General Terms of Trade
1. Scope of application
The customer declares its agreement with our General Terms of Trade (GTT) upon issue of the order. Other contractual arrangements do not apply, even if particular regulations are not contained in our GTT. In no case can silence towards any GTT of the customer be construed as agreement. In particular, the delivery or the provision of contractual performance does not represent implied consent with the customer's GTT. In the case of merchants, these GTT also apply to all future business relationships between the parties. Contractual provisions agreed individually within the contractual relationship have priority over the GTT.
2. Offer and conclusion of contract
Our offers are non-binding and without obligation. Orders are not binding until confirmed by us in writing. The documents belonging to an offer, such as diagrams, drawings, details of weight or measurements or other technical data and any DIN, VDE or other internal or external standards and samples referred to, are approximate values normal in the industry, unless these are designated as binding in the confirmation of order. In no case do such statements represent guarantees of characteristics or durability. Deviations in the ordered or delivered goods from the order due to technical progress, in particular with regard to materials and execution, are expressly reserved. Our written confirmation of order is decisive for the content and scope of the contract. Auxiliary agreements, changes, supplements etc. require our written confirmation. If goods are delivered or services provided later than 4 months after conclusion of contract and wage or material costs or the prices of our sub-suppliers rise after the contract was agreed, we are then entitled to increase the contractual price accordingly.
Over or under deliveries of up to +/- 10% of the ordered quantity are reserved for technical reasons.
3. Product notes
We accept no liability for print errors or colour fluctuations to those products depicted in the catalogue. Technical and optical amendments to products during the validity of the catalogue are reserved.
4. Prices, conditions of payment
The prices are ex-works or our ex-sales office, including loading in the works or our sales office, although excluding packaging, dispatch costs and the value-added tax to be borne by the customer. In principle, our invoices are payable in € free of charges. For the rest, the conditions of payment in the confirmation of order apply. If the payment deadline is overshot, default interest is payable at 8% above prevailing basis interest rate of the German Bundesbank. The same applies to prolongation of debts. If we have several claims against the customer, we decide which debt the payment will be offset against (also with allocation to a running account). If the customer makes use of a central settlement company, the debtclearing settlement of invoice first occurs when the payment has been credited to our account.
Offsetting against our claims is not permissible unless the customer can offset a claim that has been established under law or has been expressly recognised by us. The same applies to merchants in pursuing rights of retention to the sums stated in our invoices. In respect of court action for claims to payment filed by us, the right to initiate a counter-action is excluded for merchants.
The delivery dates quoted by us are non-binding unless we have expressly confirmed these in writing as binding delivery dates.
Deliveries and services which are not made or provided or are delayed due to circumstances for which we are not responsible, including operational breakdowns, strikes, lock-outs, traffic hindrances or other basically unforeseeable obstacles, which occur at our premises or those of our sub-suppliers, entitle us to delivery accordingly later or to withdraw from the contract in full or in part, without any claim to damages accruing to the customer on this account. The same also applies if the said events occur at a point in time at which we are in default. In case of a delayed delivery which is unreasonable for the customer to accept, the customer is then also entitled to withdraw under the exclusion of claims to damages. If we are in default of delivery or provision of service, the customer is entitled to withdraw from the contract after a reasonable period of grace set for us of at least 4 weeks, although aligned to production, has expired. Withdrawal shall be announced in writing in all cases. Should the default be restricted to a part delivery or service, the right of withdrawal is then limited to the part concerned, providing such a limitation of the right of withdrawal does not affect the rest of the contract from an objective viewpoint.
