Terms & Conditions of Business
1.1 Our products and services are expressly supplied in accord with the following conditions regulating delivery and payment.
1.2 Our business and contractual conditions take exclusive priority over any other conditions and in particular the purchasing conditions of our customers. To the extent that a customer order has been placed with reference to customer's purchasing conditions that are partly or wholly conflicting with our sales and business conditions, then such customer purchasing conditions are herewith expressly precluded in their entirety.
1.3 In all instances, any deviations from our general terms and conditions of business require our express written confirmation.
1.4 In case any of these conditions should be or become inapplicable or non-valid, or if individual conditions are changed to be applicable or valid, then the validity and applicability of all remaining conditions of our general terms and conditions of business shall remain valid and intact.
2. Contractual Determination
2.1 Final acceptance of all customer orders requires our written or faxed confirmation.
2.2 All supplementary agreements including any contractual changes or additions require our express written confirmation in order to be legal and binding.
3. Terms of Delivery
3.1 With the exception of transactions specifying delivery by a fixed date, all delivery dates and deadlines are given as approximations only. Non-compliance with respect to delivery dates and deadlines shall entitle customers to legal claims only if an appropriate extension (amounting to at least a minimum of two weeks) of the delivery date in question has been sent to us in writing.
3.2 Partial deliveries are permissible and are regarded as independent deliveries with respect to payment and reclamation. If partial performance has been rendered and if the customer has no use for the partial delivery, then only compensation can be demanded, instead of the entire payment.
3.3 Deliveries with shortages or overages are permissible for bulk goods (item price less than € 5.00) and may account for up to a maximum of 10 % of the total order volume.
3.4 Customers assume all risks when goods to be delivered are surrendered to the freight carrier and, at the very latest, as soon as the delivery has left our premises.
3.5 Packing costs will be billed separately unless otherwise specified in a written agreement. Packaging materials used for shipping can be returned; customers must bear all costs for returning such materials.
3.6 In any case, the right of receiving timely and orderly supplies of our own requirements is reserved with respect to contract performance. This condition is also applicable to the extent that some of our products or product components are supplied by third parties, and it applies especially to delays or order cancellations of goods that are supplied to us by foreign companies. Both our customers and we are entitled to cancel existing contracts should our own supply requirements not be successfully filled.
3.7 Contracted delivery dates will be automatically extended to include the length of any periods of delay resulting from events that can not be foreseen or avoided or which may be the result of extraordinary conditions such as labour strikes, national regulations, significant disturbances in transportation or shipping, etc. Should these events make delivery impossible, or if any other aspect of contractual performance becomes impossible in accord with § 275 Sections (1) – (3) BGB (German Civil Code – GCC), then we are entitled to cancel the respective contracts involved without being liable for any other obligations in this respect nor being liable for compensation for damages.
4. Terms of Payment
4.1 Unless otherwise contracted, all invoices are immediately due for payment. For payment within 14 days from invoice date, a cash discount of 2 % will be granted. Should payment not be made within 30 days of the invoice date, then we are entitled to charge interest on outstanding receivables amounting to the respective current base interest of the European Central Bank (§ 247 BGB (GCC)) plus an additional 8 %.
4.2 Payment through bills of exchange is permissible only with our prior written consent. In such cases, customers must bear all discounting and collection costs. Bills of exchange and checks constitute effective payment only after having been successfully liquidated and redeemed.
4.3 Customers may only offset due claims for the payment of our receivables with uncontested or legally verified counterclaims or by exercising a right of retention.
4.4 If the financial situation of a customer worsens significantly after finalizing a contract and the possibility arises that payment cannot be made, or if such a situation existed prior to finalizing a contract and was only recognized later, then all further deliveries shall be made on a prepayment basis only or after the deposit of security. The same principle applies should customers become delinquent in paying for past deliveries. Furthermore, in such instances we are entitled to demand immediate payment in full of all open invoices existing within the business relationship even though invoice amounts due may have been partly or entirely deferred or may have been compensated by bills of exchange.
5. Liability for Faulty Delivery
5.1 Liability will be assumed for goods that are defective or faulty, regardless of possible liability existing in accord with stipulations of the product liability statute. The following procedure will be used: § 377 HGB (Commercial Code – CC) shall apply for customer complaints with the stipulation that claims made due to faulty or incomplete delivery must be submitted in writing within two weeks (at the latest) after arrival of the goods at the destination; furthermore, written claims for hidden faults must be submitted within two weeks (at the latest) after their discovery. Claims for damages incurred during shipping must be made immediately to the respective freight carrier.
5.2 We are required to remedy material defects (§ 434 Sections (1) – (3) BGB (GCC)) either through reworking or through delivery of a substitute, whichever we choose. Should reworking or substitute delivery be unsuccessful, customers can request a price reduction or cancel the order contract. Further warranty claims and in particular all claims for damages and for reimbursement of costs incurred without a corresponding benefit are expressly precluded. All claims for defects expire under the statute of limitations at the prescribed deadline.
5.3 In addition to the warranty, we also grant a two-year product guarantee that assures fault-free products. This guarantee is valid for a period of 24 months beginning at the time of risk transference (Nr. 3.4). It specifies either reworking products that we have delivered without cost or replacing them with a substitute delivery at our discretion. All other claims are not valid and expressly precluded. We will assume all costs required for reworking (especially costs for shipping, duties and work materials). This does not apply to increased costs which arise due to the fact that customers have transferred purchased items after original delivery to a different location than the domicile or business headquarters of the original recipient. An exception to this stipulation would be if transfer of goods is required for the planned and designated use of a product or goods as previously agreed upon in a contract.
