General business terms and conditions for the delivery of goods and services
1.1 Only our general business terms and conditions shall apply for the delivery of our products and services. We reject contradictory provisions or customer provisions deviating from ours. Our general business terms and conditions shall also apply without reservations when we know about deliveries or services to customers with contradictory provisions or customer provisions deviating from our general business terms and conditions.1.2 Verbal side agreements shall not be binding. All agreements that have been arranged between us and customers for the conclusion of contracts and in connection with the execution of contracts shall require the written form to be effective. These general business terms and conditions shall only apply to companies in the sense of § 14 of the German Civil Code (hereafter BGB).1.3 Unsere Allgemeinen Geschäftsbedingungen gelten nur gegenüber Unternehmern im Sinne von § 14 BGB.
- Scope of delivery of goods or services
The nature and scope of services to be provided shall be described in the individual orders and shall require the written form to be effective Data and information about the delivery of goods and services (such as sizes, weights, tolerances, resistance or qualitative values and technical data) as well as their depictions (such as drawings and figures) shall only be approximates, to the extent that the usability does not require precise agreement for contractually required purposes. There are no agreed upon qualitative values. Customary deviations as well as replacements due to legal guidelines or technical improvements and comparable replacements shall be allowable, to the extent that usability is not impaired for the contractually required purposes.
- Special rights and obligations
Customers shall make agreed upon specifications and information as well as additional specifications and information we request available to us and transfer such in a timely manner. They shall provide all information that will be useful for the execution of the contract without request.
- Examination of documents
We shall review the customer’s specifications and documents only to the extent that such has been agreed upon. We do not assume any liability for the review. Customers shall subject documents provided by them to careful checks.
- Copyright, discoveries and intellectual rights
5.1 We retain all rights, including ownership and copyright, for all materials of all type (such as tender documents, plans, designs, figures, calculations and drawings) transferred to the customer. Customers shall return such materials completely upon our request and potentially destroy any copies made, when not otherwise required by the proper conduct of business.
5.2 We do not assume any risk for the infringement of third party copyrights and must not be subject to the consequences of such. The obligation of care lies strictly with the customer.
- Compensation and invoicing
The amount of compensation shall be oriented on the rates calculated from our respectively valid price lists, if not otherwise agreed upon in the individual contract. The prices are understood to be in EURO plus the respectively applicable VAT. Additional expenses and special services that arise from modifications requested by the customer or additional requirements or supplements shall be invoiced according to expense, to the extent not otherwise agreed upon. The same shall apply for additional expenses that arise from delays in the execution of the order for which we are not responsible. Travel expenses and accommodations for contractual trips to the customer’s location, to suppliers, to assembly sites or to other locations shall be invoiced separately.
7.1 Compensation will be due immediately upon receipt of the invoice without delay. If the payment of compensation has been agreed upon as partial payments during the course of manufacturing in the individual contract, compensation shall be due for the partial payment upon receipt of the respective invoice immediately and without delay.
7.2 If the customer’s creditworthiness might be significantly reduced and the payment of our outstanding balances is at risk, the customer shall make payments in advance for the contractual services or provide sufficient collateral upon our request.
- Early Payment Discount
The deduction of discounts shall require a special written agreement.
- Right of offset and retention, transfer
Customers shall only be owed a right of offset if their counter claims have been legally determined, are undisputed or have been acknowledged by us. To this extent, the customer’s right of retention shall also be excluded. Customers shall not be authorised to transfer claims for payment against us to third parties.
- Deadlines for delivery of goods or services
Deadlines should be arranged and specified in the individual order documents. The deadline for completion shall not start before the provision of the documents, permits or approval materials and not before the receipt of any payment that might be agreed upon. The deadline for completion shall be extended upon introduction of unforeseen events or force majeure to a suitable extent. This shall also apply for any events for which we are not responsible, such as strikes and lock-outs, operational disruptions, shortages of raw materials, delays or incorrect self-deliveries by our company, shipwrecks, lack of transportation capabilities, delays in transportation and procurement of official permits and other official measures of all types in addition to natural catastrophes. Partial deliveries are allowed, if such are justifiable to the customer. The deadline for completion shall be extended by all delays for which we are not responsible. Such delays include those caused by delayed acceptance or approval by the customer as well as by the customer’s contractual partners.
