| 1. |
Scope of application |
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We deliver only according to the general terms and conditions of business described below. When placing the order the Purchaser accepts that our terms and conditions of business alone apply, irrespective of whether said Purchaser has requested the enforcement of his own terms and conditions of business, when placing the order or in any earlier correspondence. |
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| 2. |
Conclusion of contract |
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| 2.1. |
Our offer is made subject to confirmation and is non-binding. Conversely, the order includes a binding offer to which a Purchaser is bound to adhere. We reserve the right to accept this offer within a period of two weeks, either by confirmation of order or by consignment of the ordered goods, although in the event of acceptance via consignment the date of dispatch will be the criteria for having adhered to the deadline. In the event of this deadline being exceeded, the order will then still materialise, if the Purchaser does not immediately object to the confirmation of order or the consignment of goods. |
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| 2.2. |
The Purchaser shall accept any standard commercial or reasonable deviations in quality, amount, weight or otherwise, unless we have expressly confirmed a binding specification to be a contractual basis in an individual case. |
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| 2.3. |
Object of the contract is solely the sold product including the properties and features as well as the intended use according to the manufacturer's technical data sheets. Other or more advanced properties and/or features or any additional intended use shall only be considered as having been agreed if we have expressly confirmed such agreement in writing. |
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| 3. |
Delivery time/Self-delivery proviso/Partial deliveries/Default on the part of the Vendor |
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| 3.1. |
Any delivery times specified in the confirmation of order are subject to confirmation, unless additionally specified as "fixed". |
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| 3.2. |
Circumstances resulting from force majeure beyond our control, in particular strikes, lockouts and natural disasters, which impede adherence to the delivery times confirmed as "fixed", shall authorise us to appropriately extend the delivery times agreed by the confirmation of such dates or, optionally, to cancel the order. |
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| 3.3. |
Should we, despite having concluded a congruent coverage transaction, not be promptly or correctly supplied with the ordered goods, through no fault of our own, we shall also be authorised to extend an agreed "fixed" delivery time by up to 14 days or to cancel the order. In the event of framework contracts or successive delivery contracts we shall also be entitled to this right for partial deliveries, without the claim for performance for the remaining order, excluding the partial delivery concerned, being affected. |
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| 3.4. |
Should we still be in default of a delivery confirmed as "fixed" despite having taken the previously cited provisions into consideration, the Purchaser, after having unsuccessfully set an appropriate deadline for performance or subsequent performance, shall be entitled to withdraw from the contract for this delivery or partial delivery and to demand compensation for damages if he has not been notified that the goods are ready for dispatch by the time the deadline expires. The Purchaser's right to withdraw shall be restricted to considerable functional defects. The Purchaser may only lodge a claim to damages due to non-rendered or non-contractually rendered performance in the event of a negligent infringement of duty on our part or on the part of our vicarious agents. In such case our liability shall be limited to typical contractually foreseeable damages - at any rate, however, by the delivery value of the delivery or partial delivery. |
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| 3.5. |
We shall at any rate be entitled to make partial deliveries. |
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| 4. |
Prices |
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| 4.1. |
The specified prices are net and apply to deliveries from our principle place of business or from the principle place of business of the Supplier whom we have commissioned with the direct delivery. |
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| 4.2. |
The costs of dispatch (irrespective of the delivery value) shall be borne by the Purchaser. |
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| 4.3. |
Packaging will be invoiced separately. In the event of non-ordered partial deliveries we shall invoice only the amount, which would have been incurred in the case of a standard delivery. |
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| 4.4. |
Should more than four weeks elapse between our confirmation of order and the agreed delivery date, we shall be authorised to invoice for any price increases of our Supplier occurring during this period. Should the purchase price be agreed in a currency of a non-euro country, the Purchaser shall bear the risk of any deterioration in the exchange rate ratio of the agreed currency to the euro. This shall also apply if it is evident to the Purchaser that our Supplier is delivering on the basis of a non-euro country currency. |
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| 5. |
Payments, offsetting and right to refuse performance |
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| 5.1. |
The Purchaser shall render payments without deduction within 30 days of the invoice date. The deciding factor for the promptness of the payment shall be the date of crediting to our account. |
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| 5.2. |
Cheques will only be accepted as payment for the purpose of fulfilment. We shall be entitled to invoice any costs of the encashment under separate cover. |
