TERMS OF BUSINESS
These terms of business shall govern all deliveries and services even when orders are not confirmed separately within the framework of a business relationship. The buyer's purchasing terms shall not apply, even if they are not explicitly rejected.
Unless agreed otherwise, all prices quoted in relations with business people shall be exclusive of value-added tax. VAT will be invoiced at the applicable rate when the goods are invoiced. We shall be entitled to charge the prices on the day of delivery if delivery is delayed, for reasons for which the buyer is responsible, for more than one month after expiry of the stated delivery period. The buyer will be notified before goods are shipped if prices increase by more than 10% in relation to the agreed price. In such a case, the buyer shall be free to rescind the contract within a time-limit of 5 days. Further rights by the buyer shall be excluded.
3. Delivery, delivery period
a) Delivery shall be effected ex works. Goods shall be shipped for account and at risk of the buyer. Transport insurance shall only be effected if requested by the buyer and only at the latter's expense.
b) Delivery impediments beyond our control, especially traffic disruptions and disturbances in operation, labour disputes, a shortage of conveyances, and damage due to fire shall relieve us of our obligation to deliver as long as they continue to apply.
c) Should we fail to observe delivery dates and deadlines, the buyer shall in all other respects only be entitled to assert his rights when we have defaulted and the buyer has set a reasonable period of grace which, in relations with business people, must be not less than 4 weeks.
4. Payment, due date
All outstanding sums invoiced shall be due and payable immediately if the buyer fails to honour a bill or cheque in relations with business people, defaults on a payment or has suspended payments altogether, or if circumstance equivalent to a suspension of payments become known. With regard to outstanding deliveries, we shall be entitled - in the aforemented cases - to demand payment in advance or the provision of security. The same shall also apply if circumstances arise which make the buyer's creditworthiness appear dubious or if we retroactively discover that such circumstances existed before the contract was concluded. If the advance payment or security is not remitted within a reasonable period of grace, we shall be entitled to withdraw from the contract.
5. Setting off and withholding
a) Setting off by the buyer shall only be permitted in the case of undisputed claims and claims which cannot be appealed.
b) In relations with business people, the assertion of a right to withhold payment shall generally be excluded, unless the buyer is entitled to set off the purchase price against claims based on liability for defects under the same contractual relationship.
a) In all cases in which the buyer is obliged to pay damages in lieu of performance, we may demand compensation equal to 20% of the purchase price, unless a higher loss is proved. The buyer shall be free to prove that a loss has not been incurred or is considerably lower.
d) Regardless of the underlying reasons, the buyer's claims for damages and reimbursement of expenses (collectively referred to as claims for damages) shall be excluded, especially in the case of claims based on tort or breach of duty under an obligation. This shall not apply in the case of product liability claims, wilful intent and gross negligence, the causing of death, bodily injury or damage to health, and breach of material contractual duties. However, entitlement to damages for breach of material contractual duties shall be limited to the foreseeable loss typical of the contract, unless wilful intent or gross negligence applies, as well as in cases of liability for death, bodily injury or damage to health.
c) Insofar as the buyer is entitled to claim damages, they shall be subject to a time-limit of one year as from commencement of the prescription period for claims based on defects. This shall apply in the case of claims for damages under product liability law.
7. Liability for defects
a) In relations with business people, defects which can be detected through due examination shall be reported in writing as soon as the goods are received, all other defects as soon as they are discovered.
b) Defects attributable to improper handling or due to repairs or actions undertaken without our consent shall not constitute cause for claims based on defects.
c) In relations with business people, we shall be obliged in the event of a defect either to remedy the defect or to deliver faultless goods, at our discretion. If we do not remedy the defect or deliver a replacement within more than 4 weeks, if a further attempt to remedy the defect proves unsuccessful or is rendered impossible, the buyer shall be entitled to rescind the purchase contract or to reduce the purchase price. Further rights based on defects shall be excluded. The buyer's statutory rights under the guarantee given with regard to the nature of the goods shall remain unaffected. Claims for damages occasioned by a defect shall be governed by No. VII of the general terms of business.
d) In legal transactions with business people, claims based on liability for defects shall become statute-barred one year after delivery of the purchased goods.
e) In the case of orders placed or confirmed with reference to price lists and catalogues, minor deviations of the type customary in the market shall be permitted with respect to the model, material, dimensions, colour and execution, and shall not justify any claims based on liability for defects.
8. Rescission of contract
We are entitled to assert the following claims if the purchase contract is rescinded due to a culpable breach of contract by the customer:
a) Special expenses occasioned by the contract, such as commissions, shipping costs and compensation for damage caused by the customer
b) Remuneration for permitting use of the product(s) and for the resultant impairment in value. As a rule, this remuneration will be calculated as follows, depending on stability of the value: in cases of rescission and handover, 30% of the selling price within the first 3 months of delivery and 3% of the selling price for each additional month. In relations with consumers, the latter shall be permitted to prove that a loss or impairment of value has not been incurred or is considerably lower than the flat-rate compensation.
