1. General. These terms and conditions are generally valid unless we explicitly accept written deviations or terms and conditions of the contractual partner. Moreover, the contractual partner’s purchasing conditions shall not apply even if we do not reject them again when the contract is signed. In the event that an individual provision becomes invalid, this shall not affect the validity of the other provisions. The rights and obligations from our commercial relationships may not be transferred to third parties. Ancillary agreements shall only be valid if they are confirmed in writing.
2. Quotes, project documents and quality indications. Our quotes are non-binding. The documents that accompany the quote shall be deemed approximate unless they have explicitly been designated as binding. We shall retain the ownership and copyright of drawings and documents. These drawings and documents may not be made accessible to third parties and must be returned immediately when requested and if no order is placed. The craft-related services provided by ourselves or by third parties are subject to the provisions of the current version of the “Verdingungsordnung für Bauleistungen” (the German rules for the awarding and execution of construction contracts). The outturn samples provided to the contractual partner for assessment prior to the supply of the material shall serve as the standard against which the design and quality of the product is to be judged. We shall not be held liable for the suitability of the material in question for the purpose for which the contractual partner intends to use it. We shall provide advice and information according to the best of our knowledge, but shall do so without offering any guarantee. Certain properties of the goods we supply shall only be guaranteed if we have issued the contractual partner with written and explicit assurance that certain types of consequential damage shall not occur.
3. The place of performance for deliveries and the contractual services of both contractual partners shall be our delivery facility (even for deliveries with the status carriage paid, fob or cif). The place of performance for payments made by the contractual partner shall be our accounting department.
4. Outturn samples. For the production of outturn samples and of single and serial pieces, the following documents must be provided when the order is placed:
a) a certified drawing;
b) a control drawing on which the quote was based;
c) if required, a more detailed description of the part that is to be produced.
The contractual partner shall fully guarantee the accuracy of the documents that have been provided. Costs for alterations, as well as additional costs for the commencement of production resulting from the alteration, shall be borne by the contractual partner and we shall no longer be obliged to meet the initial deadlines.
5.) Property rights. If objects are to be produced based on the contractual partner’s drawings, models or samples, the contractual partner shall guarantee that the production and supply does not violate the property rights of any third parties. If any third parties forbid us from producing or supplying an object, citing a violation of their property rights, we shall be authorised to stop the production and supply of the object in question and demand compensation to cover our expenses. We are not obliged to check the legal situation; all compensation claims on the part of the contractual partner shall be excluded. If a delivery deadline has been agreed, it shall only become valid once there is a written agreement in place covering all of the details of the order, once all of the documents required from the contractual partner have been received and once the drawings have been approved. It shall only apply if the contractual partner complies with the agreed payment conditions and other obligations. Claims arising from a failure to comply with the delivery deadline shall only be admissible following the issuance of a formal reminder and deadline extension and shall be limited to the difference between the contractual partner’s selling price and the price of a covering purchase. Proof of the covering purchase price must be provided.
6.) Deliveries shall take place in accordance with our delivery capacity. Partial deliveries and the invoicing thereof shall be permitted. If a delivery deadline has been agreed, it shall only begin once there is a written agreement in place covering all of the details of the order, once all of the documents required from the contractual partner have been received and once the drawings have been approved. It shall only apply if the contractual partner complies with the agreed payment conditions and other obligations. Claims arising from a failure to comply with the delivery deadline shall only be admissible following the issuance of a formal reminder and deadline extension and shall be limited to the difference between the contractual partner’s selling price and the price of a covering purchase. Proof of the covering purchase price must be provided. All other claims shall be inadmissible. Force majeure events, strikes, lockouts, and disruptions to supply or operations at our facilities or those of our suppliers shall release us from our contractual obligations. This shall also apply should the aforementioned events occur during a delay. We are, however, entitled to deliver the goods at a later date; the buyer’s purchase obligation shall remain unaffected. The contractual partner must accept the goods as soon as they are ready. If shipment of the goods is postponed at the request of the contractual partner, the contractual partner shall be required to pay a storage fee of 0.5% of the invoice amount for each month that has commenced, starting from the point in time at which the goods are ready for shipment.
7.) Shipment. From the point at which they leave our delivery facility, all consignments, vehicles and other forms of packaging shall always travel at the risk of the contractual partner, even when carriage-paid delivery has been agreed. If shipment is delayed at the request of the contractual partner, the risk shall be borne by the contractual partner from the point at which the goods are ready for shipment. We shall select the shipment method and route, but provide no guarantee that this will be the cheapest means of shipment, that the freight weight will be fully utilised and that the vehicles and containers will match the desired dimensions. Requests made by the contractual partner shall be honoured where possible and at the expense of the contractual partner. The goods shall be insured against damage in transit only if requested in writing and paid for by the contractual partner.
