Terms and Conditions of Delivery and Payment
§ 1 General
1. These terms and conditions of delivery and payment provide the basis of all offers and contracts for deliveries and performance of the seller, including continuing and future business relations. The contractual relationship is governed by German substantive law including the UN Treaty on International Sale of Goods.
2. All agreements between the contract parties require for their validity a writing signed by both parties. The inclusion of the buyer’s terms and conditions requires the written confirmation of the seller. If nevertheless the buyer’s general terms become part of the contract and place the seller in an essential provision less favorable than in the seller’s terms, the seller is entitled to rescind the contract with appropriate notice.
3. In use of Incoterms the version from 2010 applies.
§ 2 Prices
The existing conditions and price lists of the seller (plus VAT) as of the time of the order are controlling, subject to a price increase at the day of delivery that is made necessary by an increase of raw material prices during production.
§ 3 Transfer of Risk and Delivery
1. Delivery of the goods occurs at the location of the seller’s business (ex works). Upon the seller designating the goods or making them available, the risk of accidental loss and deterioration is transferred to the buyer. This also applies where the seller at the request of the buyer ships the goods to a place other than the place of performance, Duderstadt.
2. The non-adherence to delivery dates and periods by the seller entitles the buyer to assert the rights it has only after it has given the seller an appropriate cure period of at least 8 work days.
3. In the case of force majeure occurrences, labor disputes, actions of public authorities as well as production interruptions for which the seller is not at fault, which last longer than a week or will apparently last longer than a week, the delivery or pickup period is accordingly extended for the period of the interference. In such event the other party is entitled to rescission, if notice of at least two weeks in advance is provided. Damage compensation claims are excluded.
4. If the seller presents proof of the diligent choice of its freight delivery service that did not deliver according to contract, the delivery period is extended by the delay of the freight delivery service insofar as no substitute procurement is to be reasonably expected of the seller. The seller is, in case of impossibility of delivery by its freight delivery service, entitled to rescind the contract with the buyer.
5. In case of breach of contract due to late performance or impossibility that is attributable to the seller, damage compensation claims are limited to the replacement of proven additional costs ( costs of cover on the basis of three comparable offers ). Any further damage compensation claims are excluded. In cases of delay due to simple negligence, the seller is liable for one half of one percent weekly of the order value affected by the delay up to at most 5% of the order value.
6. The seller is entitled to make partial delivery for operational reasons so long as this does not unreasonably burden the buyer. Rights arising out of a breach of contract in the form of delay or the delivery of defective goods are limited to the affected partial delivery.
7. If the buyer unrightfully refuses to accept or take the goods even after notice of an appropriate cure period has been given, the seller is entitled to rescind the contract or to demand damage compensation for non-performance in the amount of 20% of the order amount. The right to claim further damages remains undisturbed. A reduction of the fixed damages amount will be made insofar as the buyer presents proof of a lesser amount of damages.
8. In the case of fundamental, provable deterioration of assets of the buyer, the seller is entitled to make further delivery conditional on prepayment, to make due immediately all open invoiced amounts and to demand cash payment or giving of security upon return of any checks or payment drafts taken in.
§ 4 Payment
1. Invoices are due immediately upon receipt and are to be paid within 30 days after date of invoicing without any discount or reduction by fees or charges. The terms for payment begin with the date the invoice is sent. The date of receipt of payment is deemed to be the date on which the amount arrives or is credited. Payment modes by check or payment draft are solely for purposes of payment; bank charges, fees and costs are borne by the buyer. If the buyer exceeds the term of payment, we charge interest on arrears according to established banking practice, however, a maximum of 8 % p.a. above the base interest rate as fixed by the ECB.
2. The set-off of counterclaims or the withholding of invoiced, due amounts is permissible if the claim is undisputed or admitted or has been reduced to a final judgment.
§ 5 Product Quality and Warranty
1. The product specification of the seller is controlling for the determination of the quality of the goods. Insofar as the buyer releases the goods, such release occurs on the basis of the product specifications of the seller. The appropriateness of the goods for further processing by the buyer is only a contractual obligation insofar as the seller has been informed of the details of the further processing nevertheless this is not deemed to have been given merely by descriptions of the possibilities of further processing in particular in statements of the seller promoting the goods. Samples and test deliveries are in principle nonbinding in terms of establishing product quality or warranty obligations. Customary and minor, technically unavoidable deviations that result from the nature of the goods do not constitute a defect. Every warranty liability is extinguished in the event that the buyer modifies the products indirectly by adding other substances or changes directly the goods in their composition.
2. The Buyer fulfills its duty of inspection of the goods under § 377 of the German Commercial Code only by taking two representative samples of at least 400 grams each from the delivery. Notice of apparent defects must be given without delay, at the latest 10 days after receipt of the goods.