9. Retention of title
a) The delivered goods shall remain our property until the purchase price has been paid in full (in relations with business people: until all claims arising from the business relationship with the buyer), including all ancillary claims, and until any cheques or bills presented have been honoured.
b) In the event that the goods to which we have retained title are resold, the buyer herewith assigns the claims, including all ancillary rights, arising from resale to us in an amount equal to the invoiced value of the reserved goods. Subject to revocation, the buyer shall be authorized to collect the claims assigned in advance. We shall not exercise our right of revocation and collect the claims ourselves as long as the buyer discharges his payment obligations. On request, the buyer shall name the debtors from whom the assigned claims are due and inform them of the assignment; we are also entitled to give notice of the assignment ourselves.
c) The buyer shall only be entitled and authorized to resell the reserved goods within the due course of business and subject to the proviso that the claims arising from resale actually pass to us. The buyer shall not be entitled to dispose of the reserved goods in any other way, nor to assign them by way of security. Seizures and other intervention by third parties shall immediately be reported to us by the buyer. The buyer shall be obliged to refund the costs of intervention. The right to resell goods and collect assigned claims shall be extinguished if payments are suspended, if insolvency proceedings are filed or initiated, and if proceedings are initiated for an out-of-court settlement.
d) Insofar as we demand the return of the reserved goods following rescission of the contract, and are entitled in accordance with the statutory regulations to demand damages in lieu of performance, we shall be entitled to sell the reserved goods to the highest bidder on the open market while safeguarding the buyer's interests at the same time, or to pay the buyer the customary market value of the reserved goods when they are taken back. The customary market value may be determined by a publicly appointed expert at the buyer's discretion if requested by the buyer; such a request can only be made immediately after the reserved goods have been taken back. The buyer shall bear all costs associated with the return and commercial exploitation of the purchased goods. The costs of commercial exploitation shall equal 10% of the customary market value, without separate proof. Higher or lower costs shall apply if the seller can prove they were higher or the buyer proves they were lower.
e) If the value of the security granted, which is subject to segregation or special segregation according to the regulations governing insolvency, exceeds our claim by more than 20% - or by more than 45% in the case of security subject to preferential settlement of claims - we shall be obliged to return or release security at our discretion when requested by the buyer. Ownership of the reserved goods and the assigned claims arising from resale shall pass to the buyer when all our claims from the business relationship have been settled.
10. Jurisdiction, place of performance, choice of law
In relations with business people and legal entities under public law, Gütersloh shall be venue for jurisdiction over all lawsuits, including litigation on bills or cheques.
TERMS AND CONDITIONS OF PURCHASE
1.1. These terms and conditions of purchase only apply to merchants if the contract is connected with the operation of their commercial trade, legal persons governed by public law or public law funds.
1.2. Our terms and conditions of purchase apply exclusively. We do not acknowledge the supplier's terms and conditions that are contrary to or that diverge from our terms and conditions of purchase unless we have expressly approved their validity in writing. Our terms and conditions of purchase also apply if we receive or pay for goods from the supplier unconditionally whilst being aware of the supplier's terms and conditions that are contrary to or diverge from our terms and conditions of purchase.
1.3. These terms and conditions of purchase also apply for all future business transactions with the supplier insofar as these business transactions are of a similar nature.
2. OFFERS, ORDERS AND ORDER DOCUMENTATION
2.1. Offers and cost estimates are binding and are not to be remunerated unless otherwise expressly agreed. Unless this is specifically agreed in individual cases we do not accept any costs for and shall pay no remuneration for visits, planning and other preliminary inputs provided by the supplier in connection with the submission of offers.
2.2. Our order is without obligation and subject to change. The supplier is obliged to accept our order within a period of two weeks otherwise we have the right to cancel our order without incurring costs.
2.3. Insofar as in connection with the order we surrender images, construction drawings, calculations or other documentation to the supplier these remain our property and our rights to use these documents remain unaffected. The supplier is obliged to use these documents exclusively for the production of objects ordered by us and to treat these documents as confidential and not give access to these documents to third parties. These documents are to be returned to us immediately insofar as the supplier does not accept the order within the period outlined in § 2.2.
2.4. Orders and closures are required in written form. Any deviation from our orders, closures and delivery schedules is only permitted upon receipt of prior written agreement given by us. Verbal agreements of any kind - including subsequent changes and additions - only become binding once they are confirmed by us in writing. This confirmation can also be given via telefax or telecommunication (E-mail).
3. DELIVERY DATES
3.1. Agreed delivery dates and delivery periods are binding. For the purposes of the timeliness of deliveries the receipt at the receiving station stated by us is decisive.
3.2. The supplier is obliged to inform us in writing immediately if circumstances arise or become known that will lead to a failure to comply with the delivery time. In this case the reason and the expected duration of the delay are also to be imparted.
3.3. If the supplier runs into delivery delays we reserve the right to demand a pro rata delay penalty to the amount of 1% of the contractually agreed price per calendar week after commencement of the delivery delay amounting in total however to no more than 10% of the agreed price. The assertion of further claims remains unaffected. This pro rata penalty will be reduced if the supplier can prove lower or no losses incurred.
