I. General
1. Unless otherwise regulated by agreement, our contracts shall without exception be based on the following terms and conditions. The party hereto will be deemed to recognise our terms and conditions upon placing an order.
2. We hereby reject contrary terms and conditions. These shall only apply if agreed in writing. Terms and conditions of the party hereto shall not become a component part of the contract even if we do not reject them again and we render the delivery/ performance owed under the contract.
3. Our business terms shall also apply for all future transactions with the party hereto.
4. Our business terms are available for inspection on our premises. We will send them to you free of charge on request.
II. Formation of contract, content
1. A contract shall not come about until we have confirmed the order in writing or executed the agreed performances. However, we shall be bound to communi cate any rejection of the purchase order immediately and in writing.
2. Our offers are made on a no-obligation basis. The party hereto shall be bound by his offer for no more than one month.
3. All agreements upon formation of the contract must be laid down in writing; no agreements other than those laid down have been made. The requirement for
written form is also agreed to apply for secondary agreements, undertakings and subsequent amendments, including cancellation of the contract.
4. The usual provisions of commercial contracts which refer to the nature of the sale (e. g. cif, fob,... etc.) shall be interpreted in accordance with the Incoterms of the International Chamber of Commerce in Paris as applicable upon formation of the contract.
III. Prices and payment
1. The prices are considered to be the value of the goods or services... excluding discounts and other rebates plus loading, packaging, carriage and any insurance to be contracted only by special agreement and plus value-added tax at the statutory rate.
2. Payment shall be made without deduction in “€” ... upon delivery or transmis sion of the invoice or other accounting document.
3. Interest on arrears will be charged at 5% p.a. above the applicable base rate as published in the Bundesanzeiger, and at 8% p.a. in the case of legal transactions not involving consumers. In supplement to the statutory regulations, we shall be entitled to levy a higher rate of interest on arrears if we provide evidence of a greater burden, unless the party hereto provides evidence that no default interest
loss occurred or that it was substantially lower.
4. Payment instructions, cheques and bills of exchange will only be accepted on account of performance if all discounting and collection charges are paid.
5. The party hereto may only set our claims off against counter-claims that are undisputed, recognised or determined with legal effect.
6. A right to refuse performance may likewise only be exercised in the case of counterclaims that are undisputed, recognised or determined with legal effect, and only if they arise from the same contractual relationship.
7. Terms of payment: unless otherwise agreed, cash in advance or delivery against presentation of an irrevocable letter of credit. Terms of delivery: ex works Ulm/ Saarlouis unless otherwise agreed.
IV. Delivery and delay in delivery
1. Commencement of the delivery period we have indicated presupposes that all technical issues have been clarified.
2. Timely and correct delivery to ourselves is reserved.
3. Delivery dates or periods which may be agreed as binding or non-binding must be indicated as such in writing. Delivery periods shall commence upon forma tion of the contract. If subsequent modifications to the contract are agreed, a new delivery date or a delivery period shall be agreed where necessary.
4. The delivery period shall be deemed observed if the delivery item has left our premises or notification of readiness for shipment has been sent by the time the
period expires.
5. If our default is the result of slight negligence, we shall not be liable to pay compen - sation unless liability is founded on fatal injury, physical harm or damage to health.
6. In the case of slight negligence, our liability for default shall be limited in the auxiliary to the foreseeable losses that typically occur.
7. In the case of force majeure, riot, strike, lock-out and considerable interruptions to operation for which we are not culpable, the dates and periods of time set out in Nos. 1 and 2 shall be extended by the duration of disruptions to performance occasioned by these circumstances, plus a reasonable start-up period.
V. Passage of risk, delivery, inspection, duty of notification
1. Notwithstanding any assembly obligations, the risk shall pass to the customer upon delivery to the shipping agent, but no later than upon leaving our premises.
2. The party hereto shall be bound to inspect the goods for defects – including in the case of resale – and to notify any defects in writing at once and within no more than 10 working days.
