1. Offer and Contract
1.1 Seller’s offers are not binding. All prices mentioned in price lists and other sales material are subject to change.
1.2 A purchase contract comes into existence by means of Seller’s written order confirmation. The contract is governed exclusively by these Conditions which are acknowledged by the Buyer by means of his order or acceptance. Purchase and other conditions of Buyer are rejected.
1.3 Supplementary agreements and amendments require Seller’s written confirmation.
1.4 Special agreements prevail over these Conditions to the extent they are in conflict herewith.
1.5 Seller retains proprietary and copyrights in regard to quotations, drawings and other documentation. The same are to be treated with strict confidentiality and shall be returned to Seller upon his request in the event no agreement is entered into.
2.1 Delivery shall be made ex-works of Seller. If delivery to another place is explicitly agreed upon, shipment shall be made by mail, truck or train; additional costs for a different method of transportation shall, in any event, be borne by Buyer.
2.2 If a delivery date is exceeded by more than eight weeks, or if a delivery date explicitly agreed upon in writing to be binding is exceeded by more than four weeks, and a reasonable additional period for delivery set by Buyer also passes without result, Buyer may rescind the contract. Seller’s obligation to deliver is interrupted in cases of force majeure including operational disruptions, strike, lockout, labour, energy or raw material shortages occurring at Seller, his suppliers or carriers. If such an event subsists for more than three months, Buyer or Seller may cancel the contract.
2.3 Seller is entitled to partial deliveries.
2.4 Seller’s obligation to deliver is conditioned upon Buyer fulfilling all of his contractual obligations. Buyer has to accept deliveries and partial deliveries even if the goods have insignificant deficiencies. In the case of delay of acceptance, the statutory provisions shall apply.
2.5 The risk of loss and damage shall pass from Seller to Buyer with the commencement of shipment regardless of whether Seller bears the cost or the insurance for the transport.
3. Purchase Price and Payment
3.1 Prices are strictly f.o.b. point of shipment. They do not include, in particular, transportation, VAT-taxes, customs and other ancillary costs.
3.2 Payments are to be made without any deductions within two weeks from receipt of invoice, no later, however, than three weeks from the date of the invoice. If payment periods are exceeded default interest of 4% above the re-discount rate of the German Federal Reserve Bank will be charged.
3.3 Drafts and cheques will be accepted only upon special agreement and then only as a means but not in lieu of payment and net of costs and fees to Seller.
3.4 All claims of Seller fall due immediately in the event payment terms are not met or the Buyer’s creditworthiness deteriorates substantially after the conclusion of the contract. In such event, the Seller is also entitled to make outstanding deliveries and services dependent upon advance payment or provision of collateral, or to cancel the contract.
3.5 Buyer may not withhold payment or offset counter-claims unless the respective counterclaims are undisputed by Seller or confirmed by a final court judgement.
4. Retention of Title
4.1 Seller retains title to all goods until full payment of all of Seller’s claims against Buyer resulting from their commercial dealings.
4.2 Buyer is revocably authorized to sell products under Seller’s title retention in the regular course of business. Any other disposition or encumbrance of such goods is prohibited.
4.3 Buyer already now assigns to Seller as collateral all accounts receivable resulting from the on-sale of the goods under title retention; this applies analogously in the case the title retention is invalid or not enforceable. Upon request of Seller Buyer has to identify to Seller the debtor of the account receivable, has to inform such debtor of the assignment, and has to assist Seller in obtaining payment on the account receivable.
4.4 Buyer shall immediately notify Seller of any action taken by third parties with respect to the goods under title retention or the assigned accounts receivable, and shall submit the requisite documentation. The costs of an intervention shall be borne by Buyer.
4.5 If the value of the collateral exceeds the total amount of Seller’s claims by more than 20%, Buyer may require the release of such excess.
5.1 Seller warrants that the goods sold by him meet the stipulated quality and are free of defects.
5.2 The warranty does not extend to normal wear and tear, improper use, incurrent assembly or other treatment which is inappropriate or contrary to Seller’s instructions; the warranty discontinues if Buyer or a third party change or repair the merchandise without the approval of Seller.
5.3 Buyer shall promptly notify Seller of defects, at the latest two weeks after receipt of the merchandise. This exclusion shall not apply in regard to hidden defects if Buyer establishes proper entry control and prompt notification upon detection of the hidden defect.
5.4 Seller may repair or replace the defective goods. For that purpose Buyer shall afford Seller adequate time and opportunity; should Buyer fail to do that then Seller is free of further warranty obligations. In the event replacement or repair fail, Buyer has the right to request a reduction of the purchase price or cancellation of the contract.
5.5 Buyer’s right to enforce warranty claims shall be barred by statute of limitation twelve months after the date of the notification of the defect.
6.1 The granting of rights to Buyer in these Conditions for the events of non-delivery, late delivery and breach of warranty is to the exclusion of all other rights of Buyer unless mandatory statutory provisions prohibit such exclusion.
6.2 All damage claims of Buyer for non-delivery, late delivery, breach of warranty, another breach of contract, detrimental reliance, tort or violation of other statutory provisions are explicitly excluded. This shall not apply where Seller is subject to mandatory damage claims for intentional or grossly negligently conduct of Seller, his officers or his employees and agents. If pursuant to the preceding Seller is liable for damages, his liability shall be restricted to such amount of damages as was foreseeable to him at the time of entering into the contract.
6.3 Place of performance shall be 65830 Kriftel. Place of venue shall be Frankfurt/ Main, also for documentary proceedings.
6.4 If single provisions of the contract or these conditions are invalid the balance of the contract shall remain in effect.
6.5 The relationship between the parties shall be governed exclusively by German law with the exception of the Uniform Laws on the International Sale of Goods and on the Formation of Contract for the International Sale of Goods.