General Terms and Conditions

§ 1 General

Our General Terms and Conditions below shall serve as the basis for all supply and service contracts concluded with our business partners – entrepreneurs, legal entities according to public law or special assets (in the following referred to as “ordering party”). They shall also apply to all future transactions with the ordering party provided that these are legal transactions of similar nature. Any terms and conditions of the ordering party which are contradicting or deviating from our General Terms and Conditions shall only apply with our written agreement, even if we do not expressly object to the applicability of general terms and conditions of business or purchase. 

§ 2 Offer and conclusion of contract

Our offers are non-binding and without obligation unless we have expressly designated them as such.

If an order by our business partner is to be regarded as an offer for the conclusion of a contract according to § 145 BGB [Bürgerliches Gesetzbuch, German civil code], we may accept such offer within two weeks by sending a written confirmation of order. Drawings, figures and weight, dimension and performance information and any other technical indications shall only be binding for the implementation if this has been expressly declared in writing. The ordering party undertakes to provide all information required for rendering the performances ordered; such information shall be correct and complete. The ordering party shall notify us about any changes with respect to the written order confirmation immediately, at the latest, however, within 4 work days.

We reserve the right of ownership and copyright in all documents provided by us in connection with the order submission, including in electronic form, e.g. calculations, drawings. Such documents may not be disclosed to third parties, unless we grant our express written permission to the ordering party.

§ 3 Prices and payment

Our prices are net prices excluding the value-added tax in the corresponding amount.

Unless otherwise stipulated in writing, our prices are ex works, excluding packaging, transportation and insurances. The costs for the packaging, freight, tariff etc. and, if applicable, any insurances desired by the ordering party, e.g. for transport, shall be invoiced separately.

Invoices shall be paid immediately and without any deductions unless other regulations have been made. The ordering party shall be in default without any further declaration by us if they fail to pay within a period of 10 days upon delivery. Discounts, rebates and/or any other price reductions shall only be granted if they have been agreed upon in writing at the conclusion of the contract.

Default interest rates shall be calculated with a rate of 8% above the corresponding base interest rate. The right to enforce claims for a higher loss due to such default shall remain unaffected.

§ 4 Delivery

Information on delivery times shall be regarded as non-binding unless it is expressly agreed upon as binding. The delivery periods shall start with the conclusion of the contract at the earliest and require the punctual and proper fulfilment of the obligations of the ordering party. They shall start neither before the receipt of the documents, provisions, approvals, to be provided by the ordering party, nor before the clarification of all technical questions and/or the opening of a letter of credit. We reserve the right to object to unfulfilled contract.

The delivery period shall be regarded as complied with if the goods have left the factory or if the readiness for shipment has been notified before its expiration.

Partial deliveries and corresponding invoices are admissible unless otherwise agreed.

If the ordering party is in default of acceptance or if they culpably infringe other obligations to cooperate, we shall be entitled to demand a reimbursement of the loss suffered, including any possible additional expenses. We reserve the right to raise further claims. If the above-mentioned preconditions are met, the risk of accidental loss or an accidental deterioration of the purchased object shall be transferred to the ordering party at the point in time in which they enter the default in acceptance or debtor’s delay.

Our delivery obligations are subject to the correct and punctual self-delivery.

In events of force majeure and upon the occurrence of other unavoidable and unforeseeable events, in particular labour disputes, instructions by authorities, unrest, war, etc., the delivery period shall be extended by the duration of the interruption plus an appropriate lead time, irrespective of whether these circumstances occur with us or our sub-suppliers. We shall not assume any liability if the above-mentioned circumstances occur at a point in time in which the customer is in default of acceptance. We shall immediately inform the ordering party about the occurrence and the assumed duration of such interruptions. Claims for damages by the ordering party due to delayed deliveries are excluded.

If, as a result of these circumstances, the fulfilment of the contract becomes impossible or economically unsustainable for us, we are entitled to wholly or partially withdraw from the contract. If we make use of our right to withdraw from the contract, we shall inform the ordering party immediately, even if a prolongation of the delivery period by the duration of the fault plus an appropriate lead time were agreed upon initially. Any damage claims by the ordering party due to the enforcement of the right of withdrawal shall be excluded.

