Last updated July 2019
§ 1 General information
- In supplementation of the other contractual provisions, solely these General Conditions of Sales (hereinafter referred to as “GCS”) shall apply to all business transactions between our company and the purchaser, principal or customer, hereinafter called the Buyer. The terms and conditions shall be considered as accepted at order placement or receipt of goods at the latest. Terms and conditions of the Buyer differing from our terms of sale will not be recognized – even if performance has been rendered or payment accepted without reservation – unless we have expressly agreed to their application in writing.
- This also applies for the general terms and conditions of business outside the general terms and conditions of purchase of the ordering party, the Buyer, in particular but not exclusively for quality assurance agreements, framework supply agreements, provision and supply agreements, consignment warehouse agreements and non-disclosure agreements of the Buyer, provided that the agreements therein have not been negotiated with us.
- These General Conditions of Sales (GCS) apply exclusively to entrepreneurs within the meaning of § 310 Paragraph 1 BGB (German Civil Code) in conjunction with § 14 BGB (German Civil Code), legal persons of public law or public special funds within the meaning of § 310 Paragraph 1 BGB (German Civil Code).
- These general terms of delivery and payment also apply to all future business transactions with the Buyer, insofar as a legal transaction of similar nature is concerned without being incorporated again until we have new General Conditions of Sale that apply.
- All agreements which are made between us and the Buyer in the course of contractual negotiations are for proof of subsequent changes laid down in writing and must be confirmed by both contractual parties.
- Ancillary agreements and subsequent contractual amendments and the acceptance of a warranty liability, in particular assurances in respect of product properties or taking over of a procurement risk shall require the written form in order to be effective provided that they were given by non-authorised representatives.
- No response from us cannot be taken as implying consent.
- Even in the case of participation in electronic platforms of the Buyer and the activation of selection fields to be activated according to the system, there is no legally binding acceptance of the conditions of use or other general terms and conditions.
§ 2 Consulting and documentation
- Any form of advice given either written or spoken, will be provided to the best of our knowledge and on the basis of our experience. Our consulting is product- and service-related and extends solely to the products we manufacture and services we render. It does not include contract-unrelated advice, e.g. statements made without any products being sold or any performance being rendered by us.
- Details and information about aptitude and application of our products do not release the Buyer from his own tests and trials. In particular, the Buyer is not exempted from the necessity of testing the suitability of our products for the intended purpose. The Buyer is responsible for complying with the statutory and official regulations when using our products.
- We reserve title and copyright to all documents provided by us. Any disclosure or transfer to third parties shall require our written consent. In the event that the order is not fulfilled, all the documents are to be returned to us without delay on request. Documents belonging to the Buyer may be disclosed to third parties to whom we intend to sub-contract goods or services.
§ 3 Conclusion of contract
- Our offers are without commitment and are considered to be a request to the Buyer to submit an offer. In principle, it is the order placed by the Buyer that constitutes the offer on which the contract is based. If the order placed by the Buyer differs from our offer, the Buyer shall mark such differences clearly.
- We shall have two weeks to accept an order.
- First processing of an offer is usually free of charge. Further offers and engineering designs are only submitted free of charge when the contract has been concluded and still is operative.
- Descriptions and illustrations of our products in technical documents, prospects, company brochures, catalogues, price lists etc. are non-binding if and when their validity is not expressly agreed in writing in the contract; they do not release the ordering party from the duty of carrying out its own checks.
- Product and performance specifications on the internet can by definition only be of a very general nature; if the Buyer will deduce binding agreements on the condition or the value or suitability for intended use out of it, the Buyer shall refer thereupon in the purchase order.
- The order shall include all the information for performance. This applies to all our deliveries, services, factory- and miscellaneous services. Such information shall include in particular, but shall not be restricted to, data on the name of the article, quantity, measurements, material, material composition, pre-treatments and treatment specifications, handling regulations, storage and norms and on all other technical parameters and physical characteristics. Missing, defective or incomplete data is deemed expressly not agreed and does not create any obligations on our part, either in relation to performance and warranty claims or in relation to damages claims.
- We are entitled to obtain further information for the appropriate execution of the order.
- Orders should be placed in writing or electronically; orders placed verbally or by telephone will be performed at the Buyer‘s risk.
