General Terms and Conditions for Purchase Contracts and Contracts for the Supply of Labour and Materials
1. Scope of Application
- Our General Terms and Conditions of Business shall apply to deliveries, services and offers to all customers who are not consumers as defined by Section 13 BGB [German Civil Code].
- Our Terms and Conditions of Business shall apply exclusively. If assembly services are also subject-matter of the contract or are the exclusive subject-matter of the contract, the provisions laid down in the General Terms and Conditions of Assembly printed below shall apply to these services with precedence over the provisions set out herein. Terms and conditions of the ordering party that conflict with or deviate from our GT&Cs shall be inapplicable, unless we have given our express written consent to them in the individual case concerned. Our Terms and Conditions of Business shall apply even if, knowing of terms and conditions of the customer that conflict with or deviate from our Terms and Conditions of Business, we have not expressly agreed upon delivery again.
2. Offer, Conclusion of a Contract
- Our offers shall be subject to change without notice and be non-binding in respect of price, quantity, delivery period and availability for delivery.
- We shall retain rights of title and copyrights to offers and cost estimates submitted by us, to our designs and to the illustrations, drawings, calculations and other documents included in our delivery. Without our express written consent, the addressee shall not make these or their content accessible to third parties, make these or their content known to the public or use or copy these or their content through third parties. If this obligation is breached, compensation for usage in the sum of 25 % of the price quoted in our offer or cost estimate shall be due.
- Offers shall not contain any drawings, structural analysis verifications or test certificates, unless this has been expressly agreed upon.
- Only a purchase order from the customer shall constitute an offer of a contract. Unless otherwise agreed upon, the customer shall remain bound by its purchase order for 3 weeks.
- A contract shall be brought about only by our definitive written acknowledgement of the order or by our delivery. Advance acknowledgement of the order shall not yet constitute acceptance of the offer. The quantities and delivery periods specified in our order acknowledgement in written or text form shall apply, or, in the absence of such acknowledgement, the quantities actually delivered shall apply. Our acknowledgement of the order shall constitute a commercial letter of acknowledgement as defined by the HGB [German Commercial Code]. Supplements, agreements and/or collateral agreements in this connection must be in writing. Any amendment of this written form clause must also be in writing.
- Our prices are net prices in euros, ex works Alsfeld (Hesse) and exclusive of value-added tax, which shall be added at the statutory rate valid on the day of invoicing. These prices do not include packaging or the disposal of packaging, freight charges, postage charges or insurance.
- Subject to notification of the ordering party, we may, prior to carrying out the service or delivering the goods in the case of a delivery date later than 4 months after the conclusion of the contract, adjust the price of the goods or the service to the extent necessary in view of general price developments beyond our control (such as for example exchange rate fluctuations, currency regulations, customs duty changes, rise in the cost of materials or manufacturing costs).
4. Delivery and Passage of Risk
- Delivery periods and dates contained in our offer or in our acknowledgement of the order shall constitute non-binding, expected delivery periods or dates, and shall in particular not constitute fixed dates.
- A prerequisite for the commencement of the delivery period, and for compliance with the delivery period, is that all technical and commercial issues must have been cleared up and the ordering party's obligations to co-operate must have been fulfilled properly and in due time. In cases where shipment to third parties has been agreed upon, this shall also include the provision of the correct and complete delivery address and a telephone number under which delivery can be agreed upon with the addressee.
- Unless otherwise agreed upon, we shall deliver and perform EXW (ex works) to the address specified in our acknowledgement of the order. In this respect, we shall decide on the method of shipment, the route and the carrier.
- Insofar as we ship to third parties by order of the ordering party, or insofar as we collect the goods from a third party by order of the ordering party in the event that the third party cancels the purchase, this shall occur on the terms published by us in this connection. Additional costs for any necessary multiple delivery attempts shall be chargeable to the ordering party.
- In the case of shipment, the risk shall pass to the ordering party as soon as the consignment has been handed over to the person carrying out the transportation, or as soon as the consignment has, for the purpose of shipment, left the seller's works or supply depot. Insurance of the transportation risk shall be the ordering party's responsibility. If the ordering party defaults on taking delivery, the risk shall pass to the ordering party when notification of readiness for shipment is given.