3. If the good at the time of transfer of risk has a defect, the seller has at its choice, after demand of cure by the buyer, the right of repair or substitute delivery within 10 days, unless one of the rights of cure unreasonably burdens the buyer.
4. The buyer is obligated to make use of instructions of the seller accessible to the user. The buyer indemnifies the seller from every invocation of claim for damages to third parties arising out of a violation of this duty.
5. Warranty claims are subject to the statute of limitations provided for by statute in Germany. The period of limitations is deemed to be tolled for the period taken for repair or substitute delivery.
6. If a notice of defect is without basis ( whether on account that there is no defect or that the seller is not liable for such defect ), the buyer has to reimburse the seller for costs arising thereby ( transport costs and costs of examination ).
7. Buyer is responsible for determining the applicability of any product standards to the goods, whether binding or non-binding, determining the goods‘ compliance therewith and obtaining any required or customary product certifications or marks of approval at its own cost.
§ 6 Liability
1. Damage compensation claims against the seller with exception of claims on the basis of bodily injury are excluded in the case of simple negligence unless essential contractual duties have been violated. Compensation claims are limited to the damages that the buyer foresaw or could foresee at the time of concluding the contract ( normally 50% of the value measured by the purchase price ). The Seller is not liable for intentional actions of its performance agents. Insofar as the law of the buyer’s place of business permits a greater exclusion of liability, such greater exclusion shall apply.
2. The buyer indemnifies the seller for liability claims of third parties insofar as product defects are attributable to the buyer.
3. If defective goods result in a recall, the liability for the resulting costs is limited to the insurance awards of the seller by type and amount. Reimbursement of these costs requires in addition that the seller was given opportunity to take a position as to the recall before the start of the recall measure.
§ 7 Reservation of Title
1 The delivered goods remain property of the seller until full payment. The reservation of title extends to all claims arising from the business relationship (current account reservation).
2. In the event of late payment by the buyer, the seller shall be entitled to take back the goods that are subject to a reservation of title. To enforce this right it is permitted to enter the premises of the buyer during normal business hours. The buyer is not allowed to pledge the goods subject to reservation of title or to transfer them as security. Notice of rescission from the contract within the meaning of § 449(2) German Civil Code is deemed to be given if the seller demands the goods that are subject to reservation of title.
3. The buyer is entitled to process or bind the goods subject to reservation of title with other goods within the scope of its normal business activity. In this case the seller acquires coownership of the new product in the amount of the proportionate value of the good subject to reservation of title in relation to the connected or newly manufactured good, in accordance with § 947(1) of the German Civil Code. The buyer assigns already now to the seller the claims that arise against its customer or another third party already now in proportion to the co-ownership of the seller.
4. The buyer remains entitled to collect claims, however, the authority of the seller itself to collect the claim remains undisturbed. The seller nonetheless commits itself not to make use of its right of collection so long as the buyer has not committed a breach of contract towards the seller, in particular by being late in payment.
5. The right of resale, use or installation of the goods subject to reservation of title and the authority to collect the assigned claims are extinguished upon cessation of payments or with the application for or opening of a bankruptcy proceeding or a judicial or nonjudicial reorganization proceeding; a rejection of a check or payment draft results likewise in the extinguishment of the right of collection.
6. Insofar as the value of the security held by the seller exceeds the claim due from the buyer by more than 20%, upon request of the buyer, the seller will release the excess security held.
7. Should further steps be necessary in order to make this section 7 enforceable, then buyer will inform seller thereof and take such steps after coordination with seller without delay. Costs of taking any such steps will be borne by buyer.
§ 8 Place of Performance, Jurisdiction and Choice of Law
1. Place of performance is always the place of business of the seller.
2. Buyer hereby consents to the exercise of jurisdiction by the courts in Duderstadt in any matter arising out of the contract relationship, both as to the subject matter and over the person of the defendant, and will accept service of process of such action at its general place of business. Notwithstanding such consent, either party is entitled to bring an action against the other arising out of the contract relationship in the courts having general jurisdiction over the other party.
3. Any kind of legal relations underlie the german civil and commercial law. Regulations of the United Nations Convention on Contracts for the International Sale of goods (CISG) and the rules for International Private Law (IPR) are excluded.
§ 9 Validity of the Clauses
1. In the event of the invalidity of particular terms and conditions, the validity of the remaining clauses is not disturbed.
2. In place of the invalid provisions or to fill a gap in a clause the appropriate provision that the parties would have agreed upon had they considered the point when concluding the contract shall apply.
These general business terms and conditions are subject to the applicable anticorruption laws and regulations. The delivery of goods and services (contractual performance) is subject to the reservation that performance is not impeded by any obstacles due to national and international regulations, in particular export control provisions as well as embargoes and other sanctions. The contractual partner is obligated to obtain all information required for export/delivery/import. Delivery times and deadlines shall be extended to account for delays due to export inspections or approval procedures. If the required permits are not issued, the contract is deemed to be invalid in regards to the affected components.