- Transfer of risk
Customers may not refuse acceptance due to insignificant issues. The risk shall be transferred to the customer upon transfer of the object to the conveyance service, freight carrier or other third party specified for shipment. Such shall also apply for partial deliveries or if we have accepted other services (such as shipping or assembly). If there are delays in shipping as a consequence of circumstances for which the customer is responsible, the risk shall be transferred at the time that the customer is notified of the readiness for shipment to the customer. In principle, acceptance shall occur as a formal acceptance of deliveries. Other forms of acceptance have not been excluded. Services that have not been provided and any potential defects must be recorded in an acceptance protocol, even if there are differences of opinion about such. Acceptance may not be refused due to insignificant defects. Acceptance shall be considered applicable: – if the delivery of the product or service has been completed – if we have notified the customer and have requested acceptance with an appropriate deadline – and the ordering agent forbears acceptance according to the deadline.
11.1 Expiration, guarantees and liability We are liable to the customer for ensuring that the contractual object is free of material and legal defects at the time of the transfer of risk to the customer. Insignificant deviations from an agreed upon property shall not represent material defects. We shall not be liable for defects that are based on improper usage or over usage, poor maintenance or a lack thereof, modifications without our written approval, improperly performed repairs by the customer, improper cleaning, non-compliance with the operational manual or users’ guides, mechanical, electronic or electrical effects, improper replacement of work materials, sample materials supplied by the customer or operational media or construction prescribed by the customer. We also shall not be liable for wear and tear. Wear and tear is the progressive loss of material or impairment of the material on a fixed body with mechanical causes, meaning through contact and relative movement of another fixed, fluid or vaporous body or medium.
11.2 Expiration shall amount to 12 months. An exclusionary deadline of 12 months, beginning from the customer’s awareness of the circumstances underlying the claim and the person of the debtor, shall apply for the expiration of all claims that are not subject to a material defect. The preceding deadlines shall not apply in the event of culpability or intentional concealment of a defect or to the extent that we expressly guarantee the properties of the product or service. The deadlines shall also not apply for claims for compensation of damages in cases of injury to life, limb, health or freedom, for claims in accordance with the product liability act, for infringement of obligations of negligible culpability at least or infringement of essential contractual obligations.
11.3 We shall be liable in accordance with the legal provisions to the extent that the customer claims compensation of damages, which is based on intent or culpable negligence, including our representative or vicarious agents. To the extent that we are not accused of intentional infringement of contract, the liability for compensation of damages shall be limited to the foreseeable, typical damages.
11.4 We shall be liable in accordance with the legal provisions to the extent that we infringe a significant contractual obligation. In such case however, the liability for the compensation of damages shall be limited to the foreseeable, typical damages.
11.5 Liability due to culpable injury of life, limb or health shall remain unaffected thereby. Such shall also apply for the product liability act. Intermediate damage and consequential damage that are consequences of defects in the delivery object or service, will only be replaced to the extent that such occurred in the context of intended usage of the object of delivery or service. Such shall be replaced to the extent that such should typically be expected from the intended usage of the object of delivery.
11.6 Liability shall be excluded to the extent that the preceding has been otherwise regulated. Such shall apply in particular for claims for compensation of damages from obligations upon conclusion of the contract, because of other infringements of obligations or because of criminal claims for replacement of material damages.
11.7. The preceding limitation shall also apply to the extent that customers demand replacement of expenses. In the case of simple culpability, our obligation for replacement for material damage or personal injury shall be limited to 10% of the agreed upon payment, however a maximum amount of 50,000 € per claim of damage, even if such involves infringement of contractual obligations.
11.8 To the extent that we have been excluded from, or have restricted, liability for damages, such shall also apply with regard to the personal liability for replacement of damages by our employees, representative and vicarious agents.
- Special exclusion from liability
12.1 In particular, we do not assume liability for the installation of our partial constructs into larger units and for the final products according to the Equipment Safety Law(German GSGV), Electro-Magnetic Compatibility Act (German EMVG) and Product Liability Act (German ProdHaftG). If our performance is supplemented by the customer, the final product will be subject to the customer’s obligation of care.
