§ 1 Scope and validity of terms
(1) All deliveries, services and products offered by the Seller take place exclusively on the basis of these terms and conditions. Thus these terms also apply to all future business relations, even where they are not again expressly agreed. These terms are considered to have been accepted once the goods or services have been received, at the latest. Purchaser‘s acknowledgements referring to his/her own terms and conditions are hereby rejected.
(2) All agreements, which are made between the Seller and the Purchaser for the purpose of executing this contract, are to be recorded in writing in this contract.
§ 2 Offer and conclusion of contract
(1) All offers made by the Seller are subject to confirmation and are non-binding; declarations of acceptance and all orders require the written confirmation (directly or by fax) of the Seller to become legally valid.
(2) Drawings, images, dimensions, weights and other performance data are only binding if they have been expressly agreed in writing.
(3) The Seller‘s sales personnel are not authorised to make verbal subsidiary agreements or to give verbal warranties that go beyond the contents of the written contract.
§ 3 Price
(1) Unless otherwise stated, the Seller is bound to the price offered in the quote for up to 30 days after the quote has been issued. The price quoted in the Seller‘s order confirmation does not include VAT as standard. Additional deliveries and services are calculated individually.
(2) All prices are ex-works prices. They do not include packaging costs, unless this is agreed in writing when the contract is formed. The packaging is provided by the Seller and is calculated at cost price. The packaging price is calculated taking all dealings into account; the price is calculated on the day of delivery.
§ 4 Schedule of goods delivered and services performed
(1) Delivery dates or deadlines that are agreed to be either binding or non-binding have to be made in writing.
(2) In the case of delays in deliveries or services performed due to force majeure or events that seriously hinder delivery by the Seller or make it impossible – these include strikes, lock-outs, official orders etc., which occur to the Seller‘s suppliers or sub-contractors – the Seller does not have to adhere to the dates and deadlines, even if they have been agreed as binding. These circumstances authorise the Seller to postpone the delivery or service provision for the duration of the impediment and for a reasonable lead-time, or to withdraw from the contract in full or in part due to the non-fulfilled section of the agreement.
(3) If the impediment lasts for longer than three months, after a measured grace period notification, the Purchaser is entitled to withdraw from the non-fulfilled part of the contract. If the delivery date is delayed or if the Seller is released from his/her obligation, then the Purchaser cannot derive any claims for damages from this. In the case of the circumstances described, the Seller can only claim relief if he/she informed the Purchaser immediately.
(4) If the Seller is responsible for not adhering to binding dates and deadlines or is in default, the Purchaser is liable to claim compensation for damage caused by culpable delay to the degree of 0.5 % for every complete week of delay, up to a total of 5 % of the total value of deliveries and service provision affected by the delay in our contractual relationship. Any additional claims are excluded, unless the delay is caused by gross negligence on the part of the Seller.
(5) The Seller is entitled to make part deliveries and to provide incomplete services at any time.
(6) Adherence to the delivery and service provision obligations of the Seller presupposes the timely and proper fulfilment of the Purchaser‘s obligations.
(7) In the event that the Purchaser is in default of acceptance, the Seller is entitled to claim incidental damages; as the default of acceptance takes effect, the risk of accidental damage and theft is transferred to the Purchaser.
§ 5 Passing of risk
The risk is transferred to the Purchaser as soon as the shipment has been given to the person executing the transportation, or, in the case of posting, when it has left the Seller‘s warehouse. If shipment is rendered impossible for reasons beyond the Seller‘s control, the risk in shipment will pass to the Purchaser upon notification that the goods are ready to dispatch.
§ 6 Warranty
(1) The Seller guarantees that the products are free from manufacturing and material defects. The period of warranty comprises six months and starts on the delivery date. No guarantee can be assumed for bought-in products (e.g. locking devices).
(2) If operating or maintenance instructions, or assembly instructions, provided by the Seller are not adhered to; if modifications are made to the products; if parts are exchanged or expendable materials are used that do not fulfil the original specifications, then every warranty claim becomes inapplicable if the Purchaser does not refute a respective substantiated claim that one of these circumstances led to the fault.
(3) The Purchaser must inform the Seller‘s customer service department immediately in writing if there are defects upon receipt of the goods. The Seller must be immediately informed in writing of defects that could not have been discovered through rigorous inspection.
(4) In the case of the Purchaser informing the Seller that the products do not fulfil the warranty, the Seller will demand, if he/she so chooses and at their own cost, that:
a) The damaged part or device is sent to be repaired and then returned to the Seller;
b) The Purchaser keeps the damaged part or device and a service technician will be sent by the Seller to the Purchaser to repair the items. If the Purchaser demands that the warranty works be completed at a specific location, the Seller can satisfy this requirement, whereupon parts under warranty are not charged, whereas working hours and travel expenses are to be paid to the Seller at the standard rate.
(5) If the rectification of defects fails after a certain period, the Purchaser can choose between demanding a reduction in payment and revoking the contract.
(6) Liability for normal wear and tear is excluded.
(7) Liability claims against the Seller are only possible by the Purchaser and cannot be ceded to third parties.
(8) The aforementioned paragraphs contain conclusive guarantee provisions for the products and rule out any other guarantee claims whatsoever. This does not apply to claims of indemnity from warranted characteristics, which are intended to safeguard the Purchaser from the risk of consequential damages.
§ 7 Spare parts
The Seller will supply spare parts for these products at the applicable spare part prices for a period of three years after initial delivery.
