective valid rate pursuant to § 247 German Civil Code (Basiszinssatz).
c) The customer may set off any of his claims or withhold payments with respect to any of his claims, only if those claims are either acknowledged by us or ascertained by final judgement.
d) In the event of default of the customer or if after conclusion of the contract circumstances become known showing that the financial condition of the customer has essentially become worse and our claim is endangered thereby, we may – at our choice – request settlement of any debit balance or the provision of a security before any further delivery.
e) We are entitled to withdraw from the contract completely or partially if we learn after conclusion of a contract that the customer has done wrong statements with respect to his credit standing or is objectively unworthy of credit (especially in cases of filing of an insolvency petition with respect to the customer, drawing of an uncovered cheque, attempts of execution against the customer’s property).
4. DELIVERY
a) In case of deliveries to be executed over a certain time period, each delivery is regarded as a particular order.
b) If in case of delivery on call the customer has not called the goods within the agreed date, we are entitled to invoice the goods and to deliver the goods to the customer without the customer’s call.
c) We are entitled to deliver in part if such deliveries in part are independently usable for the customer and if no fixed delivery date was agreed for the whole delivery.
d) If in the contract ordered amounts are shown with "ca.", the customer is only entitled to complaints regarding the delivered quantity, if a deviation in quantity exceeds a threshold of 10% of the agreed quantity and if any complaints have been made immediately. The same applies accordingly in the event of any deviation of the weight.
e) Unless agreed otherwise , we deliver the goods at the risk and account of the customer. The risk of accidental perishing or deterioration of the goods is transferred to the customer with handing over of the goods to the instructed transport person. This applies also in case of delivery freight paid.
As far as we follow transport instructions given by the customer, we do not assume any responsibility therefore and act only on behalf, at the risk and account of the customer.
We insure the goods for the transportation only on written request and on expenses of the customer.
5. CUSTODY
If we keep in custody goods delivered by the customer or products which we manufactured ofsuch goods, we are liable in accordance with provision 8. of these General Terms and Conditions. The customer has to insure such goods and/or products against the usual risks.
6. TIME OF DELIVERY AND IMPAIRMENT OF PERFORMANCE
a) All our concluded contracts are subject to correct, complete and punctual delivery to our premises of the relevant goods purchased by us; this also applies to the delivery of all raw and auxiliary materials for manufacturing of the goods.
b) The agreement of fixed delivery dates or time limits, that can be agreed to be either binding or not binding, need to be writing. Delivery dates that are marked with "ca." are not binding.
c) We do not assume any liability in case of delay or impossibility of delivery or performance, which are based on circumstances we are not responsible for. In case of a permanent impossibility of performance, we are released of our obligation without the customer having a right to claim damages. In case of a momentary impossibility of performance, the fixed delivery time is extended accordingly. The customer is, after having set an appropriate grace period of at least four weeks, entitled to withdraw from the contract to the extent it is not fulfilled.
7. WARRANTY
a)Public statements of ourselves regarding the goods do not have any effect to the agreed condition of the goods, unless the customer can prove that the statement influenced him in the purchase decision and if, at the time of the purchase, the statement was not yet equally corrected.
The customer has to examine the delivered goods without undue delay, at the latest three days after receipt of the goods, to notify us in writing immediately with respect to any complaints and to give us the opportunity to check the correctness of the complaints. Where the customer does not notify us in due time, this is considered to be an acceptance of the goods without any reservation. We are not liable for any hidden defects which could not be discovered despite of diligent examination within the time limit of three days after receipt of the goods, if the customer has not notified us in writing without undue delay afterdiscovery.
Where the customer has processed the goods or resold them despite a recognizable defect without our written consent, we are not liable for any damages arising therefrom. If under these circumstances third parties lodge damage claims against us, the customer is obliged to hold us free from these claims.
We are only in so far responsible for any transport costs for the subsequent performance as such costs would be incurred at the agreed place of delivery.
8. LIABILITY
a) The customer may claim damages due to breach of contractual duties only if they are based on wilful action or gross negligence, breach of a material contractual duty, or if we knew or should have known of an impediment of performance already at the time of conclusion of the contract. In case we are liable for simple negligence, the liability is restricted to the contractually foreseeable damages.
b) The liability for damages resulting from the damage to life, body or health, the liability arising from guarantees as well as claims according to §§ 1, 4 Produkthaftungsgesetz (German Product Liability Act) remain unaffected by the above provision under para. a).
c) In cases of claims resulting from the producer liability according to § 823 BGB (German Civil Code) our liability is restricted to the foreseeable damage typical for the product, at the utmost to the compensation of our third party liability insurance respectively, and where the insurer does not pay or not pay in full, to the amount of the agreed insured sum.
d) Any further liability of damages apart from those mentioned in the above provisions under paras. a)-c) is, without taking into account the legal nature of the raised claim, excluded.
e) Where our liability is excluded or limited, this also applies accordingly to the personal liability of our employees, staff, representatives and assistants.
