This is a translation of the German terms and conditions: AGB Geschäftskunden
1.1 These terms and conditions of sale shall apply exclusively. Differing or contrary terms shall not apply except if expressly agreed upon in writing.
1.2 These terms and conditions of sale shall also govern all future transactions between the parties and shall also apply if we perform delivery despite our knowledge of differing or contrary terms.
1.3 These terms and conditions of sale shall only apply vis á vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).
2. Offer, Acceptance
2.1 Our offerings are subject to change, the agreement shall only come into effect upon receipt of our order confirmation or when the order is carried out. Changes in price or cost (e.g. salary increases as agreed by collective agreement or material cost increases) entitle us to adjust our prices. Provided such change occurs after an order confirmation, we are entitled to withdraw, as far as the customer does not agree to a price adjustment.
2.2 The cabinets and enclosures depicted are configuration examples. These are not identical with the scope of delivery. The right to make technical changes is reserved.
3. Prices, Payment
3.1 Except as otherwise stated under the terms of any quotation or unless otherwise agreed in writing all prices are ex works („ex works“, Incoterms® 2010), exclusive of the respective statutory VAT and exclusive of costs for packaging. Transport and packaging costs will be calculated separately, and the respectively applicable VAT applied separately.
3.2 The purchase price is due and payable net within 30 days from the date of the invoice. From the due date default interest in the amount of 9% above the respective base interest rate p. a. shall accrue. We reserve all rights to claim further damages for delay.
3.3 Payments to agents or our employees shall only be effective if a written authorization to receive money or a receipt from us is submitted.
3.4 First orders to new clients shall generally only be made with cash on delivery (standard products) or with advance payment (customized products). We reserve the right to specify the terms of payment for future deliveries after submission of a completed customer datasheet and credit assessment.
3.5 Our prices set a minimum order value of € 200,00 ahead. Require orders below this value therefore a small quantity surcharge of € 30,00.
4. Offset, Retainer The customer shall be entitled to offset or to claim retainer rights only insofar as the customer’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgment. Additionally, the customer is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
5.1 Delivery of the goods shall be made by the customer collecting the goods at our premises after we have notified the customer that the goods are ready for collection („ex works“, Incoterms® 2010) or, if agreed otherwise by us delivering the goods to the agreed place.
Delivery is conditioned upon timely and proper performance of all duties of the customer. Defences based on non-performance of the contract are reserved
5.2 In case of default in acceptance or other breach of duties to cooperate by the customer we are entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the customer at the time of such default or breach of duty to cooperate.
5.3 In the event that the financial circumstances of the ordering party deteriorate significantly (e.g. protest of bill of exchange, application to open insolvency proceedings, submission of affidavit, etc.) as well as any disclosure of insufficient credit worthiness, we are entitled to request advance payments or the provision of security or to withdraw from the agreement.
6. Passing of Risk, Shipment
6.1 Risk of loss or damage to the goods shall pass to the customer as follows:
– In the case of goods to be delivered otherwise than at our premises, at the time of delivery, or if the customer wrongfully fails to take delivery of the goods, the time when the seller has tendered delivery of the goods;
– In the case of goods to be delivered at our premises (“ex works”. Incoterms® 2010) at the time we notify the customer that the goods are available for collection.
6.2 Unless otherwise specifically agreed upon, the means of transportation (shipping company, package service, post, etc.) shall be selected by us.
6.3 The delivery deadline is kept if, by its expiration, the subject of the agreement has left the factory or if we have declared that the subject of the agreement is ready for dispatch.
6.4 If we fall in default of delivery, we shall have an extension period of two weeks. In the case of force majeure (e.g. operational failures, difficulties with raw materials, war, strikes, etc.), we are released from the delivery deadline.
7. Withdrawal, Request of Partial Delivery
7.1 If our contractual partner withdraws unauthorized from the agreement or unauthorized refuses satisfaction of the agreement, the contractual partner shall be obligated to pay 15 % of the gross value of the order as a lump sum in compensation unless it can prove that no damages were incurred or that damages were not incurred in this amount. The right to claim further damages is expressly retained.