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| 5.3. |
The Purchaser shall undertake to pay us interest in the amount of 8% above that of the base-lending rate in the event of the due date being exceeded. However, the Purchaser shall also be entitled to provide evidence that either we incurred no damages whatsoever or that the damages we incurred were considerably less than the lump sum. |
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| 5.4. |
Should the financial circumstances of the Purchaser considerably deteriorate once the contract has been concluded, we reserve the right to refuse to execute the deliveries until prepayment has been rendered. |
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| 5.5. |
Only in the case of uncontested or legally determined claims may the Purchaser perform setoffs or assert a right of lien. The commercial right of lien according to § 369 of the German Commercial Code is excluded. |
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| 6. |
Transfer of risks |
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| 6.1. |
We are obligated to fulfil the contractual obligations at our subsidiary's location. Insofar as the Purchaser requests the goods to be delivered to another location, he shall bear the risk and (irrespective of the delivery value) also the costs of the consignment and transport of the goods. At the PurchaserÕs request and expense we will insure the goods against the risk of damage or loss in transit. |
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| 6.2. |
Whould the dispatch of the goods be delayed beyond the agreed delivery date at the Purchaser's request, the Purchaser shall undertake to bear the costs of storage. |
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| 7. |
Notice of defects and warranty/Rectification of defects |
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| 7.1. |
It is imperative that we be notified in writing of any defects in the delivered goods within two weeks of delivery at the latest, or within two weeks of discovery at the latest in the case of defects that are not immediately recognisable. |
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| 7.2. |
Should the Purchaser make any alterations to the delivered goods, he may only assert claims on the warranty if he is able to prove that the defect is not attributable to his own actions. |
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| 7.3. |
In the event of the defectiveness of goods we have delivered, we shall first have the right to subsequently perform, i.e. to eliminate the defect or make a subsequent delivery at our discretion. In the event that and only if the subsequent performance is unsuccessful, the Purchaser shall have, at our discretion, the right to either assign warranty claims against our Supplier or to withdraw from the contract. All other warranty claims shall be excluded. In the event of withdrawal from the contract, we shall bear the costs invoiced for the defective goods and those accrued by the Purchaser for the return dispatch. |
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| 7.4. |
In the event of proven unjustified complaints the Purchaser shall be obligated to bear any costs we have incurred for the inspection of the complaints. |
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| 7.5. |
Should we be obligated to retract any goods we have delivered as a consequence of their defectiveness, we shall be entitled to the rights stipulated in § 437 of the German Civil Code vis-a-vis our Supplier. The provision contained in § 476 of the German Civil Code shall then apply. No deadline need be set. We shall be entitled to demand compensation for the costs incurred by the return dispatch of the defective goods from our Supplier. The statute of limitations stipulated in § 437 of the German Civil Code governing specific claims against our Supplier shall go into effect at the earliest two months following the date of retraction of the goods. Any provision in deviation to § 378 of the German Commercial Code shall be inadmissible. |
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| 7.6. |
We guarantee that any goods we deliver are free from defects for a period of 1 year from the date of delivery, and for a period of 2 years for deliveries to the end consumer. |
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| 7.7. |
The Purchaser of merchandise shall undertake to advertise the contractual products only in an appropriate form. The Purchaser is aware that incorrect property-related advertising may lead to warranty claims being asserted. He shall undertake to indemnify us from the consequences of such advertising and to compensate us for any damages we incur due to the infringement of this undertaking. |
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| 8. |
Product liability and recall |
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| 8.1. |
In the event of a product liability claim being lodged against us, our Supplier shall be obligated to indemnify us against such claim, provided the damages have been caused by an error in the delivered contractual object. The Supplier shall bear all costs and expenses, including the costs of any legal proceedings or recall campaign. |
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| 9. |
Liability |
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| 9.1. |
Our liability shall be limited to the damages caused on our part and/or on the part of our executive employees and/or on the part of our vicarious agents due to gross negligence. |
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| 9.2. |
In the case of our own simple negligence or simple negligence on the part of executive employees as well as on the part of vicarious agents our liability shall be limited to typical contractually foreseeable damages. |
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| 9.3. |
The liability for damages to life, body or health shall be unlimited. |
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| 9.4. |
Claims for damages shall at any rate be limited to the net delivery value of the rejected delivery or partial delivery. |
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| 9.5. |
The liability limitations hereby agreed shall apply only in the event of deliberate act and gross negligence. |
