2. Completion of contract, documents, property rights
Our offers are non-binding. A contract shall only be completed upon our order confirmation. Our order confirmation shall exclusively be decisive for the type and scope of our delivery. If we do not confirm the order, the contract is concluded at the latest when the order is executed. Telephone or verbal statements must be confirmed in writing for reasons of documentation.
We reserve the right of ownership and copyright to cost estimates, drafts, drawings and other documents; such may only be made available to third parties with our consent. Drawings and other documents transmitted by us in connection with offers must be returned on request at any time and in any case if the order is not placed with us. If we manufacture and deliver items based on drawings, models, samples or other documents provided by the customer, we cannot guarantee that no third-party property rights are infringed. If third parties prohibit us from acting through recourse to property rights, in particular from the manufacture and delivery of such items, we are entitled to cease any further activity and in accordance with the applicable liability provisions to demand compensation. In addition, the customer undertakes to immediately indemnify us against all third-party claims in connection with the documents he has provided, unless he can prove that he is not at fault.
We reserve the right to charge the costs for samples and test parts and the tools required for their production. We shall charge the manufacturing costs for tools required for serial production, unless otherwise agreed. All tools remain our property, even if their production costs are fully or partially borne by the customer, unless otherwise agreed.
For call orders we shall be entitled to procure materials for the entire order and to manufacture the total order quantity immediately. Any customer requests for changes after order placement therefore cannot be taken into consideration, unless otherwise explicitly agreed.
3. Description of services
The quality of the delivery or service shall ultimately be described using expressly agreed performance features (e.g. specifications, markings, release, other designations). A guarantee for a specific purpose or a specific suitability is only accepted insofar as this has been expressly agreed; otherwise, the risk of suitability and use rests exclusively with the customer. No performance features or other properties of the deliveries or services other than those expressly agreed are owed. We reserve any customary or technically unavoidable deviations from physical and chemical quantities, including colours, formulas, processes and the use of raw materials as well as order sizes, insofar as this may not be deemed unreasonable on the part of the customer.
Information relating to the delivered item and service (e.g. in catalogues, product information, electronic media or on labels) are based on our general experience and knowledge and only relate to reference values or indications. These product details as well as expressly stipulated features/purposes shall not relieve the customer of the necessity of testing the product for its intended purpose.
Details on quality and possible uses of our products do not include any warranties, in particular as stipulated in Sec. 443, 444, 639 German Civil Code (BGB), unless these are explicitly specified as such in writing.
4. Delivery and Time of Delivery
A confirmed delivery date is subject to the proviso that, in the event that a congruent hedging transaction has been concluded, we are not supplied correctly, completely and on time by our supplier for reasons for which we are not responsible; in such case we shall inform the customer immediately. The delivery deadline is met if we have informed the customer that we are ready for dispatch by the time it expires. Delivery deadlines shall remain ineffective as long as the customer has not properly fulfilled his obligations, such as furnishing technical data and documents, approvals as well as making a down payment or providing a payment guarantee.
We are entitled to make partial deliveries as long as this is not unreasonable for the customer or he has given his consent.
Acts of God or other events beyond our control that render the timely execution of accepted orders impossible shall relieve us of our delivery commitment as long as such events prevail.
The return of sold goods that are free of defects is excluded.
The opening of insolvency proceedings, a submission of a statutory declaration in accordance with § 807 of the German Code of Civil Procedure (ZPO), any payment difficulties or knowledge of considerable deterioration in the financial situation of a customer entitles us to cease deliveries immediately and refuse to fulfil ongoing contracts if the customer does not provide payment in kind or supply appropriate security upon request.
We shall retain title on all goods delivered by us until such time as the buyer has settled all claims, even the conditional claims, including incidental claims that we have against customer arising from the commercial transaction with us; in this regard, all shipments shall be considered one related delivery transaction. For current invoices, the reserved title shall serve as security for our outstanding balance claims. The above regulations shall also apply to future claims.
The customer shall be entitled to resell or process the purchased item or mix or combine it with other goods in the scope of his ordinary business only; however, he hereby assigns to us all claims resulting from the resale, processing, mixing, combining or other causes in law relating to the purchased item (in particular from insurance contracts or unlawful acts) in the amount of the mutually agreed final invoice total (incl. VAT). The sale to other parties shall be equivalent to use for fulfilling works contracts or contracts for goods and labour by the customer.