- If an agreed date for delivery or performance is exceeded for reasons imputable to us, the ordering party shall set us in writing a reasonable grace period for delivery or performance. This grace period shall be at least three weeks. If delivery or performance is not carried out within this grace period, and if, on account thereof, the ordering party wishes to rescind the contract or demand compensatory damages in lieu of performance, the ordering party shall give us prior express written notification thereof, setting us a reasonable further grace period within which to carry out the delivery or performance. At our request, the ordering party shall declare within a reasonable period whether, on account of such delay in delivery or performance, it will rescind the contract and/or demand compensatory damages in lieu of performance or insist on delivery or performance.
- If an agreed date for performance is deferred on account of circumstances not imputable to us, for example because we have not been supplied, not been supplied in due time or not been properly supplied despite having concluded a proper congruent covering transaction, our periods for performance shall be appropriately extended. If we have informed the ordering party of an impediment to performance, and this impediment is not merely of a temporary nature, we shall be entitled to wholly or partly rescind the part of the contract that has not yet been performed.
- If the ordering party defaults on taking delivery, or if the ordering party culpably breaches other duties to co-operate, we shall be entitled to demand compensation for the loss incurred upon us as a result thereof, including any and all extra expenditure. In particular, this shall include storage costs. The right to assert further claims shall remain reserved.
- Sub-deliveries or sub-services shall be permissible.
- Returns of goods shall be permissible only if we expressly consent thereto. Generally, such returns shall take place at the ordering party's expense. In these cases, we shall be entitled to charge a flat-rate fee in the sum of 10 % of the net value of the goods, at least 22.50 €. This shall not apply, if the ordering party is, by law, entitled to rescind the contract (Section 323 BGB) or demand supplementary performance (Section 437 (1) BGB).
- Our duties to deliver or perform shall be suspended in cases of force majeure. If the circumstances existing at the time of the conclusion of the contract materially change, we shall be entitled to rescind the contract. The same shall apply in the case of a shortage of energy or raw materials, industrial disputes, official decrees or unforeseeable disruptions to traffic or business. If, for aforementioned reasons, our suppliers or agents do not supply us, do not do so in due time or do not do so properly, subsection 4.g. shall apply mutatis mutandis.
- Unless otherwise agreed upon, the ordering party shall pay to us the agreed remuneration, without any deductions, within 10 days of the issuance of the invoice. After this time limit has expired, the customer shall be in default as per Section 286 (2), No. 2 BGB.
- The customer shall be entitled to rights of set-off only if its counter-claims have been determined by a final and non-appealable court judgement, are undisputed or have been acknowledged by us.
- We shall be entitled to declare all our claims due for payment immediately, if circumstances indicating a deterioration in the ordering party's net worth position or financial situation become known.
- We shall be entitled to assign our claims against the customer to third parties.
- Generally, only the qualities described in our product descriptions, specifications and labels shall be deemed to be qualities of the goods. Any verbal or written information provided that concerns the suitability or possible applications of the goods delivered by us, or concerns their installation, as well as any advice and recommendations given by our employees shall be provided on the basis of our best knowledge. Such information, advice and recommendations shall be non-binding and shall bring about neither a contractual legal relationship nor a subsidiary duty under the contract. Notwithstanding the foregoing, the ordering party shall itself examine our products and services as regards their suitability for the intended use.
