I. Area of Application
- The following terms and conditions shall only be valid for business transactions with companies within the meaning of section § 14 of the German Civil Code (BGB – Bürgerliches Gesetzbuch). These terms and conditions shall form the exclusive basis for our offers and quotations and all agreements and undertakings with us. They shall be reckoned as acknowledged / accepted by dint of award of contract, placement of order, or at latest by virtue of the acceptance of delivery.
- Contrary terms and conditions of the purchaser, which we hereby explicitly and definitively reject, shall not form part of a contract, insofar as they shall not be explicitly accepted by us in writing.
- Our terms and conditions shall be valid for all future business dealings and commercial transactions.
II. Offers, Contract Conclusion, VDI1-Guidelines, Cost Estimates, Documents, Samples
- Our price lists, offers and quotations are subject to change, unless otherwise explicitly agreed.
- The conclusion of contract shall be effected by means of written order acknowledgement or order confirmation, or by means of the actual carrying out of delivery. Amendments and supplementary agreements must be made in writing.
- Supplementary to these terms and conditions, the guidelines of the (German) Association for Electrical, Electronic & Information Technologies (VDE), shall be valid for all deliveries and services (performance), insofar as these may come into consideration for the safety of such deliveries or services. Deviations from these guidelines are permissible, as far as the same level of safety shall be guaranteed by some other way or using some other method.
- Cost estimates shall be non-binding without explicit declaration to the contrary. Deviations in costs of up to 20%, both above and below the cost estimate are permissible without requiring notification.
- Cost estimates and offer documents, as well as design documents (in the form of technical drawings / diagrams and samples) are our property and are protected by copyright. They may not be passed on to third parties without our authorisation and shall, upon request and at any time, be returned to us.
III. Shipping Terms, Delivery, Transport, Transfer of Risk(s)
- Shall no other shipping term be agreed, delivery shall be understood as being on ex Works terms from postcode 74336 Brackenheim-Botenheim, Germany (EXW INCOTERMS® 2010). In case of delivery by a third party company authorised with the manufacturing of the product(s) by us, delivery shall be effected on the same shipping terms from the respective place of operation mentioned in our order acknowledgement, or in case of conclusion of contract, from the place of dispatch stipulated in the contract and agreed upon by both parties to the contract.
- Should the purchaser request despatch be carried out by us, packaging, packing, loading and shipping shall be carried out at our discretion and always for the account of and at the risk of the purchaser. Shall no explicit agreement concerning packaging, despatch route or means of transportation have been made, we shall make such a selection for the purchaser, in accordance with our obligations of due diligence. Insofar as our employees or duly authorised agents shall assist in the packaging, packing, loading and unloading or in the transport of the goods, they shall be acting at the risk of the purchaser as his or her vicarious agents.
- Carriage paid / delivery free domicile (deliveries for which we absorb the carriage costs and possible auxiliary expenses) shall not affect the shipping term EXW INCOTERMS® 2010 and the terms and conditions of this section based upon it.
- At delivery, the purchaser shall ensure that the delivery may be unloaded without delay. We reserve the right to charge for hours spent waiting and for return freight shipments.
- The conclusion of a transport insurance policy or similar insurance policy is the responsibility of the purchaser. Without contrary instruction or direction, we shall despatch shipments – including international shipments – uninsured.
- Shipment shall be effected in all cases at the risk of the purchaser, including for commercial transactions on the basis of FOB and CIF terms.
- Claims for damages on account of the non-observance of (a) shipping instruction(s) or on account of inadequate or deficient packaging or packing of the delivery item are excluded, unless we, our legal representatives or our vicarious agents shall be culpable of wilful intent or gross negligence. In case of the taking of delivery of the shipment by the forwarding agent without complaint or objection being raised, liability on our part for packaging, packing or loading shall be excluded.
- In case of damage to or loss of the delivery item en route, the purchaser shall immediately arrange with the forwarding agent or carrier for an assessment of the facts to be carried out.
