1. Scope
1.1. All sales, deliveries and other services, including consultancy, in respect of this present transaction and all future transactions shall be governed exclusively by the terms and conditions set forth below except insofar as they are amended or excluded with our express written consent. They shall be deemed to have been accepted at the latest on arrival of our goods and/or acceptance of any other service provided by us.
1.2. We shall not be bound by any terms and conditions of the purchaser even if they are not expressly rejected by us. Delivery contracts shall become binding on us only when confirmed by us in writing.
1.3. Any evident errors and writing and calculation mistakes shall have no binding effect on us.
1.4. In the event of any failure by the purchaser to comply with these terms and conditions, and in particular in the event of any delay in payment, we shall have the right to suspend the execution of any orders or any part of any orders which have already been received by us until such time as these terms and conditions have been fulfilled or to cancel such orders.
1.5. Amendments to orders, cancellations of orders and additional agreements relating to orders shall only be possible by special agreement. Any costs incurred by us or loss of profit sustained by us as a result thereof shall be borne by the purchaser.
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2. Offers and conclusion of contracts
2.1. Our offers are without engagement.
2.2. Contracts and other agreements shall only be deemed concluded if confirmed by us in writing. Any oral understandings and warranties entered into or given by our sales personnel shall likewise only be effective if confirmed by us in writing.
2.3. Claims of the purchaser arising from a contractual relationship with us may only be assigned with our consent.
2.4. Information, drawings, illustrations, technical data, weights, dimensions and performance descriptions contained in brochures, catalogues, circulars, advertisements or price lists or in documents accompanying offers shall not be binding on us unless expressly stated in the order confirmation as being authoritative.
2.5. We shall have the right, but not the duty, to incorporate modifications made to models or designs after the conclusion of contract.
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3. Prices
3.1. Our prices are quoted net cash and are, except as may be agreed otherwise, subject to the addition of freight and other ancillary costs ex works or warehouse and value added tax at the statutory rate.
3.2. Deductions by way of cash discount or for bonuses and other such like may only be made by special agreement unless they are specifically indicated in our order confirmation or our invoice.
3.3. The prices stated by us at the time of conclusion of contract shall be authoritative. Where orders are confirmed in writing, the prices stated in the order confirmation shall apply.
3.4. All additional charges, public levies and any new federal, state or other taxes as may be introduced as well as freight charges and any increases therein which directly or indirectly affect the delivery concerned and increase the price thereof shall be borne by the purchaser.
3.5. Prices quoted carriage paid are conditional on the availability of normal unhindered rail, road and ship transport on the transport routes in question.
3.6. Any dead freight or excess freight for which the purchaser is responsible shall be borne by the purchaser.
3.7. Goods delivered by us which are free of defects may be returned to us only with our express consent. In the case of such returns, we reserve the right to reduce the refund value of the goods by at least 15 % to cover the costs incurred by us.
3.8. Any agreed packing will be provided by us in return for payment of an additional charge in the customary scope and in the customary manner. Packing material will not be taken back by us.
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4. Payment and offset
4.1. The purchaser may not withhold any payment on account of his own counterclaims or claims for defects. Nor may the purchaser make any offset except where he is in possession of a claim against us which is undisputed or has been finally and absolutely established at law. In the latter case, our claims shall become due at the same time as our amount owing and be settled with value on that date.
4.2. We will take bills of exchange only by special agreement and only on account of payment and only on condition that they are eligible for discounting. On taking bills of exchange, we shall charge discount and other charges in the amount of the bank rates ruling at the time.
4.3. Bills of exchange and cheques will be credited on receipt of payment, regardless of whether payment of the purchase price is due on an earlier date and whether the purchaser thereby falls into arrears; they will be credited with value as of the date on which we are able to dispose of the amount in question.
4.4. In the event of failure by the purchaser to meet a due date for payment, we shall charge past-due interest at the rate customarily charged by our banks for borrowing on current account. In the case of default in payment, we shall instead charge interest on arrears in an amount of at least 3% above the discount rate of the German Federal Bank [Bundesbank] ruling at such time. Value added tax at the statutory rate will additionally be charged on the interest. The foregoing shall be without prejudice to our right to make other claims for default.
4.5. We shall have the right to offset all of our claims against claims which the purchaser may have, on any legal grounds whatsoever, against ourselves, our shareholders or our branch establishments. This shall also apply where payment in cash by the one party and payment by bill of exchange or other means on account of performance has been agreed. Where appropriate, agreements shall only relate to the balance. Where the claims are due on different dates, they shall be accounted for as of the value date.