In the case of merchants, the liability to recompense damages due to default is limited to a default compensation of 0.5% of the value of the (part) delivery or service concerned for each completed working week of delay up to a maximum 5%. Where other contractual parties are concerned, the liability to recompense damages due to default is limited to malice aforethought and gross negligence. We are entitled to make part deliveries and, under the proviso of appropriate notification, also make early deliveries. All our goods which come to be dispatched are processed for the account and risk of the customer, the latter also if freight-free delivery has been agreed. If goods shipments are damaged or incomplete, the competent insurance agent shall be called in immediately after receipt to appraise the facts. The risk of accidental loss is transferred to the customer upon handover of the goods to the carrier, although at the latest upon leaving the works. In case of default of acceptance, we are entitled, at our own discretion, to store the goods at the cost and risk of the customer or charge our own storage cost or levy a contractual fine of 10% of the sales value of the products. The customer's shipping instructions are not binding unless these have been agreed in writing. Otherwise we shall make deliveries to our own best judgement and under any exclusion of liability for the choice of the method of shipment.
6. Packaging, brands, protected rights
The customer alone is responsible for observing and complying with all packaging instructions and duties of product designations and notices. The customer shall ensure that the rights of third parties are not infringed in the context of its order and promises to release us from third party claims.
The customer is not authorised to alter our brands, to use these beyond the sale of the goods or mark the delivered goods with other brands/trademarks. Changes to the packaging design of our goods and every type of re-packaging, such as blister packaging, skins etc., are inadmissible unless we have given our express consent in writing. We have the right to limit our approval by time, to restrict this to certain goods and packaging, to impose certain conditions for fulfilment and/or to revoke an approval declared in the past for future deliveries. Exceptions to this are special manufactures and all articles with special printing. If, at the customer's request, articles are ordered with the customer's trademark or that of a third party, the customer shall ensure that it disposes over the unrestricted rights of use. If, despite this, a third party pursues claims, the customer shall then release us from these claims in full scope without delay.
7. Warranty, liability
The regulations listed below apply to our warranty and other liabilities with regard to defects in our deliveries or services, including falsely supplied deliveries or services. Complaints about our deliveries or services, including false deliveries, shall be notified to us in writing within one week after receipt of the goods or provision of the service, or in the case of concealed defects, within one week from the discovery of the defect, insofar as the customer is a merchant. If complaints of obvious defects are not made, not lodged in time and/or in the proper form, the warranty expires in this respect.
Our warranty liability expires if the objects supplied by us are repaired or changed without our collaboration, or if the instructions of use or storage are not observed. If we use parts supplied by the customer, we are solely liable for the assembly work and the parts produced by us. If manufactures are produced to specifications, recipes, instructions, trademarks, packaging material etc. and/or printed documents received from the customer, we are only liable for the production work. If third parties pursue liability claims against us due to reasons which lie not in our production sphere, but rather in the sphere attributable to the customer, the customer is then obliged to release us from such claims.
Our liability for damages caused by third party manufactures is initially limited to assigning the claims which have accrued to us against the sub-supplier, order processor inter alia, and only a subsidiary liability arises. In case of justified complaints, the customer initially has the right to demand subsequent fulfilment. We have the right to decide, at our own discretion, whether to deliver the object anew or to rectify the fault within a reasonable period of time. If an attempt at subsequent fulfilment fails, we then have the right to choose, at our own discretion, a new method of subsequent fulfilment.
If neither re-work nor a replacement delivery succeeds, the customer is then entitled to withdraw or to demand a reduction in the remuneration commensurate to the relevance of the defect. In all cases of justified complaints, claims extending beyond those of re-work or replacement deliveries (e.g. claims to damages resulting from warranty or from positive infringement of contract, culpability during contract negotiations or tortuous liability due to impossibility, delay, failure or non-performance of the re-work or replacement delivery) are restricted to malice aforethought and gross negligence. The customer must demonstrate the reasons for and the amount of damages incurred. The same applies to futile expenses. The customer's legal rights of recourse against us exist only insofar as the customer has made no agreements extending beyond the legal claims arising from a defect with its purchasers.