- Orders and any telephone and verbal arrangements and agreements made with our representatives must be confirmed in writing by us. Invoices and electronic data processing (EDP) printouts referred to as binding by us shall be regarded as a written confirmation. In case we do not confirm an order in writing or in text form the contract shall be completed upon order execution at the latest.
- If the Buyer withdraws an order that has been placed and accepted by us, we are entitled to charge 10% of the price of supplies or services for the costs incurred for processing the order and for loss of profit, without prejudice to a possible claim for higher damages actually incurred. The Buyer has the right to provide evidence of lower damages.
- The scope of our performance is specified in the confirmation of order.
§ 4 Call orders
- Call orders shall be concluded for a maximum term of 12 months with call order dates and quantities being specified when the order is placed. Calls under call orders must always be timed so that the final delivery is made no later than one year after our receipt of the order.
- Call orders and delivery schedules are in every case subject to specific delivery date agreements.
- For call orders we shall be entitled to procure materials for the entire order and to manufacture the total order quantity immediately.
- Additional costs caused by the Buyer due to late call-off or subsequent changes to the call-off in terms of time or quantity shall be met by the Buyer, in which case our calculation is definitive.
- Unless otherwise agreed in writing, all call orders shall be purchased no later than within 6 months after placing the order without requiring a purchase request. If this period expires, we shall be entitled to invoice the goods and to send the goods out at the risk and cost of the Buyer or to withdraw from the contract and to claim compensation.
§ 5 Modifications and measurement methods
- A separate contractual agreement will be obligatory for any subsequent changes required to the item scheduled for supply or to the scheduled service after the contract has been made.
- If information is not provided or is defective, we reserve the right to amend the item scheduled for supply or the scheduled service accordingly. Any losses resulting from lack of information or defective information, in particular additional costs or damages shall be the responsibility of the Buyer.
- The right is reserved to make technical amendments to the item scheduled for supply or the scheduled service if the contractual target is not jeopardised thereby. If the Buyer considers modifications to be inadmissible then the Buyer shall inform us immediately. Any change requests by the Buyer can therefore no longer be honoured after the order is issued, unless this was explicitly stipulated.
- For production reasons, we reserve the right to deliver quantities of a maximum of 10% above or below the ordered quantity within the limits of normal industry practice. In the case of small orders, we reserve the right to charge for a minimum quantity and / or a minimum lump sum for costs.
- Part consignments shall be permitted as long as they do not result in disadvantages in use. They shall be payable separately on the basis of part invoices. In the event of the Buyer being in default with payment for a part consignment, we shall be entitled to refuse to fulfil the remainder of the purchase order.
- The measuring methods for inspections for which specific temperatures, times and other measuring or control values apply must be agreed and accepted by both parties before the start of deliveries. If no such agreements are made, our measuring methods shall apply.
§ 6 Delivery time, forces majeures, default
- The delivery time or lead time shall commence at the earliest upon dispatch of the order confirmation. The start of the lead time specified by us shall require the prior clarification of all technical matters. Compliance with the lead time shall require the prompt receipt of all documents, permits and approvals to be provided by the Buyer, the prompt clarification and approval of plans, compliance with the agreed terms of payment and other obligations and the prompt supply of any items to be provided by the Buyer. Otherwise the lead time shall be extended within reason. The lead times we specify are approximate. Using the requisite duty of care for the conclusion of relevant supply transactions, the lead time is specified subject to the correct and prompt delivery of goods to us. Observance of our supply duties shall require the prompt and correct fulfilment of all cooperation duties on the part of the Buyer.
- The lead time shall be deemed to have been met if the consignment is shipped within the lead time or notification has been given that the goods are ready for shipment. If the delivery is delayed for reasons that are the fault of the Buyer, the lead time shall be deemed to have been met if notification that the goods are ready for shipment is made within the agreed lead time.
- In cases of force majeure, our periods for supply or completion of services will be extended by the length of the disruption occurring. War, civil war, export restrictions or trade restrictions resulting from a change in the political situation, damage by fire, strikes, lock-outs, disruption of traffic, impositions by authorities, business interruptions or significant interruptions of operations, such as in the event of raw material or energy shortages or other significant interruptions to operations either at our own, at commissioned subcontractor or presupplier facilities shall also, but not only, be deemed to be forces majeures and events out of our control. This shall apply even if we were already in default when such circumstances occurred. We will notify the Buyer immediately of the beginning and end of such hindrances. If supply or completion of services is delayed by more than six weeks, both the Buyer and we have the right to rescind the contract in relation to the scope of performance affected by the disruption.
