§ 1 General – Scope of Application
- Our Conditions of Sale shall apply solely and exclusively; we accept no conditions set by Buyer or any conditions of Buyer differing from our Conditions of Sale unless we have expressly agreed thereto in writing.
Our Conditions of Sale shall also apply if, with knowledge of conditions set by Buyer or any conditions of Buyer differing from our Conditions of Sale, we make delivery to Buyer without reservation.
- All deliveries which are made between us and Buyer for the performance of the order shall be documented in writing.
- Our Conditions of Sale apply only in relation to entrepreneurs within the meaning of § 14 of the German Civil Code (BGB).
- Our Conditions of Sale shall also apply in their respectively valid version to all future transactions with Buyer.
§ 2 Offer – Offer Documents
- Should the order qualify as an offer in accordance with § 145 of the German Civil Code (BGB) we can accept it within a period of 10 days from receipt of the order. If we issue a written confirmation of order, this shall be authoritative with regard to the scope of supply.
- We retain title and copyright to illustrations, drawings, calculations and other documentation; they may not be made available to third parties. This shall apply in particular to written documents which are classified as "confidential"; Buyer may only pass them on to third parties with our express written consent.
- Delivery is understood to be as long as stocks are available and subject to our receiving supplies on time. We may make partial deliveries.
- Verbal ancillary agreements, the warranty of specific properties and subsequent contractual changes shall only apply if they have been confirmed by us in writing.
§ 3 Prices – Terms of Payment
- Unless otherwise stated in the confirmation of order, prices are ex works exclusive of value-added tax at the prevailing statutory rate; packaging is charged separately.
- Supplies of machines, accessories and abrasives are payable with a 2% discount within 10 days or net cash within 30 days from the date of the invoice. Repair, installation and customer services are payable net cash immediately upon receipt of the invoice.
- Should payment by Buyer be overdue, we shall be entitled to claim interest on the amount in arrears at the rate of 8% above the respective base rate in accordance with § 247 of the German Civil Code (BGB). We reserve the right to claim any higher losses or damages caused by the delay in payment.
- Buyer shall only be entitled to set-off any amounts if its counter-claims have been ruled final and absolute, are undisputed or have been recognized by us. Furthermore, Buyer shall only be entitled to withhold amounts insofar as its counter-claim derives from the same contractual relationship.
§ 4 Delivery Period – Transfer of Risk
- The delivery period quoted by us will not commence until all technical matters have been clarified. Observance of our delivery commitment is subject to the punctual and due performance of Buyer's obligations.
- The risk of the accidental loss or deterioration of the good sold shall pass to Buyer when the good leaves our premises.
- Should Buyer so wish, we will arrange transit insurance for the delivery; Buyer shall bear the associated costs.
- Should Buyer delay in accepting the good or be in breach of other duties to cooperate, we shall be entitled to claim the damages or losses, including any additional expenses, which we incur. In this case the risk of accidental loss or accidental deterioration of the good shall pass to Buyer as from the time when acceptance becomes overdue.
§ 5 Delayed Performance and Impossibility
- Should we delay in performing our delivery obligation due to minor negligence, Buyer may claim compensation in the amount of 0.5% for each week or part thereof of the delay but not more than a maximum of 5% of the value of that part of the overall delivery which cannot be put to its contractual use or cannot be put to its contractual use on time because of the delay. This amount of the damages shall be reduced if we produce evidence of a smaller loss or increased if Buyer produces evidence of a higher loss.
- Without prejudice to Buyer's right to withdraw from the contract in case of defects (see § 7 Warranty), in the event that performance becomes impossible or in case of delay Buyer may only exercise its right of withdrawal should there be a breach of a contractual obligation for which we can be held responsible.
- Additionally, in case of delayed performance, withdrawal from the contract or damages in lieu of performance shall be conditional upon Buyer setting us a reasonable time limit of at least 4 weeks in writing beforehand and making it expressly clear at the same time that it will withdraw from the contract and/or claim damages if the time limit is not met. At the end of this time limit Buyer shall be obliged, upon our request, to declare whether it still insists on delivery or whether it intends to claim damages or withdraw from the contract. Should Buyer not make said declaration within a reasonable period of time set by us, Buyer shall no longer be able to refuse delivery and may no longer withdraw from the contract and may not claim damages in lieu of performance.