IV. Prices, Price Alterations, Foreign Currencies, Sample Costs
- In case prices shall not have been bindingly agreed upon in writing, the prices as listed in our order acknowledgement shall be valid, or else otherwise our current daily prices.
- Unless otherwise agreed, our prices are calculated – even for international deliveries - in euro, excluding packing, value-added tax, shipping and insurance costs, and they are calculated on ex Works terms (EXW INCOTERMS® 2010) and solely for the respective individual order. Our prices shall only be valid for the services listed; special or additional services shall be charged for separately.
- Banking charges and fees for international payment transactions shall be borne by the purchaser and by vendor to 50/50.
- Insofar as nothing contrary has been agreed (e.g. fixed prices), the right to an alteration in prices shall be reserved to both parties to the contract, shall a period of longer than four months elapse between the time at which prices were agreed upon and the delivery of the goods; and shall prices for raw materials, prices from suppliers, wages, transport costs, rates of taxation, or other sundry cost factors have changed by more than 5%; and shall this actual change not have been foreseeable at the time of conclusion of contract.
- Shall the purchaser not accept a quantity of goods bindingly ordered by placement of order, we shall be authorised, subject to our other rights and claims, to levy charges for quantities below the minimum order quantity for the accepted part of the delivery.
- Provided that a foreign currency or foreign currencies shall be defined in our offers, these offers shall only be valid for the time at which they are created. Should the exchange rate between the euro and the foreign currency change, we shall reserve the right to adjust the value of our offer or quotation accordingly.
- We produce initial samples only as an exception and only when costs for such samples shall be shared with the purchaser. Shall the purchaser request amendments on the basis of an initial sample or samples, we shall be authorised to demand the purchaser accept parts already made (to the same specifications as the samples), as well as reimbursement for the costs incurred by us as a result of machine downtime.
V. Delivery (Lead) Time (commencement and hindrances), Partial Deliveries, Order Contracts, Default of Acceptance
- Specifications of delivery or lead times in brochures, cost estimates and offers are made with the reservation that our suppliers and sub-suppliers shall be able to fulfil the obligations they have made to us, as in all cases our ability to deliver is subject to the availability of goods.
- Periods of delivery or dates of delivery provided upon placement of order or order acknowledgement shall only then be binding contract dates if they shall have been expressly agreed as binding.
- The sole determining factor for the adherence to the period of delivery shall be notification of readiness for shipment.
- Reasonable partial shipments shall be permitted.
- Every period of delivery shall commence only after the receipt of all documents required for the execution of the order, and after receipt of payment, insofar as the due date of payment was agreed as immediate upon placement of order. Shall the purchaser be required to provide material(s) or auxiliary supplies, the delivery period shall not commence before the full receipt of such material or supplies.
- Shall the manufacture or delivery of goods be temporarily prevented or delayed on account of reasons for which the purchaser shall be responsible, the delivery period shall be extended correspondingly, in accordance with the verifiable duration of the hindrance. In the calculation of the extension of the delivery period, allowance shall be made for a reasonable lead time for the resumption of operations / services. Entitlements of the purchaser to services, or claims instead of services during the period of hindrance are excluded. Subsequent requests on the part of the purchaser for amendments or extensions shall cause the delivery time to be extended correspondingly, as appropriate.
- Shall the manufacture or delivery be delayed on account of these circumstances, or at the request of the purchaser, additional expenses arising as a result shall be immediately charged to the account of the purchaser, and shall be reimbursed by the purchaser.
- Shall we, by order of the purchaser, have undertaken the provision of additional parts to be supplied, the delivery period shall be extended by the period of time necessary for such provision of parts, unless we shall be responsible for the delay in the delivery or provision of such additional parts.
- In case of a significant deterioration in the financial circumstances of the purchaser, in particular in case of default of payment or the placement of an application for insolvency, our obligation to carry out delivery shall no longer be applicable.
- Order contracts shall be, insofar as nothing contrary has been agreed in writing, scheduled at least fourteen days before the desired delivery date. Shall the purchaser only partially accept joint ownership of the new object or product in proportion to the value of our delivered item to the foreign substances at the time of processing.