- The following shall apply to customised designs: Our customised solutions are based on the currently applicable national and EU regulations and directives, particularly DIN EN ISO 14122, BGV D36 and BGI 637, and are manufactured in accordance with the recognised technical rules. They are devised, costed and offered on the basis of the information, plans and instructions provided by the ordering party. Any missing or incomplete specifications on the part of the customer shall be completed by us on the basis of our best knowledge. Previous experience with the customer that we draw upon, e.g. prior purchase orders as well as technical specifications arising from discussions with the customer or from drawings or measurements, may, among other things, be taken as a basis in this respect. Notwithstanding the foregoing, the ordering party shall itself examine our proposals as regards their suitability for the intended use. Stationary structures shall be fixed to the ground in a load-bearing manner; the load-bearing capacity of the ground shall be checked by the ordering party. If the plans and/or written information provided by the ordering party contain directives that we find to be critical or infeasible from a manufacturing perspective or an industrial safety perspective, we shall notify the ordering party thereof. In such case, the ordering party shall be solely responsible for checking our change proposal as regards whether it could be used in the ordering party's production process. We shall not assume any warranty or liability in respect of the suitability of our change proposal for the ordering party's purposes of use. Therefore, our product description combined with the approval drawing countersigned by the ordering party, as well as any approval sample submitted shall be solely decisive as regards whether the qualities of the goods delivered by us conform to the contract. The approval sample shall merely serve to verify the approval drawing; no indication of specific qualities shall be associated with the submission of such sample. The customer shall check the approval drawing and return to us within 10 working days a copy indicating its approval/non-approval. If the customer fails to reply within this time limit, its silence shall be deemed to be a declaration of approval, and we shall then produce on a binding basis. The ordering party shall bear the cost of any changes arising after a declaration of approval has been issued. Insofar as customised tools are necessary for implementing a customised design, the additional costs arising in connection with the production of these tools shall be shown separately in the offer and be invoiced to the ordering party at cost price. They shall remain our property. After the order has been carried out, the tools shall be stored on our premises for 1 year. These tools shall be destroyed after this period has expired.
7. Technical Alterations
- The right to make technical and optical alterations, as well as changes in shape, colour and/or weight shall remain reserved, provided that the quality and price remain unchanged. In particular, technical and optical changes shall be deemed to conform to the contract insofar as they serve to improve the product. We shall be free to at any time bring about dimensional and/or design changes to our standardised articles for manufacturing-related or standardisation-related reasons. However, we shall not be obliged to also carry out such changes on goods already delivered.
8. Retention of Title, Copyright
- Until all payment obligations arising from the business relationship have been fulfilled, we shall retain title to the goods delivered by us. In the case of a running account, the retained title shall also be deemed to be collateral for the claim to the balance on the running account (goods under retention of title).
- If the ordering party acts in breach of the contract, particularly by defaulting on payment, we shall be entitled to repossess the purchased item. Repossession of the purchased item by us shall constitute rescission of the contract. After having repossessed the purchased item, we shall be authorised to realise it. The proceeds from such realisation shall be credited against the customer's liabilities, less reasonable realisation costs.
- The ordering party shall be entitled to on-sell the goods under retention of title in the course of its proper business activities. If the ordering party, for its part, sells these goods without receiving the full purchase price in advance or concurrently with the hand-over of the purchased item, the ordering party shall arrange with its customer that title be retained in accordance with these terms and conditions. The ordering party hereby assigns to us its claims arising from such on-selling, as well as the rights arising from the retention of title arranged by it.
- If the goods under retention of title are re-worked or processed by the ordering party, our retention of title shall extend to the new item as a whole. If the ordering party processes, combines or mixes the goods under retention of title with third-party items, we shall acquire joint title in the same proportion as the ratio of the invoiced value of our goods to the invoiced value that the third-party items used by the ordering party have at the time of processing, combining or mixing. Furthermore, in case the goods under retention of title are combined or mixed with an item that belongs to the ordering party or a third party and is to be regarded as the main item, the ordering party hereby transfers to us its rights to the new item. In case the ordering party combines or mixes, in return for payment, the goods under retention of title with a third-party item to be regarded as the main item, the ordering party hereby transfers to us its remuneration claims against the third party.
- The ordering party shall, at our request, give the purchasers notification of this assignment and provide us with the information and documents necessary for asserting our rights against the purchasers. Despite this assignment, the ordering party shall be authorised to collect the claims arising from on-selling only as long as it properly fulfils its liabilities in relation to us.
- If the value of the collateral made available to us exceeds our claims by more than 20 % in total, we shall release collateral of our choosing at the ordering party's request.
- If the goods under retention of title are attached, or if our rights are impaired by third parties in any other manner, the ordering party shall promptly notify us.
- The copyright to our constructive product solutions shall lie solely with us. We hereby make express reference to Section 14 UrhG [Copyright Act].
9. Liability for Defects
- Defects shall be reported to us in writing promptly after their discovery (visible defects within 7 days of receipt of the goods; hidden defects within 7 calendar days of their becoming known). We shall be given the opportunity to determine whether the defect reported exists.
