AGB Englisch

Delivery and payment conditions of 01.02.2011

I.    Scope of application

These Terms and Conditions of Delivery and Payment shall apply to the whole business transactions with the Customer, even if not explicitly referred to during subsequent transactions. The General Terms and Conditions of the Customer shall only apply if the Supplier has agreed to them in writing. Otherwise, the application of such General Terms and Conditions shall be contradicted.

II.   Conclusion of a contract and quality of the goods

1.   Oral, telephonic and written offers, consultations and agreements shall only be valid and binding upon written confirmation of the Supplier. All offers, conclusions and agreements are exclusively subject to the following terms and conditions, unless other arrangements will explicitly be made and confirmed in writing by the Supplier. The presentation of goods by the Supplier in the Internet does not constitute an offer but a non-binding invitation to the Customer to submit an offer.

2.   The documents connected with the offer such as e.g. pictures, drawings, weight and dimension specification are only roughly decisive for the delivery commitment of the Supplier, unless not explicitly referred to as binding. Only in such case the documents finally determine the delivery commitment of the Supplier. As for the rest, the Supplier is entitled to introduce technical amendments within product optimisation, provided that these amendments will not have an unacceptable impact on the Customer’ interests. Written order confirmation of the Supplier shall be determinative of the scope of delivery commitment. Subsidiary agreements and amendments require written confirmation of the Supplier and shall apply only for the specified case.

3.   Protective equipment shall be included in the delivery pursuant to the statutory provisions on technical working tools (equipment protection act) in the currently applicable version. Any further delivery of protective equipment shall be performed pursuant to the corresponding arrangements.

4.   The unconditional creditworthiness of the Customer constitutes the prerequisite for delivery obligation. Subject to his other rights the Supplier is entitled at his discretion to demand advance payments or securities if the Customer will be in default with a payment, if he will discontinue the payments, if an application to open insolvency proceedings on his assets has been filed or if such proceedings has been opened, if he has been summoned to make an affidavit or if he has made an affidavit, and if third parties have applied for foreclosure against him. In all these cases, the purchase price claimed by the Supplier is due for payment immediately and regardless of possibly otherwise agreed payment conditions.

III.   Prices and payment

1.   The agreed prices are net prices ex works the Supplier’s seat registered in the Commercial Register, excluding packaging, freight and transport insurance. The statutory value added tax is to be added to the prices. The prices only apply for the given order and are not binding for subsequent orders.

2.   The payment shall be made pursuant to the provisions specified in the order confirmation or in case there is no order confirmation, within 14 days since the invoice date without any deductions. In case of custom-built models of machines whose price amounts to over 10,000.-- EUR, in each case 1/3 of the purchase price is to be paid upon the receipt of the order confirmation, the receipt of the readiness for dispatch notification and after the delivery of machines within 14 days strictly net in each case.

3.   In case of failure to meet the aforementioned payment terms, the Customer owes interests in the amount o 8% over the currently applicable base interest rate from the day after the expiration of payment term. A separate notice of default by the Supplier is not required. As for the rest, the assertion of further claim for damage caused by delay shall remain reserved.

4.   The bills are only accepted upon previous agreement in case of exception and only on account of payment as well as with the rejection of liability for untimely and/or undue submission and protest of the bill by the Supplier. The same applies for cheques. The collection and discounting charges including bill stamp duty shall be borne by the Customer. The Customer is obliged to pay these amounts as well as the default interests immediately. Deductions from the amounts invoiced are inadmissible in the absence of explicit previous agreement in writing.

5.   In case of untimely payment of the agreed instalments or in case of non-payment of a bill the total outstanding purchase price shall fall due for payment immediately.

6.   In case of the existing defects, the Customer is not entitled to exercise the right of retention unless the delivery is obviously deficient. In such case the Customer is entitled to exercise the right of retention only to such extend as the amount retained is appropriately related to the defects and the estimated costs for curing the defect (rework or removal of defects). The Customer is not entitled to rise any claims or rights due to defects if he has not effected the payments due.

7.   The Customer must not set the purchase price claim of the Supplier against the counterclaims denied by the Supplier that have not been determined without further legal recourse.

8.   Should the wages, currency exchange rates, the raw material prices or other production costs increase until the completion of the delivery item, then the Supplier is entitled to increase the price in a reasonable manner according to his calculations and the Customer is not entitled to exercise the right to withdraw due to this reason. If the Supplier and the Customer do not agree on a reasonable increase of prices, an expert appointed by IHK Reutlingen is entitled to exercise the right of determination in the same manner accordingly. The costs incurred herewith shall be borne by the Customer.

