General terms and conditions of business
I. Conclusion of the contract
- These general terms and conditions of delivery and payment shall apply to all contracts concerning deliveries and other services, including such contracts which are concluded in the future. Terms and conditions of purchase of the Buyer shall also not apply even if we do not expressly object to these once again after receipt by us.
- Our offers shall be subject to confirmation. Oral agreements on the part of our employees at the time of conclusion of the contract shall not become binding until our written confirmation.
- All statements in the catalogue or contractual negotiations concerning the object of purchase shall be property descriptions and shall not represent assurances in the legal sense. Unless otherwise expressly provided in the sales agreement or otherwise referred to, we have not provided any assurances. Any assurances shall relate only to the goods being free from defects, not to the avoidance of consequential losses connected to defects.
- In case of doubt, Incoterms 1990 shall be decisive in respect of the interpretation of trading clauses.
- Unless otherwise agreed, the agreed prices shall be fixed prices.
- Should statements and other third party costs which are agreed in the fixed price change following conclusion of the contract or should these newly arise, we shall be entitled to carry out a price change to a corresponding scope.
III. Payment terms
- Our invoices shall be due within 30 days net or by agreement.
- Payment must take place in such a way that we have possession of the funds on the due day. The costs of the payment process shall be borne by the Buyer. The Buyer shall only be entitled to a right of retention and shall only have a right of set off if its counterclaims are undisputed or have been recognised by a court.
- Should the payment deadline be exceeded, we will charge interest to the amount of 8% above the base rate of interest of the European Central Bank, unless the Buyer provides us with proof of a lower loss. The assertion of further losses, in particular additional expenses in connection with exchange rate changes and currency hedging shall remain reserved.
- Should the Buyer enter payment default or should it fail to redeem a bill of exchange at the due date, we shall be entitled to take return possession of the goods or, if applicable, enter the business premises of the Buyer and confiscate the goods. We can also prohibit the resale and removal of the delivered goods. Taking return possession shall not represent rescission of the contract.
- Should we subsequently become aware of circumstances which point to a significant deterioration to the asset positions and which endanger our payment claim, we shall be entitled to make any bill of exchange received due, regardless of its term.
- In the cases stated in Paragraphs 4 and 5, we can revoke the collection authority (V/4) and demand advance payments for deliveries which are outstanding, unless already permitted under the contract.
- The legal consequences stated in Paragraphs 4 to 6 can be defended against by the Buyer by means of the provision of security to the amount of our payment claim which has been endangered.
IV. Performance of the deliveries, delivery deadlines and dates
- Our delivery obligation shall be subject to correct and timely self-delivery, unless we are responsible for the incorrect or late supply.
- Statements concerning delivery times shall be of an approximate nature. Agreed delivery deadlines shall commence on the date of our order confirmation and shall only apply on condition that all individual matters concerning the order are clarified in good time and all obligations of the Buyer are fulfilled on time, such as the provision of all official certifications, provision of letters of credit or the making of downpayments.
- In respect of the compliance with delivery dates and deadlines, the time of shipment ex works or from the warehouse shall be decisive. These shall be deemed to have been complied with at the time of notification of readiness for dispatch, should the goods not be able to be sent on time without fault on our part.
- Events of force majeure shall entitle us to postpone the deliveries for the time of the hindrance and a reasonable start up period thereafter. This shall also apply if such events occur during a period of delay which is already present. Force majeure shall include currency, trading, political and other measures outside of our control, strikes, blockades, operational disruptions for which we are not responsible (for example fire, machine and cylinder breakdown, shortage of raw materials or energy), disruption to traffic routes, delays to import and customs clearance, as well as all other circumstances which make the deliveries and services significantly more difficult or impossible for which we are not responsible. In such a case, whether these circumstances are present on our part or on the part of a supplier shall not be of any relevance. Should the performance of the contract become unreasonable for one of the Contracting Parties as a result of the above events, it shall be able to declare rescission of the contract.
- The Buyer shall only be able to exercise a right of rescission due to impossibility or delay to which it is entitled if the continuation of the contract is unreasonable for it. Damages claims of the Buyer shall be in accordance with Section IX of the terms and conditions.
V. Reservation of ownership
- We shall reserve our ownership in relation to the objects delivered by us and which will be delivered by us in the future (goods subject to reservation of ownership) until the Buyer has fulfilled all of our current and future payment claims under the business relationship, including a recognised debt balance in the current account and contingent claims, for example under acceptor’s bills of exchange, even if payments are made on specially designated claims.
VI. Partial delivery, continuous delivery
- Unless otherwise agreed, we shall determine the shipping route and means of transportation, as well as the carrier and shipping agent.