- The contractual parties are not entitled to any compensation in this respect.
- We shall only be liable for damages caused by delay, provided we are not responsible for the delay.
- If the Buyer is in default on acceptance of the goods, we will allow a reasonable period of grace at our discretion and are then entitled to rescind the contract and claim damages if applicable. Statutory provisions on the dispensability of a period of grace and the assertion of further claims which we legally hold are not prejudiced hereby.
- The application to start insolvency proceedings, the submission of an oath of statutory assurance in accordance with § 807 ZPO (German Code of Civil Procedure), the acquaintance of a substantial deterioration in the financial circumstances, other shortages of liquid funds and a delay in payment entitle us to suspend further deliveries up to the regulation of all invoices, to refuse the fulfilment of current contracts and to demand the return of goods that are subject to our reservation of ownership delivered by us as a precaution as well as prepayments for products to be delivered. In these cases, open claims are due for immediate payment.
- Unless explicitly agreed otherwise, all Incoterms used by us refer to the INCOTERMS 2010 published by the International Chamber of Commerce (ICC).
§ 7 Transfer of risk, transport and packaging
- In principle, the agreed delivery method is “ex works”. The delivery is carried out at the risk of the Buyer, irrespectively of the location from which the goods are dispatched. The risk shall be transferred to the Buyer as soon as the consignment has been handed over to the per-son carrying out the transport service or has left our plant for shipment. Even if delivery included has been agreed, shipment shall be at the risk of the Buyer. If the shipment of the goods is delayed at the request of the Buyer, the risk shall be transferred to it when we give notification that the goods are ready for shipment. Unless agreed to the contrary in writing, we shall choose the means of transport and the route. In the event of the goods being damaged or lost en route, an inspection shall be carried out immediately and we are to be notified of the results.
- If the shipment or delivery of the goods is delayed at the request of the Buyer and notwithstanding our right to provide evidence that our damages were higher, we shall charge storage fees of 1% of the invoice total for every month of part thereof subject to a maximum of 5% of the net total. The Buyer shall be entitled to provide evidence that we incurred lower damages and we shall be entitled to provide evidence that we incurred higher damages.
- Return shipments are to be coordinated with us in each case in advance and may only be made using the forwarders engaged by us. The cheapest means of transport is to be used for this purpose, taking transport safety into account.
- Should a specific mode of transport be prescribed by the Buyer, any extra charges shall also be borne by the latter.
- Unless otherwise agreed, we determine the type and scope of packaging. The choice of packaging shall be made using the required care at our discretion. Single use packaging shall become the property of the Buyer.
- The place of performance for the services under the order is our registered office.
§ 8 Tools and devices
- Tools and devices manufactured by us or on our behalf by third parties shall remain our property even if the manufacturing costs are borne wholly or in part by the Buyer.
- In the case of the Buyer’s own tools or tools made available on loan by the Buyer, our liability with regard to storage and upkeep is limited to the care applied to our own property. The cost for maintenance and insurance is at the Buyer’s expense.
§ 9 Retention of title, guarantees and set-off
- The delivered products shall remain our property until full payment of all claims arising from the business relationship of the Buyer with us.
- If the Buyer breaches the contract, in particular if the Buyer is in default with payments, we shall be entitled to retake possession of the goods. Our retaking possession or pledging the goods shall not constitute cancellation of the contract unless we expressly confirm this in writing. We shall be entitled to resell the goods and set off the proceeds of this resale against the accounts receivable from the Buyer, minus reasonable reselling costs. The Buyer undertakes to treat the goods with care.
- The Buyer is entitled to process, blend or combine our products subject to retention with other products in the framework of his regular business operation until this permission is revoked. When processing, we shall be deemed to be a manufacturer and acquire directly (co-)property according to § 950 BGB (German Civil Code) of the manufactured product. In case of mixing or combining, we acquire (co-)property in the proportion of the value of our reserved goods to the new uniform item.
- Until this permission is revoked, the Buyer may sell the goods subject to retention of title or the goods produced therefrom within the framework of his regular business operations. Any claims of the Buyer from reselling the goods subject to retention of title are herewith assigned to us. They serve as security to the same extent as the goods subject to retention of title. We accept the assignment. The Buyer shall be entitled to collect claims from sales until this permission is revoked by us. We will only revoke the right to resale and to claim receivables if our Buyer does not properly fulfil his contractual obligations. It also expires without explicit revocation, if the buyer ceases its payments.
