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Terms of Sale, Delivery and Payment

1.     General provisions

1.1 The scope of the deliveries or services to be provided by us shall be governed by the General Terms and Conditions (GTC) set out below and the mutually agreed written statements. The GTC of the Contract Partner shall apply only insofar as these have been expressly agreed to by us.

1.2 These GTC shall also apply for special items and fabrications.

1.3 The GTC set out below shall be automatically superseded by any new GTC edition as soon as this takes effect.

 

2.  Prices and terms of payment

2.1 Offers made by the Seller shall be without obligation. All stated prices shall be ex works and exclusive of packaging, freight, postage and insurance. They shall be subject to statutory value-added tax at the current rate.

2.2 Invoicing shall be based on the date of delivery to or warehousing for the Contract Partner (or Client/Employer). The invoice shall be payable with a 2% early-payment discount within 10 days of the invoice date or without deduction within 30 days.

2.3 In case of default in payment, interest on arrears shall be due at a rate of 8% p.a. above the base interest rate set by the Deutsche Bundesbank.

2.4 The Contract Partner shall only be entitled to set off claims that are undisputed or legally effective.

 

3.     Retention of title, manufacturing deadlines and delivery

3.1 The Supplier shall retain title to the supplied goods until the agreed price has been paid in full or the cheques or bills of exchange used for settlement have been honoured. Prior to full payment or honouring of the cheques or bills of exchange used for settlement, the goods subject to retention of title shall not be used as a pledge or security without the Supplier's consent. The Contract Partner shall only be entitled and authorized to resell the goods subject to retention of title under the proviso that the payment claims pursuant to resale be assigned to the Supplier. The claims of the Contract Partner arising from resale of the goods subject to retention of title shall already herewith be assigned to the Supplier, which hereby accepts this assignment. A lien shall be granted over all raw materials, whatever the type, handed over by the Contract Partner as of the time of their surrender to secure any claims of the Supplier.

3.2 Should our deliveries be delayed due to a fault on our part, the Contract Partner shall be entitled – insofar as it is able to furnish evidence of a consequential loss – to claim damages for each completed week of the default equal to 0.5% – though up to a maximum of 5% – of the price for that part of the delivery which, due to the default, is the subject of improper performance.

3.3 Any claims for damages put forward by the Contract Partner due to delays in delivery and any claims for damages instead of performance which exceed the claims specified in the above section shall in all cases be excluded, even after expiry of any deadline set for us to deliver. This shall not apply where, in cases of intent, gross negligence or injury to life, body or health, liability is mandatory. The Contract Partner shall only be entitled to withdraw from the contract under the relevant statutory provisions where the delay in delivery is due to a fault on our part. The above provisions shall entail no change to the Contract Partner's detriment in respect of the burden of proof.

3.4 Excess or short deliveries shall be permissible provided these may be considered reasonable for the Contract Partner.

3.5 Part deliveries shall be permissible provided these may be considered reasonable for the Contract Partner.

3.6 Unless a fixed delivery deadline is expressly agreed in writing, the terms of delivery and delivery dates agreed under the contract shall be deemed to constitute approximate deadlines.

 

4.     Passing of risk

4.1 The Contract Partner shall bear all risks arising from carriage of the goods, even by our vehicles, and even where carriage-free delivery has been agreed.

4.2 If required, deliveries may be insured by us against standard transportation risks at the Contract Partner's expense.

 

5.     Material defects

Our liability for material defects shall be as follows:

5.1 Any deliveries or services exhibiting a material defect whose cause already existed at the time of passing of risk may, as the Supplier best sees fit, be repaired, re-supplied or re-performed free of charge.

5.2 All material defect claims shall become time-barred 12 months after delivery of the goods. This shall not apply where longer periods are provided by statute, specifically under Section 438 Subsection 1 No. 2, Section 479 Subsection 1 or Section 634a Subsection 1 No. 2 German Civil Code, in case of injury to life, body or health, wilful or grossly negligent breach of obligations by the Supplier, or where a defect is fraudulently concealed.

5.3 The statutory provisions governing suspension, suspension of expiry and recommencement of deadlines shall remain unaffected.