- Insofar as the delivery or service is defective, and the customer has met its duties to examine the delivery or service and give notification of defects in accordance with Section 377 HGB [German Commercial Code], we shall, at our option, replace or rectify the delivery or service (supplementary performance). The customer shall grant us the opportunity to do this within a reasonable period of at least 10 working days (10 weeks in the case of customised designs).
- The ordering party may demand the reimbursement of its expenditure necessary for the purpose of supplementary performance, insofar as this expenditure does not rise as a result of the delivery item being subsequently taken to a place other than the original place of delivery, unless this takes place in keeping with its intended use.
- If supplementary performance fails, the ordering party may reduce the remuneration or rescind the contract. However, rescission shall be permissible only if the ordering party has issued us with a prior express written warning and set us a reasonable further grace period.
- The ordering party shall not be entitled to assert any rights on account of our delivery or service being defective insofar as the value or suitability of the delivery or service has merely been insignificantly reduced.
- If the delivery or service has been accepted by the ordering party or its authorised representative, the ordering party shall have no right to lodge any subsequent complaints.
- If the ordering party fails to follow assembly, operating or servicing instructions, or if alterations are made to the products, or if parts are replaced with parts not conforming to the original specifications, any warranty shall cease to apply. Customised designs shall be regularly examined in terms of their operational reliability.
- Recourse claims of the customer under Section 478 BGB [German Civil Code] shall exist against us only insofar as the ordering party has not made with its purchaser any agreements that go beyond the statutory defect-related claims.
- Liability shall be governed exclusively by the provisions made above. Therefore, we shall expressly not be liable for loss - on whatever legal basis - that has not resulted from the goods themselves. In particular, we shall not be liable for lost profit or for any other pecuniary loss on the part of the ordering party. In the case of customised designs, we shall not be liable for defects or damage due to directives made by the ordering party.
- The liability amount shall be capped at the sum of the order value. Further claims shall be excluded, insofar as this is legally permissible.
- Insofar as our contractual liability is excluded or limited, this shall also apply to the personal liability of our employees, representatives and authorised agents.
- The above limitation of liability shall not apply in cases where loss is due to wrongful intent or gross negligence, in cases where personal injury has occurred or in cases where a damage claim exists under the Produkthaftungsgesetz [Product Liability Act].
- Insofar as we negligently breach a duty material to the contract, our liability to compensate for property damage shall be limited to the loss typically arising. Material contractual duties are defined as duties that provide the customer with legal positions specifically required to be granted to the customer under the contract according to the content and purpose of the contract, that need to be fulfilled in order for the contract to be properly implemented in the first place, and that the customer would, and may, normally expect to be complied with. In all other cases, our liability for damages shall be excluded.
- In the case of customised designs made to the ordering party's requirements, we shall not be liable for accidents or the consequences of accidents, insofar as these are due to specifications or directives from the customer.
- The assignment of the customer's liability claims shall be excluded. Section 354 a HGB shall remain unaffected.
11. Limitation Period
- The limitation period for claims based on defects in our deliveries or services, as well as for claims based on our liability for damages shall be 12 months.
- This shall be inapplicable insofar as longer periods are mandatorily prescribed by law, particularly under Section 438 (1), No. 2 (Buildings and Items Used for Buildings), Section 479 (1) (Right of Recourse) and Section 634a (1), No. 2 BGB (Defects in Construction) or in cases of mortal injury, physical harm or health damage or in cases of any intentional or grossly negligent breach of duty on our part or in cases of damage claims under the Produkthaftungsgesetz.
12. Other Provisions
- The place where our registered office is situated, 36304 Alsfeld, shall be the place of jurisdiction. However, we shall also be entitled to bring an action against the customer before the court that has jurisdiction over its domicile.
- The place where our registered office is situated, 36304 Alsfeld, shall be the place of performance.
- The laws of the Federal Republic of Germany shall apply. The application of UN sales law is hereby excluded.
- We hereby point out that the personal data received concerning, or relating to, our business relationship, whether originating from the buyer/supplier itself or from third parties, shall be processed in accordance with the Bundesdatenschutzgesetz [German Federal Data Protection Act].
- If individual clauses of the above terms and conditions are wholly or partly ineffective, this shall not affect the effectiveness of the other clauses or the other parts of such clauses. Such ineffective provisions shall be replaced with an effective provision that, in terms of its commercial content, most closely reflects the ineffective provision.
Stand November 2021