VI. Warranty
1. In supplement to the statutory provisions on improvement, we shall be entitled as follows in the case not only of inconsiderable material defects and deficiencies in title: we shall be entitled to make improvements 2 times. If the nature of the item or of the defect or the other circumstances indicate that the improvement has not yet failed and this is conscionable to the party hereto, we shall be entitled to make further improvements.
2. If the improvement has failed, the party hereto shall be entitled at his option to reduce the price or withdraw from the contract and to assert his right to compensation within the scope of statutory provisions.
3. The limitation period shall be 12 months.
4. The limitation period in the event that used items are sold shall likewise be 12 months.
VII. Exclusion of damages, limitation of liability
1. If our obligation to pay compensation is based on only a minor breach of substan - tive obligations under the contract, our liability to pay compensation and that of our statutory representatives or vicarious agents shall be limited to the foreseeable loss in typical contracts unless our liability is based on fatal injury, physical harm or damage to health.
2. If our obligation to pay compensation is based on only a minor breach of non-substantive secondary obligations under the contract, we shall not be liable to pay compen sation, nor shall our statutory representatives or vicarious agents, unless liability is founded on fatal injury, physical harm or damage to health.
3. In all cases of liability to pay compensation on the basis of a negligent breach of duty, irrespective of the legal grounds, our liability shall be limited to compen -
sation for the loss which we were able to foresee unless liability is founded on claims under product liability laws.
4. Our liability to pay compensation and that of our statutory representatives or vicarious agents is excluded in the auxiliary if we are charged with a slightly negligent breach of a contractual duty which is not sufficient in nature or consequence to endanger the purpose of the contract, unless liability is founded on fatal injury, physical harm or damage to health.
5. These provisions shall not apply to claims under product liability laws.
6. If action is taken against us for compensation under manufacturer’s liability according to § 823 BGB (claim founded in tort), our liability above and beyond
these provisions shall be limited to the damages paid by our liability insurer. The insured sum is that typical for the loss, contract or article. If the insurance policy
does not arise in full or at all, our liability shall continue to be limited by the amount of the sum insured. If the sum insured is not that typical for the loss, contract
or article, our liability in such cases shall be limited to the loss amount typical for the loss, contract or article.
VIII. Reservation of title
1. In all cases we reserve title to the delivery item until such time as all payments arising from the underlying supply contract are received.
2. We further reserve title to the delivered items until such time as all claims arising from the business relationship, including future claims, are met. The party hereto shall be bound in all cases to preserve the delivery items free of charge with the due care of a diligent businessman.
3. The reserved goods may not under any circumstances be pledged or assigned by way of security. We must be informed immediately in the event of attachments, confiscation or other dispositions by third parties and must be given the documents required for defence.
4. The party hereto shall further be entitled to process and to sell on the delivery item within the ordinary course of business provided that he is not in default. He hereby assigns to us upon formation of the contract of sale, to the amount of the invoice value of the reserved goods delivered, the claims accruing to him against his customers from the sale or on any other legal grounds.
5. If the value of the furnished securities exceeds our claims by more than 20 %, we shall be bound, at the request of the party hereto, to return securities chosen at our free discretion up to the amount by which the limit is exceeded.
6. Neither the redemption nor any attachment by us shall be considered with drawal from the contract. The party hereto shall be bound to effect surrender. The right of retention is excluded.
7. Sums which the party hereto collects on assigned claims shall be managed separately until transferred to us in order to exclude netting and/or set-off against
bank accounts held on the debits side.
IX. Choice of law, jurisdiction
1. All contracts shall be subject to the laws of the Federal Republic of Germany to the exclusion of the UN Sales Convention (CISG).
2. The place of performance for all mutual claims arising from the contractual relation ship shall be Ulm.
3. Our registered office shall be the place of jurisdiction for all claims arising from the business relationship, including actions on dishonoured cheques or bills, if the party hereto is a merchant. However, we shall also be entitled to pursue the party hereto at his general place of jurisdiction.