6. Damage Claims
6.1 Customer claims for damages are expressly precluded, particularly those claims resulting from the violation of an obligation stemming from a contractual obligation or from illegal business dealings; this also includes any liability for resultant damages, i. e. for any other damages that have originated on other than the object of delivery itself.
6.2 This preclusion of liability does not apply in cases of intent or of gross negligence. Furthermore, preclusion of liability does not apply in instances of damage to life, body or health nor for violations of basic contractual obligations nor when such preclusion of liability for any other reason would represent an unreasonable disadvantage.
6.3 In instances of violation of basic contractual obligations due to less extreme negligence by vicarious agents (non-legal representatives and company middle management), the extent of liability is limited to damages which could be anticipated at the time of finalizing the contract or, at maximum, the actual value of the respective invoice in question. To the extent that intention or gross negligence is not involved, this limitation of liability also applies in cases where liability may arise resulting from default or delay in performance.
6.4 If the contract foresees the payment of a penalty for default, for delay in performance or for not fulfilling guaranteed conditions or values, etc., then the payment of this penalty shall satisfy all damages incurred by the customer that arise from our default or our delay in performance or from non-fulfilment of guaranteed conditions or values, etc.
7. Reservation of Ownership
7.1 We reserve the title of ownership (simple reservation of ownership) of goods delivered until these goods plus all other deliveries (extended reservation of ownership) arising from this business relationship have been completely paid in full. Reservation of ownership also covers the existing account balance if invoices and receivables are continuously being booked against the customer (reservation of current accounts).
7.2 Accepting the return of goods that have been already been delivered does not indicate that the respective contract in question has been cancelled unless we have expressly stated this in writing. Customers are required to notify us immediately in the event of property attachment or of other interventions by third parties. We reserve all property rights and copyrights for drawings and other documents related to our products. These may not be made available to third parties without our express consent.
7.3 Customers are entitled to resell delivered goods within legal business channels. However, all receivables that accrue from such sales to these customers or third parties are to be immediately assigned to us regardless of whether such goods have been resold without further processing or if further processing has taken place including product transformation or structural alterations or mixing. We are under the obligation to satisfy only the amount of our receivables that are still open and to isolate all other surplus proceeds resulting from liquidation. Customers are also entitled to collect these receivables even after assignment to us. However our authority to collect these receivables remains intact as well; we are under obligation not to collect such receivables unless customers are delinquent with payments. In case of delinquency, we are entitled to revoke customer's authorization of collection and to demand that the customer inform us regarding all assigned receivables and the corresponding debtors, including all information required for collection, and to surrender all respective documents and to inform the garnishees regarding any assignments. To the extent that our customers have transferred goods that we have delivered to them in a regular business transaction, they are required to reserve ownership at least in the amount of the resulting receivables (as a minimum amount) which have been assigned to us.
7.4 The customer must immediately inform us of any requests for bankruptcy proceedings against him, whether self-initiated or from third parties. District court reception of a request for bankruptcy serves to terminate all entitlements to process or to sell goods which we have delivered and which remain in our ownership.
7.5 Any processing or transformation of goods by our customers that we have delivered must always be done in our name. If such goods are processed together with other goods that we do not own, then we are owners of the resulting and derived product in the ratio of the value of our delivered goods to the value of the other goods that are commonly processed with them at the time of that processing.
7.6 If the delivered goods are irreversibly mixed with other goods that we do not own, then we are owners of the resulting and derived product in the ratio of the value of delivered goods to the value of the other goods that are commonly mixed with them at the time of that mixing. The same thing applies if the delivered goods are connected with other individual or independent items so that they become combined components of a unified object. If mixing or combining is done in such a manner that the customer's object is perceived as the main object, then the customer is required to transfer ownership to us of proportionate value.
7.7 We shall immediately transfer back to our customer the new and common ownership of the newly derived object or product which is legally ours as a result of his processing, structural altering or mixing of goods that we have originally delivered; this is done under the same conditions that applied to the original goods that were delivered. The conditions for reserved goods in accord with Number 7.4. also apply to the newly derived object or products resulting from processing, structural altering or mixing. To the extent that co-ownership of the new derived object or products involves third parties, our customer will assign to us the receivables from reselling only in proportion to our respective share of co-ownership.
7.8 Upon request, our customer is obligated to inform us in writing of the recipients and/or the co-owners of the processed, structurally altered or mixed objects or products that have been resold, including information regarding where such goods are located.
7.9 In order to secure our receivables, our customer will also assign to us his receivables against third parties that arise through the connection of delivered objects or products with real estate.
7.10 If our customer demands it, we are under obligation to surrender instruments of security or collateral, to which we are entitled, to the extent that their value exceeds by more than 20 % the amount of our open receivables against our customer stemming from the business relationship. In order to value reserved goods, the selling price is decisive and, to the extent that such goods have been processed or re-worked by the reserve-purchaser (customer), the original cost of goods as well. When valuing assigned receivables, the nominal value is decisive.
8. Place of Performance, Place of Jurisdiction and Applicable Law
8.1 Place of performance for all contracted goods and services, including mutual and reciprocal obligations is Altdorf near Nuremberg.
8.2 The exclusive place of jurisdiction for all legal disputes including processes involving checks and bills of exchange is Nuremberg, regardless of whether the customer be a legal person under public law, or separate trust assets under public law, or whether the customer has no national domicile or headquarters.
8.3 The legal relationship between our customers and us shall be regulated exclusively by German law. Application of the UN agreement regulating contracts for the international purchasing of goods is expressly precluded. Incoterms 2000 is to be used as an authoritative reference in interpreting business and trade clauses in instances of ambiguity.