General Terms and Conditions of Sale
1. General – Scope of Application
(1) Our General Terms and Conditions of Sale apply exclusively; any general terms and conditions of customers deviating from these General Terms and Conditions are not recognized by us save to the extent we have expressly approved their applicability in writing. Our General Terms and Conditions of Sale apply also if we have knowledge of customers‘ deviating general terms and conditions and make deliveries to the customer without any reservation to this effect.
(2) All agreements relating to a contract of sale between us and the customer are stipulated in such contract in writing.
(3) Our General Terms and Conditions of Sale shall apply only vis-à-vis customers qualifying as a business, as defined in Sec. 310 para. 1 of the German Civil Code.
2. Offer – Offer Documents
(1) To the extent a customer’s order is to be qualified as an offer pursuant to Sec. 145 of the German Civil Code, such offer can be accepted by us within a period of two weeks.
(2) Any pictures, drawings, calculations and other documents contained in offers made by us remain our sole property, and we reserve any copyrights in relation thereto; this shall also apply (without limitation) to any documents marked “confidential”. Any such documents (whether marked as “confidential” or not) may only be passed on to any third parties with our prior written consent.
3. Prices – Terms of Payment
(1) Unless stipulated otherwise in our order confirmation, our prices apply „ex works“ and do not include packaging, which shall be charged separately.
(2) Statutory value added tax (VAT) is not included in our price quotes. Such VAT is charged extra in the amount applicable when the invoice is rendered and will be shown separately on the invoice.
(3) Any discounts for early payment or for cash payment require prior our prior written consent.
(4) Unless stipulated otherwise in our order confirmation, the purchase price becomes due and payable without any deductions within 30 days of the invoice date. The consequences of late payment are governed by statutory law.
(5) The customer shall not be entitled to set off any counterclaims against the purchase price save to the extent such counterclaims are undisputed, or recognized by us, or finally established by a court of competent jurisdiction. The customer shall not be authorized to exercise any retention rights based on counterclaims which are disputed save to the extent such counterclaims are undisputed, or recognized by us, or finally established by a court of competent jurisdiction, or the retention right is based on the same contract as our purchase price claim.
4. Time of Delivery
(1) The time of delivery indicated by us provides that all technical issues have been solved.
(2) Our delivery further requires the due and timely fulfilment of the customer’s contractual obligations. We expressly reserve our retention right based on non-fulfilment or incomplete fulfilment of the customer’s contractual obligations.
(3) If the customer, for reasons attributable to him, fails to accept our delivery or otherwise does not duly cooperate in the fulfillment process, we are entitled to claim any damages, including (without limitation) any additional expenses, resulting therefrom. We expressly reserve any and all additional rights we may have under applicable statutory law.
(4)In all cases stipulated in para. (3) of this Sec. 4, the risk of accidental destruction of, or accidental damage to, the sold goods passes to the customer.
(5) We are liable for timely delivery pursuant to statutory law if the contract of sale is a fixed time of delivery agreement as defined in Sec. 286 para. 2 No. 4 of the German Civil Code or in Sec. 376 of the German Commercial Code. We are also liable according to statutory law if as a result of late delivery attributable to us, the customer is entitled to claim that he has lost interest in the fulfillment of the contract.
(6) Our liability for late delivery is governed by statutory law such if such late delivery is due to wilful or grossly negligent breach of contract attributable to us; the acts or omissions of our representatives or aides are attibutable to us. If the late delivery is due to gross negligence, but not to wilful misconduct, attributable to us, our liability is limited to the foreseeable typical damage.
(7) Our liability for late delivery is governed by statutory law such if such late delivery is due to negligent or wilful breach of an essential contractual obligation attributable to us; even in this case, however, our liability is limited to the foreseeable typical damage.
(8) In all other cases of late delivery resulting from negligence attibutable to us, our liability is limited to liquidated damages in the amount of 3% for each completed week of delay, but in any event not more than 15%, of the contract value of the goods which have been delivered late.
(9) Other statutory rights of the customer such as the rights under Secs. 281 and 323 of the German Civil Code are not affected by the provisions of this Sec. 4.
5. Transfer of Risk – Cost of Packaging
(1) Save as otherwise agreed on by us in our order confirmation, delivery shall be made on „ex works“ basis.
(2) The return of packaging is governed by separate agreements.
(3) Upon customer’s request we offer insurance of the goods by transport insurance; the cost of such insurance are born by the customer and will be charged extra.
6. Rights of Customer in Relation to Defective Goods
(1) Any rights of the customer based on any defects of the goods require that the customer has fulfilled his obligations to inspect the goods and give notice of defects pursuant to Sec. 377 of the German Commercial Code.
(2) To the extent the goods sold are defective, we may, within our discretion, either repair the defect or replace the the defective goods with goods free of any defects. In any event we will bear all costs and expenses for repairing or replacing the defective goods, including (without limitation), costs of transport and labour, save to the extent these costs are increased by the goods having been moved to a place other than the place of delivery.
(3) If we do not successfully repair or replace the goods within an acceptable time frame the customer is entitled, within his discretion, to rescind the contract or to reduce the purchase price.
(4) Our liability for defective goods is governed by statutory law to the extent the customer’s damage results from wilful misconduct or gross negligence attributable to us; the acts or omissions of our representatives or aides are attibutable to us. Save in cases of wilful breach of contract, our liability is limited to the foreseeable typical damage.