7.2 Orders may then only be requested for delivery in partial quantities if this has been expressly previously agreed. Partial deliveries are excluded if the total order value is less than € 2,500.00 net, the term of the order is over six months and a single request for delivery amounts to a delivery value of less than € 1,000.00 net. If the ordering party withdraws unauthorized from the agreement, refuses satisfaction of the agreement or we are entitled to claim for damages, the regulations of aforementioned paragraph 1 shall apply. If we request neither satisfaction nor damages, we reserve the right to recalculate the prices of the quantities requested for standard parts, at the prices which would have been calculated had the order been restricted to this quantity at the onset. If the order concerns customized products, we insist on satisfaction of the order in any eventuality. Prices offered or confirmed for larger procurement quantities can not be claimed for smaller quantities. Decreased or increased efficiency of 10% of the order volume is permissible for customized products.
8. Retention of Title
8.1 We retain title to the delivered goods until receipt of all payments in full regarding the purchase agreement. In case of breach of contract by the customer including, without limitation, default in payment, we are entitled to take possession of the goods.
8.2 A forementioned title retention shall also apply to all claims from current and future business connections with the customers, including any current accounts.
8.3 The customer shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
8.4 As long as the purchase price has not been completely paid, the customer shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances
8.5 The customer may resell goods subject to the above retention of title only in the course of his regular business. For this case, the customer hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to us. Notwithstanding our right to claim direct payment the customer shall be entitled to receive the payment on the assigned claims. To this end, we agree to not demand payment on the assigned claims to the extent the customer complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments. Storage of goods delivered under retention of title shall be at the cost and risk of the customer. Decrease in value of such goods shall be borne by the customer.
8.6 Insofar as the above securities exceed the secured claim by more than 20%, we are obligated, upon our election, to release such securities upon the customer’s request.
9.1 The customer is obligated to inspect the goods immediately upon receipt of delivery and to submit defects or deviations in quantity without delay – at least within 5 days of receipt of delivery – to us in writing. The deadline shall be met by receipt of the report of defects to us. Otherwise, the goods shall be deemed as accepted and approved regarding such defect or deviation in quantity. If defects or deviation in quantity are not recognized during the inspection mentioned above and are established later, declaration thereof must be made without delay within one week after discovery at the latest. Otherwise, the goods shall be deemed as accepted and approved also as regards such defect or deviation in quantity.
9.2 In the event of founded complaints, we resolve at our discretion pursuant to sec. 439 BGB (German Civil Code) the defect or deliver a replacement. If resolution of a defect fails, the ordering party can demand delivery of a defect-free product or reduction of the purchase price or withdraw from the agreement.
9.3 If inspection of a complaint determines no defect, we are entitled to charge the ordering party for the costs incurred.
9.4 The customer is obligated to inform us without delay of any expected claims resulting from a supply chain. Complaints concerning a part of a delivery do not justify complaints regarding the entire delivery.
9.5 Warranty claims expire by limitation within 12 months after delivery of goods.
10.1 Any liability not expressly provided below-mentioned shall be disclaimed as far as permitted by law.
10.2 In case of intent or gross negligence on our part or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally our liability for damages shall be limited to the typically predictable damage.
10.3 Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected
11. Customer’s Obligations
11.1 The customer accepts the obligation to dispose properly of the delivered goods after the end of usage at its own cost and in accordance with legal regulations. The customer is obligated to keep us indemnified against all obligations under sec. 10, para. 2 ElektroG (Electrical and Electronic Equipment Act) (Take-back obligation of the Producer) and from any claims to which third parties are entitled thereunder.
11.2 The ordering party shall bear partial costs for special tools and related machinery and programs. The partial cost for tools shall be due at the latest upon presentation of the sample produced with the tool and must be paid in the net amount within 10 days of the date of invoice. These special tools, machinery and programs shall remain our unlimited property.
12. Final Clauses
12.1 This contract shall be governed by the laws of the Federal Republic of Germany excluding the Convention on Contracts for the International Sale of Goods (CISG).
12.2 If the conditions for a court agreement pursuant to sec. 38 ZPO (German Code of Civil Procedure) have been met, then the court of jurisdiction for all claims by the contractual partner shall be – depending on the value of the subject matter – Amtsgericht (District Court) Brandenburg an der Havel. We are entitled at our discretion to file an action against the customer at all his places of jurisdiction weather to German law or the national law of the customer.
12.3 If any individual provision herein is or becomes ineffective, the validity of the remaining provisions shall remain unaffected thereby. Contractual partners shall be obligated to replace an ineffective provision with a new provision that is as close as possible to the fiscal meaning and purpose of the ineffective provision.
12.4 In case of doubt to the interpretation of these general terms and provisions the German version shall obtain.