1.1 These General Terms and Conditions of Sale shall be applicable to all contracts and other services, including future ones. To the extent that the other party is a business, our general conditions of business, as amended, shall apply. Users in the sense of these terms and conditions of business shall be natural persons with whom business relations are entered into, and to whom neither a commercial nor an independent professional function can be apportioned. Companies in the sense of these terms and conditions of business shall be natural or legal persons or partnerships with legal capacity with whom business relations are entered into, who exercise a commercial or independent activity. Contract partners in the sense of these terms and conditions of business shall be both consumers and companies. The conditions of the contract partner shall not be binding on us even where we have not expressly contradicted these again on receipt thereof.
1.2 Our offers shall be subject to confirmation. Agreements, in particular oral ancillary agreements shall only become binding when confirmed in writing.
1.3 Deviations in the object of delivery in terms of offers, samples and pre-deliveries shall be acceptable according to the specifications of the relevant DIN standards, as amended, or other applicable technical standards. In the case of special manufacture, quantities may be over/under-supplied by up to 10%. Deviations, in particular in colour in the case of natural products shall be acceptable to the customer, within a reasonable degree of deviation.
1.4 Returns must be telephonically reported to the company and approved, regardless of the legal reason. Where items are returned without an indication of the reason, our company shall raise a charge against the customer for taking items into stock again in the amount of 15% of the purchase price, where the sum is at least 50.00 EUR. This shall not apply where the contracting partner is able to prove that the amount calculated for taking items into stock again in a specific case is less than the lump sum intended.
2.1 Our prices are ex factory and exclusive of packaging, where no agreement exists to the contrary.
3. Payment and invoicing
3.1 Our invoices shall be payable within 8 days with a discount of 2%, or within 14 days net, from date of invoice in each case.
3.2 Counter-claims contested by us or those that are not determined as legally binding shall not entitle the customer to set-off. The contracting party may only exercise a right of retention of payment where his entire claim is based on the same contractual relationship.
3.3 After 20 days have expired from receipt of invoice, the contracting party shall be in arrears, if he has not already received a warning in this regard. A consumer shall apply interest at a rate of 5% above the base rate during the time of monetary arrears. A company shall apply interest at a rate of 8% above the base rate during the time of monetary arrears. We shall retain the right to show a higher degree of damages caused by arrears and to claim same.
3.4 Payment difficulties that arise, or knowledge of a significant deterioration in the financial circumstances of the purchaser shall entitle us to stop deliveries immediately. At the same time, all our claims against the purchaser shall become due immediately, irrespective of the maturity dates of bills of exchange accepted, unless the contracting party is not responsible for this situation. In addition, we may forbid the delivered goods from being resold and processed. The purchaser can avert these legal consequences through payment or through furnishing security in the amount of our payment claim that is at risk. The statutory prerequisites for total amount due in the consumer contract shall not be affected by the above actions.
4. Delivery time
4.1 Delivery times and deadlines shall be considered as adhered to if the object of delivery leaves our plant by the time of their expiry.
4.2 Delivery times shall be extended to a reasonable extent in the event of industrial disputes, in particular in the event of force majeure, war, internal unrest, acts of terror, seizure, shortage of appropriate materials, machine damage or other operational disruptions for which we cannot be held accountable or where we could only perform after incurring unreasonable costs. As far as is possible, the contracting party shall be informed as to the occurrence of unforeseen events and as to their foreseeable end.
4.3 Where we are in arrears, the purchaser may, after allowing us a reasonable grace period, withdraw from the contract to the extent that the goods have not been dispatched by the expiry of the deadline. Where damages accrue to the purchaser that can be attributed to fault on our part, he shall be entitled to demand compensation, to the exclusion of additional claims, for arrears in the amount of 0.5% of the purchase price for each completed week of the delay, in total however a maximum of 5% of the purchase price of that part of the entire consignment that cannot be used on time or according to the contract as a result of the delay. The limitation shall not apply to the extent that we are liable in cases of intent or gross negligence.
5. Retention of title
5.1 In the case of contracts with companies, we shall retain title to the goods (goods subject to reservation of title) until complete settlement of all claims from the current business relationship, regardless of the legal reason. In the case of contracts with consumers, we shall retain title to the goods until complete payment of the purchase price.