- The Buyer undertakes at our request to provide us with a precise list of the accounts receivable which are due to us, including the names and addresses of the clients, the amount of the various accounts receivable, invoice dates, etc. and to provide us with all the information required to claim the assigned account receivable and to enable us to check this information as well as to issue to us, at his expense, publicly authenticated documents on the assignment of claims.
- If the value of the security rights accrued by us exceeds the value of all the secured claims by more than 20%, we shall release an appropriate part of the security rights at the request of the Buyer.
- The Buyer may not pledge the goods or transfer title to them by way of security. In the event of seizures or other action by third parties, the Buyer must notify us immediately in writing so that we can lodge a lawsuit in accordance with § 771 ZPO (German Code of Civil Procedure) and shall also provide us with all the information and documents required by us to protect our rights. Enforcement officers and third parties are to be notified of our property. If a third party is unable to reimburse us with the court and out of court costs of a lawsuit pursuant to § ZPO (German Code of Civil Procedure), the Buyer shall be liable for any losses we incur, notwithstanding claims for other compensation relating to the damage, modification or destruction of the goods themselves.
- The Buyer hereby declares his consent that the persons assigned by us to collect the conditional commodity for this purpose may enter the property and/or building on/in which the assigned items are located by foot or in vehicles to take possession of the conditional commodity.
- We have the right to offset our debts against any debts of the Buyer with all the counterclaims which are due to us against the Buyer.
§ 10 Prices and terms of payment
- Unless otherwise agreed, our prices are ex works in EUR not including value-added tax at the rate applicable on the date of supply, customs and insurance costs. VAT is to be shown separately in the invoice. Special packaging shall be invoiced at cost price. The prices apply to the individual order, not backdated or for future orders. Follow-up orders shall be new orders.
- All other costs, e.g. packaging, freight, postage, customs, assembly, insurance costs and bank charges will be calculated separately.
- We reserve the right to increase our prices within reason if, after the conclusion of the contract, costs increase; we reserve in particular the right to invoice the prices prevalent at the date of the delivery, if as a result of collective wage-bargaining agreements, market prices or material price increases. Evidence of such increases shall be provided to the Buyer on request.
- All payments have to be made by bank transfer onto the bank account specified on our invoice and shall be due without deduction within 30 days after the date of the invoice. Payments per check or bill of exchange are not accepted shall be deemed to not having been made.
- An agreed cash discount will only be granted provided that all payment obligations regarding earlier deliveries have been met. All payments are to be made free of charge for us.
- If the purchase price is deferred or partial payments approved or the date of payment exceeded, the Buyer will be charged interest at the customary bank rate but not less than 2 % p.a. above the then current basic interest rate of the European Central Bank.
- Payments are initially charged at cost, then at interest and then to the respectively older main claim. The Buyer waives the right to determine how his payments are to be used.
- In the event of the Buyer being in default with payment, we shall be entitled to charge default interest at a rate of 10 percentage points p.a. above the relevant base rate in accordance with § 247 of the German Civil Code (BGB). We shall be entitled to provide evidence that we suffered higher damages. However, the Buyer is entitled to prove that no or less damage has occurred.
- The Buyer shall only then be entitled to set off or withhold payment if his counterclaim is undisputed or legally established or ready for decision.
- The assignment of claims addressed to us requires our consent.
- The Buyer has a right of retention only if his counter-claim is based on the same contractual relationship and is undisputed or determined without further legal recourse or disputed but ready for decision or, if we have committed a major breach of our obligations under the same contractual relationship despite receiving a written caution and have not offered any reasonable security.
- If there is no doubt about the defectiveness of our service, the Buyer shall only be entitled to retain to the extent at which the retained amount is in proportion to the defects and expected cost for the removal of defects.
- Payment deadlines shall remain the same in cases where there is a delay in dispatch that is not our fault.
- In order that we are able to make use of a VAT exemption for intra-Community supplies the buyer shall provide a so-called “Confirmation of arrival” – Evidence of intra-Community supplies (in German: “Gelangensbestätigung” (Entry Certificate). The Buyer is therefore obliged to confirm in writing upon receipt of the object of the contract that the Buyer has received the object of the contract as subject to an intra-Community supply.