4.6. Failure to comply with our terms and conditions of payment or circumstances which become known to us only after conclusion of contract and are such as to diminish the credit standing of the purchaser shall render all our claims due for immediate payment without regard to the term of any bills of exchange taken by us in payment. We shall also be entitled in any such case to perform any outstanding deliveries only in return for advance payment or the provision of security and, after the allowance of reasonable additional time, to repudiate the contract or to demand compensation for non-performance, without prejudice to our right to repossess, at the purchaser's expense, goods supplied by us which are subject to our reservation of title.
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5. Reservation of title
5.1. All goods supplied by us shall remain our property until payment of all our claims, regardless of the grounds on which such claims have arisen and including future or conditional claims regardless of whether arising from contracts concluded now or in the future or otherwise. This shall also apply where payment is made in respect of specifically designated claims. Where business is done on the basis of current account, our reservation of title shall serve as security for our claim to the balance on current account.
5.2. Should we claim our reserved title, this shall only be deemed repudiation of contract if expressly declared by us in writing as being so.
5.3. The purchaser must inform us without delay of any seizure or other interference by any third party.
5.4. The purchaser may sell our property only in the ordinary course of business and only for as long as he is not in default. The purchaser is only entitled and authorised to resell the goods to which we reserve title ("reserved goods") on condition that the purchase price claim arising from such resale is assigned to us in accordance with paragraphs 4 and 5. The purchaser may not dispose of the reserved goods in any other wise. The purchaser shall, on our request, have a duty to inform his customer of the assignment for purposes of payment to us.
5.5. The purchaser hereby already assigns his claims arising from resale of the reserved goods to us, regardless of whether the reserved goods are resold with or without agreement and also regardless of whether they are resold to one or more buyers. The assigned claim shall serve as security in the amount of the value of the respective reserved goods sold.
5.6. Should the reserved goods be sold by the purchaser together with other goods not belonging to us or after processing, the purchase price claim shall only be deemed assigned to us in the amount of the value of the reserved goods.
5.7. Should the value of the securities held in our favour exceed the value of our claims by altogether more than 20%, we shall have a duty, on the purchaser's request, to release securities of our choice to him in such amount.
5.8. Processing of reserved goods shall be done on our behalf without acquisition of title pursuant to § 950 BGB [German Civil Code] and without any obligation on our part. The processed goods shall serve as security for us in the amount of the invoice value of the reserved goods.
5.9. In the case of processing of the reserved goods by the purchaser with other goods not belonging to us, we shall have co-title to the new item thereby resulting in the same proportion as that between the value of the reserved goods and the other processed goods at the time of processing. In all other respects, the same shall apply to the new item resulting from processing as to the reserved goods. It shall be deemed reserved goods within the meaning of these terms and conditions.
5.10. We shall have the right to demand from the purchaser at any time such information and documents as may be necessary to enable us to assert our title and the claims assigned to us.
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6. Delivery dates and periods
6.1. Delivery periods stated in offers are without engagement unless expressly agreed otherwise. They are calculated only from the day of order confirmation and from the time at which all commercial and technical questions relating to the order have been clarified. Compliance with delivery dates and periods shall be conditional upon punctual receipt of all order documents which have been clarified and approved by the purchaser, including any drawings. An agreed delivery period shall, notwithstanding any rights we may have arising from default on the part of the purchaser, be extended by any period of time for which the purchaser is in default with his obligations arising from this or any other contract.
6.2. In the case of call-forward orders and/or transactions under which the purchaser is responsible for arranging collection of the purchased goods, readiness of the goods for dispatch or collection shall count as delivery.
6.3. Should we fall into delay with delivery, the purchaser must allow us a reasonable period of additional time. On expiry of such additional time, the purchaser may repudiate the contract. A right of repudiation to which the purchaser or we ourselves are entitled shall fundamentally only relate to the part of a contract that has not yet been fulfilled at such time. Only if any part-performance already made is of no interest for the purchaser is he entitled to repudiate the contract as a whole.
6.4. Should the purchaser sustain loss or damage due to a delay in delivery or non-delivery for which we are at fault, we shall provide compensation for the loss or damage for which evidence is furnished, provided the loss or damage is of a kind which was foreseeable at the time of conclusion of contract; such compensation shall, however, be in an amount of at most 5% of the value of that part of the total delivery which because of the delay cannot be delivered punctually or in full conformity with the contract. The foregoing limitation shall not apply where we have mandatory liability on grounds of deliberate intent or gross negligence.