- The setting of a time limit as provided for in paragraph 5.3. can be waived should we have earnestly and definitively refused to make the contractual performance or should there be special circumstances which, after weighing the interests of both parties, justify immediate withdrawal.
- Buyer may not withdraw from the contract either before the time the performance is due or in the event of an only insignificant breach of a contractual obligation by us. Finally, withdrawal is excluded should Buyer be responsible entirely or far overwhelmingly for the circumstances which would justify withdrawal, or should a circumstance beyond our control arise during the time while Buyer is late in accepting the good.
- Paragraph 8. of these General Conditions of Sale shall apply with regard to claims for damages.
§ 6 Complaints
- Obvious defects, i.e. legal or material defects, excess amounts, short amounts or wrong deliveries and the lack of any condition or durability of the delivery or service that might have been warranted (defects) must be reported in writing without undue delay, however not later than 14 days after receipt of the good; and in the case of defects which are not discernible during the normal inspection of incoming goods likewise without undue delay, however not later than 14 days after they are detected.
- All warranty claims against us shall be excluded should defects or other complaints not be reported within the periods of time stated in paragraph 6.1 above.
§ 7 Warranty
- In case of a defect reported within the time limits stated in paragraph 6 of these Conditions of Sale we shall, at our option, either make good the defect (reworking) or supply a replacement insofar as Buyer proves that the defect existed prior to the time risk passed to Buyer. All warranty claims shall become statute-barred 12 months after the date the good is handed over. Claims to damages for any injury to life, body or health caused by a defect shall become statute-barred after 24 months from the date the good is handed over. Any used goods supplied are excluded from the warranty.
- Should we have made two attempts to make good the defect or have supplied a replacement once without the existing defect having thereby been remedied, or should we refuse without justified cause or unreasonably delay the performance of any reworking or replacement that is necessary, or should a reworking not be reasonably acceptable to Buyer for other reasons, and should the conditions of §§ 281 II or 323 II of the German Civil Code (BGB) be fulfilled, Buyer may, in lieu of a reworking or replacement, exercise the remedies of withdrawal from the contract and a reduction in the purchase price provided by law, as well as claims for damages or the reimbursement of expenses, the latter within the framework of paragraph 8. of these General Conditions of Sale.
- Buyer shall grant us, after consultation with Buyer, the necessary time and opportunity to perform the reworking or replacement. Any parts replaced in connection with the warranty shall become our property.
- Furthermore, we shall not be obliged to perform any reworking or replacement if this is only possible at unreasonable cost. Said cost shall be deemed unreasonable if it exceeds 25% of the purchase price of the good.
- We do not accept any liability in the event of an only insignificant variance from the agreed condition or an insignificant impairment of the fitness for use and for any losses or damages arising in particular for the following reasons: unsuitable, unprofessional or incorrect use of the good by Buyer or third parties, natural wear and tear, incorrect or negligent treatment, especially through excessive stress or strain, replacement materials and chemical or electrical influences.
- If the good is subsequently moved to a location other than Buyer's branch office and this leads to additional expenses, especially transportation, travelling, labour and material costs for the reworking or replacement, such additional expenses shall be borne by Buyer unless such relocation corresponds to the intended use of the good.
§ 8 General liability under the General Business Conditions
- Unless otherwise agreed in these terms and conditions, all claims of Buyer to the compensation of losses or damages of any kind, including the reimbursement of expenses and consequential losses or damages, are excluded. This applies especially to claims for all breaches of obligations under the law of obligations and tort. This exclusion of liability shall apply also in the event that we have used the services of agents.
