Deutsch English

Terms & Conditions

1. Conclusion of contract

All offers, deliveries and other services are made exclusively based on the following Terms and Conditions.

We shall not recognize any conflicting or differing Terms and Conditions of the Purchaser unless we have

expressly agreed to their application in writing. This shall also apply in cases in which we will carry out the

delivery unaware of contradictory or deviating Terms and Conditions of the Purchaser. All Offers are

non-binding, unless the offer is expressly limited to a certain period. All information concerning weight,

dimensions, performance and the like contained in catalogues, prospectuses, circulars, advertisements,

illustrations and price lists are not binding. We reserve the right to make changes to all our

publications. Our Terms and Conditions shall apply to all future transactions with the Purchaser,

without further necessity to separately refer to this fact.



2. Terms of payment, default of payment

Unless otherwise agreed, the purchase price is due immediately after delivery without a discount.

The Purchaser shall be in arrears, without requiring further reminders, at the latest 30 days after

the due date and reception of the invoice / payment order or reception of the service. If the customer

is in arrears, we are entitled to charge default interest of 5% above the respective base rate of the ECB.

Both contracting parties reserve the right to provide evidence as to a higher or lower loss. If,

following the conclusion of the contract, it becomes clear that our claim for payment is jeopardy

due to a lack of the customer's ability to perform, we are entitled to the rights pursuant to Para.

321 of the German Civil Code (BGB). In such an event we are then entitled to make all due

non-statute barred claims arising from the ongoing business relationship with the Purchaser.

In addition, our rights under Para. 321 BGB extends to all further deliveries and services

from the business relationship with the Purchaser. The Purchaser is entitled to

set-off only if his counterclaims have been legally established, undisputed or

acknowledged by us. This also applies to a right of retention, if his counterclaim

is not based on the same contractual relationship.


 

3. Delivery, force majeure, retention of title, delay

The transport risk is borne by the Purchaser, irrespective of the normal means of transport used for

dispatch. We have fulfilled our contractual obligation in connection with the delivery as soon as we

have sent out the items properly. The deliveries are not free-of-charge. If delivery is required by

the Purchaser, the Purchaser will be charged the resulting transport costs. This does not alter the

transfer of the transport risk to the Purchaser. Our delivery times are target dates. Even fixed

delivery times are not fixed dates according to Para. 361 BGB and para. 376 of the

German Commercial Code (HGB), unless they are expressly referred to as fixed dates. If we

cannot deliver the goods within an agreed delivery period or at an agreed delivery date, the Purchaser

shall set a extension of time of at least three weeks. The Purchaser can only set a shorter deadline

if circumstances make an extension of time of three weeks unreasonable for the Purchaser and if a

certain time frame has been obvious to us upon conclusion of the contract. The mere fact that the

parties have agreed on a binding delivery time is not sufficient. Only after the expiry of the extension

of time can the Purchaser derive any rights from the delay.

 

In the case of an express written description of a delivery period as binding, the delivery period begins

as soon as all details of the statements are clarified and both parties agree on all terms of the contract

and the performance of the contract. Binding delivery times are ensured by the committal of the products

purchased to the transport company.

 

Our obligation to deliver shall be suspended as long as the Purchaser is in arrears with an existing liability

against us.


Events of force majeure as well as other unforeseen events, in particular procurement, employment,

manufacturing and delivery disturbances with us or our suppliers, which we can neither anticipate

nor prevent with regard to the duration of their impact, will free us from our obligation to perform for

the duration of the disturbance as well as a reasonable start-up time and to the extent of their

effect - even during an already existing delay - insofar as the disturbance has not been caused

intentionally or grossly negligently by us.

 

Should it not be possible due to force majeure or other unforeseen events which we are not

responsible for to deliver the purchased items within a reasonable time, the Purchaser and us

shall have the right to withdraw from the contract in whole or in part. This shall also apply in the

event of the impossibility of the fulfillment of the contract which we are not responsible for. There are

no claims for compensation for such a withdrawal. If the party entitled to a withdraw wishes to exercise

such a right of withdrawal, the party must immediately inform the other party of their willingness to

exercise their right of withdrawal. Claims for damages by the Purchaser are hereby excluded.

 

The same shall apply if official and third party approvals necessary for the execution of deliveries are

not received in time. In the event of a subsequent alteration of the order or non-timely notification

by the Purchaser of the information required for the execution of the delivery, an appropriate extension

of the delivery period shall also occur.

