Terms and Conditions

Terms of Delivery and Payment

 

1. General Terms and Conditions

The following Terms of Sale and Delivery are a part of all supply agreements that we conclude. The Buyer’s terms of purchase are hereby explicitly rejected. We are not obligated by such terms even if we have not yet raised objection to them when concluding an agreement.

 

2. Price, Payment, Security

Unless otherwise stipulated, the prices (in euros) shall be understood as ex works for domestic and foreign transactions. The prices do not include the respective statutory value added tax.

Additional costs incurred for fast freight and express shipments shall be borne by the Buyer. The invoice amount shall be payable within 14 days with 2% early payment discount or within 30 days without deduction, calculated from the invoice date. The Buyer shall not be entitled to any right of retention. Offset shall be permitted insofar as the counterclaims are uncontested or res judicata. We accept discountable and properly taxed drafts as payment in exceptional cases by express agreement. If drafts or checks are accepted, the debt shall be settled only upon encashment. Discount charges and all costs incurred from the encashment of the amount of the bill exchange or check shall be borne by the Buyer. If the payment deadline is exceeded, interest and commissions pursuant to the respective bank rates for overdrafts shall be charged as of the due date, although not less than interest in the amount of 3% above the respective discount rate of the Deutsche Bundesbank. We are entitled to demand security for our claims at any time. Regardless of the term of any drafts accepted and credited subject to a proviso, all of our claims shall be immediately payable if the terms of payment are not met or if we become aware of circumstances that may reduce the Buyer’s creditworthiness. We are also entitled to perform outstanding deliveries only against advance payment and to withdraw from the agreement after setting a reasonable grace period or to demand compensatory damages for nonperformance. We may also prohibit the resale of the delivered goods or the transfer of indirect possession of the delivered goods at the Buyer’s expense. The Buyer hereby authorizes us to enter the Buyer’s business establishment in all cases and to take possession of the delivered goods. Should difficulties arise in the transfer of the invoice amount to Germany, regardless of the reason, the Buyer shall be responsible for any resulting disadvantages. The Buyer may offset claims only with uncontested or res judicata claims.

 

3. Delivery Periods, Delivery Dates, Delays in Delivery

The delivery period shall be calculated from the date of order acceptance until shipment from the Supplier’s factory. If we are hindered in the fulfillment of our obligations by the occurrence of unforeseen events that affect us or our subcontractors, e.g. war, force majeure, internal unrest, natural forces, accidents, other operational disruptions, and delays in delivery of essential operating materials or precursor materials, and we are unable to overcome such hindrances even with reasonable care under the specific circumstances, the delivery period shall be extended for the duration of the hindrance and an appropriate startup period. If the hindrance makes delivery impossible or unreasonable, we may withdraw from the agreement; the Buyer shall have the same right if it cannot be reasonably expected to accept delivery due to the delay. Hindrances for which we are not responsible within the meaning of this paragraph shall also include any strikes or lockouts. Without prejudice to our rights arising from default by the Buyer, the delivery periods shall be extended by the time period for which the Buyer is in default to us with its obligations under this or other agreements. This shall apply accordingly for delivery dates. Should we be delayed in delivery, the Buyer may withdraw from the agreement after the expiration of a reasonable grace period set by the Buyer. More extensive rights, particularly claims for compensatory damages, are precluded to the extent permissible under law.

 

4. Shipping

Risk shall transfer to the Buyer upon handover to the shipping agent or freight forwarder, although no later than the point at which the goods leave the factory. This shall apply even if free delivery was agreed. Unless specifically instructed, we shall be free to select the means of transport, transport route, shipping agent, or freight forwarder, with exclusion of all liability. Goods that have been reported as ready for shipping must be requested for delivery immediately, otherwise we shall be entitled, at our discretion, to store such goods at the Buyer’s expense and risk, and to charge them as delivered ex works. The Buyer may not reject partial deliveries unless the partial delivery is unusable for the Buyer.