(5) Our liability for defective goods is governed by statutory law such to the extent such liability results from the breach of an essential contractual obligation attributable to us; even in this case, however, our liability is limited to the foreseeable typical damage. A contractual obligation is essential if the customer has legitimately trusted that this obligation will not be breached.
(6) To the extent the customer is entitled to damages instead of delivery, such as in the cases referred to in para. (3) of this Sec. 6, our liability is limited to the foreseeable typical damage.
(7) The period of limitation for any contractual claims for defective goods is twelve months as from the moment when the risk passes to the customer. The statutory period of limitation in the event of a recourse as defined in Secs. 478 and 479 of the German Civil Code remain unaffected hereby; this statutory period of limitation is 5 years as from delivery of the defective goods.
(8) Our liability for personal injury inflicted negligently or wilfully remains unaffected by the provisions of this Sec. 6. The same applies to the claims under the German Product Liability law (“Produkthaftungsgesetz”).
7. Limitation of Liability
(1) Save as stipulated in Sec. 6, our liability to damages is excluded, irrespective of the legal or factual basis such damages may be based on. This includes, in particular, but without limitation, any claims to damages for negligence in negotiating the sales contract, or for other negligenct breaches of contract, or for property damage pursuant to Sec. 823 of the German Civil Code.
(2) The limitation pursuant to para. (1) of this Sec. 7 also applies to the extent the customer claims reimbursement of useless expenses rather than damages.
(3) To the extent our liability to damages is limited or excluded, the same applies to the benefit of our employees, representatives and other aides.
8. Retention of Title
(1) We expressly retain title to the goods sold until all payments the customer is owing us under the entire business relationship are settled. In the event of a breach of contract, in particular (but without limitation) in the event of late payment, attributable to the customer we are entitled to reclaim the goods sold. Once we have successfully reclaimed the goods, the contract shall be deemd rescinded. Once we have reclaimed the goods, we are entitled to otherwise dispose of the goods sold. The proceeds from such disposal shall, after deduction of adequate costs of disposal, be set off against the receivable vis-à-vis the customer.
(2) The customer shall handle the goods sold to him with care and shall, in particular, keep them insured, at his own cost, against fire and water damage as well against theft at contract value.
(3) In the event any measures of execution, attachment or similar measures are taken against the goods by third parties, the customer shall inform us promptly in writing in order to enable us to take appropriate action pursuant to Sec. 771 of the German Code of Civil Proceedings. To the extent the third party is unable to reimburse our reasonable cost of such proceedings, the customer shall be liable for the shortfall.
(4) The customer is authorized to resell the goods which are subject to retention of title in the ordinary course of business; he hereby transfers and assigns to us all accounts receivable vis-à-vis his customers or other third parties resulting from such resale including VAT (if applicable), up to the amount of the grand total of our invoiced amount (including VAT), irrespective of whether the sold goods have prior to the resale been processed or not. The customer shall remain authorized to collect the accounts receivable so assigned, notwithstanding our right to collect these accounts receivable ourselves. We undertake to abstain from collecting the accounts receivable ourselves if and as long as the customer duly fulfills his obligations of payment vis-à-vis us out of the proceeds so collected in a timely manner and does not default, and further provided no voluntary or involuntary petition of bankruptcy is filed by or against the customer. If an event authorizing us to collect the accounts receivable ourselves occurs, we are entitled to demand from the customer to be provided with all information necessary for the collection of the accounts receivable including (without limitation) the amounts, the debtor and the relevant documentation, and we are authorized to inform the debtors of the assignment.
(5) The processing by the customer of the goods sold to him shall in any event be made on our behalf and for our account. If the goods sold are processed or mixed together with other goods not belonging to us, we acquire joint title to the results of such processing or mixing pro rata to the invoiced values (including VAT if applicable) of the ingredients involved. For the products resulting from such processing, the provisions of this Sec. 8 dealing with the goods sold shall apply mutatis mutandis. If the processing or mixing results in the other goods not belonging to us to be considered the main result, it is hereby agreed that the customer transfers joint title in the result to us pro rata to the invoiced values (including VAT if applicable) of the ingredients involved. The customer shall hold the results on our behalf.
(6) The customer hereby assigns to us all rights accruing to him against any third party as a result of the goods being applied to, or assembled with, any real property.
(7) We shall release any collateral obtained by us under this Sec. 8 upon request of the customer if and to the extent the value of our collateral exceeds our accounts receivable so secured by more than 10%. We shall be entitled to choose, within our discretion, the collateral to be released.
9. Gerichtsstand – Erfüllungsort
(1) If the customer is a businessman (“Kaufmann”) as defined in Secs. 1 et seq. of the German Commercial Code, the forum for any disputes to which these General Terms and Conditions of Sale apply shall be Augsburg. We shall, however, be authorized to sue the customer, within our discretion, before the courts having jurisdiction over the customer’s principal place of business.
(2) Only the laws of the Federal Republic of Germany apply, to the exclusion of the UN-Convention on the Sale of Goods.
(3) Save as stipulated otherwise in our order confirmation, our principal place of business shall be the place of fulfillment (“Erfüllungsort”).