- Shall our (joint) right of ownership disappear as a result of mixing / blending, combination or processing, then it shall be agreed now, that the (joint) right of ownership of the purchaser to the object or substance shall be transferred to us in proportion to its value (invoice value). The purchaser shall store the (joint) property free of charge. The purchaser, as custodian of the property shall be especially obligated to duly secure, insure and take care of the delivery items, and in doing so to ensure that no danger from or to persons or property is possible. Any possible risks shall be duly covered by insurance policies.
- Goods to which we are entitled to (joint) right of property shall be designated retained goods as follows.
- The purchaser shall be authorised to process and sell the retained goods in due course of business so long as the purchaser shall not be in default of payment. The pledging or assigning as security of the retained goods is not permissible.
- Accounts receivables in the favour of the purchaser resulting from the re-sale of or from any other legal grounds (balance from a current account, installation, insurance or from an unlawful act) concerning the retained goods from deliveries, rendering of performance or services, contracts of insurance or compensation for damages shall, as a precaution, be now assigned by the purchaser to us. Without influencing this assignment, the circumstances remain unchanged, whether installation was performed by us, the purchaser or by the vicarious agents of one or another contractual partner.
- The purchaser shall be authorised, subject to revocation and a condition subsequent, to collect the assigned receivables in his or her own name. This collection authorisation shall be able to be revoked by us, should the purchaser not duly discharge his or her payment obligations. The authorisation ceases, without there being need for a declaration of revocation, should the purchaser enter into default of payment concerning an invoice, or upon the submission of an application for insolvency proceedings on the part of the purchaser (Own application ‘Eigenantrag’) or upon the placement of an application for insolvency proceedings against the purchaser by a third party (Outside application ‘Fremdantrag’).
- Only after our approval shall the purchaser be authorised to sell to a factor the receivables resulting from the due course of business against his or her client by way of genuine factoring. The resulting receivables arising out of the sale of receivables against the factor shall now be assigned to us. With the payment of the purchase price for the receivables by the factor, our receivables open against the purchaser, and which result from the contractual relationship in question, are immediately due for payment.
- In case third parties shall seize the retained goods or otherwise have access to them, the purchaser shall advise of our right of property and shall immediately notify us. Any costs or damages caused by such seizure or access by third parties shall be borne by the purchaser.
- In case of conduct of the purchaser contrary to the contract – in particular in case of default of payment – we shall be authorised to redeem the retained goods. Shall the retained goods be located with a third party, the purchaser shall now assign to us his or her claims for the return and surrender of the property against the third party. Insofar as the third party is entitled to legitimate claims to the retained goods, these shall be taken into account. As the indirect owner of the retained goods, we have the right to enter onto the premises of the purchaser.
- By our effecting redemption of the retained goods, as well as by our effecting seizure of retained goods, no withdrawal from the contract is constituted, just as is also the case by our disclosing of the assignment by way of security.
Upon request from us, the purchaser shall be obligated to provide information on all assigned receivables, in particular, a list of debtors, together with their names, addresses, the amount of receivables and the date and number of the invoices shall be provided, and upon request, the purchaser shall provide us with all information and documentation required for asserting claims.
- We shall be authorised to make a claim upon the retained goods, as well as further assets of the purchaser which are subject to our actual influence, as security, and after offering to return them to the purchaser against payment of a reasonable sum, and such offer not being successful, to sell them directly at our discretion.
- The value of all collateral or securities is determined by their realisable value (security value). If this value cannot be ascertained in a reasonable way and within a reasonable period of time, we shall be able to determine for the valuation of goods securities their delivery price, without taking into account any additional services, sales tax, discounts, reductions or shipping and other sundry costs. The nominal value of receivables determines their valuation.
XI. Agreed Tolerances, Permissible Changes to Services
- Bulk consignments (from 100 pieces / units of identical articles with a piece or unit price of up to EUR € 10.00) may manifest variances in quantity of +/- 5 % of the total number of pieces / units.
- Bulk consignments may only contain a scrap rate of a maximum of 5 %. In case this agreed tolerance level is exceeded, section XII shall be valid with the stipulation that random inspections of an appropriate number must be carried out. Section XIV shall also be valid.