 


In the event of delay in delivery or impossibility of the performance for which responsibility lies with us,

we shall be liable for damages. Such liability, in so far as we are not subject to intent or gross negligence,

shall be restricted to:

 

- In the event of a delay in delivery, the Purchaser may, in the event of damage,

receive compensation for a maximum of 0.5% of the price of the delayed delivery for every full week

of delay, but not in any case more than 30% of the net value of the delayed delivery or 10% of the final

delivery total net order value;


- any claim for damages due to non-compliance is limited to the replacement of such damages, which

we could have anticipated at the time when the contract was concluded as a possible consequence of the

infringement of the contract. In cases other than gross negligence our liability is limited to 50% of the

damage incurred.


- Further claims arising from delay in delivery shall be determined exclusively in accordance with

para. 6.of this Terms and Conditions.

 

4. Reservation of title

We retain ownership of all delivered items until all payments under the contract have been made.

If the Purchaser is an enterprise, we retain title to the delivery item until all payments from the

business relationship with the Purchaser have been made. If the validity of this retention of title is

linked to special requirements or formal requirements in the jurisdiction of the place of delivery, the

Purchaser shall be obligated to notify us thereof and to ensure its fulfillment at his expense.

 

The Purchaser shall be entitled to dispose of the goods in which we have reserved ownership or to

which we are entitled to co-ownership (reserved goods) within the means of the ordinary course

of business, unless he is in default or has ceased payments. He may not pledge or surrogate the

reserved goods. A sale abroad is only permitted with our prior consent. If the Purchaser sells

reserved goods, he hereby assigns to us all rights, collateral and proprietary rights reserved

until all our claims have been fulfilled. We may demand that the Purchaser notify the assignment

to his customers and provide us with all the information and documents necessary for the collection.

The purchaser may process the products on which we have reserved our property within the scope of

ordinary business operations, unless he is in default or has ceased payments. In the case of processing,

it is hereby agreed that the new product resulting from the processing will be subject to a retention

of title which corresponds to the value of the products on which we have reserved our ownership

in relation to the value of the other processed items. The Purchaser shall store the new item created by

processing for us. The same shall apply if the Purchaser mixes, blends or combines the products

on which we have reserved our property.

 

The Purchaser is obliged to inform us at any time about the whereabouts and condition of the

delivered goods and to allow us an inspection. In case of default of payment of the Purchaser

or deterioration of his property, we are entitled to demand the delivery of the goods belonging

to us. This is deemed only a rescission of the contract if we expressly declare this, bare compulsory

statutory provisions forcing a rescission of contract. In the case of goods reimbursement, appropriate

discounts are made for wear and tear or the impairment or repair costs are invoiced.

 

 

5. Liability for Defects

Defects of quality

The Purchaser is obliged to check the delivered goods immediately after receipt and before processing.

Complaints due to incomplete or incorrect delivery or complaints due to obvious defects are to be

notified in writing within eight days after receipt of the goods. Other defects shall be communicated

to us in writing immediately after their discovery, at the latest within eight days. In the case of

delayed notification of defects, warranty rights under commercial law are expressly excluded.

The Purchaser’s warranty rights also require that he has properly complied with his inspection

and complaint obligations owed by law. In the case of transport damage, the Purchaser shall

have the damaged recorded immediately.

 

The deadline for the assertion of deficiency claims is one year from the delivery of the products.

In the case of non-compliance with operating and maintenance instructions, changes

to the products, parts are replaced or consumption materials which do not correspond to the

original specifications, claims for defects are excluded. All parts which are found to be defective

as a result of a circumstance occurring prior to the transfer of risk will be repaired or replaced

free of charge. The supplier must immediately notify the supplier in writing of any such defects.

Replaced parts become our property.

 

In order to undertake all subsequent improvements and substitute deliveries which are necessary,

the Purchaser shall allow for the necessary time. Otherwise, we are exempted from liability for the

resulting consequences. Only in urgent cases of endangering operational safety or to avoid

disproportionate damages, whereby we are to be informed immediately, the Purchaser is

entitled to fix defect by himself or by a third party and to demand compensation from

us for the necessary expenses. We shall bear the cost of the replacement including the

shipping as well as the reasonable costs of removal and installation, as far as the complaint proves

to be justified. Furthermore, if this is reasonably required in the individual case we shall bear

the costs of the necessary staff to perform the repair or refit. The Purchaser shall have the

right to withdraw from the contract within the scope of the statutory provisions if we,

taking the legal exceptions into account, have failed to answer for his call for repair

or refit within a reasonable period of time. If the defect proves to be insignificant,

thePurchaser is entitled only to a reduction in price. The right to reduce the agreed price is

otherwise excluded.

 

No warranty is given in particular in the following cases: unsuitable or improper use,

faulty assembly or commissioning by the Purchaser or third parties, natural wear and tear,

faulty or negligent handling, improper maintenance, unsuitable operating equipment,

lack of construction work, unsuitable construction site, chemical, electrochemical or

electrical influences - provided that they are not our responsibility. If the Purchaser

or a third party improperly repairs or refits the product we shall not be liable for the resulting

consequences. The same shall apply to any changes to the product made without our prior consent.

