|
Please note that only the German text is legally binding.
The English translation is provided for your information and comfort only.
We apologize for the inconvenience.
§ 1 Validity of the conditions
(1) The deliveries, services and offers of the seller are exclusively based on these terms and conditions. They shall therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services. Counter-confirmations of the buyer with reference to his business or purchasing conditions are hereby contradicted.
(2) All agreements made between the seller and the buyer for the purpose of executing this contract shall be recorded in writing.
§ 2 Offer and conclusion of contract
(1) The offers of the seller are subject to change and non-binding. Declarations of acceptance and all orders require the written or telex confirmation of the seller to be legally effective.
(2) Drawings, illustrations, dimensions, weights or other performance data are only binding if this is expressly agreed in writing.
(3) The Seller's sales staff are not authorised to make verbal collateral agreements or give verbal assurances that go beyond the content of the written contract.
(4) The contract language is German (DE:DE)
§ Article 3 Prices
(1) Unless otherwise stated, the seller shall be bound by the prices contained in his offers for 30 days from the date of the offer. Otherwise, the prices stated in the Seller's order confirmation plus the respective statutory value added tax shall be decisive. Additional deliveries and services will be charged separately.
(2) Unless otherwise agreed, the prices are FOB warehouse (Lich) including normal packaging. The dispatch takes place on account of the purchaser. Cartage at the place of receipt and additional costs are to be paid by the purchaser.
§ 4 Delivery and performance time
(1) Delivery dates or periods, which can be agreed upon binding or non-binding, must be in writing.
(2) The seller is not responsible for delays in delivery and performance due to force majeure and due to events which make delivery by the seller considerably more difficult or impossible not only temporarily - this includes in particular strikes, lock-outs, official orders etc., even if they occur at the seller's suppliers or their sub-suppliers -, even in the case of bindingly agreed periods and dates. They entitle the seller to postpone the delivery or service by the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
(3) If the hindrance lasts longer than three months, the buyer is entitled to withdraw from the contract with regard to the not yet fulfilled part after setting a reasonable grace period. If the delivery time is extended or if the seller is released from his obligation, the buyer cannot derive any claims for damages from this. The seller can only refer to the circumstances mentioned if he notifies the buyer immediately.
(4) If the seller is responsible for the non-observance of bindingly promised periods and deadlines or is in default, the buyer shall be entitled to compensation for default in the amount of 1/2% for each completed week of the default, but in total not exceeding 5% of the invoice value of the deliveries and services affected by the default. Any further claims are excluded, unless the delay is due to at least gross negligence on the part of the seller.
(5) The seller is entitled to make partial deliveries and render partial services at any time, unless the partial delivery or partial service is of no interest to the buyer.
(6) Compliance with the delivery and service obligations of the seller requires the timely and proper fulfilment of the obligations of the buyer.
(7) If the buyer is in default of acceptance, the seller shall be entitled to demand compensation for the damage incurred by him; upon the occurrence of default of acceptance, the risk of accidental deterioration and accidental loss shall pass to the buyer.
§ 5 Transfer of risk
The risk is transferred to the buyer as soon as the shipment has been handed over to the person carrying out the transport or has left the seller's warehouse for the purpose of shipment. If shipment is delayed at the request of the buyer, the risk shall pass to the buyer upon notification of readiness for shipment.
§ 6 Rights of the buyer due to defects
(1) The products are delivered free of manufacturing and material defects; the period for asserting claims for defects is one year from delivery of the products.
(2) If the Seller's operating or maintenance instructions are not followed, changes are made to the products, parts are exchanged or consumables are used which do not comply with the original specifications, claims for defects in the products shall not be valid if the Buyer does not refute a corresponding substantiated assertion that one of these circumstances was the cause of the defect.
(3) The buyer must notify the seller's customer service management of defects in writing without delay, but no later than within one week of receipt of the delivery item. Defects which cannot be discovered within this period even with careful examination must be notified to the Seller in writing immediately after discovery.
(4) In the event that the Buyer notifies the Seller that the products have a defect, the Seller shall, at its option and expense, demand that
a) the defective part or device is sent to the Seller for repair and subsequent return;
b) the Buyer keeps the defective part or appliance available and a service technician of the Seller is sent to the Buyer to carry out the repair.
If Buyer requests that the repair work be carried out at a place of its choosing, Seller may comply with such request, whereby replaced parts shall not be charged, while working hours and travel expenses shall be paid at Seller's standard rates.
(5) If the rectification of defects fails after a reasonable period of time, the purchaser may, at his discretion, demand a reduction in the remuneration or withdraw from the contract.
(6) Liability for normal wear and tear is excluded.
(7) Only the direct purchaser is entitled to claims for defects against the seller and these claims are not transferable.
§ 7 Spare parts
For a period of five years from the delivery of a machine, the Seller shall supply spare parts for the same at the spare parts prices valid at the time.
§ 8 Retention of title
(1) Until the fulfilment of all claims (including all balance claims from current account) to which the seller is entitled against the buyer now or in the future for any legal reason, the seller shall be granted the following securities, which he will release on request and at his discretion, provided their value exceeds the claims by more than 20% on a sustained basis.