- To the extent that our invoices do not include any Value Added Tax, in particular because we assume that the delivery is an „intra-Community delivery“ within the meaning of Section 4, No. 1b in connection with Section 6a of the Turnover Tax Act Law, on the basis of the statements made by the Buyer, and we are additionally charged with the Value Added Tax (Section 6a IV of the Turnover Tax Act Law), the Buyer shall be obliged to pay us the amount charged to us. This obligation shall remain independent of whether we must pay Value Added Tax, Import Turnover Tax or comparable taxes at home or abroad in addition.
§ 11 Industrial property rights
We shall be liable for the infringement of third parties’ industrial property rights in connection with the sale of our goods only if we are accountable for the infringement and if such third parties’ industrial property rights are valid in the Federal Republic of Germany and have been published at the time of delivery.
Orders based on drawings, sketches, models, samples or other documents and data provided to us will be performed at the Buyer’s risk. If a third-party claims in such a case that we are breaching a property right, e.g. through the manufacture or supply of our products, then we shall be entitled without further inspection and subject to our other rights, to refuse the fulfilment of the contract and to discontinue our activity. If, as a result of the execution of such orders, we intervene in third-party property rights, the Buyer shall indemnify us from third-party claims. The buyer is responsible for further damage.
The Buyer undertakes to inform us without delay of known risks of infringement and alleged infringements.
- We produce to order. The acceptance of returns of goods delivered by us free of defects is excluded. If, as an exception, we agree to accept the return of defect-free goods, a credit will only be issued to the extent that we determine that the goods are unrestrictedly reusable. For the costs of the testing, processing, converting and repackaging, the actual costs of at least 20% of the billed amount or at least 100 euros will be subtracted. Such a credit is not paid out in cash but is used as an offset against future deliveries.
§ 13 Defects, warranty and limitation
- The Buyer shall be obliged per Section 377 of the German Commercial Code (HGB) respectively comparable foreign or international regulations to examine the goods for defects and damages immediately after delivery and must inform in the event of any defects of the goods within 5 working days after having been delivered at the latest including a detailed written description of such defects. Otherwise the delivery shall be deemed approved. The ruling in Section 377 of the German Commercial Code (HGB) applies accordingly to services and works. Notices of defect must be made in writing.
- A complaint in text form, e.g. as Email is insufficient. The Buyer shall transfer one or several parts from the delivery in question without delay. A notice of defects does not release the Buyer from his duty to meet payment obligations.
- If the goods are defective, we shall be entitled at our discretion to rectify the defect or supply replacement goods (supplementary performance) or by crediting the Buyer within a reasonable deadline to be set by the Buyer. Parts replaced in the course of the rectification of defects shall become our property. Unless the Buyer has not assigned any period, even a short term for corrective actions, without our prior written consent, the Buyer shall not be entitled to rectify the defect in his own case or to repair the goods delivered by a third party in urgent cases. If the defect is not successfully remedied or the item replaced, because we are e.g. due to a disproportionate discrepancy of the costs authorised to reject the chosen form of subsequent performance, the Buyer has, at his discretion, the right to rescind the contract or reduce the price paid.
- With respect to third-party products, even if they are obscured in our products or used in any other way, we shall be entitled to restrict our liability to the assignment of the warranty claims we are entitled to from the supplier of the third-party products unless satisfaction from the assigned right fails or the assigned claim cannot be enforced for any other reasons. In these cases the Buyer shall once again be entitled to the rights arising from the foregoing section 2.
- Customary deviations (e.g. in quality, colour, strength, weight, equipment or patterning) are reserved unless otherwise agreed. The nature of the goods as defined in our specifications stipulates the features of the supplied item comprehensively and finally. In particular, public statements, extolling or advertising by the seller, manufacturer or their assistants or third par-ties do not constitute contractual statements on the nature of goods. Our declarations in connection with this contract, e.g. performance specifications, reference to DIN standards etc., do not imply any giving of a guarantee in cases of doubt. What are definitive are only our express written statements concerning the giving of a guarantee. No guarantee will be given of the quality of the item or that the item will retain a particular quality for a particular period of time, as a result of statements made in product descriptions, catalogues and product specifications, subject to their being included as indications of quality within the meaning of § 434 BGB (German Civil Code).