The retention of title shall also extend to the products arising from processing, combining or joining of our goods to their full value, in such cases where these processes are carried out for us such that we are the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their ownership rights remain, we acquire co-ownership in proportion to the objective value of these goods. If our ownership expires through combination or mixing, the customer shall transfer to us the ownership or expectant rights to the new inventory or the item to the extent of the invoice value of the goods delivered by us and store them for us free of charge.
The customer shall be authorised to collect the claims from resale despite such assignment, unless we have revoked the authorisation. We shall not collect debt claims ourselves, as long as the customer meets his payments with us in due course. The customer shall, upon our first written request, be obliged to inform us about the debtors of assigned claims as well as to notify debtors of the assignment.
We are entitled to exercise the right of the customer to resell within the scope of clause 5.2 and to collect the claims assigned to us with immediate effect if the customer is in default of payment or is in financial difficulties due to a significant deterioration in his financial situation. In the event that bankruptcy proceedings are opened on the customer’s assets, any payments are discontinued, statutory declaration is given in accordance with Sec. 807 German Code of Civil Procedure (ZPO), or if due to a shortage of liquid funds a change of ownership occurs in the customer’s business, the authority for resale and collection of assigned claims shall cease automatically.
The customer shall have custody of the items to which we have co-ownership or property rights with the care of a prudent businessperson at no charge to us and insure them against fire, break-ins, theft, and other usual risks.
The customer shall be prohibited from pledging as collateral the goods delivered under retention of title or from assigning them as security. The customer shall notify us immediately of any seizure or any other impairment of our property rights by third parties and confirm the property rights in writing, both to the third party and to us. Any residual costs arising from resulting legal action despite our winning a case shall be covered by the customer.
In the event of breach of contract on part of the customer – especially in the event of payment delay – we are entitled to cancel the contract and reclaim the goods. The costs incurred by us for the return (particularly transport costs) shall be borne by the Ordering Party.
The securities to which we are entitled shall not be included insofar as the value of our securities exceeds the nominal value of the claims to be secured by 10%.
6. Prices and payment
Our prices are in EUROS according to the offer without VAT. 6.2 Unforeseen changes in raw materials, wages, energy and other costs for which we are not responsible entitle us to make appropriate price adjustments upwards or downwards prior to the conclusion of the contract, within the limits of reasonableness. For deliveries by instalments, each delivery may be invoiced separately. If no prices have been agreed at the completion of contract, our applicable prices on delivery day shall apply.
Unforeseen changes in raw materials, wages, energy and other costs for which we are not responsible entitle us to make appropriate price adjustments upwards or downwards prior to the conclusion of the contract, within the limits of reasonableness. For deliveries by instalments, each delivery may be invoiced separately. If no prices have been agreed at the completion of contract, our applicable prices on delivery day shall apply.
Our invoices are payable as indicated on our invoice and without any deductions.
We are not obliged to accept bills, cheques or other promises to pay; the acceptance of such shall at all times be on account of performance.
The receipt of payment date shall be the day on which the amount is in our possession or has been credited to our bank account. In the event of default in payment by the customer, we are entitled to charge interest at the statutory rate for the duration of the default. This shall not restrict the right to claim additional damages.
In the event of a payment delay on the part of the customer, we may additionally choose to call in outstanding purchase price instalments or other existing due claims against the customer as well as to make future deliveries under this or other contracts dependent on an advance security or simultaneous payment against delivery.
We do not apply interest to any advance payments or payments on account.
The customer may offset or withhold payments only if his counterclaim is undisputed or res judicata.
7. Claims for Defects
We are only liable for defects to the goods delivered by us in accordance with the statutory provisions, however only subject to the following provisions.
The customer shall fulfil his duties of inspection and objection in accordance with § 377 of the German Commercial Code (HGB).
If defective goods are delivered we shall be given the opportunity, prior to manufacturing (processing or installing), to sort out such goods and rectify the defect or to make an additional delivery, unless this cannot reasonably be expected from the customer. In the event that we are unable to accomplish this or fail to conform with it in due course the customer may rescind the contract in this respect and return the goods at our risk.
If the defect comes to light only after the start of manufacturing, despite the fulfilment of duties according to clause 7.2, the customer may demand subsequent performance (rework or substitute delivery at our discretion).