(2) The goods remain the property of the seller. Processing or transformation is always carried out for the seller as manufacturer, but without obligation for him. If the (co-)ownership of the seller expires due to connection, it is already now agreed that the (co-)ownership of the buyer of the uniform object is transferred to the seller in proportion to the value (invoice value). The Buyer shall store the (co-)ownership of the Seller free of charge. Goods to which the seller is entitled to (co-)ownership are hereinafter referred to as reserved goods.
(3) The buyer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledging or transfer by way of security is not permitted. The buyer hereby assigns to the seller by way of security all claims arising from the resale or any other legal reason (insurance, tort) in respect of the reserved goods (including all balance claims from current account) in their entirety. The seller revocably authorises him to collect the claims assigned to the seller for the seller's account in his own name. This collection authorization can only be revoked if the buyer does not properly meet his payment obligations.
(4) In the event of access by third parties to the reserved goods, in particular attachments, the buyer shall point out the seller's ownership and notify the seller immediately so that the seller can enforce his ownership rights. If the third party is not in a position to reimburse the Seller for the judicial or extrajudicial costs incurred in this connection, the Buyer shall be liable for these costs.
(5) If the buyer acts in breach of the contract - in particular default in payment - the seller is entitled to withdraw from the contract and to demand the return of the reserved goods.
§ Section 9 Payment
(1) Unless otherwise agreed, the Seller's invoices are payable 30 days after the invoice date without deduction or within 14 days less 2% discount.
The Seller is entitled, despite any provisions of the Buyer to the contrary, to set off payments first against the Buyer's older debts and shall inform the Buyer of the type of set-off effected. If costs and interest have already been incurred, the seller is entitled to offset the payment first against the costs, then against the interest and finally against the main performance.
(2) A payment shall only be deemed to have been made when the seller can dispose of the amount. In the case of cheques, payment shall only be deemed to have been made when the cheque is cashed.
(3) If the buyer is in default, the seller shall be entitled to demand interest from the relevant point in time at a rate of 8 percentage points above the base interest rate as lump-sum compensation. They are to be set lower if the buyer proves a lower burden; the proof of a higher damage by the seller is permissible.
(4) If the seller becomes aware of circumstances which call the creditworthiness of the buyer into question, in particular if a cheque is not honoured or if the seller suspends payments, or if the seller becomes aware of other circumstances which call the creditworthiness of the buyer into question, the seller shall be entitled to demand payment of the entire remaining debt, even if he has accepted cheques. In this case, the seller is also entitled to demand advance payments or security.
(5) The buyer is only entitled to offset, withhold or reduce payment, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established or are undisputed. However, the purchaser is also entitled to withhold payment because of counterclaims arising from the same contractual relationship.
§ 10 Design modifications
The Seller reserves the right to make design changes at any time; however, the Seller is not obliged to make such changes to products already delivered.
§ 11 Patents
(1) The seller shall indemnify the buyer and his customers for claims arising from infringements of copyrights, trademarks or patents, unless the design of a delivery item originates from the buyer. The seller's obligation to indemnify is limited in amount to the foreseeable damage.
An additional condition for the indemnification is that the Seller is left to conduct legal disputes and that the alleged infringement of rights is exclusively attributable to the design of the Seller's delivery items without connection or use with other products.
(2) The seller shall have the right, at its option, to release itself from the obligations assumed in paragraph 1 by either
(a) obtains the necessary licences in respect of the patents allegedly infringed; or
b) provides the purchaser with a modified delivery item or parts thereof which, in the event of exchange for the infringing delivery item or part thereof, eliminates the allegation of infringement in respect of the delivery item.
§ Section 12 Secrecy
Unless expressly agreed otherwise in writing, the information provided to the Seller in connection with orders shall not be considered confidential.
§ Article 13 Liability
(1) Claims for damages are excluded regardless of the type of breach of duty, including tortious acts, unless intentional or grossly negligent conduct is involved.
(2) In the event of a breach of material contractual obligations, the Seller shall be liable for any negligence, but only up to the amount of the foreseeable damage. Claims for loss of profit, saved expenses, from claims for damages by third parties as well as other indirect and consequential damages cannot be demanded, unless a characteristic guaranteed by the seller is specifically intended to protect the buyer against such damages.
(3) The limitations and exclusions of liability in paragraphs 1 and 2 do not apply to claims which have arisen due to malicious behaviour on the part of the seller, nor to liability for guaranteed characteristics of quality, for claims under the Product Liability Act, nor to damages arising from injury to life, body or health.
(4) As far as the liability of the seller is excluded or limited, this also applies to employees, workers, representatives and vicarious agents of the seller.
§ 14 Applicable law, place of jurisdiction, partial invalidity
(1) The law of the Federal Republic of Germany shall apply to these terms and conditions of business and the entire legal relationship between the Seller and the Buyer. The provisions of the UN Sales Convention shall not apply.
(2) Insofar as the purchaser is a merchant, a legal entity under public law or a special fund under public law, Lich is the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
(3) Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, the validity of all other provisions or agreements shall not be affected.
( Version of 01.04.2005)
|