6.5. Events in the nature of Acts of God nature shall give us the right to postpone delivery for the duration of the impediment to delivery and a reasonable starting-up period or to repudiate the contract in respect of the as yet unfulfilled part thereof. Equivalent to Acts of God shall be circumstances which materially impede us in effecting delivery or render delivery impossible, irrespective of whether we ourselves or any of our subsuppliers are affected by such circumstances. Also equivalent to Acts of God shall be strikes, lockouts, mobilisation, war, blockade, bans on exports or imports, lack of raw materials or fuel, fire, traffic embargoes, disturbances to business operations or transport and all other circumstances beyond our control. The purchaser may require us to declare whether we wish to repudiate the contract or to deliver within a reasonable period of time. Should we fail to make such declaration, the purchaser may repudiate the contract.
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7. Notices of defects and warranty
7.1. Defects – which shall also be deemed to include the absence of warranted properties – must be notified to us in writing without delay, though at the latest within 3 months from discovery thereof and any further use or processing of the goods must cease forthwith. Notices of evident defects will not be accepted if made later than 14 days after arrival of the goods at the place of destination. The same also applies to notices relating to the completeness of the delivery.
7.2. Transport damage must also be notified to the carrier by the consignee immediately on receipt of the goods and certified on the freight documents, and a claim for compensation must be filed at the same time. Reservations made by carriers or shipping companies in freight documents shall not be deemed evidence of any defects.
7.3. In the case of justified and timely notice of defects, we shall have the choice of repairing defective goods free of charge or taking them back and replacing them with goods which are in perfect condition. In this case a price reduction may be made at our option. Warranty will be given for the replacement item and the repair in the same wise as for the original delivery item, though such warranty shall be valid only until the end of the warranty period for the original delivery item, expect where statutory provisions which take precedence require otherwise. Should an attempt at remedy fail, we shall have the right to effect repair or replacement a second time. Should we not make use of our right to effect repair or replacement, the purchaser shall have the right to claim a price reduction or to repudiate the contract, whichever we prefer. Removed parts shall become our property. Claims to compensation, including also for positive breach of contract and violation of property rights, are, however, barred. We shall not be liable for costs of repair or replacement which the purchaser has effected himself or has caused to be effected by a third party without our knowledge and consent.
7.4. The purchaser shall, on our request, provide us or our supplier with an opportunity to inspect the notified defect in situ. Should the purchaser fail to provide us with this opportunity or, on our request, to make the allegedly defective goods or samples thereof available without delay, all his claims for defects shall lapse. He shall also forfeit all claims for defects if modifications are made to the goods in question without our express consent.
7.5. After performance of any agreed acceptance procedure relating to the goods by the purchaser, all notices of defects of a kind which could have been found in the course of the agreed acceptance procedure shall be barred.
7.6. Negotiations on notified defects shall not be deemed to imply any waiver on our part of the plea that the notice of defect was not made in a timely or sufficient manner.
7.7. The foregoing provisions shall also apply in the case of delivery of goods which are not in conformity with contract.
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8. General limitations of liability
8.1. Claims which are not expressly allowed under these terms and conditions, in particular claims for compensation on grounds of impossibility, default, breach of subsidiary contractual duties, culpa in conrahendo, tort – also insofar as such claims are associated with warranty rights of the purchaser – and violations of property rights are barred to the extent permitted by law, except where based on deliberate or grossly negligent breach of contract by us or any of our vicarious agents.
8.2. All claims against us on any legal grounds whatsoever shall lapse not later than half a year after the risk has passed to the purchaser.
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9. Contracts and special agreements
9.1. Where special conditions are agreed in a contract they shall cease on completion of the contract and shall not apply to transactions running concurrently or to follow-up transactions.
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10. Place of performance and applicable law
10.1. The place of performance for both parties shall be Aachen.
10.2. The place of jurisdiction for both parties shall be Aachen, including also for lawsuits relating to bills of exchange and cheques.
10.3. We shall also have the right to bring action against the purchaser at the courts having general jurisdiction for his place of business.
10.4. The foregoing shall also apply to all parties having liability for the obligations of the purchaser.
10.5. All legal relations between ourselves and the purchaser shall be governed solely by the law of the Federal Republic of Germany relating to legal relations between domestic parties, and foreign law shall not apply. Application of the provisions of the "Convention of The Hague on Contracts for the International Sale of Goods" is barred.
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11. Partial invalidity
11.1. Should any of the provisions of these terms and conditions be or become ineffective, provisions which most nearly fulfil the economic intent of the contract while reasonably preserving the interests of both parties shall apply in their stead, and all other provisions shall remain in full force and effect.
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