§ 5 Unlimited, long-term and call-off contracts, price adaptations

Unlimited or long-term contracts can generally be terminated with a period of notice of 3 months.

If, in the event of unlimited or long-term contracts (contracts with a runtime of more than 3 months), a substantial change in labour, material or energy costs occurs, we reserve the right to appropriate price adaptations, taking into consideration these factors.  

In the event of call-off contracts (call-off supply contracts), the ordering party shall inform us about the binding quantities at least 1 month before the delivery date by means of a call-off, unless otherwise agreed upon. Additional costs which have been incurred due to a delayed call-off or subsequent modifications of the call with respect to time or quantity by the ordering party shall be borne by them; here, our calculation shall be decisive.

§ 6 Transfer of risk during shipment

If, upon the ordering party’s requests, the goods are sent to them, the risks of accidental loss or accidental deterioration of the goods shall be transferred to the ordering party upon the dispatch of the goods to the ordering party and at the latest at the point in time when the goods leave the factory. This shall apply irrespective of whom bears the freight costs. If the dispatch is delayed upon the ordering party’s request, the risk is transferred to them with the notification of the readiness for dispatch. The regulations above shall also apply to partial deliveries.

§ 7 Retention of title

The delivered goods shall remain our property, even in their mounted state, up to the full payment of all claims resulting from the business transactions which have been incurred or will be incurred (goods subject to retention of title). In the event of multiple claims, the retention of title shall be regarded as security for the claimed balance even if individual goods deliveries have already been paid.

We are entitled to withdraw from the contract and demand the return of the delivered goods if the customer’s conduct infringes the contract, in particular in the event of a default in payment or an infringement of an obligation under these provisions.

If the delivered goods are machined or processed, the ordering party shall transfer the title in the object of delivery to us to the amount of the invoiced price, and shall store it for us free of charge. The machining or processing of the goods subject to retention of title shall be borne by the ordering party without any resulting obligations for us. If the goods are processed with objects which do not belong to us, we shall acquire the co-ownership in the new object in the proportion of the value of the goods delivered by us compared to the other processed objects. The same applies if the delivered goods are mixed with other objects not delivered by us.

The ordering party shall only be entitled to re-sell the goods if the claim from such re-sale, including ancillary rights, in the amount of the resulting sales is transferred to us. The ordering party shall not be entitled to dispose of the goods in any other way, in particular to pledge them or transfer them as security. The claims of the ordering party including all ancillary rights resulting from the re-sale of the goods subject to retention of title shall be assigned to us by way of security at this point in time already and to their full extent; we herewith accept such assignment. However, the assignment shall only be made in the amount of the sum of the price of the object of delivery invoiced by us. We herewith revocably authorise the ordering party to collect the claims assigned to us for this invoice in their own name. The direct debit authorisation can be revoked at all times if the ordering party fails to meet their payment obligations, has difficulties to pay, if enforcement measures are initiated against them or if judicial insolvency proceedings have been opened with respect to their assets or if the opening of such insolvency proceedings is rejected due to lack of mass. Additionally, we shall be entitled at all times to disclose the assignment to third-party debtors. The ordering party undertakes to provide us with the information and documents required for enforcing our rights. Furthermore, any loss, damage, pledge or other third-party involvement shall be notified to us without the need for a specific request and without undue delay.

We undertake to release the securities to which we are entitled if their value exceeds the claims to be secured by more than 20%. We are entitled to select the securities to be released at our own discretion.

§ 8 Warranty

Any warranty rights of the ordering party are subject to the proper fulfilment of their inspection and obligation to give notification of defects according to § 377 HGB [Handelsgesetzbuch, German commercial code].

If, despite all care taken, the delivered goods have a defect which has already been present at the point in time of the transfer of risks, we shall repair the goods or deliver replacement goods which are free from defects at our own discretion, provided that a notice of defects was sent within due time. We shall always be granted the opportunity to render such supplementary performance within an appropriate period. Our written consent shall be required for the execution of any warranty work by the ordering party themselves or by any third parties commissioned by the ordering party.

If the supplementary performance fails and if further attempts to rectify the defect are unreasonable, the ordering party may withdraw from the contract or reduce the remuneration.

