- 1. SCOPE OF THESE GENERAL TERMS OF SALE
These General Terms of Sale shall form an integral part of any contract for the sale by us of products or services (in each case the “Contract”). However, to the extent stipulations that form part of the Contract pursuant to Section 2 are in contrast with these General Terms of Sale these General Terms of Sale shall not apply.
- 2. CONTRACT
The contents of any Contract shall be established conclusively by our order confirmation. For these purposes the order confirmation shall be construed as including any stipulations expressly incorporated into the order confirmation by reference to any other document such as the order by the customer or those parts thereof to which the reference is so expressly made and excluding any general terms and conditions set by the customer to which such customer order or other document may refer unless to the extent such general terms and conditions have been expressly confirmed by us in the order confirmation or otherwise in writing.
- 3. SAMPLES AND INFORMATION ON PRODUCTS
3.1 A purchase according to sample is subject to commercially acceptable deviations or those falling within normal manufacturing tolerances. In the event of delivery of samples the condition of the samples shall not be deemed guaranteed unless expressly stated otherwise in the order confirmation.
3.2 No information as to our products provided shall constitute a warranty as to the quality of the products and any such information shall merely serve to describe and identify the products.
- 4. PRICES
4.1 All prices are net prices excluding VAT, which shall be additionally payable by the customer at the rate applicable at the date of delivery (irrespective of the rate that is specified in the Contract). In the event our supply to the customer is exempt from tax pursuant to § 4 no. 1 lit. b) § 6a of the Value-Added Tax Act Umsatzsteuergesetz) and § 17b of the Value-Added Tax Implementation Ordinance (Umsatzsteuerdurchführungsverordnung) applies, the customer shall, within thirty days of collection of the goods, issue and submit to us a certificate of entry (Gelangensbestätigung). In the event such obligation is not complied with within such period, the customer shall pay us the value-added tax. Section 9 below shall apply with respect to the customer’s obligations set out in this Clause 4.1 until such time when such certificate is so submitted or such value-added tax is so paid, respectively.
4.2 Unless otherwise expressly agreed upon (e.g. by reference to Incoterms), the customer shall bear the freight, special packaging costs exceeding the usual packaging, extra charges, customs and any other public duties.
- 5. TIME OF DELIVERY
5.1 Delivery periods (deadlines) shall commence at the date of our order confirmation but not before the parties have agreed on all details of the order and the customer has submitted any certificates that are necessary for us executing the order. 5.2 Without prejudice to any other rights from delays in the customer's contractual performance, our delivery periods (deadlines) shall automatically be extended by the length of any period during which the customer has failed to fulfil any of its obligations to us. If we fail to fulfil our obligations, our liability for damages for whatever cause shall be limited in accordance with the provisions of Section 11 below.
5.3 We are entitled to carry out partial deliveries if it is reasonable to expect the customer to accept them.
- 6. OBSTACLES TO DELIVERY
Cases of force majeure and other events beyond our control which substantially impair the supply or make it impossible, such as operational breakdowns, transport delays, strikes, lawful lock-outs, official measures (including export controls or sanctions) as well as insufficient, late or non-delivery of our own suppliers, shall release us from our contractual obligations. Temporary obstacles shall release us from our duties for the period during which the obstacle persists plus a reasonable start-up period. Unless the obstacle is temporary and it is reasonable to expect the customer to accept the delay in delivery, the customer shall be entitled to rescind the contract in accordance with the statutory provisions.
- 7. SHIPMENT, PASSING OF RISK, DELIVERY, TRANSPORT DAMAGE
7.1 Unless the Incoterms agreed to apply provide otherwise, shipment and transport are to be effected by the customer (EXW delivery) and, where it is agreed that they are to be effected by us, are at the customer's risk. Also in the event of partial deliveries, the risk shall pass to the customer as soon as the consignment has been delivered to the carrier or has left our premises in Frellstedt for shipment.
7.2 If the delivery of the consignment is delayed by a reason for which the customer is responsible, the risk shall pass to the customer as soon as the customer has been notified that the goods are ready for dispatch. All storage costs accruing after the risk has passed shall be borne by the customer.
