Terms and conditions of sale and delivery
Our terms and conditions of sale and delivery below exclusively apply to business people pursuant to Section 1 HGB - German Commercial Code (Handelsgesetzbuch) and to legal persons under public law or special funds under public law that are business people within the meaning of the German Civil Code (Bundesgesetzbuch, BGB).
Our terms of delivery and payment, which our clients accept by placing an order, apply exclusively for current and future transactions, even if they are not explicitly referred to but they have been received by the buyer in an order we have confirmed. If an order is issued and deviates from our terms of delivery and payment, only our terms of delivery and payment apply, even if we do not object. As such, deviations only apply if they have been explicitly recognised by us in writing.
Our sales employees and systems consultants only have the power to enter into and conclude agreements and are not authorised to make verbal subsidiary agreements or give verbal assurances that go beyond the written purchase agreement. They are in particular not authorised to give warranty statements or to assure features without written authorisation. All agreements between us and the buyer for the performance of this Contract are binding if they are set out in writing.
1. Scope of delivery obligation
Our offers are non-binding and subject to prior sale, unless otherwise explicitly stated. Changes to be in line with technological advancement remain reserved if they are reasonable for the buyer.
2. Prices and payment terms
Unless otherwise agreed, our prices include packaging costs, transport insurance, freight and set-up.
If delivery or completion time is 4 months or less from the date on which the Contract is concluded, the prices set out in the Contract apply. If longer delivery periods have been agreed, we calculate the prices valid on the delivery date if the price increase is appropriate and reasonable for the buyer pursuant to Sections 315 and 316 BGB. If the price adjustment has been reserved in the event of an exchange rate change, we are entitled to charge for the goods at the exchange rate applicable on the delivery date.
Unless otherwise agreed, our invoices are payable without deduction upon delivery of the goods.
All payments must be made with a debt-discharging effect to the bank details of Coface Finanz GmbH, Isaac-Fulda-Allee 1, 55124 Mainz, to whom we have assigned our current and future claims arising from our business relationship. We have also transferred our reserved property to this institute.
Cheques or bills of exchange are only accepted as conditional payment; we explicitly reserve the right to reject bills of exchange. Discount and exchange charges must be borne by the buyer and are due immediately. If cashless payments are made, payment of the amount into our account determines the timeliness of the payment.
Any discounts or reductions granted are conditional on complete payment on time within the term of payment. They in particular no longer apply if the buyer defaults on payment for a receivable from the business relationship either in whole or in part. In this case, all receivables that arise from the business relationship are due immediately.
If, after being notified of the goods being ready for dispatch, the buyer still defaults on acceptance of the purchased item or issuing of shipping instructions or the shipping address, or fulfilment of its payment obligations or the provision of the agreed security after the grace period, we are entitled to reject the fulfilment of the Contract and demand compensation for non-fulfilment or withdraw from the Contract. Irrespective of the option to establish higher actual damages, we may claim 20% of the sales price as compensation due to non-fulfilment without evidence. The buyer reserves the right to furnish evidence that only minor damage was caused.
If the buyer defaults on payment, we may charge interest in the amount of 8 percent p.a. above the applicable base rate, but at least 10% p.a. without evidence. The establishment of further damage remains reserved.
3. Retention of title
The supplied goods shall remain our property until payment is received in full with respect to our receivables against the buyer from the business relationship, including delayed interest payments and legal costs. The buyer is only entitled to resell reserved goods in the ordinary course of business if it assigns all receivables arising from the resale, including future receivables, to us upon conclusion of the respective underlying contract. If reserved goods are reworked or mixed or processed with items that are the property of the buyer or third parties, the buyer hereby assigns to us the receivables from the resale in full with all ancillary rights. If third parties co-own the goods, receivables shall be assigned up to the value of the reserved goods as a minimum. We accept the assignment. The buyer is obliged to provide us with complete information regarding the existence of assigned receivables and details concerning the third-party debtor without undue delay and, if necessary, to disclose its sales documents.
The buyer is irrevocably entitled to also collect these receivables after assignment. Our authority to collect receivables ourselves remains unaffected. However, we are obliged to not exercise this option if the buyer properly meets its payment obligations and other obligations (obligation to provide information and disclosure obligations).
The buyer carries out any reworking or processing of reserved goods for us without this resulting in obligations for us. If reserved goods are processed, combined, mixed or blended with other goods that do not belong to us, we have a co-ownership share in the new item that is proportionate to the value of reserved goods to the other processed goods at the time of processing, combining, mixing or blending. If the buyer acquires sole ownership in the new item, it shall grant us co-ownership in the new item in aforementioned proportion and shall store it for us free of charge.
At the buyer’s request, we are obliged to release reserved goods if and to the extent that the value of the current securities exceeds the outstanding receivable amount by 20%.
If reserved goods are pledged or seized, or otherwise accessed by third parties, the buyer is obliged to notify us immediately and remove the threat. If required and relevant, the buyer must assign its claims to us. The buyer must reimburse us or release us from any costs that arise in connection with the release or movement of goods.
We are entitled to withdraw the reserved goods at any time if the buyer breaches the Contract or defaults on payment, and the buyer is obliged to surrender those goods. We are entitled to establish rights to the selection or assignment of the claim to consideration in insolvency proceedings if the buyer jeopardises the fulfilment of our receivable, particularly if insolvency proceedings are applied for or commence over its assets. In this case, the buyer must provide information regarding the location of the reserved goods without undue delay. The buyer waives its right to ownership to this extent today; we accept this waiver. Withdrawal of the reserved goods by us does not result in a withdrawal from the Contract unless the German Hire-Purchase Act (Abzahlungsgesetz) applies.