5.2 The purchaser may alienate the goods subject to reservation of title only in the regular course of business under his normal terms of business, and only to the extent that he is not in arrears, provided that the claims from further alienation are transferred to us. He shall not be entitled to additional disposal of the goods subject to reservation of title.
5.3 Claims of the purchaser from further alienation are hereby already ceded to us. These shall serve as security to the same extent as the goods subject to reservation of title. Where the goods subject to reservation of title are alienated together with other goods not sold by us, the claims from further alienation shall only be applicable to the extent of the further alienation value of the goods subject to reservation of title alienated in each case.
5.4 The purchaser shall be entitled to collect claims from further alienation until revoked by us; such revocation is permitted at any time. We shall only make use of the right of revocation in the cases listed in item 3.4. At our request, the purchaser shall be obliged to advise his consumer immediately as to cession to us – to the extent that we do not do this ourselves – and to provide us with the necessary information and documentation on the collection.
5.5. The purchaser shall inform us immediately as to a seizure or other negative impact by a third party.
5.6 Where the value of existing securities exceeds the secured claims by more than 10%, we shall be obliged to release securities at our discretion on request of the purchaser.
5.7 We shall be entitled to withdraw from the contract and to demand surrender of our property subject to reservation of title in the event of a breach of contract by the contracting party, in particular in the event of payment being in arrears or breaches as per items 5.2 to 5.5 of the contract.
5.8 The treatment and processing of our goods by the company shall at all times be in our name and on our behalf. In case of processing of goods that are not our property, we shall acquire joint ownership of the new item in proportion to the value of the goods supplied by us to the otherwise processed goods. This shall also apply where the goods are mixed with goods that are not our property.
6.1 For all transactions, the risk shall pass to the purchaser on handover of the goods ordered to a forwarding agent or conveyor, at the latest however on leaving the warehouse or – in the case of drop shipments – the manufacturing plant. This shall expressly also apply to "carriage free" deliveries. Where the purchaser is the consumer, the risk of possible loss of or deterioration to the purchased item shall only pass to the purchaser on transfer of the item to same, also in the case of sale by dispatch.
6.2 We shall be entitled to partial delivery to a reasonable extent. In the case of non-stock items, over/under deliveries of up to 10% of the quantity agreed shall be permissible.
6.3 In the case of call-off orders, we shall be entitled to manufacture the entire ordered quantity as a closed unit. Possible requests for change cannot be accommodated after placing of the order, unless this has been expressly agreed to. Call-off dates and quantities can only be adhered to within the framework of our capability for delivery and manufacture, in the absence of a fixed agreement.
7. Liability for defects
7.1 Where the contracting party is a company, we shall in the first instance make good on defects in the goods by means of improvement or replacement delivery, at our discretion. Where the purchaser is a consumer, he shall have a choice as to whether subsequent fulfilment is to take place by means of improvement or replacement delivery. We shall however be entitled to refuse the selected means of subsequent fulfilment where this is only possible with disproportionate costs and the other means of subsequent fulfilment remains without significant disadvantage for the consumer.
7.2 Where subsequent fulfilment is unsuccessful, the contracting party may in principle at his discretion demand a reduction in payment (reduction) or annulment of the contract (withdrawal). In the event of a slight breach of contract, in particular a slight defect, the contracting party shall however not have a right to withdraw from the contract.
7.3 Companies shall indicate patent defects in writing within a period of two weeks after receipt of the goods; failing this, assertion of a guarantee claim (subsequent fulfilment, withdrawal, reduction) shall be excluded. Timely dispatch shall be deemed to constitute adherence to a deadline. The full burden of proof for all prerequisites for claims shall rest with the company, in particular for the defect itself, for the time of determination thereof and for the timeliness of the claim for defect. Consumers shall provide notice of a patent defect within a period of two months after the time at which the status of the goods being in breach of contract was discovered. Arrival of the notice at our premises shall be decisive in determining adherence to the deadline. Where the consumer neglects to provide this notice, guarantee rights (subsequent fulfilment, withdrawal, reduction) shall cease to exist two months after determination of the defect. This shall not apply in the event of bad faith on the part of the seller. The burden of proof for the consumer shall be the point in time when the defect is determined. Where the consumer was induced to purchase the item by incorrect statements from the manufacturer, the burden of proof shall apply to him in terms of his decision to purchase. In the case of used goods, the burden of proof shall apply to the consumer for the liability for defect of the item. The contracting party may not claim a defect in the goods to the extent that we have, on our request, not been afforded the opportunity to convince ourselves as to the defect, in particular where the disputed goods or samples have not been made available to us after an appropriate period of time. Additional claims shall be excluded in accordance with item 8. This shall apply particularly to claims for compensation for damages that did not arise directly on the goods themselves (consequential damages). In cases where characteristics assured are lacking, we shall only be liable to the extent that the assurance served the purpose of providing security for the customer against precisely the damage that occurred.