In the event of replacement, the customer shall be obligated to return the defective material upon request.
Claims for rescission of contract or reduction of the purchase price shall be granted only if the defect cannot be remedied within an appropriate period, if subsequent performance would incur unreasonable expenses, is unacceptable or must be considered as failed for other reasons. However, the customer shall have no right of withdrawal for only minor defects.
In the event of complaints, the customer shall immediately provide us with an opportunity to examine the goods that are the subject of the complaint; in particular, the goods that are the subject of the complaint must be made available to us upon request and at our costs. In the event of unjustified complaints, we reserve the right to charge the transport costs and inspection expenses to the customer’s account.
No claims for defects may be lodged if the defect can be attributed to a violation of operating, maintenance and installation instructions, improper use or storage, faulty or negligent handling or assembly, natural wear and tear or tampering with the delivery item by the customer or a third party.
Compensation for damages and reimbursement of expenses can only be requested in accordance with clause 8.
For products that we do not deliver as new goods as agreed, the customer is not entitled to the aforementioned claims due to defects, unless we are guilty of intent or fraud.
We shall be liable for any damages, in particular resulting from culpa in contrahendo, breach of duty and unlawful acts (Sec. 823 ff. German Civil Code), insofar as we, our employees or vicarious agents are charged with intent or gross negligence.
We shall also be liable for ordinary negligence for damages resulting from fatal injury or other injury to life, limb or health, warranties or in the event of infringement of essential contractual obligations. In the event of a breach of essential contractual obligations, our liability is limited to the foreseeable, contract-typical average damage based on the type of goods. The above regulation also applies to breaches of duty by our employees, legal representatives and vicarious agents.
We shall be liable for the infringement of industrial property rights in connection with the sale of our goods only if property rights are valid in the Federal Republic of Germany and have been published at the time of delivery and only to the extent that such property rights are infringed upon when using the products as agreed. We are not liable if we have manufactured the objects of sale in accordance with the customer’s drawings, models or other such specifications or data and are unaware, or, in the context of the products he has developed, do not have to be aware that they infringe industrial property rights. In such case, our customer is liable for any infringement of property rights that has already occurred or is still to come. He is obliged to inform us immediately about possible or alleged infringements of industrial property rights of which he is aware and to exempt us from claims by third parties and all costs and expenses incurred, unless he can prove that he is not responsible for the infringement of industrial property rights.
Claims for defects of delivered products shall lapse 1 year after delivery of the products. This does not apply to any item used in accordance with its customary purpose for a building and that has caused faultiness in the latter, in which case the statute of limitations becomes effective after 5 years. All other claims regulated in clauses 8.1 – 8.3 shall lapse according to the statutory provisions.
Claims to abatement and the execution of a right of withdrawalare excluded if the claim for supplementary performance has lapsed.
Our liability pursuant to the provisions of the Product Liability Act and Secs. 445a, 445b German Civil Code (last seller recourse) shall remain unaffected by the aforementioned stipulations.
For all else, we shall be exempt from liability.
9. Place of performance and jurisdiction, other provisions
The customer shall be entitled to assign his claims from the contractual agreement only with our prior consent.
The place of fulfilment of all claims arising from the business relationship, particularly from our deliveries, shall be the respective location from which the delivery is made.
The place of jurisdiction for all claims from business relationships, in particular from our deliveries, is Weinheim/Bergstrasse. This place of jurisdiction applies also for disputes about the contractual relationships. However, we shall be entitled, at our discretion, to also file suit against the customer in the courts responsible for his headquarters. With respect to customers based abroad, we shall also be entitled to any have differences of opinion or disputes arising from or in conjunction with the business relationship, under exclusion of ordinary legal proceedings, decided in accordance with the arbitration code of the Zurich Chamber of Commerce by one or three arbitrators appointed in accordance with this code. The court of arbitration is based in Zurich, Switzerland. The arbitration proceedings shall be held in German. The finding of the arbitrator(s) shall be final and binding upon the Parties involved.
The business relations with our customers shall be exclusively governed by the laws of the Federal Republic of Germany with the exclusion of its private international law insofar as it refers to the applicability of another legal system. The application of the Uniform UN Sales Convention (C.I.S.G.) and other bilateral and multilateral agreements serving to standardise international sales is excluded.