9.   In case of missing performance determination at the moment of payment effected by the Customer and if there are several outstanding invoices at the moment of payment, the payment shall be deemed to settle the oldest invoice.

IV.   Delivery period

1.   The delivery periods mentioned by the Supplier are only approximate periods and are not binding for the Supplier, unless explicitly determined as binding (fixed term).

2.   The delivery deadline determined as binding shall only oblige the Supplier to perform the delivery within the stipulated period, if the Supplier and the Customer have by this time agreed on all technical details, if the Customer has provided the necessary information and submitted the documents and permissions that he is obliged to obtain, and if the Customer has made the advanced payment as agreed upon by then.

3.   The delivery deadline is considered observed if the delivery item has left the Supplier’s factory until the expiration of the deadline or if he has announced the readiness for dispatch towards the Customer in writing.

4.   The delivery deadline shall be prolonged accordingly in case of measures taken within industrial actions, especially strike and lockout as well as in case of the occurrence of unforeseeable obstacles, in particular in case of force majeure events, if such obstacles have a significant impact on the completion or provision of the delivery item. The burden of proof shall rest with the Supplier. The same applies if the obstacles shall occur at one of the subcontractors of the Supplier. The Supplier shall not be held responsible for the obstacles also when they occur during an already existing default. The Supplier shall inform the Customer immediately about the beginning and termination of the occurrence of such obstacles. The Customer may require the compensation of damage caused by the default incurred to the Customer only if presuppositions mentioned in section IX no. 4 will be fulfilled within the scope mentioned there

5.   If the dispatch of the delivery item will be delayed on the Customer’s request, the Customer shall be held liable for storage costs of the delivery item towards the Supplier. If the delivery item is stored in the Supplier’s factory, the Customer is due to pay a lump sum in the amount of 0.5% from the amount invoiced for each month. The Customer shall be free to prove that the storage costs have not incurred or that the lump sums required due to storage are higher than average. Regardless of the aforementioned, the Supplier is entitled to dispose of the delivery item in any other way after expiration of the commensurate period set for the purpose of collection and to provide compensation delivery to the Customer within the commensurate prolonged period. The payments owed by the Customer to the Supplier according to the contract shall be effected regardless of the delivery postponement granted to the Customer.

6.   Apart from that, the Supplier is obliged to observe the delivery deadline only if the Customer has fulfilled all his contractual duties.

V.    Passing of risk

1.    The risk of accidental loss or accidental deterioration of the delivery item shall pass to the Customer with the handover of the delivery item to the Customer or to the freight forwarder, the freight carrier or any other third party dedicated to perform the dispatch for the purpose of usage. The same shall apply also in case of partial deliveries. The passing of risk stipulated in this section shall also apply if the Supplier still has to perform other services e.g. to bear the dispatch costs or to transport and assemble the delivery item or the partial delivery. The consignment will be insured by the Supplier against theft, breakage, transport damages, fire damages and water damages on the Customer’s request and at his costs.

2.    Should the dispatch be delayed due to circumstances beyond the control of the Customer, then the risk shall be passed to the Customer starting from the day when the readiness for dispatch has been announced. The Supplier is entitled and on the Customer’s request he is obliged to insure the delivery item against theft, breakage, fire and water damages at his costs.

3.    The items provided shall be accepted by the Customer - even in they are showing defects.

VI.    Reservation of title

1.    The delivery item shall remain the property of the Supplier until the Customer has settled all current and future claims of the Supplier against the Customer.

2.    The Supplier is entitled to insure the delivery item against theft, breakage, fire and water damages at the Customer’s costs, unless the Customer proves to have concluded such insurance himself.

3.    The Customer may neither seize the delivery item nor transfer it by way of security. In case of the delivery item being seized by third parties, the Customer shall inform the Supplier about this immediately specifying such particulars as the third party’s address.

4.    The assertion of reservation of title as well as the seizure of the delivery item by the Supplier shall not be considered withdrawal from the contract.

5.    The delivery item may be sold by the Customer only upon written permission of the Supplier. In case of sale, the Customer shall in advance and irrevocably assign to the Supplier all purchase price claims due to him towards his contracting party. The Supplier accepts this irrevocable assignment by providing the order confirmation. On the Supplier’s request the Customer is obliged to provide him with the contracting party’s address. Apart from that, the Customer is entitled to collect the purchase price claims assigned to him and he is obliged to pay the outstanding amount of the Suppliers invoice immediately. The right of the Supplier to collect the purchase price claims himself shall remain unaffected.