5.4 We shall first be granted the opportunity to correct the defects or re-perform the deliveries within a reasonable period. Should such defects correction or re-performance prove unfeasible, the Buyer shall – without prejudice to any claims for damages – be entitled to withdraw from the contract or claim a price reduction.

5.5 The Contract Partner shall not be entitled to refuse acceptance of the deliveries on account of minor defects.

5.6 No defects claims shall be accepted where the goods only insignificantly deviate from the agreed condition, where their fitness for use is only insignificantly impaired as well as in cases of normal wear or damage that occurs after the passing of risk due to faulty or negligent treatment, excessive loading or any other special external action for which no provision is made under the contract.

5.7 Any claims put forward by the Contract Partner regarding expenditure in connection with defects correction or re-performance, specifically transportation, travelling, labour and material costs, shall be excluded where said expenditure increases due to the need for subsequent transportation of the relevant items to a location other than the Contract Partner's premises.

5.8 The Contract Partner's statutory rights of recourse against us under Section 478 German Civil Code shall only apply where the Contract Partner has not entered into any agreements with its customers which go beyond the statutory warranty claims. The scope of the Buyer's rights of recourse against the Supplier under Section 478 Subsection 2 German Civil Code shall also be subject to the provisions set out in the above section.

5.9 Claims for damages shall also be governed by the provisions of Section 6. More extensive or other claims than those covered there which are brought against us or our agents by the Contract Partner in respect of material defects shall not be accepted.

5.10 The Contract Partner shall provide us with immediate written notice of any material defects in accordance with Section 377 German Commercial Code.

 

6.     Claims for damages

6.1 All claims for damages or reimbursement of expenses put forward by the Contract Partner, on whatever legal grounds, and specifically due to breach of the duties arising from an obligation or torts, shall be excluded. The above exclusion of claims shall not apply in cases of mandatory liability, e.g. under the German Product Liability Act, in cases of intent, gross negligence and injury to life, body or health due to a breach of essential contractual obligations. However, in the absence of intent, gross negligence or liability due to injury to life, body or health, any claims for damages arising from a breach of essential contractual obligations shall be limited to the loss or damage typically foreseeable for the particular contract type. This shall entail no change to the Buyer's detriment in respect of the burden of proof. Insofar as the Contract Partner is entitled to put forward claims for damages under this provision, these shall be become time-barred upon expiry of the limitation period for material defect claims. In respect of claims for damages under the German Product Liability Act, the statutory time-bar regulations shall also apply.

 

7.     Impossibility

7.1 The Contract Partner shall be entitled to claim damages if performance of the deliveries is impossible, except in cases where we are not responsible for the impossibility of performance. The Contract Partner’s claim for damages shall be limited to 10% of the value of that part of the delivery that cannot be made in accordance with the terms of the contract due to the impossibility of performance. This limitation shall not apply where, in cases of intent, gross negligence or injury to life, body or health, liability is mandatory. This shall entail no change to the Contract Partner's detriment in respect of the burden of proof.

The Contract Partner's right to withdraw from the contract shall remain unaffected.

7.2 If unforeseen events, such as strikes, lockouts, operational disruptions etc., substantially change the economic significance or contents of the contractual obligations, or have a considerable impact on our operational procedures, the contract shall be appropriately amended in good faith.

 

8.     Legal venue and applicable law

8.1 Provided the Buyer is a mercantile trader under the German Commercial Code, the sole legal venue for all disputes arising directly or indirectly from the contractual relationship shall be the Landgericht Heilbronn (Regional Court of Heilbronn). We shall also be entitled to institute legal proceedings at the location of the Contract Partner's registered offices.

8.2 The legal relations arising from and in connection with this contract shall be governed by German substantive law, under exclusion of United Nations sales law and, specifically, the United Nations Convention on Contracts for the International Sale of Goods (CISG).

 

9.     Severability clause

9.1 Should individual provisions of this contract become ineffective, its other parts shall nonetheless remain legally binding. This shall not apply in cases where a continuation of the contractual relationship would impose an unreasonable burden on either party.