- There will be no claims for defects in the case of only minor discrepancy from the agreed quality, in the case of only slight impairment of usability. The defect rights of the Buyer are excluded, as far as the defect is due to an inappropriate or improper use of our products, the failure to observe our installation instructions in our catalogues or our internet presence as well as the guidelines for storage, maintenance and cleaning of rubber products according to DIN 7716, excessive stress and/or natural wear and tear in view of their material substance, in particular with regard to parts that come into contact with workpieces, or to improper modifications, defective servicing or defective and negligent treatment. In relation to repairs made without any legal obligation, the Buyer will only hold defect claims if expressly agreed.
- Costs incurred for subsequent performance will be paid by the Buyer if they are increased because the goods have been moved to a different location after delivery, unless such a move complies with their intended purpose.
- Claims for recourse against us by the Buyer in accordance with § 478 BGB (German Civil Code) (proprietor’s recourse) will only exist if the Buyer and his purchaser have not struck any agreements beyond the statutory claims for defects.
- If nothing has been expressly agreed to the contrary, the period of limitation for claims and rights relating to defects in our goods is 1 year from supply to the Buyer. For repairs and re-placements, we are liable to the same extent as for the supplied item, this being until the end of the limitation period applying to the original item for defect claims.
- The statutory period of limitation of line 1 is not in effect, however, in case of § 438 Section 1 No. 1 BGB (Legal Imperfections in Title for Real Property), § 438 Section 1 No. 2 BGB (Buildings, Objects for Buildings), § 479 Section 1 BGB (Recourse Claims of the Entrepreneur) or § 634a Section 1 No. 2 BGB (Buildings or Works, Whose Success Lies in the Performance of Planning or Monitoring Services).
- The limitation periods under no. 8 also apply in cases of all damages claims against us in association with the defect irrespective of the legal basis of the claim. If there are damages claims against us of any kind which are not associated with a defect, the limitation period under no. 8 sentence 1 of section 12 shall apply.
- The limitation periods under no. 8 and 9 of section 12 above do not apply in cases of intent or if we have concealed the defect with intent to deceive or in the event of damages claims for loss of life, bodily injury or damage to the health or freedom of a person or claims based on the Product Liability Act or a grossly negligent breach of an obligation or for a breach of major contractual obligations.
- Unless expressly specified to the contrary, the statutory regulations relating to the start of the statute of limitations, the suspension of the period, the suspension and the restart of the periods shall not be affected.
§ 14 Liability
- Our liabilities of the company are limited to company assets.
- In the event of ordinary negligence, we shall only be liable if we breach a major contractual obligation. In the event of gross negligence, we will also be liable if we breach minor contractual obligations. In the above cases, liability is limited to the foreseeable damage typical of the contract. In determining the damages foreseeable and typical for the respective contract we can require that suitable consideration be given in good faith both to the nature, scope and duration of the business relationship and to the value of the individual item of our goods.
- In case of warranted characteristics liability is limited to the amount and the intensity of the product liability insurance existing on our behalf. The level of coverage corresponds with the non-binding recommendations of the Gesamtverband der Deutschen Versicherungswirtschaft (GDV = German insurance industry association). The level of coverage for insurance claims referred to in the insurance contract amounts at the minimum to 2 million Euro per insurance year.
- Damages claims for reason of intentional breaching of contractual obligations by us, claims for reason of bodily injury and claims based on the Product Liability Act are governed by the statutory regulations.
- For tortious claims, we are liable in compliance with contractual liability, limiting liability agreements arising from the contract shall also be effective against the Buyer.
- No liability for damages going beyond that provided by the above rulings will be assumed.
- The Buyer shall only hold recourse claims against us to the extent that he has not made an agreement with his buyer going beyond statutory claims for defects and damages.
- Liability on our part is ruled out if the Buyer has effectively limited his liability to his customer.
- Insofar as our liability is ruled out or limited, this shall also apply to the personal liability of our salaried staff, wage earners, free-lance workers, representatives and vicarious agents.
- Insofar as liability is ruled out or limited by the above, the Buyer must also hold us harmless in relation to claims by third parties upon first request.
- Apart from the above, statutory provisions shall apply.
- The Buyer must notify us immediately in writing of any claims made by third parties and permit us to take all defence measures and conduct settlement negotiations.
§ 15 Rescission
- The Buyer can only rescind the contract in compliance with legal regulations if there has been a breach of obligations for which we are responsible; for defects, legal requirements shall apply. In the case of a breach of duty, the buyer must clarify within a time period set down by us, whether he shall withdraw from the contract due to the breach of duty or whether he insists on delivery.