7.4 The guarantee period for companies shall be two years from delivery of the goods. For used items, the prescription period shall be two years from delivery of the goods. This shall not apply where the contracting party does not provide notice as to the defect in good time. The statutory prescription periods shall remain unaffected in cases of bad faith on our part and in terms of items which have, in accordance with their common use, been used for a building and which have caused such building to be defective.
7.5 Where the purchaser is a company, the nature of the goods shall be agreed in principle to be only the product description of the manufacturer. Public statements, promotion or advertising by the manufacturer by contrast shall not be considered a contractually binding indication as to the nature of the goods.
7.6 Where the contracting party receives faulty assembly instructions, we shall be liable only for the delivery of correct assembly instructions, and this only where the defect in the assembly instructions prevents regular assembly.
7.7 The customer shall not receive guarantees in the legal sense from us.
7.8 To the extent that the contracting party as a company takes us into consideration within the framework of recourse due to a claim asserted by an end user for defective goods, his essential statutory rights shall remain unaffected by the above limitations as per § 476, § 479 BGB (German Civil Code).
8. General limitation of liability
8.1 In the case of a slightly negligent breach of obligations, our liability shall be limited to foreseeable, direct, average damages typical for the contract in consideration of the nature of the product. This shall also apply to slightly negligent breach of obligations on the part of our legal representatives or agents. We shall not be liable at all in terms of companies in the event of slightly negligent breach of insignificant contractual obligations.
8.2 The above limitations of liability shall not affect claims by the contracting party for product liability. In addition, the limitations on action shall not apply to damage to limb and health not attributable to us or in the event of loss of life of the contracting party.
8.3 Claims for compensation of damages by the contracting party due to a defect shall prescribe one year after delivery of the goods. This shall not apply where we are guilty of wilful or gross negligence, as well as in cases of damage to limb and health attributable to us, or in the case of loss of life by the customer and for items which have been used for a building in accordance with their common use and which have caused such building to be defective.
9.1 We shall retain right of ownership and copyright in quotations, designs, drawings and other documents. These may only be made accessible to third parties with our consent.
9.2 To the extent that we manufacture objects based on drawings, models, samples or other documents supplied by the purchaser, the purchaser shall assume responsibility for ensuring that the property rights of third parties have not been infringed. Where a third party prohibits us from manufacturing and delivering objects of this nature in particular while referring to property rights, we shall be entitled accordingly to cease any further activity and to demand compensation for damages based on a breach by the purchaser without being obliged to determine the legal status of the claim. In addition, the purchaser shall be obliged to absolve us immediately from all third-party claims in this connection.10. Erfüllungsort, Gerichtsstand und anzuwendenden Recht
10. Place of fulfilment, place of jurisdiction and applicable law
10.1 The place of fulfilment for our deliveries shall be our factories. Where the customer is a registered trader, a corporate body under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract shall be our registered office in Wildeck/Obersuhl. This shall also apply where the contracting party has no general place of jurisdiction in Germany or the usual residence at the point in time when the complaint is raised is unknown. We shall however remain entitled to sue the contracting party at his place of jurisdiction.
10.2 The law of the Federal Republic of Germany shall be applicable to all legal relationships between us and the purchaser, including the Hague Conventions Relating to a Uniform Law on the International Sale of Goods.
11. Salvatory clause
Where individual clauses in these conditions of business do not become part of the contract either in part or in toto, or are or become ineffective, invalid or contestable, this shall not affect the effectiveness of the remaining clauses or the other sections of these clauses or the contract itself. The affected clause shall be replaced by an effective clause that approximates as closely as possible the intended economic sense and purpose of the ineffective, invalid or contestable provisions, having regard to the essential statutory provisions. The same shall apply to any possible loophole.