- Goods which have been notified as being ready for dispatch in accordance with the contract must be called up immediately, otherwise we shall be entitled to ship these at the expense and risk of the Buyer according to our choice or to store these according to our discretion and charge for these immediately.
- Should the transportation via the intended route or to the intended location during the intended period of time become impossible without fault on our part, we shall be entitled to deliver via an alternative route to an alternative location. The additional costs incurred shall be borne by the Buyer. The Buyer shall be provided with the opportunity to make a statement in advance.
- With the handover of the goods to a shipping agent or carrier, however at the latest on leaving the warehouse or delivery factory, the risk, including that of a seizure of the goods shall be transferred to the Buyer during all transactions, including in case of prepaid or free house deliveries.
- Unless otherwise agreed, the goods shall be shipped by us having been packed.
- We shall be entitled to carry out partial deliveries to a reasonable extent. Additional and reduced deliveries to the agreed quantities which are customary in the sector shall be permitted.
VII. Defect complaint and warranty
For defects to the goods and in respect of the omission of assured qualities, we provide a warranty in accordance with the provisions below:
- Defects to the goods must be notified immediately in writing, at the latest 7 days after delivery. Defects which are not able to be delivered during the said deadline, also in case of the most careful inspection, must be notified immediately in writing following their discovery and any processing or handling must be suspended straight away.
- In case of a justified defect complaint which is made on time, we will take back possession of the goods which have been objected to and in their place, we will deliver goods which are free of defects. Alternatively, we shall be entitled to provide improvement. Should improvement or a replacement delivery fail, the Buyer shall be able to demand annulment of the contract or a reduction in the remuneration.
- Should the Buyer not provide us with an immediate opportunity to satisfy ourselves of the defect, in particular should it fail to immediately provide the goods which have been objected to or samples which have been requested, all warranty claims shall be forfeited.
- In respect of improvement or a replacement delivery, we will provide a guarantee in the same manner as for the original delivery or service.
- Further claims concerning conversion or reduction shall be excluded.
VIII. Warranty for custom-made products
- In case of custom-made products, we guarantee that performance is carried out in accordance with the plans, proper processing, the use of materials which are customary in the sector and the functional safety in accordance with our technical documents.
- The duration of the warranty (also referred to as “guarantee” or “guarantee period”) shall be in accordance with the written agreements or, should these not be present, in accordance with the statutory regulations.
- The prerequisite for our warranty is that the defects have not been cause by improper use and storage. The proper handling, storage, maintenance and assembly must be proven by the Buyer.
- The burden of proof for defects or the lacking of guaranteed characteristics shall be exclusively in line with the statutory regulations.
- Damages claims shall be excluded, regardless of legal reason. This shall not apply to losses which are caused due to intentional or grossly negligent acts. The liability under the German Product Liability Act (Produkthaftungsgesetz), liability for culpable breaches of essential contractual obligations, as well as liability for guaranteed qualities of the goods being missing shall also remain unaffected.
- In the course of commercial transactions, the obligation to pay damages shall remain limited to losses which are typically foreseeable. Consequential losses connected to defects, in particular financial losses such as losses connected to operational disruptions, the reimbursement of lost profit, recourse claims of the Buyer due to damages claims brought by third parties, costs of claims brought by the authorities and similar shall not be borne by us. This restriction shall not apply should the loss have been caused by intentional or grossly negligent acts by legal representatives or management employees.
X. Limitation period
- Regardless of legal reasons, all claims of the Buyer shall be time barred in 12 months. The statutory deadlines shall apply in case of intentional or fraudulent behaviour, as well as in case of claims under the German Product Liability Act (Produkthaftungsgesetz). These shall also apply in case of defects to a building or for objects of delivery which were used in accordance with their usual manner of application for a building and which caused the defects to the building.
XI. Place of performance, place of jurisdiction and applicable law
- Unless otherwise agreed, the place of performance shall be our factory and the place of jurisdiction Kiel, Germany. We can also bring a lawsuit against the Buyer at its place of jurisdiction.
- German law shall apply to all legal relationships between the Parties, including the Vienna Convention governing the International Sale of Goods of 1980. Should the said convention fail to provide a suitable provision, the German Civil Code (BGB) and German Commercial Code (HGB) shall apply exclusively to all contractual and non-contractual legal relationships between the Parties.
- Should parts of individual formulations of these general terms and conditions of business not correspond to the applicable legal position, should they no longer do so or should they not fully do so, the remaining parts of the general terms and condition shall remain unaffected thereby in terms of their contents and validity.