8.) Packaging. The delivery is ex works and does not include packaging. The contractual partner’s containers must arrive at our delivery facility on time and free of charge. We are under no obligation to check, clean or repair the containers, but are authorised to do so at the expense of the contractual partner. For our containers for hire, we charge a deposit and a fee for wear and tear. The contractual partner may not use our hire containers for his own operations or rent them to third parties. They are to be completely emptied and returned free of charge to our delivery facility in a clean and undamaged state, using the original characters and numbers. Cleaning costs shall be charged to the contractual partner. In the event of loss or damage, we may return the damaged containers and choose between demanding payment of their replacement value or the supply of replacement containers equivalent in value to the original ones. In the event of damage, we may also demand reimbursement for the repair costs.
9.) Liability and guarantee. Our liability – irrespective of the legal grounds – shall be limited to the invoice value of the underlying delivery. We shall only be held liable for intent and gross negligence. Complaints shall only be admissible if we receive them in writing within ten days of the dispatch date and if the goods are unchanged in their original packaging. In the event of damage or incorrect quantities, the onus shall be on the contractual partner to prove that there was damage or an incorrect quantity before the passing of risk. In the event of successful guarantee claims, we shall provide replacement deliveries only. Compensation and any other claims shall be excluded. The defective goods are to be returned to us upon demand.
10.) Prices. The prices are ex works, not including freight and packaging. They are determined by the quantities we have calculated. If between the signing of the contract and delivery of the goods there are any changes in our list prices or in the freight costs, taxes, customs duties, fees or other costs factored into our price calculations, or if any new charges arise, we shall be entitled to increase the price accordingly. Our prices do not include value added tax, this shall be charged on top of the quoted price.
11.) Retention of title. We shall retain title over the goods we have supplied until the contractual partner has fulfilled all of the obligations of the commercial relationship in full. If the amount payable is posted to a current account, the goods shall remain our property for as long as the account shows a balance in our favour. The retention of title shall continue to exist if the goods are resold, processed, re-processed, reshaped, blended or mixed. It shall extend to the new item or blend. Any form of processing shall thus be deemed to have been performed for us. In the event of a resale of the goods or of the products and blends made by processing the goods, the contractual partner shall cede to us our share of his receivables from the buyer now, in advance. The share to be ceded to us shall correspond to the sum in our invoice. We are authorised to exercise our claim to the ceded receivables and to collect them. If so requested, the contractual partner shall provide all of the required information, submit the declarations and take the necessary action to allow the receivables to be collected. The contractual partner is not permitted to pledge the goods over which we have retained title nor is he permitted to provide them as collateral. He shall be required to notify us immediately in the event of pledges or any other form of seizure by third parties, to adequately insure the goods against fire and the risk of break-ins, and to provide us with evidence of his insurance coverage if we request that he do so. If the contractual partner fulfils his obligations towards us, he shall be permitted to resell the goods by means of a lawful transaction and claim the receivables from the transaction provided that he is the sole and direct beneficiary. This right of disposal may be rescinded by us at any time; it shall expire automatically if the contractual partner suspends his payments, initiates judicial or extrajudicial settlement proceedings or files for bankruptcy using his assets.
12.) Payments. The set-off and withholding of payments by the contractual partner is excluded. Irrespective of other claims, if the contractual partner is in arrears, he shall be required to pay interest at a rate of 2% above the current discount rate of the German central bank (Deutsche Bundesbank) plus value added tax. If the solvency of the contractual partner appears to be impaired, we may withdraw from the contract or demand advance payments or collateral as well as the immediate payment of all receivables that are not yet due. When a make-and-hold order has been placed and the contractual partner has failed to meet the deadline, we may demand the immediate acceptance of the goods as well as immediate payment for them, even for goods that have not yet been manufactured. Furthermore, we may fully or partially withdraw from the contract and demand compensation for the loss endured; the same shall apply to orders for which no delivery deadline has been agreed if the orders are not accepted within a maximum period of three months after the end of production.
13.) Payment deadline. Unless there is a written agreement stating otherwise, we request that payments be made in full within 7 days of the invoice date; after this date, the contractual partner shall, without prior warning, be deemed to have entered into arrears. This shall also apply when due to circumstances out of our control there have been delays in the in transport of the goods Bills of exchange and cheques shall only be accepted in lieu of payment. Bills of exchange must have a maximum maturity of 30 days starting from the invoice date. Payments shall only be deemed to have been received when we have full access to the amount. Bills of exchange shall be deemed to have been received once they have been redeemed. The discounting and collection costs shall be borne by the contractual partner.
14.) The place of jurisdiction is Otterndorf. However, we may also seize the local court of the contractual partner. The provisions in this contract are subject to German law.