- The right of the Buyer to demand compensation for a mutual contract shall be excluded by such cancellation.
- In the event of a breach of duty by the Buyer, particularly in the event of a delay of payment and non-acceptance of the delivery, we shall be entitled to withdraw from the contract and to cancel the service rendered and to claim compensation for damages after the expiry of a reasonable period of time set for the Buyer. The statutory provisions on the dispensability of setting a deadline and asserting further claims which we are legally entitled to remain unaffected.
§ 16 Secrecy
- If the Buyer comes into contact with business secrets and/or know-how belonging to us during execution of the order, he must maintain secrecy about them and make arrangements to ensure that our protectable interests are not damaged and protectable knowledge is only used in connection with the order or subsequent use of the item itself, which is covered by the order. In particular, the Buyer bears the burden of proof that the business secrets and/or know-how were already known to him beforehand or were at least obvious to him. The Buyer is obliged to treat as a business secret all commercial and technical details in connection with the order. He is obliged to keep secret the documents and information even after the respective contract has been completed. Duplication is only permitted in line with business requirements and copyright provisions. Disclosure to third parties is only possible with our written consent.
§ 17 Items supplied by the Buyer
- If the Buyer submits claims due to damage to or destruction of his items supplied to us or given to us for processing, we shall only be liable in the event of intent and gross negligence; there will be no liability for ordinary negligence. Liability does not cover normal wear and tear. The Buyer must take out external insurance for the necessary amount to cover the items supplied.
- The Buyer is responsible for inspecting and guaranteeing the quality (e.g. material, accuracy of measurements, etc.) of products supplied, e.g. raw material, blanks, etc.; we perform no more than an incoming-goods control of quantity and identity and a visual check for obvious transportation damage. We have no obligation to perform any further checks.
- If the free-issue parts prove to be unusable as a result of material defects, the processing costs incurred shall be reimbursed.
- We shall not be liable for damages caused by incorrect inscription or identification of free-issue parts delivered by the buyer.
- The Buyer is obliged to compensate all damages including our loss of profit caused by the transfer of material not being in a processable condition.
- We will not compensate for material wastage usual in the industry.
§ 18 Compliance
- The Buyer confirms he does not have direct or indirect business or other links with terrorists, terrorist groups or other criminal or anti-constitutional organisations. The Buyer will in particular ensure reasonable organisational measures for the implementation of valid embargoes, the applicable European ordinances on terrorism and fight against crime, as well as the corresponding US-American or other applicable provisions within the scope of this business operation, in particular through appropriate software systems. As soon as our products have left our respective factory, the Buyer is solely responsible for compliance with the above-mentioned provisions and will indemnify us from all claims and costs arising from a corresponding legal offense by the Buyer, its affiliates or employees, representatives or vicarious agents – attorneys’ and advisor’s fees or administrative fees or penalties.
- We will take into account the appropriate regulatory and legal obligations in connection with the European Chemicals Regulation No. 1907/2006 (REACH regulation) as far as we are directly concerned and we will be responsible according to § 13. However, the Buyer shall solely be responsible for any negative consequences resulting from the provision of false or incomplete information by the Buyer, including – without limitation – any information relating to the use of goods within the supply chain.
- The Buyer is obliged to comply with the foreign trade regulations, in particular the applicable German, European and US Export control regulations.
§ 19 Applicable right
- Any contract shall be governed solely by the law of the Federal Republic of Germany; application of Uniform UN Purchase Law CISG is excluded.
- The place of jurisdiction for all disputes arising hereunder shall be Aachen, if the Buyer is a merchant. We also have the right to sue the Buyer at the court having jurisdiction for his seat of business.
- If the Buyer has its company headquarters outside the Federal Republic of Germany, we also have the right that all disputes be decided in accordance with the Rules of Arbitration of the German “Institution für Schiedsgerichtsbarkeit e.V. (DIS)” (German Institution for Arbitration) under exclusion of any state jurisdiction before the beginning of the procedure. Our insurance company shall be entitled to contribute in the arbitration procedures according to the involvement of the insurer within the procedures of ordinary legal proceedings.
- If individual provisions in these general terms of delivery should be invalid, this shall not affect the other provisions.
- We shall be entitled to process data in accordance with the German Federal Data Protection Law (Bundesdatenschutzgesetz).