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| 10. |
Reservation of ownership |
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| 10.1. |
We reserve the right of ownership to all goods delivered until full payment of our total receivables resulting from the business relationship with the Purchaser has been made. |
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| 10.2. |
Should our (joint) ownership expire due to the customer having further processed the delivered item, it is hereby agreed that the (joint) ownership of the Purchaser of the standard item shall be transferred to us at the pro rata value (invoice value). The Purchaser shall store the (joint) property at no cost to us. |
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| 10.3. |
Should an item we have delivered become an essential component of another item due to the customer having further processed the delivered item, the former now being the main item, the joint ownership of the main item shall be transferred to us in the ratio of the invoice value of the item we have delivered to the invoice value or, in the absence of an invoice value, to the current market value of the main item. In this case too, the Purchaser shall store the joint property at no cost. |
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| 10.4. |
Customers who are dealers may resell the conditional commodity in an orderly business transaction. In the case of default in payment on the part of the Purchaser we reserve the right to revoke the authority to resell. |
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| 10.5. |
As a precaution, the Purchaser shall herewith assign to us the full scope of any claims resulting from the resale or any other legal reason with regard to the conditional commodity. In the case of the conditional commodity being sold together with other goods for a total price, the assignment shall encompass the first-ranking partial claim corresponding to the invoice value of the goods. The assignment of the claim shall also encompass any claims of the Purchaser to the final account balance of a current account, which the Purchaser has agreed with his customer. |
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| 10.6. |
At our request the Purchaser shall be obligated to disclose the claim assignment and shall provide us with any requested information regarding the claim assigned to us, including the submission of the necessary receipts. |
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| 10.7. |
We hereby authorise the Purchaser to collect the claim assigned to us on our account and in our interest. This collection authorisation may only be revoked should the Purchaser not fulfil his payment obligations in an orderly manner. |
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| 10.8. |
Should the Purchaser not himself be a dealer, he shall only be authorised to resell prior to having fully paid our total receivables if he has first obtained our written consent. |
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| 10.9. |
The Purchaser shall be obligated to immediately notify us of any attachments and other interventions by third parties on the conditional commodity and to surrender all associated documentation to us. |
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| 10.10. |
In the event of default in payment and other considerable contractual infringements the Purchaser shall be obligated to immediately relinquish the conditional commodity to us at our request. In the event of default in payment or other considerable contractual infringements we shall be authorised to withdraw from the contract, after having set an appropriate deadline that has expired unsuccessfully. In such case the Purchaser shall be obligated to assign any third-party rights to possession recovery to us. Furthermore, in such case the Purchaser shall authorise us to enter the premises to which the conditional commodity has been delivered and agree to allow us to reclaim the conditional commodity. |
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| 10.11. |
The Purchaser shall not be authorised to pledge the conditional commodity or to transfer its ownership as a security without our written consent. |
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| 11. |
Sales commitment |
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For the procurement of products, governed by a sales commitment, the special terms and conditions of the relevant Supplier also apply in addition to these terms and conditions of business. |
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| 12. |
Applicable law and place of jurisdiction |
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| 12.1. |
The law of the Federal Republic of Germany shall apply exclusively. The application of the standard purchasing law and the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded. |
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| 12.2. |
Place of jurisdiction for all disputes arising from this contract is Tübingen. This agreement pertaining to place of jurisdiction shall only apply if the Purchaser is a businessman. |
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| 12.3. |
Should the purchase contract between ourselves and the Purchaser be concluded and executed within the scope of the EC internal community and should the Purchaser not submit his VAT registration number otherwise, said Purchaser shall then be obligated to pay VAT according to the statutory provisions of the Federal Republic of Germany at all times in addition to the agreed purchase price. |
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| 13. |
Separability clause |
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In the event that a provision in these terms and conditions of business should prove to be ineffective or infeasible this shall not affect the effectiveness of the remaining regulations. In such case and according to contractual parties' wishes a provision shall then apply, which most closely resembles the originally agreed provision as regards effectiveness and feasibility. The same shall apply in the event that any gaps in the provisions occur. |
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