- We reserve the right to allow for variations with respect to materials, colour, weight, dimensions, technical design or other similar properties, insofar as the delivery item taken as a whole remains acceptable for the purposes of purchase to the purchaser.
- We shall be entitled to carry out technical changes which serve to make improvements to the goods without the prior approval of the purchaser.
XII. Obligation to Inspect Goods and Report Complaints
Products delivered by us shall immediately be inspected for defects or faults, even in the case where samples had been sent previously. The delivery and or rendering of service shall be considered as accepted where complaint on account of manifest defects, discrepancies in quantities or incorrect deliveries or such thereof as may be discovered or discoverable as a result of due inspection of the goods, shall not be made in writing with us within a cut-off period of fourteen days after the arrival of the goods at the place of destination and in any case before the connection, mixing or processing of the goods takes place. The purchaser shall lodge complaint for hidden defects in writing with us within a cut-off period of eight days after their discovery.
- Written guarantees must be explicitly designated as such and be contained in the order acknowledgement or else be subsequently agreed on in writing.
- Information or details on the properties of our products, their processing and application, on special dimension accuracy as well as on the adherence to DIN2 guidelines only then constitutes a legal guarantee when it is explicitly agreed so in each individual case. As a general principal, we shall not assume a guarantee for the appropriateness or suitability of our goods for a particular designated end use, unless we had warranted this explicitly.
- In case of suggestions for materials on our part, we shall not under any circumstances make a guarantee that the material is suitable for the designated end use of the purchaser when we are not aware of that designated end use.
XIV. Warranty Claims, Objective and Temporal Limits on Warranty
- Warranty claims (claims for defects) are excluded for differences in quality, dimensions, density, weight etc. when such differences do not exceed divergences that are customary for the industry or the material, in particular when they are within the extent of tolerance of quality guidelines or standards. Specific requirements for exact dimensional accuracy must be mentioned explicitly with the placement of an order and must be confirmed by us in order to be binding.
- In case of production in accordance with technical drawings / diagrams or other specifications of the purchaser, we shall only be liable – irrespective of sundry limitations of liability and warranty provisions – for the production and execution in accordance with such specifications and/or technical drawings / diagrams.
- We shall accept no responsibility for defects or damages resulting from the causes listed as follows:
a) Neglected or deficient co-operation of the purchaser
b) Improper or negligent application and usage
c) Non-observance of the operating instructions
d) Non-observance of the safety instructions / precautions provided
e) Improper storage the order quantity, we shall be authorised, irrespective of our other rights and claims, to charge a surcharge for a quantity below the minimum order quantity. We shall be authorised to carry out delivery of and charge for the full order quantity six months after the date of the order acknowledgement, shall no call or demand for the goods have been effected by that time, or shall no other agreement have been made.
- We shall be authorised to set a reasonable period of time for acceptance of the goods, and, after the expiry of this period of time with the acceptance of goods remaining outstanding, we shall be authorised to exercise disposal over the delivery item and to deliver to the purchaser in accordance with an appropriately and reasonably extended delivery period.
VI. Non-acceptance of Goods
- In case of default of acceptance by the purchaser, which has led to the cancellation of the contract in accordance with the respective statutory provisions, we shall be able to charge for compensation for damages amounting to thirty per cent of the gross order amount instead of the service or consideration in return, unless the purchaser can demonstrate that no damage at all or only a lesser damage has occurred. We reserve the right to demonstrate greater damage as having occurred, in particular in case of custom-made products.
VII. Force majeure, impediments to service and performance where neither party to the contract shall be held resonsible
- Shall we be prevented from carrying out delivery on account of force majeure, the delivery period shall be extended automatically by the duration of the circumstances constituting force majeure in addition to an appropriate lead time. Force majeure shall be deemed as those circumstances at the agreement of the delivery period or date as being unforeseen and for which we shall not be responsible, and which shall hinder or impede delivery to an inacceptable degree or which shall make delivery temporarily impossible.
