§ 1 Applicability of conditions
The following conditions apply to all deliveries - including deliveries resulting from future business transactions - even if the conditions are not expressly agreed again. These conditions shall be considered to have been accepted upon receipt of the goods or service at the very latest. Any conditions of the purchaser that differ from the conditions stated herein are hereby excluded.
§ 2 Quotations and contracts
Quotations are always non-binding. Purchase orders and any verbal agreements are only considered to have been accepted once they have been confirmed by the supplier in writing.
Drawings, illustrations, dimensions, weights, and all other performance data are only binding once expressly confirmed in writing.
The sales employees of the supplier are not authorised to make verbal side agreements or to give verbal guarantees over and above the content of the written contract.
§ 3 Delivery and service deadlines
Delivery deadlines and dates may be binding or non-binding, but always require the written form. Unless otherwise agreed, the delivery will take place within the agreed delivery period from the warehouse or place of sale. Once the delivery is handed over to the carrier or when it leaves the supplier's warehouse in order to be dispatched, the delivery obligation is thereby fulfilled and the risks pass to the purchaser. If dispatch is delayed at the request of the purchaser, the risks shall pass to the purchaser once he or she is notified that the delivery is ready for shipment.
The vendor is not responsible for delays to deliveries and services which are caused by force majeure and events which make it difficult or impossible for the vendor to make the delivery for a certain period of time, even if these events occur at suppliers of the vendor or subcontractors thereof, and even if binding delivery periods and/or deadlines have been agreed. Such events entitle the vendor to postpone the deliver and/or service by the duration of the impediment plus an appropriate grace period or to completely or partially withdraw from the contract as a result of the part which has not been fulfilled.
Such events in particular include the following:
Strike, lockout, official instructions, energy supply shortage, breakdowns, operational restrictions, factory shut-down, fire, catastrophe, machinery failure, mobilisation, war, riot, lack of raw material. This applies even if these events occur at suppliers of the vendor or subcontractors thereof.
If the impediment should be longer than three months, the purchaser is entitled - after having imposed an appropriate grace period - to withdraw from the contract with regard to the part which has still not been fulfilled. If the delivery period is extended or if the vendor is released from his obligation to deliver, the purchaser cannot claim any compensation arising from this. The vendor may only invoke the aforementioned circumstances if the purchaser is immediately informed.
If the vendor is responsible for the non-observance of binding delivery periods and deadlines agreed prior thereto or is in default, the purchaser is entitled to compensation for delay amounting to 0.5% for each full week of delay, but still aggregating to no more than 5% of the value of the invoice for the deliveries and services affected by the delay. Any claims above and beyond this value are excluded unless the delay is caused by the gross negligence of the vendor.
The vendor is entitled to make partial deliveries of goods and services unless such partial deliveries would be of no interest for the purchaser.
The observance of delivery and service obligations by the vendor is subject to the timely and proper observation of obligations by the purchaser. If the purchaser is in default with acceptance, the vendor is entitled to demand compensation of damages incurred; once default with acceptance occurs, the risk of the accidental deterioration or destruction of the goods shall pass to the purchaser.
§ 4 Prices
Unless specified otherwise, the vendor guarantees the prices stated in quotations for 30 days from the date of the quotation in question. In cases of doubt, the prices stated in the order confirmation from the vendor shall be authoritative, plus statutory value-added tax. Additional deliveries and services shall be subject to separate billing.
Unless agreed otherwise, prices are ex works or showroom - as per the choice of the vendor - including normal packaging.
§ 5 Rights of the purchaser with regard to defects
The goods will be delivered free from production defects and material faults; any claims relating to defects must be asserted within one year upon the delivery.
Defects, damage incurred during transportation, and missing items must be reported by the purchaser in writing immediately upon receipt of the goods and within a week thereafter at the very latest. Defects which cannot be discovered even during the careful check which should take place within this time must be reported to the vendor in writing immediately upon discovery. In all cases, claims must be made before the resale, use, or processing of the goods. The purchaser is obliged to check the entire delivery.
If operating and maintenance instructions from the vendor are not followed, if changes are made to the products, or if consumables are used which do not correspond to the original specifications, all claims relating to product defects shall be become invalid unless the purchaser is able to refute the assertion that one of these actions resulted in the defect.
Liability for normal wear and tear is hereby excluded.
Only the direct purchaser is entitled to assert claims for defects against the vendor; this entitlement cannot be transferred.
The supplier's warranty is restricted - subject to the stipulations of §7 "Liability" - to the reworking and redelivery of parts (as per the choice of the supplier) which are established to be defective due to circumstances occurring prior to the transfer of risks. The vendor is not liable for defects which only occur later on, in particular those which only occur during processing or as a consequence thereof. In particular, this applies to processed goods (planed goods etc.) with regard to level of dryness, dry rot, fungi, and so on. In addition, there is no warranty with regard to the subsequent influence of construction humidity and high artificial heat.
