General Terms of Business
General Terms of Sales and Delivery
I. General information
The terms below apply for all business relations with our customers, regardless if the services are rendered due to a sales agreement, a service contract, or a contract for work and materials. In addition, they serve as contractual basis for all future business relations even if they are not explicitly mentioned again. Other terms provided by the customer are only valid if we explicitly confirm them in writing. Our offers are non-binding. Orders are only binding for us as far as we confirm them in writing or execute them by delivery or shipment of the goods.
II. Terms of delivery
a. Delivery dates
All order confirmations and delivery dates depend on correct and punctual supply to ourselves. We are entitled to make partial deliveries. Delivery delays due to circumstances beyond our control, even abroad, release us from keeping the terms agreed. Contractual penalties or other compensation for default due to a delay in delivery cannot be claimed. We are entitled to withdraw from the contract in case the goods ordered by the customer cannot be delivered at all due to reasons beyond our control or if they could only be delivered under unreasonably high expenses.
b. Shipment and passing of risk
Loading and shipment of the goods are carried out uninsured and at the customer's risk. The transfer of risk for lost or impaired goods on the customer takes place as soon as the goods are handed out to the person in charge for transportation or as soon as the goods leave our sphere of control for shipping. This also applies in case of partial deliveries. In case the customer desires a delay in delivery, the risk is transferred to the customer at the time of communicating our readiness for shipment.
III. Retention of title
Goods sold remain property of the vendor until the complete payment of all owing debts at the time of signing the contract and relating from business relations with the customer, until all bills or checks are honored even if the price for specially marked claims are overpaid. As far as the customer is a merchant, the retention of title acts in case of current account as security for our outstanding debts.
The reservation goods are processed and treated on our account free of charge and without the obligation that we are regarded as manufacturer according to § 950 BGB; therefore, we remain the proprietor of the goods at all times and levels of treatment. If the customer uses our goods in combination with third-party goods, we are coproprietors of the new thing at the ratio of the invoice value of the reservation goods at the time of processing. The same applies to the new thing partly made of the reservation goods. It is considered as reservation article in the sense of these terms. The buyer must inform the vendor immediately in case of garnishment, theft, damage, or any other incidents affecting our rights. The buyer assigns all third-party claims occurring thereof to us as security for all claims existing from the business relationship.
In case the customer resells the reservation goods, all claims thereof are assigned to us as security for all claims existing from the business relationship, regardless if the reservation goods are resold with or without further treatment and no matter if they are resold to one or more buyers.
The customer is only entitled to resell the reservation goods out of a sales agreement, a service contract, or a contract for work and materials if the claims of the resale are assigned to us. The customer is not allowed for other dispositions. If requested by us, the customer is obliged to reveal the assignment to third parties.
In case our total claims exceed the value of the existing securities by more than 20%, we are obliged to release securities at our own choice on request of the customer or a third party affected by our over-collaterialization.
If the customer acts contrary to contract, particularly in case of delay of payment, we are entitled to take back the reservation goods after reminding; the buyer is obliged to hand them out.
IV. Terms of warranty
The information given on our products and units as well as on our plants and methods is based on comprehensive research work and application-technological experience. We procure these results in spoken and written form according to the best of our knowledge without accepting liability that goes beyond the according individual contract; our products are subject to change without notice in the course of product development. Nevertheless, the user should scrutinize our products and techniques regarding their suitability for the own intention. This also applies to the keeping of third-party proprietary rights as well as to applications and procedures that are not explicitly stated by us in written form.
Advices, tips, and recommendations regarding the applicability, compatibility, and other features, as far as they go beyond the manufacturer's instructions, are only binding if the customer received a written confirmation from us.
The buyer is obliged to immediately object to a faulty delivery or the missing of warranted characteristics. The notice of defect shall be given in written form comprising information on the kind and extent of the defect. We can only accept the notice of defect if sent to us within 10 days after receipt of goods or after discovering hidden faults.
The buyer is entitled to rectification of defects where it is up to us to choose between replacement and repair of the faulty items. Any rights of the buyer to conversion, abatement, or cancellation of the contract cannot be exercised unless our rectification measures finally failed. The rectification is only said to have failed after a minimum of two unsuccessful attempts to remove the same fault.
If, after checking, a complaint shows a defect outside the range of our responsibility, the customer is obliged to compensate for travel expenses and expenditure of time according to our general field service rates.
It is the customer's duty to perform a data back-up prior to the return of goods for rectification. The same applies if, by way of exception, the rectification takes place at the customer's premises on demand of the customer. We explicitly disclaim liability for any loss of data. The goods have to be returned in their original packaging. The warranty claim is at risk in case the goods are not returned in their original or a suitable packaging. We shall not be held liable for consequential transport damages.
A warranty claim does not exist for damages resulting from improper use, assembly, installation, or similar actions accomplished by the customer or a third party. A warranty for damages due to force majeure, e.g. lightning stroke, wear parts as well as transport damages, is excluded.
The warranty claims of the customer expire if we are not granted the required time and possibility for rectification or if the customer tasks a third party with the rectification of a defect. This does not apply if otherwise the safety of the customer or persons employed by the customer would be harmed or if disproportionally severe damages are feared. In such cases, the customer is obliged to inform us immediately.
Further claims for damages do not exist.
V. Prices and terms of payment
The prices quoted are subject to change. Prices are ex works, exclusive of transport packaging, transportation, transport insurance, customs duties, or other similar fees. The prices indicated in quotations and invoices are net plus the according value-added tax – where applicable.
Invoice values are payable immediately after receipt of invoice as entire sum and strictly net. Special arrangements apply to installment buying.
Checks and bills of exchange are only accepted on account of payment and after a particular agreement. Payments are only considered as received if we can dispose of the amount owed without loss. In case of a delay of payment we are entitled to charge interest for delay of 3% above the according bank rate of the German Federal Bank. Higher damages are subject to proof.
Deliveries are effected by shipment either against prepayment or, if specially agreed, by cash on delivery or by direct debit. The customer may only make use of the right of retention or offset such claims against our own as are undisputed or legally recognized.
The customer is obliged to verify the correctness and completeness of accounts, especially balance acknowledgements as well as other settlements and notices. Incorrect accounts must be contradicted within one month after receipt; other objections must be made promptly. If the customer fails to make objections in time, the accounts are considered as approved; legal claims of the customer in case of reasonable objections remain untouched thereof even if entered after this period.
VI. Final clauses
a. Place of performance
The place of performance for all our obligations is Stuttgart/Germany.
b. Place of jurisdiction
As far as the customer is a qualified merchant, legal person under public law or special fund under public law, the following applies:
The place of jurisdiction for all business disputes occurring between the parties of the contractual relationship is Stuttgart/Germany.
c. Applicable law
The laws of the Federal Republic of Germany apply to all legal relations between the buyer and the vendor. The United Nations Convention of April 11, 1980 on Contracts for the International Sale of Goods (BGBL 1989 II, 586) does not apply here.
d. Severability clause
Should any part of this agreement or a clause made within the scope of other agreements be or become invalid for any reason, the rest of the agreement shall remain unaffected. Should there be an omission in this contract, both parties undertake to replace the void clause by one which is nearest in the economic and legal sense to the void clause and which would have been agreed upon by the parties if they were aware of the invalidness of the clause.
Date: November 2004