- Examples of such circumstances include industrial disputes, official or governmental measures, unpreventable shortages of raw materials or energy supply, significant disruptions to operations caused by the destruction of an entire operating facility or important departments thereof, or by the failure of essential manufacturing facilities or the loss or hindrance of significant parts of the workforce by means of pandemics; furthermore, serious disruptions to transportation routes, such as road blockages, industrial action in the transport industry, general transport and flight bans. Force majeure shall also apply should such circumstances affect sub-suppliers. The designated circumstances shall also relieve us (of our obligation for performance), shall these circumstances commence or arise during a period of delay which has already commenced. We shall notify the purchaser of such circumstances as soon as shall be possible. Notification may be dispensed with, shall the purchaser already be aware of the circumstances. Shall such circumstances continue for more than three months, we shall have the right to withdraw from the contract. Upon the request of the purchaser, we shall declare whether we shall withdraw, or whether we shall deliver within an appropriate period of time to be determined by us. Claims for damages on the part of the purchaser are excluded in these cases. Both parties to the contract may withdraw from the contract without being liable to pay compensation or damages when it shall be certain that the fulfilment of the contract has become impossible on account of these circumstances.
- Shall the manufacture or delivery of goods be temporarily prevented or delayed on account of reasons for which we shall not be responsible, the delivery time (or period of service provision, as the case may be), shall be extended by the verifiable duration of the hindrance. In the calculation of the extension of the delivery period, allowance shall be made for a reasonable lead time for the resumption of operations / services. Entitlements of the purchaser to services, or claims instead of services during the period of hindrance are excluded.
VIII. Default, Limitation of Liability
- Shall an explicit fixed date not have been agreed upon, default in delivery or provision of services shall only commence after a reminder or warning has been issued. The purchaser shall only be able to withdraw from the contract after the expiry of a reasonable deadline. Even after the expiry of such a deadline, the purchaser shall be obligated to accept the goods, unless the declaration of withdrawal from or cancellation of contract shall have been received by us before the shipment of the delivery item or the notification of the readiness for shipment.
- Shall we, our legal representatives our vicarious agents, with regard to the occurrence or commencement of default, be responsible for wilful intent or gross negligence, or shall we, our legal representatives our vicarious agents have guaranteed a fixed date, or shall the interest of the purchaser in the services or performance have demonstrably ceased on account of the occurrence or commencement of default of delivery or provision of services, we shall be liable in accordance with statutory provisions. Insofar as the default in delivery is based upon the culpable violation of an essential contractual obligation, of which the non-compliance with this obligation shall endanger the purpose of the contract, our liability shall be limited to foreseeable, typically occurring damage. Any further liability is excluded.
- Liability for property and financial losses or damages is limited to five per cent of the net value of the goods forming the delayed part of the delivery.
- Damages arising as a result of loss of production, downtime costs, loss of profit or on account of third parties against guaranteed contractual penalties, which arise or are forfeited on account of the delayed delivery to the purchaser or the purchaser’s client shall only be compensated for in the case where a binding delivery date had been agreed and the purchaser, at the time of the date being agreed, had advised in writing of the concrete damages and costs that threatened in case of the binding delivery date being missed.
IX. Conditions of Payment, Discounts, Charging, Authority to Collect, Deterioration of Assets, Default of Payment, Offsetting
- Insofar as nothing contrary has been agreed in writing, we shall accord terms of payment of thirty days after the date of invoice in case of strictly net payments without deductions for claims for remuneration which are immediately due for payment.
- In case of cash payments or equivalent payments within a period of eight days after the issue of the invoice, we guarantee a two per cent discount. Invoice amounts under EUR € 100.00 are not eligible for a discount. The same is valid for invoices for tools, devices and pure contract work or wage labour. Newer (more recent) invoices shall not be eligible for a discount, if older invoice amounts are still open. Incoming payments shall be applied against any eventual interest receivables and then against the oldest open accounts receivables.
- Shall an order be executed in several sections, we shall be authorised to invoice the individual sections separately. In case of default of payment, we shall be authorised to postpone further deliveries until payment has been effected.