7.3 To the extent shipment and transport are to be effected by us, the customer shall assure that it or its carrier are readily accessible to us or our carrier and prepared to take possession of the goods.
7.4 Unless the relevant section of shipment and transport are at the customer’s risk (e.g. pursuant to Clause 7.1 above), the customer shall object to the carrier with respect to any apparent damage actually or potentially occurred in the transport and cause the carrier to confirm that such damage has occurred.
- 8. PAYMENT
8.1 Payment shall be effected in Euro, free of postage or charges. Bills of exchange and cheques shall not be deemed to constitute payment until cashing. We accept bills of exchange and cheques without any obligation to present them to the clearing bank intime and without any obligation to raise objections in time.
8.2 Payments shall be effected net cash within 30 days of the date of invoice.
8.3 In the event of late payment, we shall be entitled to charge interest at the then current rate for bank overdraft facilities and, as a minimum, at a rate of 8 % above the applicable base rate. However, any of the Parties shall have the right prove that our actual loss is higher or lower than the rate that would apply pursuant to the above. Any further claims in case of late payment that we may have under the law shall remain unaffected.
8.4 The customer shall have no right to set any of its own counterclaims off against claims owed to us nor shall it have any rights to withhold payment, unless such counterclaim is undisputed or confirmed by a non-appealable judgement.
8.5 All claims owed to us including claims owed under other contracts entered into with the customer shall, regardless of the life of any accepted and credited bills of exchange, become immediately payable in the event of any default, bill protest or a suspension of payment by the customer or if other
circumstances come to our knowledge giving rise to reasonable and substantial doubts as to the customer's solvency or creditworthiness. This also applies where the relevant circumstance already persisted at the time when the Contact was entered into but we were not aware thereof. In all above cases we shall have the right to request advance payment or the provision of security for any outstanding deliveries and, unless such advance payment or security is received within 14 days from the date of our demand, we shall be entitled to rescind the Contract without setting further deadline.
- 9. RETENTION OF TITLE
9.1 All goods supplied shall remain our property (reserved goods) until all our claims outstanding against the Customer at the relevant time are satisfied, irrespective of the legal basis for such claims and the point in time when such claim came into existence and when it becomes due.
9.2 If the reserved goods are processed by the customer, we shall be treated as the manufacturer of the goods for the purpose of Sec. 950 of the German Civil Code. The reserved goods in their processed form shall be considered as reserved goods within the meaning of Clause 9.1. Where the reserved goods are incorporated into or mixed with other goods we shall be co-owners of such goods and our ownership share shall reflect the invoiced sales value of the reserved goods as against the sales value of the other goods used in producing the new goods. Should we lose our property as a result of the processing of the goods or its mixture with other goods, the customer herewith assigns its (co-)ownership rights in the goods to us and herewith agrees to store such goods free of charge to us. Any co-ownership rights arising under this Clause 9.2 are reserved goods within the meaning of Clause 9.1.
9.3 The customer is entitled to resell or process the reserved goods or to mix them with other goods (in the following referred to as 'resale') within the ordinary course of business providing it is not in arrears with its payments. Any other disposal of the reserved goods shall not be permitted. Any seizure of the reserved goods by third parties must be notified to us immediately. All costs of intervening in such claims shall be borne by the customer as to the extent to which they cannot be claimed from a third party (opponent in intervention proceedings) and always provided that the institution of intervention was justified. If the customer grants an extension for the payment to a subsequent customer, it shall retain title over the reserved goods on the same terms as those which apply to its own purchase from us. The customer shall not be required, however, to retain title over goods for the purpose of securing claims under future contracts. The customer shall not be authorized to resell the products other than in accordance with the foregoing.
9.4 If the value of our securities (in the case of claims for money, the nominal value of the relevant invoices, in the case of chattels the estimated value) amounts to more than 150% of the total debt owed to us by the customer, we are obliged, if so requested by the customer, to release securities of our own choice in this respect.
9.5 If we enforce our title to the goods, such action shall not be deemed to constitute a rescission of the contract, unless we expressly declare such in writing. The customer’s right to possession of the reserved goods shall cease if the customer fails to fulfil any of its obligations under this or another contract with us.