 

5. Liability for Defects

Notices of defects and complaints must be made in writing within 14 days after receipt of the goods. The Supplier assumes no liability for abrasive materials that are subject to premature consumption as a result of the material characteristics or their type of use: it further assumes no liability for damage resulting from natural wear and tear, defective or negligent handling, excessive use, inappropriate equipment, chemical, electrochemical, or electrical influences, weathering or other natural influences. In the event of unjustified notices of defects that cause extensive reexamination, the Buyer can be invoiced for the costs of the reexamination. All claims for defects shall lapse if the customer fails to promptly provide us with samples of the defective goods upon demand. The expiration of the claim for defects shall be subject to the applicable regulations on periods of notice. The period of notice shall begin after notification of readiness for shipment, no later than after receipt of the goods at the point of destination. More extensive rights are precluded to the extent permissible under law; this applies in particular for contractual or noncontractual claims for compensation of damages not incurred on the goods themselves. Rights arising from product liability that cannot be precluded by law remain unaffected thereby.

 

6. Special Designs

If special designs are ordered in large quantities, the delivered quantity may be higher or lower by a reasonable unit count if the Supplier gives advance notice thereof.

 

7. Reservation of Title

The goods shall remain our property until payment of all our claims arising from the business relationship with the Buyer, even if payments are made on individual invoices. In the case of a current account, the reservation of title shall serve as security for our claim for the balance of payment. The Buyer shall neither pledge the reserved goods nor assign them a security, and shall notify us of any access to the goods by third parties. If the reserved goods are processed with other goods by the Buyer, we reserve co-ownership of the new item in the proportion of the invoice value of the reserved goods to the invoice value of the other goods used. Should our ownership expire, the Buyer hereby already transfers to us the rights of ownership in the new inventory or item to which it is entitled, to the extent of the invoice value of the reserved goods, and holds them in safe custody for us at no cost. The Buyer may sell the reserved goods only in the normal course of business, under its normal terms and conditions of business, and so long as it is not in default, provided that it agrees upon a reservation of title with its customer and that the claims arising from resale are transferred to us. The Buyer must notify the acquiring party concerning the status of the reserved goods. Claims for compensatory damages shall arise in the event of a violation. The Buyer shall have no other powers of disposal over the reserved goods. The Buyer’s claims from the resale of the reserved goods are already assigned to us at this time. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the Buyer together with other goods not supplied by us or placed in a current account, the assignment of the claim from the resale shall apply only in the amount of our invoice value of the respectively sold reserved goods. In the event that goods in which we have co-ownership shares are sold, the assignment of the claim shall apply in the amount of these co-ownership shares. In this case, payments by the third-party debtor to the Buyer shall first settle the portion of the claims not assigned to us. The Buyer shall have the right to collect claims from the sale up to our revocation, which may be made at any time. We shall exercise the right of revocation only in the cases mentioned in paragraph 2. A right of retention cannot be asserted against our claim for surrender. Under no circumstances is the Buyer authorized to assign the claims. Upon our demand, the Buyer must notify its customer immediately concerning the assignment to us, unless we do this ourselves, and must provide us with the information and documents necessary for collection. Should the value of the existing security exceed the total secured claims by more than 10%, we shall be insofar obligated to release the security at our discretion upon demand by the Buyer. The Buyer must promptly notify us concerning a pledge or other impairments by third parties. If the reservation of title or the assignment is invalid under the law in the territory in which the goods are located, the security in this territory corresponding to the reservation of title or the assignment shall be considered as agreed. If this requires the participation of the Buyer, the Buyer must make all efforts required to establish and uphold such rights. The Buyer must submit at any time upon our demand a list of accounts receivable arising from the sale of the items that were owned by us following processing as a result of the assignment as security.

 

8. Exclusion of Liability

Our liability shall be based exclusively upon the arrangements in the preceding paragraphs. All claims not explicitly acknowledged there, including claims for compensatory damages, regardless of their legal basis, either contractual or noncontractual, are precluded to the extent permissible under law.

 

9. Place of Performance, Venue, and Governing Law

The agreements shall be governed by German law, regardless of the actual jurisdiction. For all disputes arising from the contractual relationship,  the complaint must be filed with the court having jurisdiction for the Supplier’s head office or branch office performing the delivery if the Buyer is a fully qualified merchant (Vollkaufmann), a legal entity under public law, or a public law special asset (öffentlich-rechtliches Sondervermögen). The Supplier shall also have the right to file suit at the Buyer’s head office. Should one of the provisions of the supply agreement or the present Terms of Sale and Delivery be void or invalid, the remaining provisions shall remain valid. If necessary, the parties shall agree upon replacement provisions that correspond to the commercial intent of the agreement. Place of performance and venue is Bad Kreuznach.

 

Version: 03.2018