- Payments shall be made directly to us. Our sales personnel, field staff, stock controllers, and similar staff are only authorised to receive payments if they have been authorised by us in writing to do so. Payments made to such persons in spite of this provision shall only be recognised as having been made once they have been received on our account.
- Shall the commercial circumstances of the purchaser deteriorate significantly, or shall it become known to us that our payment claims shall already have been endangered at the time of conclusion of contract, we shall be authorised, revoking all agreed payment terms, to demand the immediate payment of the entire invoiced amount. This provision shall also be valid in the case where the purchaser has been reminded to make payment three times without payment being effected. Shall the purchaser cease his or her payments or shall the purchaser apply for insolvency proceedings, then all discounts, deductions, allowances and other sundry benefits applied to the remaining open accounts receivables shall be considered as no longer guaranteed.
- In case of default of payment, we shall be authorised, irrespective of our other statutory claims, to charge default interest amounting to eight per cent above the base lending rate. Shall the purchaser not be a commercially run company, the provision of proof of lesser or lower damages is permissible.
- The purchaser shall only be entitled to set off on the basis of counter claims when these counter claims are undisputed and have been legally established, or if pending legal proceedings shall not be delayed by such offsetting. The same shall be valid for the exercising of rights of retention of the client, provided that they do not directly concern the same contractual relationship.
X. Retention of Title, (extended, augmented), Storage Obligations, Factoring, Exploitation
- Until the complete and full payment of all of our accounts receivables for deliveries made and services rendered, to which we shall be entitled to by the purchaser currently or in future, we shall be granted the following securities, which we shall release at our discretion upon demand, insofar as their value shall lastingly exceed by more than ten per cent the value of our total receivables:
- The goods shall remain our property.
- Retention of title shall persist, even if individual receivables are included in a current invoice and the balance has been struck or acknowledged (current account reservation). In case of several business transactions, the retention of title shall also persist when a delivery has been paid for, yet an amount remains open for other deliveries (augmented retention of title).
- The processing or alteration or reforming of delivery items shall always be effected for us such that we shall continue to be considered as manufacturers, yet without entailing any obligations for us arising from such processing or alteration. Shall the delivery items be processed together with objects or materials of other sundry foreign substances, and shall such processing be carried out for a third party such that they are considered as manufacturers, we shall acquire
f) Incorrect assembly or incorrect putting into service by the purchaser or a third party
g) Failure to carry out a service trial or test run
h) Natural / normal wear and tear
i) Natural / normal deterioration
j) Absent or incorrect service and maintenance
k) Use of unsuitable media or operating materials
l) Unsuitable surrounding conditions
m) Use of unsuitable construction materials, unsuitably influenced materials to be processed, chemical, electronic or electric influences
n) Neglected or deficient checking of the suitability for the actual intended application.
o) Properties of the material to be processed by the purchaser with the delivery object which were not known at time of conclusion of contract provided that fault or blame for these causes cannot be attributed to us.
- In case of legitimate complaints made in a timely manner, we shall guarantee, at our discretion, either a rectification of the defects or else a replacement delivery.
- In cases of replacement deliveries, we shall have at our disposal a reasonable period of time, in particular, a period of time sufficient for the manufacture of the replacement goods.
- In case of rectification of a defect or defects, we shall bear the requisite expenses, insofar as these are not increased by the fact that the delivery item is at a location other than the place of delivery.
- Additional costs which arise as a result of the fact that at time of the conclusion of contract it is not made known to us that claims for defects shall be met outside of the Federal Republic of Germany shall be for the account of the purchaser. We are authorised to request a suitable advance payment against the estimated additional costs. Insofar as payment for expenditure of work / labour is effected, only the standard times required for our internal labour shall be accepted at prevailing costs of labour in each respective country.
- Shall the defect not affect the suitability for use and shall no significant defect be present, we shall be authorised to grant a reduction in price instead of effecting either a rectification of the default or a replacement shipment.