Where separable deliveries or services are involved or if the defect only concerns part of a functional unit, the right of withdrawal is limited to the part in question. The pursuit of warranty claims does not influence the obligations and deadlines of payment. Non-merchants can only pursue warranty claims within a reasonable scope in consideration of the defect. If the customer does not fulfil or is late in its duties of payment, our duties regulated above are placed in abeyance until the duty of payment has been fulfilled. In case of justified complaints, our liability is limited in the maximum case to the value of the defective goods supplied by us. The warranty period extended to merchants is 12 months after the transfer of risk, or in case of works contracts concerning fungible objects, from the time of commissioning, although at the latest 24 months from the dispatch or provision of service. The warranty for parts supplied which are subject to premature wear or consumption due to their material characteristics or their type of use only extends to the period normally applicable in each case. The customer must always prove that the defect was present at the time of dispatch.
8. Reservation of title
The goods delivered remain our property until all present and future claims which accrue to us from the business relationship (irrespective of the legal reasons for these, thus also including any claims from bills of exchange and claims acquired from third parties) have been paid in full. In the case of running accounts, our securities serve to secure the respective balance claim.
If the customer acquires sole or co-ownership by combining or processing our delivery (with other deliveries), we acquire ownership in the ratio that our delivery stands to the other combined objects. The goods are processed pursuant to § 950 BGB on our behalf, yet without any obligation on our part. If our (co-)ownership lapses because of combining or processing, it is agreed even now that the customer's (co-)ownership of the uniform object is transferred to us proportionate to value. The customer shall safeguard our (co-)ownership free of charge. Should this clause collide with clauses laid down by the suppliers of other components used, the goods are then processed jointly for all and our share is established by the ratio of our delivery to the rest. Safeguarding is free of charge in every case. The value of our delivery is determined by our price of performance, including value-added tax and without deduction of discount. Goods to which we have (co- )ownership rights are referred to below as reserved goods.
Exploitation or collateral assignment of the goods supplied by us and/or in our ownership is prohibited until all claims to payment against the customer which accrue to us from the business relationship have been satisfied. Re-sales are furthermore prohibited unless the customer acquires the reserved goods supplied by us for the purpose of re-sale. In this case, it is revocably authorised to re-sell the reserved goods in regular business transactions in own name, insofar as the claim arising from the re-sale can be assigned. If the reserved goods are resold, the customer even now assigns to us the claims resulting from the re-sale to the value of the reserved goods supplied by us along with all auxiliary rights, regardless of whether the reserved goods were sold with or without combining and/or processing. We except the assignment. The same also applies to cases in which a re-sale was not permitted under the foregoing restrictions. After the assignment, the customer is revocably authorised to collect the claims. Our authority to collect the claims ourselves is not affected by this. Thus upon our request, the customer is obliged to provide information on the assigned claim and its debtor without delay, and to give all the details necessary for independent collection of the assigned claim, submit the associated documents and notify the third party debtor of the assignment.
We are authorised, in the name of the customer, to inform the third party debtor of the assignment of claim. Should the purchaser infringe the contract – in particular by default of payment – we are entitled to withdraw from the contract and take back the reserved goods.
Taking back the reserved goods is not regarded as a withdrawal from contract. The latter solely applies if we expressly declare this in writing. We are not obliged to set a period of grace before taking back the reserved goods. If the securities due to us under the reservation of title exceed the value of the claims to be secured by more than 20%, we shall then, upon request, release appropriate securities. If third parties serve attachments to the reserved goods, in particular seizures, the customer shall make reference to our ownership and notify us immediately to enable us to protect our rights of ownership. If the third party is not able to refund the judicial or extra-judicial costs that we incur in this context, the customer is liable for such costs.
Claims against us which the customer accrues from the business relationship may not be assigned.
10. Place of fulfilment and jurisdiction
The place of fulfilment for all deliveries and payments is Heroldsberg. The place of jurisdiction is Nuremberg. However, we are also entitled to take action against the customer at the court responsible for its place of business or residence. The contractual relationship, particularly in the case of international deliveries, is subject solely to German law to the exclusion of UN Commercial Law. Should one of the foregoing provisions be unworkable in full or in part, this shall not affect the validity of the remaining provision(s) or of the contract as a whole.