Any claims against us due to defects may only be raised by the ordering party and cannot be assigned.

If the delivery is made according to the drawings, specifications, samples, photos, descriptions etc. by the ordering party, the ordering party shall assume the risk with respect to the suitability for the intended use. We are not obliged to check these technical/drawn information and specifications provided by the ordering party for correctness or feasibility. Additionally, the ordering party shall guarantee that such technical/drawn information/specifications can be freely used and are not subject to any third-party rights.

Any claims for defects shall be excluded in the event of only minor deviations from the agreed quality, only minor impairment of the usability, natural wear and tear as well as damage which occurred after the transfer of risks due to improper storage, incorrect or negligent treatment, excessive use, unsuitable operating material or non-compliance with the processing and user instructions. If the ordering party or third parties carry out improper repair work or modifications, any claims for defects in such work/modifications and the corresponding consequences shall be excluded.

Any claims for defects shall fall under the statute of limitations after 12 months after delivery of the goods produced by us to the ordering party. The statutory statute of limitations shall apply to any claims for damages due to intent and gross negligence as well as in the event of injury to life, body and health due to an intentional or negligent infringement of obligations by the user. Before any return of the goods, our agreement shall be obtained.

Any claims of the ordering party regarding the costs incurred for the supplementary performance, in particular transport, road, work and material costs, shall be excluded if the expenses have increased due to the fact that the goods delivered by us were subsequently forwarded to another location other than the subsidiary of the ordering party, unless the forwarding to such location corresponds to its intended use. 

Any recourse actions by the ordering party against us are only admissible if the ordering party has not made any agreements with their purchaser which exceed the legally binding claims for defects. The paragraph above shall apply to the scope of the recourse action by the ordering party against us correspondingly.

Any further rights due to defects, in particular damage claims, shall be subject to the provisions of § 9.

§ 9 Liability

Our liability shall be restricted to grossly negligent or intentional infringements of our contractual or non-contractual obligations. We shall not assume any liability in the event of slightly negligent infringements of our obligations by us or by our legal representatives or agents. Apart from that, our liability shall be limited to the foreseeable, direct average damage which is typical for the contract according to the type of work.

The above-mentioned limitations of liability shall not apply to cases of injury to life, body and health based on an intentional or grossly negligent infringement of obligations by us or one of our legal representatives or agents as well as in the event of compulsory liability according to Produkthaftungsgesetz [German product liability law] or other compulsory statutory liability.

§ 10 Use of documents, confidentiality

Any confidential documents provided to us by the ordering party shall only be disclosed to third parties if this is required for the further processing / finishing; such third parties shall also be obliged to maintain confidentiality based on our Supplemental Terms and Conditions of Purchase.

§ 11 Applicable law, place of fulfilment, place of jurisdiction, written form, severability clause

This contract and the entire legal relationship between the ordering party and us shall be subject to the laws of the Federal Republic of Germany, excluding the UN-Convention on Contracts for the International Sale of Goods (CISG).

The place of fulfilment for all obligations arising from this contract shall be Kreuzwertheim, unless otherwise stipulated in the written confirmation of order.

The place of jurisdiction for all disputes arising from this contract shall be Gemünden/Main. However, we are entitled to also file a suit against the ordering party at their place of residence. 

All agreements made by the parties for the fulfilment of this contract are stipulated in writing in this contract. Any changes or additions to these agreements shall be made in writing.

If individual provisions of these General Terms and Conditions are or become ineffective, the effectiveness of the remaining provisions shall remain unaffected. In such case, the contractual parties shall agree upon an effective provision which is as close as possible to the original intent of the ineffective provision it replaces. The same applies to any possible gap in the regulations.

Supplemental Terms and Conditions of Purchase

These Supplemental Terms and Conditions of Purchase shall apply to all business transactions with the supplier or other contractors (in the following referred to as “supplier”), even if they are not mentioned in subsequent orders. They shall also apply if the supplier refers to their own general terms and conditions and we do not explicitly object to them, in particular when accepting the order or in the confirmation of order. Any deviations from these Supplemental Terms and Conditions of Purchase shall only be effective if confirmed in writing.
 

