(1.1) The present General Terms and Conditions of Delivery and Payment shall apply only with respect to entrepreneurs and legal entities as defined in § 14 BGB [German Civil Code].
(1.2) All deliveries and services effected by us shall be governed by these General Terms and Conditions of Delivery and Payment exclusively. We do not acknowledge any terms to the contrary or any deviating terms used by the customer unless such have been expressly approved by us.
2. Offer and Order
(2.1) Our offers are made without obligation and are not binding unless they have been expressly stipulated to be binding.
(2.2) Each order shall be governed by our written acknowledgement of order; where such an acknowledgement of order has not been issued, an invoice sent together with the delivery shall also be deemed to be an acknowledgement of order. If the customer has any objections as to the contents of the acknowledgement of order, he must oppose such acknowledgement of order without delay. If he fails to do so, the contract takes effect in accordance with the acknowledgement of order.
3. Prices and Payment
(3.1) Each order shall be governed by the prices quoted in the acknowledgement of order. They shall apply to the respective order but not to repeat orders. Unless otherwise agreed, prices quoted shall be ex works and include standard packaging. Prices quoted are exclusive of freight, insurance, customs duty and VAT.
(3.2) Bills of exchange and checks shall only be accepted as payment if such mode of payment has been expressly agreed upon. Discount charges and other charges relating to bills or checks shall be borne by the customer.
4. Set-off and Retaining Lien
(4.1) The customer may set off only such claims as are undisputed or finally determined. The customer may only enforce a right of retention if such right is based on the same contractual relationship.
(5.1) The risk of accidental perishing or accidental deterioration of the goods shall pass to the customer upon delivery; if goods are shipped, such risk shall pass to the customer upon delivery of the goods to the shipping agent. Goods will be insured only upon special request of the customer and insurance costs shall be borne by the customer.
(5.2) If the mode of dispatch, the route or the person responsible for dispatch is selected by us we shall be liable only for a gross fault in such selection.
(5.3) Charges for packaging material shall be paid together with the goods. Packaging material which has been placed at the customer's disposal on loan is considered to be lent free of charge unless other wise stipulated. Such material shall be returned to us free of charge and in good condition no later than 6 weeks after dispatch. The transport risk for outward and return shipment of the loaned packaging material shall be borne by the customer. After 6 weeks we reserve the right to charge the usual user fees. Our packaging material may not be used for other purposes. The customer shall be liable for the proper handling of our packaging material by exercising the due care of a merchant. Packaging material shall be returned to us at the risk of the customer and we shall be informed by the customer if and when packaging material is returned.
(5.4) If delivery times are not observed, the customer may only withdraw from the contract if he has granted us beforehand an additional time period of reasonable length, threatening to withdraw from the contract if such period of grace is not observed, and if delivery is not effected within such period of grace. This shall not apply if, pursuant to § 323 (2) BGB, the setting of a time limit may be waived.
(5.5) If delivery is delayed for reasons for which we are responsible, we shall be liable for the damage suffered by the customer on account of the delay in cases of gross negligence. In the event of slight negligence our liability with regard to damage caused by delay shall be limited to the payment of liquidated damages of 0.5 % for every completed week’s delay up to a maximum of 5 % of the value of that part of the delivery which because of the delay could not be taken into useful operation. Furthermore, we shall only be liable for damage caused by slight negligence if and when an additional period of reasonable time which has been granted by the customer has ineffectively expired.
6. Abeyance after Setting of a Time Period
(6.1) If we fail to fulfill an obligation owed by us or if we fail to perform according to the contract and, for this reason, the customer has granted us an additional time period of reasonable length for performance or subsequent performance, upon expiry of such period of grace, the customer shall, upon our request, inform us without delay whether he still requires performance or subsequent performance or whether he selects to withdraw from the order. If the customer fails to respond to our written notice within one week of receipt of it, we assume that we are still entitled to carry out performance or subsequent performance. This legal effect shall be stipulated in our written notice sent to the customer.
7. Material Defects
(7.1) The customer shall inspect each delivery without delay following the delivery or receipt of the goods. Apparent defects shall be notified to us in writing and without undue delay. Hidden defects shall be communicated in writing as soon as they are noticed. Otherwise, the shipment is deemed as having been accepted.
(7.2) In the event of a defect for which we are responsible, we shall be entitled to carry out subsequent performance and we shall be free to either remedy the defect or to deliver goods free of defects in replacement. If we refuse to carry out subsequent performance, if the subsequent performance fails or cannot be reasonably expected of the customer, the customer shall be entitled to any further claims as laid down by law. Damage claims shall be subject to the provisions stipulated under item 8 hereof.
(8.1) We shall be liable for damages – for any legal reason whatever - caused by intent and gross negligence. In case of slight negligence we shall only be liable for damages in cases of injury of life, body or health; for damages resulting from the breach of fundamental contractual obligations (obligations whose fulfilment initially makes the proper realization of the contract possible and on whose compliance the client may regularly relies and may rely; in this case, our liability shall be limited to the reimbursement to foreseeable and typically occurring damage.
(8.2) The foregoing limitation on liability shall not apply if we have fraudulently concealed a defect or if we have given a guarantee for the specific condition or quality of the goods and for damages under the “Produkthaftungsgesetz” (German Product Liability Act).
(8.3) Any fault of our legal representatives and agents may be attributed to us.
(8.4) The legal regulations regarding burden of proof shall remain unaffected by the above provisions.