4. Delivery period
Delivery periods or deadlines that may be agreed as binding or non-binding are always given in writing.
Force majeure, strike, war, involuntary inability on the part of our suppliers, extends the delivery period by the duration of the impediment.
The buyer may request that we deliver goods within a reasonable period of at least two weeks after a non-binding or delivery date deadline is exceeded. The buyer may only exercise legal rights if this grace period has passed without success.
5. Transfer of risk
Risk transfers to the buyer as soon as the consignment has been transferred to the person responsible for transportation or has left our premises for shipment, regardless of whether dispatch is from the place of performance and who bears freight costs. If the goods are ready for dispatch and dispatch or acceptance is delayed for reasons for which we are not responsible, risk transfers to the buyer upon receipt of the ready-for-dispatch notification. The goods are generally insured against transport damage at the buyer’s expense unless other instructions are issued by the buyer.
Packaging is charged at cost; reusable packaging is pro-rated.
Packaging shall not be taken back unless reusable packaging marked as such by us is used. Such reusable packaging must be returned or sent back to us by the buyer at no charge to us. If, based on the German Packaging Ordinance (Verpackungsverordnung), there is also a take-back obligation, the buyer must assume this in full and indemnify us in all respects.
If a fixed fee has not been agreed for the costs of set-up or installation of the purchased item, billing is based on hourly rates plus daily allowances and travel expenses, as per the applicable price list. Travel time is working time. Installation must be carried out unimpeded in one work process. Overtime or waiting time is billed as a fixed fee on agreement unless this has been caused by us.
8. Warranty for defects, liability
8.1 We provide a warranty for the goods being free from defects on the following terms. The buyer is always obliged to inspect the delivered goods and to report obvious defects to us in writing without undue delay, but no later than two weeks after delivery. We may reject delayed notices of defects. As a sign of goodwill, acceptance of delayed notices do not establish a future claim if we do not refer to them. Notice must be given of hidden defects as soon as they are found. The buyer must provide us or our representatives with the defective item for inspection during usual business hours.
Complete devices meet the FTZ/FTA provisions. If legal, official or other business or safety provisions apply, the buyer is responsible for observing them.
8.2 If we are responsible for a purchased item being defective, we are entitled to supplementary performance through repair or replacement. With respect to remedial action, we are obliged to bear the costs required, with particular reference to transportation, road costs, costs of labour and materials, unless these are increased by the purchased item being transported to a location other than the place of performance. If an item is replaced, we must be granted a reasonable delivery deadline. Any further liability during supplementary performance is excluded with the exception of liability for personal injury, for which we are liable pursuant to point 8.5. The buyer may only exercise the other rights listed in Section 437 BGB if supplementary performance is unsuccessful or further attempts are unreasonable.
8.3 If we are unwilling or unable to carry out remedial action or make a replacement delivery, particularly if this is delayed beyond reasonable deadlines for which we are responsible, or if remedial action or a replacement delivery otherwise fails, the buyer is entitled to withdraw from the Contract or demand a corresponding reduction of the purchase price, at its discretion.
8.4. Unless otherwise stated below, further buyer claims are excluded - regardless of the legal grounds. We are therefore not liable for damages suffered that did not occur in relation to the actual delivery item. In particular, we are not liable for loss of profits or other financial losses suffered by the buyer.
8.5 The above-mentioned exemption from liability does not apply if the cause of the damage is based on intent or gross negligence by our executives, bodies or agents. It also does not apply if assurances were made for features, including consequential loss, and the damage suffered was based on the absence of these. However, in these cases, our liability to pay damages is restricted to foreseeable damages. We are liable without limitation for damages resulting from injury to life, limb or health if these are based on a negligent breach of duty by us or a grossly negligent or intentional breach of duty by a legal representative or agent.
8.6 If we negligently breach an essential contractual duty, our liability to pay damages with respect to material damages is limited to our product liability insurance compensation. This also particularly applies to damages resulting from the breach of duties before or during contractual negotiations or after the conclusion of the Contract, particularly also for negligence when selecting the mode of transport or the transport route. The buyer will be able to view our policy on request. However, in these cases, our liability to pay damages is restricted to foreseeable damages. In addition, and beyond the scope of liability provided for in points 8.4 and 8.5, our liability to pay damages is excluded to the extent permitted by law.
8.7 Warranty claims become time-barred 12 months after risk has transferred. This deadline also applies to claims for compensation for consequential damages, unless claims are established in tort.
If we are obliged to resupply the good(s) based on the above-mentioned provisions and/or legal provisions, the buyer must compensate for the added value resulting from technical improvements in comparison to the original delivery unless product improvement does not result in the buyer’s position objectively improving.
9. Damages in transit
If goods are delivered by a carrier, the rail or post, the goods must be inspected without undue delay. The rail company, postal service or the respective carrier and the seller must be informed of any damage in writing without undue delay. If possible, complaints must be made on delivery. A carrier must be in possession of the damage notification no later than the 6th day following delivery. The buyer is responsible for complying with these obligations.
10. Assignment of receivables and claims
The buyer may assign its contractual rights to third parties without explicit consent.
We are entitled to assign the claims from other business relationships.
If one or more of these contractual terms and conditions or other agreements are invalid or void, the validity of the Contract and the remaining contractual terms and conditions shall remain unaffected.
12. Place of jurisdiction/choice of law
At our discretion, the place of jurisdiction is the head office of our company or Mainz.
The contractual relationship is exclusively subject to German law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.