Acceptance of sales terms and conditions and ordering
All quotations and agreements are based exclusively on the following terms and conditions; conflicting terms and conditions of the customer, which are not expressly accepted in writing, are not binding.
All agreements shall only be binding on written confirmation by the supplier. The same applies for supplements, amendments and supplementary agreements.
The data, drawings, illustrations and specifications contained in catalogues, price lists and documents forming part of the quotation are approximate values, as is usual in the industry, unless the order confirmation expressly indicates that these values are binding.
The delivery time is only agreed on an approximate basis. It commences on the date on which the order confirmation is sent out and is considered as having been met where the goods leave the plant at the agreed time.
The delivery time shall be extended accordingly where extraordinary unforeseeable events occur, which the supplier is unable to prevent despite reasonable care according to the circumstances of the individual case, and where these events significantly affect completion or delivery of the delivery item. This particularly includes regulatory intervention, interruption of operations, industrial action, delays in delivery of raw and auxiliary materials, and rejection of defective works. If delivery or performance is impossible due to the above-mentioned events, the supplier shall be released from the supply obligations, without the customer being entitled to claim damages.
The prices are quoted ex works, excluding packing, freight, postage and guaranteed value, unless expressly agreed otherwise. In the event of significant changes in certain price factors, the agreed price may be adjusted appropriately in line with the effect of changes in the relevant cost factors.
The terms of payment set out in the quotation or in the order confirmation apply. If the terms are exceeded, the supplier is entitled to charge default interest at the rate of 5% above the current basic interest rate. Bills of exchange shall be accepted only as conditional payment, subject to their being discountable. Discount charges shall be charged from the due date of the invoice amount onwards. Should the supplier receive information relating to a significant deterioration in the customer’s financial situation, which, after due commercial consideration, is deemed likely to jeopardise the supplier’s entitlement to consideration, the latter may, up until the time of payment, request that appropriate security be furnished within a reasonable time limit or that payment be made upon delivery. Should the customer fail to comply with the supplier’s legitimate request or fail to do so promptly, the latter may withdraw from the contract or claim damages for non-performance.
Transfer of risk and shipment
The goods are shipped ex works at the consignee’s risk, even where delivered carriage paid.
Reservation of title
The supplier retains title to the goods delivered until all claims arising from the business relations are satisfied, including future claims arising from contracts concluded with the customer, whether subsequently or at the same time. The customer is entitled to sell these goods in the normal course of business, provided he performs his obligations arising from the business relations with the supplier in a timely manner. However, he may not pledge the goods subject to reservation of title nor transfer ownership by way of security. He shall secure the supplier’s rights in the event of the goods subject to reservation of title being resold on credit.
Should the customer default in payment, the supplier is entitled to request that the customer temporarily surrender the goods subject to reservation of title, at the latter’s expense, even where the supplier does not exercise the right of withdrawal or does not grant a period of grace.
Any treatment or processing of the goods subject to reservation of title is undertaken by the customer for the supplier. Should the goods subject to reservation of title be processed or combined with other items not belonging to the supplier, the latter shall acquire ownership of the new item according to the proportion of the invoice value of the goods subject to reservation of title in relation to the other processed or combined items. If the supplier’s goods are combined or incorporated so as be inseparable, and if the other item is considered as the main item, the customer shall be deemed to have agreed to transfer ownership to the supplier proportionately. The customer shall retain ownership or co-ownership for the supplier.
The customer hereby assigns all claims and rights arising from the sale of the goods, in which the supplier has rights of ownership, to the latter as security. The supplier hereby accepts this assignment.
The purchaser is to immediately inform the supplier of third-party execution against the goods subject to reservation, against claims assigned to the supplier or against other securities, and surrender the documents necessary for intervening.
If the delivered goods are defective, the supplier has the choice of either repairing or replacing the goods, to the exclusion of any further warranty claims made by the customer.
The supplier must be immediately informed in writing of any such defects noted – patent defects must be notified within a maximum of 8 days following acceptance of the goods and latent defects must be notified immediately upon the defects being identifiable.
No liability is accepted for damage arising due to the following: improper or inappropriate use, defective assembly or commissioning by the customer or third parties, normal wear and tear, or defective or negligent handling, unless attributable to a fault on the part of the supplier.
Following agreement with the supplier, the customer must give the supplier the necessary time and opportunity to effect the repairs or replacements deemed necessary, as the supplier may consider fair and just, otherwise the latter is released from liability for the defect.
Of those costs directly incurred as a result of the repairs or replacement, the supplier shall bear the costs of the replacement, including shipment and reasonable costs for assembly and disassembly, insofar as the complaint appears to be justified. Other costs shall be borne by the customer.
Claims for damages for delay, for culpable breach of contractual secondary obligations, based on the rules of culpa in contrahendo or for tort are excluded, unless they are based on wilful intent or gross negligence on the part of the supplier or its managers. Liability for grossly negligent breaches of obligations is also limited to compensation for damage foreseeable at the time of concluding the contract.
Place of performance and court of competent jurisdiction
The place of performance for all obligations arising from the contract shall be Dingelstädt; the court of competent jurisdiction is the district court of Mühlhausen.