§ 8 Title retention
(1) Prior to the satisfaction of all claims (including all current balance claims), which the Seller has vis-à-vis the Purchaser, either now or in the future for course in law, the Seller is granted the following securities from the Purchaser, which he/she shall release upon demand at his/ her discretion, provided that the value exceeds the claims by more than 20 % on a sustained basis.
(2) The goods remain the property of the Seller; processing or reshaping will always be performed for the Seller as manufacturer, but without any obligation. If (joint)ownership by the Seller expires as a result of the goods‘ installation then it will be agreed that the (joint) ownership of the Purchaser of the unitary object shall pass onto the Seller in proportion to its value (amount of invoice). The Purchaser shall hold the (joint)ownership of the Seller at no charge. Goods for which the Seller has (joint)ownership will hereinafter be referred to as goods subject to reservation of title.
(3) The Purchaser is entitled to process and sell the goods subject to reservation of title in proper trading, so long as he/she is not in default. Pledges or transfer by way of security are not admissible. By way of security, the Purchaser already now assigns the claims (including all current balance claims) relating to the goods subject to reservation of title, which arise from selling the goods on or from a different legal reason (insurance, unlawful act), to their full extent. The Seller grants the Purchaser revocable authorisation to collect, in his own name, debts transferred to the Seller on the Seller‘s account. This authorisation for collection can only be revoked in cases where the Purchaser does not meet his/her payment obligations in the proper form.
(4) In cases where third parties access the goods subject to reservation of title, particularly in the case of distraint, the Purchaser will point to the ownership of the Seller and inform the Seller immediately so that the Seller can implement his/her right of ownership. If the third party is not in a position to reimburse the judicial or extrajudicial costs arising from this situation the Purchaser is liable.
(5) In the case of the Purchaser violating the contract – in particular delayed payments – the Seller is authorised to take back the goods subject to reservation of title or to demand the transfer of the right to possession of the Purchaser to a third party. The Seller taking back or pledging the goods does not constitute a withdrawal from contract.
§ 9 Payment
(1) Unless otherwise agreed, the Seller‘s invoices are to be paid net within 30 days of the invoice date. The Seller is entitled, despite contrary stipulations of the Purchaser, to offset payments first against older debts, and will inform the Purchaser about the type of the offset method. If costs and interest have already been accrued, the Seller is authorised to offset the payment first against the costs, then against the interest and finally against the principal service.
(2) A payment is considered complete when the Seller has access to the funds. In the case of cheques, the payment is not completed until the cheque has been paid in.
(3) In the event of any delay in payment, interest on arrears at a rate of 8 % above the base interest rate shall be payable without prejudice to the right to assert any further damages.
(4) If the Seller is made aware of circumstances that bring the financial standing of the Purchaser into question, in particular when a cheque bounces or if payments are suspended, or if the Seller is made aware of other circumstances that bring the financial standing of the Purchaser into question, even if cheques have been accepted, the Seller is entitled to declare that the remaining debt be due for payment. Furthermore, in this case the Seller is entitled to demand advance payments or collateral security.
(5) The Purchaser is only entitled to offset, withhold or reduce payments, even in cases of notices of defects or counter-claims being made valid, where the counter-claims have been established as final and absolute. However, the Purchaser is entitled to withhold payments on the basis of counter-claims from the same contractual relationship.
§ 10 Product revisions
The Seller reserves the right to make product revisions at any time; the Seller is, however, not obligated to make these types of modifications on products that have already been supplied.
§ 11 Patents
(1) The Seller indemnifies the Purchaser and their customers from claims regarding infringements of copyrights, trademarks or patents, unless the draft of the item supplied was drawn up by the Purchaser. The indemnity obligation of the Seller is limited in amount to the foreseeable damages. An additional prerequisite for the indemnification is that the Seller is left to conduct legal proceedings, and that the claimed infringement is solely apportioned to the construction of the item delivered by the Seller, and is not connected to usage with other products.
(2) The Seller has the optional right of liberating themselves from the obligations cited in paragraph 1 by either
a) Procuring the required licences relating to the alleged violated patents or
b) Providing the Purchaser with modified items or parts, which in the case of an exchange with the infringing items or its parts, remedy the infringement claim relating to the delivered items
§ 12 Non-disclosure
Unless otherwise expressly agreed in writing, the information passed on to the Seller in connection with orders is not confidential.
§ 13 Limitation of liability
Claims of indemnity from positive breach of obligation, from debts upon conclusion of contract and from unauthorised acts are excluded both against the Seller and against their subcontractors or vicarious agents, unless the damage was caused deliberately or as a result of gross negligence. This also applies to claims of indemnity due to non-fulfilment, although only insofar as the replacement of indirect or consequential damages is demanded, unless the liability is based on an assurance designed to protect the Purchaser from the risk of such damages. Every liability is limited to damages foreseeable at the conclusion of contract. In each case, the Seller‘s liability as set out in the Product Liability Act and other claims from manufacturers liability remains unaffected.
§ 14 Applicable law, place of jurisdiction, partial invalidity
(1) The law of the Federal Republic of Germany applies to these terms and conditions and all legal relations between the Seller and the Purchaser. The application of European Union and international law is excluded.
(2) If the Purchaser is considered to be a business person („Vollkaufmann“) as stipulated by the German Commercial Code or a legal entity or separate estate under public law („juristische Person des öffentlichen Rechts“ or „öffentlich-rechtliches Sondervermögen“) the exclusive place of jurisdiction for all disputes resulting directly from this agreement shall be Lauffen.
(3) In the event of one clause of these terms and conditions, or a provision from an other agreement, being or becoming void, the validity of all of the other provisions or agreements shall not be affected.