- Further claims of the purchaser presuppose that we are delayed in providing rectification for significant defects and that a reasonable additional period of time allowed to us for such rectification has elapsed or that two attempts at rectification have failed, insofar as further attempts at rectification are not appropriate either on account of the delivery object or because they are not reasonable for the purchaser.
- We shall be authorised to provide supplementary performance of services in the form of rectification even after the expiry of such an additional period of time allowed to us, until such time as we shall receive an unambiguous statement from the purchaser to the effect that further services are explicitly refused.
- Instead of withdrawing and demanding compensation for damages instead of the rendering or performance of services, the purchaser can demand the costs of execution of the performance by substitution, insofar as this does not exceed the net order value of the defect part of the delivery.
- The warranty period for all deliveries is one year from the delivery of the goods to the purchaser.
- This period of limitation is neither interrupted nor arrested by the notification of defects, the following correspondence, measures to check for and determine or discover defects as well as the actions to rectify such defects as are determined. These actions are to be explicitly agreed upon individually. In case of a replacement shipment, the warranty period begins anew with its delivery, unless the replacement shipment is not carried out in response to a defect, but rather exclusively as a result of our goodwill.
- Shall the outcome of an inspection in the context of a return shipment of goods for which complaint was lodged reveal that the complaint lodged was incorrect, then we shall be authorised to charge an industry-standard amount for the inspection of the goods as well as for the expenses accrued for shipment.
- Shall legitimate complaints not be identifiable in spite of proper inspection of the goods during the goods reception inspection of the purchaser, the purchaser is entitled to the warranty claims as regulated above, even when the goods have already been worked or processed. In such cases the right of recourse in accordance with section § 478 of the (German) Civil Code (BGB – Bürgerliches Gesetzbuch) continues to exist even after the expiry of the period of time for the obligatory reporting of complaints upon the delivery of the goods. At the same time, the purchaser shall bear such expenses as would not have arisen in case sufficient precautions had been made for the rendering of supplementary performance over against the end user.
- Mandatory provisions of product liability remain unaffected.
- On the basis of the statutory provisions, we shall be liable in cases of breaches of warranty, personal injury, and insofar as we, our legal representatives or our vicarious agents shall be culpable of wilful intent or gross negligence.
- In case we should negligently be in breach of any obligation material to the contract, for which such a breach should endanger the purpose of the contract, our liability to compensate for material damages shall be limited to typically occurring, foreseeable damages.
- Further claims are excluded.
- Purely financial losses, in particular loss of profit, losses from interruptions to business operation and losses from operation downtimes shall not be compensated for, should such losses not constitute a case as described in the second clause of section XV.
- The above limitations on liability are valid likewise and to the same extent for our representatives, employees, vicarious agents and other assistants.
XVI. Data Processing
We advise that data on business transactions is processed within our company and we reserve the right to transmit all necessary data to insurers in order to obtain credit insurance.
XVII. International Jurisdiction
For these terms and conditions and for all legal or contractual relationships between us and the purchaser, the law of the Federal Republic of Germany shall apply, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
XVIII. Place of Performance, Place of Jurisdiction
- Shall the purchaser be a merchant, a legal or corporate entity under public law or a special agency or fund incorporated under German public law, the place of performance for the delivery obligations incumbent upon us for deliveries ex works is the respective manufacturing facility, in case of deliveries ex stock, the respective warehouse. The place of performance for the obligations incumbent upon the purchaser is postcode 74336 Brackenheim, Germany.
- Shall the purchaser be a merchant, a legal or corporate entity under public law or a special agency or fund incorporated under German public law, or should the purchaser not maintain a registered office in the Federal Republic of Germany, then postcode 74072 Heilbronn, Germany is the exclusive place of jurisdiction for all disputes arising directly or indirectly from or in connection with the contractual relationship. This shall also be valid for proceedings based on cheques and bills of exchange. In all cases, we shall be authorised at our discretion to institute legal proceedings against the purchaser, even at the purchaser’s place of business.
1VDI – Verein Deutscher Ingenieure - The Association of German Engineers
2DIN - Deutsches Institut für Normung – The German Institute for Standardisation
As at 1st of January, 2014