 

 

Defects of rights

If the use of the products leads to the infringement of industrial property rights or copyrights

in Germany, we will, at our expense, procure the right to further use or modify the product in 

a manner reasonable for the Purchaser so to end all infringement of rights.

 

 

If such a cause of action is not possible at economically reasonable conditions or within

a reasonable period, the Purchaser is entitled to withdraw from the contract. Under the

above conditions, we are entitled to withdraw from the contract too. In addition, we shall

release the Purchaser from undisputed or legally established claims of the protected proprietor.

In an event of rights infringement, the above mentioned rules obligations are

subject to Para. 6 of this Terms and Conditions.

 

They exist only when

 

- the Purchaser has immediately informed us of any alleged rights infringements,


- the Purchaser collaborates with us to an appropriate extent in our defense or to allow us to     

carry out the implementation of the modification measures according to the above rule,

 

- When we e are entitled to all means necessary and available, including out-of-court measures,

 

- The defect of rights is not based on a Purchaser`s specification,

 

- The defect of rights is not caused by a Purchaser`s unlawful alteration of the

product or an unlawful implementation of the product. 

 

6. General Limitation of Liability

We are liable for all our executives and other vicarious agents actions of the violation

of contractual and non-contractual obligations, in particular in cases of intent and

gross negligence. In all other cases our liability is limited to the contract-typical damage

foreseeable at the conclusion of the contract. These limitations do not apply in case of

culpable breach of essential contractual obligations in so far as the achievement of the

purpose of the contract is endangered, in cases of mandatory liability under the Product

Liability Act, in case of damage to life, body and health and also if and insofar

as we fraudulently concealed the matter or did not guaranteed it´s absence.

 

The rules on the burden of proof remain unaffected. Unless otherwise agreed upon, contractual

claims of the Purchaser against us on the occasion of or in connection with the delivery of the

goods shall become statute-barred one year after delivery of the goods. This period shall also

apply to goods which, according to their usual use, are used for a building and have caused

its defect. Our liability for deliberate and grossly negligent breaches of duty as well as the

limitation of statutory recourse claims remain unaffected. In the event of a repair or refit,

the limitation period shall not begin to run again.

 

7. Special arrangements for export                    

The place of delivery is determined according to delivery clauses agreed with the Purchaser.

All agreed delivery clauses are to be interpreted according to the current Incoterms,

currently Incoterms 2010. Unless a special delivery clause has been agreed, delivery

will always be made by FCA Herbrechtingen. Unless otherwise agreed, the risk shall

pass to the Purchaser at the time when the goods have been made available to him.

If the goods are transported to the Purchaser, the risk is transferred to the Purchaser

no later than the date on which the first carrier accepts the goods. If the

carriage of the goods is delayed as a result of circumstances beyond our control,

the risk shall pass to the Purchaser upon notification of readiness for dispatch.

At the request of the Purchaser, all deliveries shall be insured before the

transfer of risk on his account. In the event of a claim, we shall assign the

claims to the insurance to the Purchaser in contravention of performance

of the contractual obligations of the Purchaser.

 

8. Privacy Policy

All information in connection with the business relationship and the particular transactions

shall be processed in accordance with the legal provisions  of the German

Bundesdatenschutzgesetz (Data Protection Law). The Purchaser is aware that we store data

from the contractual relationship pursuant to Para. 28 Bundesdatenschutzgesetz

(Data Protection Law) for the purpose of data processing and reserves the right to transfer

the data to third parties (e.g. insurances) insofar as necessary for the fulfillment of the contract.

 

9. Miscellaneous

All agreements and amendments to the contract are only valid if confirmed by us in writing.

All rights and claims of the Purchaser from this contract may not be assigned to a third party

without our consent. The place of performance for all deliveries and services is Herbrechtingen.

If the purchaser is a enterprise, a legal person of public law or a public special fund, the court

of jurisdiction is either Heidenheim or the court competent according to legal regulations.

This shall also apply if at the time of the conclusion of the contract the Purchaser has no general

court of jurisdiction within Germany or if his place of residence or business abroad is transferred

abroad or his habitual residence is not known at the time the appeal is brought.

 

The contractual relationship is governed by German law, with the exclusion of the

UN Convention on Contracts for the International Sale of Goods (CISG). Should any of the

above provisions be or become invalid or unenforceable, the remaining provisions shall

remain unaffected. The parties pledge to undertake to replace the ineffective or impracticable

provision with a provision which is asclose as possible to the economic purpose pursued

of the invalid or unenforceable provision. This also applies in the event that the

above regulations contain a gap.