- Notwithstanding, we accept liability in the instances stated in paragraph 8.1 should we, our senior officers or agents have acted in gross negligence or with wilful intent and in all instances where we, our senior officers or agents have culpably breached material contractual obligations (cardinal duties) and the purpose of the contract is thereby jeopardized as a whole. A breach of said cardinal duties shall be deemed given should we, our senior officers or agents breach obligations in relation to Buyer whose fulfilment makes the due and proper performance of the contract possible and in whose fulfilment Buyer generally confides and may reasonably confide.
- However, in the event of a breach of cardinal duties the amount of our liability is limited in the case of minor negligence to the value of the order.
- In the latter case, if, as an exception, the value of the order does not correspond to the typically foreseeable losses or damages, the amount of our liability is limited at all events to the typically foreseeable losses or damages.
- Finally, the exclusion of liability does not apply to claims under product liability law or should a warranty have been made with regard to the condition or the durability of the good sold. Furthermore, the exclusion of liability does not apply to losses or damages as a result of injury to life, body or health.
§ 9 Retention of Title
- We retain title to the good sold until all payments arising from the business relationship with Buyer have been received. Insofar as we have accepted cheques or bills of exchange as performance in the interest of the Buyer, all deliveries shall remain our property until such liabilities are fully discharged.
- Should Buyer be in breach of contract, especially if in arrears with its payments, we shall be entitled to repossess the good sold. Buyer shall be obliged to surrender the good. Our repossession of the good sold shall not imply a withdrawal from the contract unless we have declared this expressly in writing. Buyer hereby agrees in advance to allow the persons engaged by us to collect the good to enter and drive on its premises for this purpose.
- We shall be entitled to realize the good after its repossession; the proceeds, less reasonable costs to realize the good, shall be offset against the amounts owed by Buyer.
- Buyer shall be obliged to treat the good sold with due care, in particular Buyer shall be obliged, at its expense, to insure the good sufficiently at as-new value against fire, water and theft. Should maintenance and inspections be necessary, Buyer must perform these on time at its expense.
- Buyer shall notify us in writing without undue delay in the event of attachments or other encroachments by third parties so that we can bring action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse to us the court and out-of-court expenses of action in accordance with § 771 of the German Code of Civil Procedure (ZPO), Buyer shall be liable for the resulting loss we incur.
- Buyer shall be entitled to use and process the goods within the normal course of its business. Buyer shall conduct such use and processing of the goods on our behalf without this giving rise to any obligation for us. In the event that Buyer should sell the good on its own or together with goods not belonging to us, Buyer hereby assigns to us in advance the receivables from the sale, together with all ancillary rights, in the amount of the value of the good. We accept this assignment. We authorize Buyer, subject to revocation, to collect the receivables assigned to us. Should Buyer fall into arrears with its obligations to us, Buyer shall disclose to us the names of all the debtors of the receivables assigned to us. Furthermore, Buyer must notify the debtors of the assignment. In this case we shall be entitled to disclose the assignment to the respective debtors ourselves and to exercise our powers of collection.
- Buyer is only entitled and authorized to resell the good in the ordinary course of its usual business and only on condition that title to the receivables assigned to us above (paragraph 6.) actually passes to us. Buyer shall not be entitled to dispose over the good sold in any other way. In particular Buyer may not pledge the good or assign the good by way of security.
- We undertake to release, at Buyer's request, the collateral at our disposal insofar as the value of our collateral exceeds the value of the receivables it secures by more than 20%.
- Buyers not resident in Germany shall do all things required by law or otherwise that are necessary to ensure that our lien, as provided for in these Conditions of Sale, is valid and operative in the country to which the good sold is delivered.
§ 10 Jurisdiction – Place of Performance
- Sole and exclusive place of jurisdiction for all present and future claims arising out of the business relationship with Buyer, including bill of exchange and cheque claims, shall be the court responsible for our registered office in Güglingen-Frauenzimmern insofar as the contracting party is a businessman, a legal person under public law or a public asset.
- Unless otherwise stated in the confirmation of order, place of performance shall be our registered office in Güglingen-Frauenzimmern.
- The supply relationship with Buyer shall be governed by German law. Application of the United Nations Vienna Convention on Contracts for the International Sale of Goods of April 11, 1980 is excluded.
Güglingen, June 1, 2006