- 10. DEFECTIVE PRODUCT
10.1 Defects that are readily discernible upon inspection must be notified within ten days from the delivery of the receipt of the goods. Other defects must be notified within ten days of their detection. Any such notification must occur in text form.
10.2 Where a justified complaint about a defect is made within the period specified in the previous paragraph, we will supply goods which are free of defects. We may refuse so supplying other goods in accordance with the statutory provisions. If we refuse to supply other goods or these are equally defective or the customer cannot reasonably be expected to accept our supplying other goods, the customer shall be entitled to rescind the contract or reduce the purchase price.
10.3 In the event of a rescission by the customer pursuant to the third sentence of Clause 10.2, the customer shall be liable for any deterioration, destruction or loss of the goods that has been caused by any negligent or intentional action or omission of the customer.
10.4 The limitation period for any rights (aforesaid or otherwise) in connection with defects of the product other than claims for damages (cf. Clause 11.5) shall be twelve months.
10.5 Any rights of the customer to damages or compensation for costs incurred are subject to the provisions in Section 11 below.
10.6 If we maliciously fail to disclose a defect or have warranted that the goods will be of a particular quality at the time the risk passes, the rights of the customer shall be governed exclusively by the statutory provisions.
10.7 Notwithstanding any other statutory rights entitling us to refuse to remedy a defect, we shall be under no obligation to remedy any defect unless and until such time when the customer has complied with our request to return the allegedly defective good or a sample to us. Such a refusal shall not entitle the customer to rescind the contract or reduce the purchase price. The customer shall have no contractual rights arising out of any defects of the goods if it has in any way altered the goods without our approval, unless it can show that the defect in question was not caused by such alteration of the goods.
- 11. LIABILITY FOR DAMAGES AND COMPENSATION FOR COSTS/EXPENSES INCURRED
11.1 In the event of a breach of our pre-contractual, contractual or non-contractual duties, in the case of inadequate deliveries, including defective deliveries of unascertainable goods, tortious acts or any breach of our duties as a manufacturer (product liability), we shall not be liable to pay damages and/or
compensation for costs incurred, unless such a breach is caused intentionally or grossly negligently by us or, in cases of minor negligence on our part, if such negligence constitutes a breach of an essential contractual obligation (an obligation the satisfaction of which is a prerequisite for the proper
implementation of the relevant contract and on the satisfaction of which the customer must be able to rely). In the absence of an intentional breach, such liability is limited to typical losses which are foreseeable at the time the contract is entered into.
11.2 Our liabilities for losses caused by late delivery due to minor negligence shall be limited to 5% of the agreed purchase price.
11.3 We shall not be liable if we fail to fulfil non-essential contractual obligations due to minor negligence. In any event, liability in such cases shall be limited to the amount of the purchase price, without prejudice to Clause 11.2.
11.4 The exclusions and limitations of liability in Clauses 11.1 to 11.3 shall not apply in cases where we have given a guarantee regarding the qualities of the goods (see Clause 10.6), in cases where we have maliciously failed to disclose a defect, where losses result from damage to life, health and physical injury or where the laws on product liability impose overriding liabilities which cannot be excluded.
11.5 The limitation period for all claims for damages against us, whatever the legal basis, is 12 months from the date of delivery to the buyer. For claims based on tort the limitation period shall commence with knowledge or gross negligent ignorance of the party liable and the grounds giving rise to a claim. The provisions in this paragraph shall not apply to intentional breaches nor to the cases referred to in Clause 11.4. Where shorter limitation periods are provided for by statute, these shall override the periods specified above.
- 12. PLACE OF PERFORMANCE, VENUE AND APPLICABLE LAW
12.1 The place of performance for delivery and payment shall be Frellstedt.
12.2 Jurisdictional venue for any disputes arising from this contract shall be, in our discretion, either Braunschweig or the customer's principal office. The venue for customer’s legal action shall in any case be Braunschweig. Any statutory regulations governing exclusive jurisdictional competence shall remain unaffected.
12.3 Legal relations between us and the customer shall be construed in accordance with the laws of the Federal Republic of Germany. The UN Convention on Contracts for the International Sale of Goods (CISG) and any other international agreements, even where incorporated into German law, shall not
apply.
Version 2024 July