Ersetzte Teile werden Eigentum des Verkäufers.
Zur Vornahme aller dem Verkäufer notwendig erscheinenden Nachbesserungen oder Ersatzlieferungen hat der Käufer nach Verständigung mit dem Verkäufer die erforderliche Zeit und Gelegenheit zu geben; andernfalls ist der Verkäufer von der Haftung für die daraus entstehenden Folgen befreit. Nur in dringenden Fällen der Gefährdung der Betriebssicherheit bzw. zur Abwehr unverhältnismäßig großer Schäden, wobei der Verkäufer sofort zu verständigen ist, hat der Käufer das Recht, den Mangel selbst oder durch Dritte beseitigen zu lassen und vom Verkäufer Ersatz der erforderlichen Aufwendungen zu verlangen.
Der Käufer hat im Rahmen der gesetzlichen Vorschriften ein Recht zum Rücktritt vom Vertrag, wenn der Verkäufer – unter Berücksichtigung der gesetzlichen Ausnahmefälle – eine ihm gesetzte angemessene Frist für die Nachbesserung oder Ersatzlieferung wegen eines Sachmangels fruchtlos verstreichen lässt. Liegt nur ein unerheblicher Mangel vor, steht dem Käufer lediglich ein Recht zur Minderung des Vertragspreises zu. Das Recht auf Minderung des Vertragspreises bleibt ansonsten ausgeschlossen.
Parts which have been replaced by other parts shall become the property of the vendor.
The purchaser - following arrangements with the vendor - must allow the vendor the required time and opportunity to carry out all rework or replacement deliveries which the vendor is obliged to perform; otherwise, the vendor is not liable for any resulting consequences. The purchaser is only entitled to rectify a defect himself or to arrange for a third-party to rectify the defect and then to demand compensation for the incurred expenses from the vendor in urgent cases where operational safety is at risk or in order to prevent disproportionately high damages.
In accordance with legislation, the purchaser is entitled to withdraw from the contract if the vendor - with due consideration of statutory exceptions - fails to complete rework or to perform a replacement delivery within the appropriate deadline which has been set. If a defect is negligible, the purchaser is only entitled to a reduction in the contract price. Otherwise, the right to a reduction of the contract price is excluded.
If the use of the delivered goods leads to an infringement of domestic industrial property rights or copyright law, the vendor shall - at his own costs - acquire entitlement for the purchaser to use the goods or shall modify the goods in a way which is appropriate for the purchaser so that the infringement is no longer valid.
If this cannot be done in a manner which is economically appropriate or within a reasonable period of time, the purchaser is entitled to withdraw from the contract. In the circumstances outlined above, the vendor is also entitled to withdraw from the contract.
In addition, the vendor shall indemnify the purchaser from any undisputed and/or legally binding claims on the part of the affected proprietor.
The obligations of the vendor stipulated in the paragraph above are conclusive subject to the provisions of § 7 (Liability) for an infringement of industrial property rights or copyright.
The obligations only apply if:
- the purchaser immediately informs the vendor of asserted industrial property rights or copyright infringements;
- the purchaser lends reasonable support to the vendor with regard to defence against the asserted claims and/or allows the purchaser to carry out modification measures as specified above;
- the vendor remains entitled to implement all defensive measures including out-of-court settlements;
- the defect of title is not due to instructions from the purchaser;
- the infringement was not caused by the purchaser making an unauthorised change to the delivered item or using it in a non-contractual way.
§ 6 Payment
Payment deadlines must be strictly observed. If payment deadlines are exceeded,
interest will be charged at 8% above the current basic interest rate. This does not exclude the vendor's right to make further claims. The vendor is permitted to provide proof of higher damages.
Discountable bills of exchange are only accepted on account of payment and if expressly agreed. Payments by cheque or bill of exchange are only effective once they have been cashed in. Discount charges, bill tax, and interest on arrears must be paid immediately. Cashing-in charges and discount charges are to be borne by the vendor. The vendor is not responsible for timely presentation or for protesting, giving notice of, or returning bills of exchange.
Even in the case of claims for defects and counter-claims, the purchaser is only entitled to carry out offsetting, retention, or reduction if the counter-claims in question are legally recognised or undisputed. However, the purchaser is entitled to exercise retention due to counter-claims resulting from the same contractual relationship, too.