9. LIMITATION
a) Claims of customers due to defects of the goods become time-barred after one year after delivery of the purchased good. §§ 478, 479 German Civil Code remain unaffected thereby.
10. RESERVATION OF TITLE
a) We retain title to the materials and the goods delivered by us (hereinafter "Goods") until complete payment of all our claims resulting from the business connection with the customer. The inclusion of single claims in a current account as well as the striking of balance and its acknowledgement does not affect the retention of title.
b) In the normal course of business the customer is entitled to process or alter the reserved Goods. The process or alteration of the reserved Goods is undertaken by the customer for us as producer, provided that we gain the ownership of the new good in its respective processed or altered condition.
In case of mixing, connection as well as processing or alteration of our reserved Goods with other goods that do not belong to us, we acquire co-ownership of the new goods in the proportion of the invoice value of our reserved Goods to the value of the other goods at the time of processing, connection, mixing or alteration. In case the customer acquires sole property of the new goods unaffected, we hereby agree with the customer that we acquire co-ownership in this good in the proportion of the invoice value of the mixed, connected or altered reserved Goods to the value of the new goods and that the customer keeps these in safe custody on our behalf and free of charge.
c) If we by ourselves process reserved Goods with other goods that do not belong to us or in case we process, alter, connect or mix goods, which do not belong to us, with reserved Goods and the customer acquires sole property of the new good processed or altered pursuant to §§ 947 ff. BGB, we hereby agree with the customer that we acquire co-ownership in this new good in the proportion of our total claim for deliveries of goods and provision of services to the value of the new goods. The customer keeps these new goods in safe custody on our behalf and free of charge. The aforementioned provision applies accordingly if the processing or the alteration takes place with goods provided by the customer.
d) The customer is entitled to resell in the normal course of business the reserved Goods which are owned by us in part or in whole; a pledge or transfer by way of security is not allowed.
e) The customer already hereby assigns to us all claims with regard to the resale of the Goods which in part or in whole is our property with all ancillary and security rights including bills of exchange and cheques as well as claims from a balance of account in a current account. We herewith accept the assignment. In case of co-ownership this aforementioned assignment is restricted to the part of the claim that corresponds to the value of our co-ownership of the Good.
Where any Goods that in part or in whole belong to us are resold together with other goods irrespectively if with or without alteration, connection or mixing, the above agreed prior assignment is restricted to the amount including VAT of the invoice value of our reserved Goods in the proportion to the total price or in case of no. c) restricted to the amount of the claim for deliveries of goods and provision of services to the total price.
The aforementioned provision applies accordingly if the customer uses the reserved Goods for fulfilment of a contract for work and services or a contract for work and materials.
f) Irrespective of the agreed assignment and the right of collection of claims, the customer is only entitled to processing, connection, mixing or alteration of the reserved Goods as well as to collection of claims assigned to us as long as he performs all his obligations towards us completely and as long as we do not revoke such authority.
The customer must notify us without undue delay of any detriment of our rights with respect to Goods belonging to ourselves or with respect to claims assigned to us. In the event of any default of the customer, we are entitled to claim information about the existing amount of reserved property, about any existing co-ownership of ourselves as well as about the existing amount of claims assigned to us. Furthermore, the customer is obliged to notify its customers of the assignment of claims without undue delay and to hand over to us a complete list of our claims, including the names and addresses of the respective debtors.
g) Where the customer acts in a way which is contrary to this contract, especially in case of delay, we are entitled without prior rescission of the contract to take possession of the reserved Goods and to enter the business premises of the customer for this purpose. Taking back or attachment of Goods by us shall not be considered as a rescission of the contract.
h) The customer is obliged to insure the reserved Goods against fire and theft and to prove the conclusion of such insurance to us.
i) Where the customer so requests, we undertake to release any securities to the extent as their realizable value excesses the claims to be secured by more than 20 %. The decision which security is to be released is to our choice.
11. PLACE OF JURISDICTION AND APPLICABLE LAW
a) The place of performance for any obligation of either party is Ammersbek.
b) Any contracts between us and the customer, to which these General Terms and Conditions apply, shall be exclusively governed by German law with the exception of the Treaty of the United Nations with regard to Contracts of International Sale of Goods (CISG).