VII.    Limitation of claims for defects and claims for damages

As far as no other regulation is included in the order confirmation of the Supplier, the statutory period of limitation for claims due to a deficient delivery item or a deficient compensation delivery or for inadequately performed reworks is 6 months from the provision of the delivery item or of the compensation delivery or from the completion of reworks. This statutory period of limitation shall also apply for damages claimed by the Customer.

VIII.    Defects and notice of defects

1.    Warranty claims shall not apply if the delivery item only insignificantly deviates from the agreed quality or if its usefulness has been affected only insignificantly.

2.    The Customer is entitled to claim the elimination of defects in case of other than minor defects. Otherwise the Supplier is entitled to perform faultless compensation delivery instead of the elimination of defects at his discretion.

3.    The Customer shall summon the Supplier to eliminate the defects in writing. The elimination of defects shall be performed within 4 weeks upon the receipt of written request. In case of failure to eliminate the defects, the Supplier is entitled to perform the second elimination of defects. The Customer shall inform the Supplier about the failure of the first removal of defects in writing and to summon him to remove the defects once again. In such case the Supplier shall perform the second attempt to remove the defects or to perform faultless compensation delivery within 4 weeks.

6.    A warranty obligation of the Supplier shall only apply if the Customer has notified the defect to the Supplier immediately - not later than within 10 days upon the receipt of the delivery item - and in writing. In case of hidden defect, the notice shall be provided within 10 days after it has been detected. In case of untimely notice the delivery item is considered approved and free of defects.

IX.    Liability for damages

1.    The Supplier shall only be held liable for intent and gross negligence. The same shall apply for his representative or his vicarious agent. Otherwise, the Supplier shall be held liable only in accordance with the German product liability act to be applied for injuries to life, body or health or for culpable breach of significant contractual duties. The liability and in particular the damage claim due to the breach of significant contractual duties are limited to foreseeable damages under a typical contract, also in case of gross negligence, except for a liability for injuries to life, body or health.

2.    The liability for damages caused by the delivery item to the legally protected goods of the Customer (e.g. damages to other goods) is fully excluded. The aforementioned shall not apply in case of liability for intent or gross negligence or for injuries to life, body or health.

3.    The rulings mentioned in paragraphs 1 and 2 shall also cover compensation in addition to performance and compensation in lieu of performance, regardless of the legal ground, especially due to defects, breach of duties under the obligation or from illegal action. They shall also apply for compensation claims regarding the expenditures made with relation to the delivery item.

4.    The aforementioned regulations in paragraph 1 and 2 shall also apply in case of damages caused by delay in delivery or by the impossibility to perform services. Otherwise, the Supplier’s liability for compensation in addition to performance is limited to 25% and for compensation in lieu of performance it is limited to 50% of the delivery item value. These limitations shall not apply in case of a liability for injuries to life, body or health. The Customer’s right to withdraw from the contract due to the impossibility to perform services shall remain unaffected.

X.    Termination by the Supplier

The Supplier is entitled to withdraw from the contract in case of the prerequisites of section II no. 4 and IV no. 4 and in case of the subsequent impossibility to perform services. The services already performed by the Customer shall be returned by the Supplier. The aforementioned shall not apply in case of subsequent impossibility occurred through no fault of the Supplier's own, if the Supplier has used the received services trusting to be able to fulfil his performance obligation. Otherwise, further claims of the Customer are excluded.

XI.    Choice of the applicable law, place of fulfilment and jurisdiction

1. Legal relationships between the Supplier and the Customer shall be governed solely by the law of the Federal Republic of Germany.

2.    Place of fulfilment for performance obligation of the Supplier and Customer is Winterlingen.

3.    In the event of any dispute between the Supplier and the Customer the local jurisdiction of the Albstadt District Court or Hechingen Land Court shall apply as long as the Customer is a registered trader, a corporate body under public law or a corporate body under public separate estate, or if the Customer does have a general place of jurisdiction in the Federal Republic of Germany. However, the Supplier is also entitled to institute legal proceedings at the court in the district of the Customer’s place of business.

XI. Other information

1. Should separate provisions of these General Terms and Conditions be ineffective or void, the validity of the remaining contractual provisions shall not be affected.

2. Changes and additions to the contract shall be made in writing in order to be valid. The written form requirement may only be waived by means of a written statement.

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