If the purchaser is in default of payment or has ceased making payments, or if circumstances exist that amount to the cession of payments or place the credit standing of the purchaser in question for other reasons, the vendor is entitled to demand payment of the entire remaining debt, even if cheques have already been accepted, subject to any other rights on the part of the vendor. In particular, the vendor is entitled to demand payment in advance or securities in such cases. In such cases, the vendor is also entitled to partially or completely withdraw from all contracts with the purchaser. The purchaser is obliged to immediately release any remaining goods of the vendor.
The vendor is entitled to settle his receivables - including receivables of other companies in the Classen Group - against receivables of the purchaser that have been recognised by the vendor. This applies even if the reciprocal claims have different due dates.
If goods still remaining at the purchaser's premises are taken back as per the conditions stated above, they will be credited at max. 40% of the purchase price without prejudice to further claims for damages.
Unless agreed otherwise, invoices issued by the vendor are payable net, without discount, within 30 days of the invoicing date. If a prompt payment discount has been agreed, this shall not apply to value-dated invoices and shall only apply if all old receivables have been cleared.
Regardless of any conflicting conditions of the purchaser, the vendor is entitled to first count payments made towards older debts on the part of the purchaser and shall inform the purchaser of the nature of the clearing which has taken place. If costs and interest have been incurred, the vendor is entitled to first count payments made against costs, then interest, and then the main service.
All delivered goods remain the property of the vendor until the purchase price and the price of all past and future deliveries within the business relationship have been paid - including all ancillary claims. Until such point, the purchaser is not entitled to sell the goods to third parties or to pledge them as security. If the purchaser processes or remodels the goods, the vendor is considered the manufacturer as per Art. 950 of the German Civil Code and acquires ownership of the intermediate and finished goods. The purchaser is only the custodian. The purchaser is entitled to sell on the goods or the products made from the goods during normal sales transactions. The purchaser relinquishes any receivables due from third parties as a result of the resale of the goods under reserve or any other legal basis to the vendor as security, even if the goods have been further processed. As long as the purchaser fulfils his payment obligations towards the vendor in an orderly manner, the purchaser is entitled to collect these receivables on account of the vendor. However, the vendor is entitled to notify the buyers (third parties) - who must be named by the purchaser upon request - of the transition and to issue instructions accordingly. The purchaser must provide the vendor with immediate information on any seizure of goods delivered by the vendor under retention of ownership or of assigned receivables so that the vendor can assert his rights. If the third party is not able to reimburse the legal or extra-judicial costs arising from this relationship, the purchaser shall be liable for this.
Right of ownership also applies vis-à-vis the carrier to whom the goods are handed over at the request of the purchaser or at the behest of the vendor. The goods subject to retention of ownership must be handled carefully and protected from fire, water damage, and theft. Any insurance claims due to damage events must be assigned to the vendor. If the security through retention of title exceeds the value of the receivables to be secured by 20%, the vendor will release fully paid-up deliveries of his choice.
§ 7 Liability
Any claims for damages are excluded except in cases of intentional or grossly negligent actions, regardless of the type of the infringement of obligations, including inadmissible actions.
In case of infringement of any major contractual obligations, the vendor is liable for negligence but only to the value of foreseeable damage. Claims for lost profit and for expenses saved by the other party as well as damage claims from third parties and for other indirect and follow-on damages cannot be asserted unless a quality feature guaranteed by the vendor aims to protect the purchaser against such damage.
The liability limitations and exclusions in Paragraphs 1 and 2 do not apply to claims which arise due to malicious behaviour on the part of the vendor or in the case of liability for guaranteed quality features, claims in accordance with product liability law, and damages relating to death, injury, or health.
In cases where the liability of the vendor is limited, this shall also apply to employees, staffers, representatives, and subcontractors of the vendor.
§ 8 Patents, copyright, and trademark rights
The vendor retains rights of ownership and copyright for quotations, drawings, price lists, and all other documentation. Such documentation may not be made available to third parties without the prior written consent of the vendor. The purchaser shall pay a contractual penalty of EUR 50,000 to the vendor for each infringement.
The agreement of the vendor in the same form is required for any advertising with the vendor's logotype or the names of its suppliers.
§ 9 Place of execution, applicable law
The domicile of the vendor is authoritative for the place of execution for the payment of the purchase price and any other performances on the part of the purchaser; in case of deliveries, the place at which the goods are located prior to dispatch or another agreed point of handover to the purchaser shall apply. Bills of exchange are also payable at the location of the vendor.
The place of jurisdiction for all conflicts is the court responsible for the vendor's domicile. However, the vendor is entitled to file a suit at the domicile of the purchaser.
These business relationships and all legal relationships between the vendor and the purchaser are subject to the law of the Federal Republic of Germany concerning legal relationships between domestic parties.
If a stipulation of these terms and conditions of business or a stipulation of any other agreement should be found to be or should become ineffective, the effectiveness of all other stipulations and agreements shall not be affected.