12.2 To the extent that we provide technical information or act as consultants and such information or consultation is not part of the scope service explicitly owed by us, such shall be provided free of charge and shall be excluded from any form of liability.
- Premature termination of order
If the customer terminates the collaboration before completion of the delivery of products or services, we shall invoice the services provided to that point. Our claims for damages exceeding such shall remain unaffected thereby.
- Retention of ownership for all objects and services provided
14.1 We retain the right of ownership of the objects until the receipt of all payments from the contract. If the customer behaves contrary to the contract, in particular default in payment, we shall be authorised to retrieve the objects. Retrieval of the objects by us constitutes a withdrawal from the contract. We shall be authorised to sell the objects after retrieval. The profits, less appropriate sales expenses, from the sale shall be applied to the customer’s obligations.
14.2 The customer shall be obligated to treat the objects with care. In particular, they shall be obligated to insure such against fire and water damage as well as theft for the replacement value at their own expense. To the extent that maintenance and inspection work are required, the customer must perform such work at their own expense. During the period when we retain ownership, the customer shall not be authorised to use the contractual object as collateral (such as collateral ownership, lien, mortgage or other loans). If the site where the contractual object is located is unaware of the meaning of retained ownership with regards to usage as collateral, the provisions that come closest to the intention of retention of ownership under local law shall understood as agreed upon for purposes of collateral.
14.3 The customer must notify us immediately in writing about any seizure or intervention by third parties so that we can take steps to preserve our rights.
14.4 The customers shall be authorised to resell the objects through the normal course of business. However, they must at that point cede to us all outstanding balances in the amount of the final value of the factoring contract, including legal VAT, which extend from the resell and that without regard for whether the objects have been resold without or after processing. The customer shall also be empowered to collect this claim even after the sale. However, our authorisation to redeem the demands themselves shall remain unaffected thereby. We will however be obligated to not collect the claim as long as the customer fulfils their payment obligations from the uncollected proceeds and does not default on payment and, in particular, an application for the opening of proceedings for settlement or insolvency is not made or cessation of payment does not exist. However, if that is the case, we may demand that the customer makes the ceded balances and their creditor known, provides all information required for collection, provides the documents associated with such and notifies the creditor (third party) about the cession.
14.5 Reworking or restructuring the objects by the customer shall always be done for us. If the objects are reworked with objects that do not belong to us, we will acquire co-ownership of the new objects based on the value of the original object (the final value of the factoring contract, including legal VAT) at the time of the reworking in proportion to the other objects subsequently added. For the remainder, the same issues apply under retention of the reworked object as for the object as delivered.
14.6 If the object is inseparably mixed with objects that do not belong to use, we will acquire co-ownership of the new object at the value of the object (the final value of the factoring contract, including legal VAT) in relation to other mixed objects at the time of their mixture. If the mixing is done in such a manner that the customer’s objects should be viewed as the primary object, it shall be considered as agreed upon that the customer shall transfer proportional co-ownership to us. The customer shall hold the singular ownership or co-ownership arising thereby for us.
14.7 The customer shall also cede us the claims for the assurance of our claims against them, which extend from the combination of the object with the a basic item against a third party.
14.8 We shall be obligated to release the outstanding securities to the extent that the realisable value of our securities would exceed the claims to be secured by more than 10%, upon request by the customer. We shall have first right of selecting the securities to be released.
- Court of jurisdiction and location of fulfilment, applicable law
15.1 The court of jurisdiction shall be Obernburg, Germany.
15.2 The law of the Federal Republic of Germany shall apply. The UN Convention on Contracts for the International Sale of Goods shall be excluded.
15.3 Our business location shall be the location of fulfilment to the extent that such has not been otherwise regulated in the individual order or the type of service.
- If the contract or these general business terms and conditions contain loopholes, the legally effective regulations shall be treated as effective for the fulfilment of the same in accordance with the object of the contract and the general business terms and conditions, which the contractual partners would have agreed upon, if they had known about the loopholes.