3.4. Acceptance of the delayed delivery or service does not constitute a waiver of any damages to which we are entitled.
3.5. The supplier may only cite the absence of necessary documents to have been supplied by us if the supplier has issued a written reminder for these documents and has not received them within an appropriate period.
3.6. Partial-, over- or underdeliveries are only permitted after express written permission from us.
4. FORCE MAJEURE
Force majeure, operational disruptions through no fault of our own, unrest, labour conflicts, regulatory measures and other unavoidable events release us for the duration of their existence from the obligation of timely acceptance. During such events and within a period of two weeks after their conclusion we are - with no affect on our other rights - entitled to completely or partially withdraw from the contract insofar as they cause a significant reduction of our requirements.
5. PRICES AND TRANSFER OF RISK
The prices stated in our order are fixed prices. They include all expenses in connection with the deliveries and services to be provided by the supplier. Unless otherwise agreed the prices are Delivered At named Place (DAP in accordance with Incoterms 2010) including packaging and exclusive of the lawful sales tax. For deliveries outside of the European Union the prices are Delivered Duty Paid (DDP in accordance with Incoterms 2010). The supplier bears the risk of accidental loss, destruction or deterioration until acceptance of the goods by us or our agents at the location at which the goods are to be delivered in good order.
6. TERMS OF PAYMENT
6.1. Payment will be made at our discretion via bank transfer or by the offsetting of counterclaims or by check. Unless otherwise agreed payments will be made within 30 days after the date of invoice taking due count of our payment pattern less 3% deduction within 90 days after the date of invoice taking due count of our payment pattern net cash. Our payment pattern provides for the following payment dates: Invoices received from the 27th of the month to the 12th of the following month will be settled 30 days later, i.e. on the 11th of the following month less deduction. Invoices received from the 13th of the month to the 26th of the following month will be settled 30 days later, i.e. on the 27th of the following month less deduction. Decisive is the day the payment is initiated, i.e. bank transfer or check issuance. If the deliveries are made earlier than contractually agreed the day of the agreed delivery date shall be deemed as being the invoice date in the event that invoices are issued prior to the agreed delivery date. The period starts from the point in time at which both the invoice and the goods are received by us or the service has been provided. Payment is made subject to invoice verification.
6.2. The assignment of receivables to third parties is excluded.
6.3. Payments do not constitute an acknowledgement that the delivery or service is in accordance with the contract.
7. LIABILITY FOR DEFECTS
7.1. The supplier guarantees that the deliveries and services are in accordance with the agreed specifications and are not flawed with defects which nullify or reduce their value or their suitability for the customary or contractually stipulated use.
7.2. We only inspect incoming goods in respect to obvious defects, transport damages, completeness and for goods identification purposes. We will make immediate notification of such defects. We reserve the right to perform a more comprehensive goods inwards inspection. Furthermore, we will also give notice as soon as such defects have been detected in the ordinary course of business. The supplier in this respect waives his right to object to late notification of defects.
7.3. Unless otherwise proven, item quantities, weights and dimensions shall be those values determined by us during the goods inwards inspection.
7.4. We are entitled to the unabridged statutory liability claims. In any case we are entitled at our discretion to either demand that the supplier rectifies the defect or delivers a new item. The right to claim damages, in particular the right to damages instead of service, remains expressly reserved.
7.5. The limitation period for defect claims is 36 months and begins with the transfer of risk. Longer contractual or legal limitation periods remain unaffected by this.
7.6. Any costs, in particular transport, travel, work, material costs or costs for a goods inwards inspection more intensive than the normal procedure incurred by us as a result of the defective delivery are to be borne by the supplier.
8. THIRD PARTY RIGHTS
8.1. The supplier affirms that the rights of third parties are not in conflict with the intended use of the goods purchased, in particular that the proprietary rights of third parties are not infringed upon. Insofar as we nonetheless have claims lodged against us for possible infringement of third party rights such as copyright, patent or other property rights, the supplier releases us from this and therefore from any performance due in connection with this provided that the supplier is at fault.
8.2. If the utilisation of the delivery by us is impeded due to existing third party proprietary rights, the supplier must at his expense either acquire the respective permission or change or replace the affected part of the delivery in such a way that utilisation of the delivery no longer infringes on the proprietary rights of third parties and also conforms to the contractual agreements.
9.1. The court of jurisdiction for all disputes arising in connection with this contract is Gütersloh, Germany.
9.2. The place of performance is the place to which the goods are to be delivered in accordance with the contract or where the service is to be provided.
9.3. Should the supplier discontinue his payments or insolvency proceedings against his assets or judicial or extra-judicial composition proceedings are applied for, we have the right to cancel the as yet unfulfilled portion of the contract.
9.4. German law, in exclusion of the conflict of laws and of the UN Convention on Contracts for the International Sale of Goods (CISG), applies exclusively regarding the contractual relationship of the parties deriving from or in connection with this contract.
9.5. If individual provisions of this contract are or become null and void, the validity of the remaining conditions remains unaffected.