9. Terms of limitations
(9.1) Unless agreed otherwise the general statute of limitations for claims from defects of quality and title is one year after delivery. This statute of limitation shall also apply to all contractual and non-contractual claims for damages by the customer which are based to a defect of the goods.
(9.2) The statutory provisions governing limitation periods shall apply, even if they are based to a defect of the goods for compensatory damage claims relating to injury of life, body or health; for damages under the “Produkthaftungsgesetz“ (German Product Liability Act); if we have fraudulently concealed a defect; if we have given a guarantee for the specific condition or quality of the goods; as far as it is a building structure or an object which has been used, which in accordance with its normal use, is used for a building and as a result, causes the defectiveness of such; for claims of recourse against the supplier in final supply to a consumer (§ 479 German Civil Code).
10. Retention of Title
(10.1)We retain title to all goods delivered by us until each and every claim we have against the customer on account of the business connection has been fulfilled. Claims shall also include receivables from bills of exchange or checks as well as receivables from current account. If in connection with payment by way of bill of exchange a liability to recourse is created against us, retention of title shall only become extinct if it is ruled out that a creditor might have recourse against us. All and any goods which are subject to our retention of title shall hereinafter be referred to as ‘reserved goods’.
(10.2) The customer may resell the reserved goods in the ordinary course of business; however, with the present he shall assign to us all claims against his customers or against any third party arising from such resale to the amount of the sum total of the invoice (inclusive of VAT) of our claims. In case of such resale, if our claims are included in a payment received on current account by the customer, the share on current account corresponding to the balance of our claims shall be assigned to us; the same shall apply to the ”causal balance” in the event of the customer becoming insolvent. The customer shall have the right to collect the receivables from the resale which were assigned to us as long as such authorization to collect is not revoked by us pursuant to the provisions stipulated hereinafter. Our right to collect receivables ourselves shall be unaffected hereof; however, we undertake not to collect receivables as long as the customer duly fulfills his contractual obligations, and in particular as long as he is not in default of payment. The right to resell reserved goods shall not include the right to pledge the same or use them as security; such is, therefore, not permissible.
(10.3) If the customer behaves contrary to the terms of the contract, and in particular if the customer is in default of payment, we shall have the right to revoke the authorization to resell the reserved goods and to take back the reserved goods, or we shall have the right to demand the assignment of the customer’s right to claim the surrender of the goods from third parties; the customer is under the obligation to assign this right to us, a right of retention may not be asserted against the right to claim surrender of the goods. Our demand for surrender of the goods shall not be subject to the setting of a time period as under § 323 BGB. If the conditions are fulfilled which give us the right to revoke the customer’s authorization to resell the reserved goods, we shall also have the right to revoke the collection authorization and to require the customer to disclose to us all claims assigned as well as the debtors thereof, to hand over all information and documents necessary for collection and to notify the debtors of the assignment.
(10.4) Processing or transformation of the reserved goods by the customer shall always be undertaken on behalf of us. If the reserved goods are processed with other products which do not belong to us, we shall acquire co-ownership of the new product in proportion to the value of the sum total (inclusive of VAT) of the reserved goods owing to us and the sums total of the invoices of the other processed products. The provisions applicable for the reserved goods shall also apply to the product created by such processing. The ordering party shall acquire a so-called ‘expectant right’ (or ‘inchoate title’) of the product created by processing corresponding to the ratio of his expectant right relating to the reserved goods.
(10.5) If the reserved goods are inseparably mixed or combined with other products not belonging to us, we shall acquire co-ownership of the new product in proportion to the value of the sum total (inclusive of VAT) charged by us for the reserved goods and the sums total of the invoices of the other mixed or combined products. If the mixing or combining was done in such a way that the products of the customer are to be considered as the principal thing it is hereby agreed that the customer shall assign to us co-ownership on a pro rata basis. The customer shall store such exclusive / co-property for us free of charge.
(10.6) In order to secure our claims in the event of the customer reselling our reserved goods after processing or transformation, the customer shall now hereby assign to us his claims resulting from the resale for payment of the sum total of the invoice inclusive of VAT. If, on account of the processing or transformation, mixing or combining of the reserved goods with other products not belonging to us we have only acquired co-ownership pursuant to the aforesaid items 10.4 or 10.5, the claim for payment shall only be assigned to us in advance in proportion to the relationship between the sum total (inclusive of VAT) charged by us for the reserved goods and the sums total of the invoices of the other products not belonging to us. In all other respects relating to the advanced assignment of claims the provisions laid down in the aforesaid items 10.2 and 10.3 shall apply accordingly.
(10.7) If a retention of title or an assignment is not effective under the law of another country in the sphere of which our reserved goods may be located, the safeguard clause applicable in such legal sphere and corresponding to the stipulated retention of title and assignment shall be deemed as agreed upon. If the customer’s cooperation is required in order to create such rights, he undertakes, upon our request, to take all steps necessary to create and maintain such rights.
11. Jurisdiction, Place of Performance, Governing Law
(11.1) The place of performance for delivery and payment for both parties shall be our company’s principal place of business.
(11.2) In the event of any dispute, claim or litigation arising out of or in connection with this contract, our company’s principal place of business shall have jurisdiction for both parties (both parties being merchants). At our discretion, we may also bring an action at the customer's seat.
(11.3) The present contract shall be exclusively governed by the laws of Germany. The application of the UN Convention on the International Sale of Goods shall be excluded.