Order

Offers by the supplier shall be binding and free of charge for us.
Orders – including those made orally or by telephone – shall only become binding for us once we have sent them in written form. With the acceptance of the order, the supplier acknowledges that they have made themselves familiar with the type of execution and the scope of performance by viewing the order documents. Any quantity and quality deviations from our order as well as other changes shall only be regarded as agreed upon if we have confirmed them in writing.
 

Delivery and delivery periods

The delivery period indicated in our order shall be binding. The stipulated delivery dates are generally understood to refer to the date of arrival at our factory. The supplier is obliged to immediately inform us if any circumstances occur or if they become aware of any circumstances which may have the effect that the confirmed delivery date cannot be complied with. Any additional costs for an accelerated shipment to comply with the delivery date shall be borne by the supplier.

The delivery and shipment shall be made to the shipment address stipulated by us at the costs and the risk of the supplier. The supplier shall ensure that the goods to be delivered are packed in a way that any avoidable transport damage can be excluded. Upon delivery, all delivery notes and/or freight documents shall be attached in a clearly visible way. Factory testing certificates shall arrive with the corresponding delivery depending on the agreement or provided immediately upon request.

Partial deliveries are admissible upon a corresponding agreement by phone or in writing.
 

Prices and terms of payment

The agreed prices are fixed prices and exclude any type of additional claim. The costs for packaging, freight and transport to the shipment address indicated by us as well as any possible customs duties shall be included in the prices.

Generally, payment shall be effected within 14 days minus 3% discount or within 30 days net, each upon receipt of the invoice, provided that the goods have been delivered properly.
 

Confidentiality

The supplier shall be obliged to treat our order and all related commercial and technical details as business secrets. In particular, any information and documents provided by us, such as drawings, photographs, etc., shall be treated strictly confidentially. They may only be disclosed to third parties with our express approval. Upon completion of the contract or termination of the supply relationship, they shall be returned to us immediately and without the need for a specific request. The confidentiality obligation shall continue to apply beyond the execution of the contract and/or termination of the supply relationship.
 

Ownership

If we provide the supplier with materials or objects, we shall retain ownership in them. Therefore, these materials or objects shall be stored separately and may only be used for our order.

We shall retain ownership in the goods provided by us which are further processed/finished by the supplier, even in their respective finished state. The storage and/or safekeeping of the provided goods shall be free of charge for us. In the event of loss, the supplier shall be held liable even if such loss was not their fault.   
 

Claims for defects and liability

With respect to the delivery of raw materials, the supplier shall be liable for the delivery of the goods free from defects, in accordance with the characteristics prescribed by us and/or the corresponding applicable regulations and provisions, e.g. as per DIN. In the event of the further processing/finishing of the goods, the supplier shall be liable for any damage occurring during the execution and/or caused by the transport of the goods to our premises.

The supplier shall carry out an incoming goods inspection with respect to quality and quantity and inform us immediately about any deviation. The goods shall be accepted provided that they are free from any defects; with respect to the inspection of the delivered goods as well as the notification of any open or hidden defects, we shall not be bound by any periods of notice. Defects which are only determined during the further finishing or processing or at our customers and subsequently reported shall be regarded as notified within due time. In the event of defects, we shall generally be granted the option of selecting the type of supplementary performance – repair or delivery of replacement goods which are free from defects – or the withdrawal from the contract. 

In any case, the supplier shall bear all costs incurred due to the delivery of the defective goods. The same applies to any costs incurred by the fact that the defective goods have already been forwarded to the customer. If the supplier fails to meet our request for rectifying the defect within due time, we are entitled to claim damages. In urgent cases, we shall also have the right to carry out any repairs ourselves, or have them carried out by third parties, at the costs and the risk of the supplier, without prejudice to any warranty obligation.

The warranty obligation of the supplier amounts to 4 years as of the receipt of the delivery by us.

The supplier shall exempt us from any third-party claims raised due to culpably caused defective performance by the supplier. The same shall apply to any product liability claims based on faulty performances by the supplier. The supplier is obliged to obtain a sufficient insurance cover for all risks resulting from the product liability and to provide us with the insurance policy for inspection upon request.

 

Kreuzwertheim, May 2020