Terms of delivery and payment
1. Place of fulfilment and jurisdiction, applicable law
Our place of business shall be place of fulfilment and jurisdiction for delivery and payment. We reserve the right to pursue claims against the buyer at his or her place of jurisdiction as determined by the applicable address of service. Any contract under these terms and conditions is subject to the laws of the Federal Republic of Germany. The law on international sale of movable goods of July 17, 1973 is hereby declared not applicable.
2. Conclusion of contract
All orders require our confirmation in writing to become legally valid. This also applies to all direct or subsidiary agreements with representatives. The confirmed offer and the written order confirmation shall constitute the contractual relationship together with the terms and conditions contained therein. Any conditions of purchase on the side of the buyer not conforming to the “General Terms and Conditions of Sale and Delivery” are hereby expressly rejected. This objection also applies in case the buyer has requested certain formalities for such objections. If the buyer’s conditions of purchase do not allow for such objections, the applicable law and customs of the trade shall take the place of these pre-defined conditions. Individual conditions of purchase by the buyer shall only be applicable if expressly accepted by us in writing.
Our prices are subject to change without notice. Subsequent reduction of order size may lead to an increase in price per item to account for additional costs. Our prices are based on the current and usual cost factors. Should the labour rates of the metal industry or the costs for the material necessary to complete the order increase in the time between the signing of the contract and the agreed date of delivery, we are authorized to raise our prices accordingly.
Goods shall be packaged in accordance with the customs of the trade and charged at cost price. Packaging returned prepaid in good condition will be refunded at two thirds of the costs charged.
Requirements to the contrary notwithstanding, choice of shipping methods is at our discretion with no obligation to choose the most cost efficient option. All costs and risks related to shipping are passed to the buyer once the goods leave our factory.
6. Passing of risk
In case the goods are to be shipped to the buyer, all risks are passed to the buyer once the goods are handed over to the carrier or leave our factory, regardless of who shall pay for shipping. If the goods are ready to be dispatched and shipping is delayed for reasons beyond our responsibility, all risks are passed to the buyer once notified of the readiness for dispatch.
7. Excess or short delivery
Delivery in excess or short of 10% of the order volume shall be considered to fulfil contractual duties. In the case of contracts with consecutive shipments, we request advance notification on delivery times and order size. We remain authorized to manufacture goods according to total order size at our discretion, unless expressly agreed to otherwise. Subsequent modifications to the order may only be honoured if goods have not already been manufactured. In the case that we receive no timely notification on delivery times and order size, we shall be authorized to set time and size at our discretion after an extended grace period notification. If applicable, we may also terminate the contract and request damages accordingly.
All tools and other items manufactured for the order remain our property, regardless of the distribution of costs. Tool costs are invoiced separately and are due once the initial sample has been received, or, in the case that no sample was requested, upon receipt of the first order. We guarantee exclusive use of tools manufactured solely for the buyer and guarantee availability of such tools for up to 3 years after the buyer’s last order. In the case that the buyer notifies us of further orders intended to be placed within a year prior to the aforementioned deadline, we guarantee availability for this duration of time. Otherwise further usage of the tools is at our discretion.
Unless otherwise agreed payment shall be made as follows: Within 8 days from date of invoice less 2% discount or within 30 days net in cash. Late payment will incur applicable fees. Bills of exchange will be accepted only at our discretion and only on account of payment. Once cashed, they will be accepted in lieu of payment. Fees incurred will be billed to the buyer.
10. Reservation of title
All goods delivered by us shall remain our property until complete payment of all invoices from the business relationship between buyer and us. The inclusion of individual claims in a current invoice and acknowledgement of the balance shall not affect the reservation of title. Only receipt of nominal value will count as payment. If the buyer pays by cheque and we – in whatever way – accept liability for the cheque’s value in whole or in part by way of bill of exchange, only cashing of such bills of exchange will count as payment with regard to the reservation of title. The buyer shall be authorized to re-sell withheld goods as part of normal course of business, pledging or assignment as security shall not be permitted. The buyer is required to secure our rights when re-selling goods through appropriate credit. The buyer is also required to assign by way of security any and all future claims resulting from the resale of the goods sold under retention of title to us. The buyer shall remain authorized to claim payment for such sales until further notice. If this authorization is revoked, the buyer has to provide us with the details on all assigned claims and notify debtors accordingly.
11. Time of delivery and default
Delivery times are quoted to the best of our knowledge but not guaranteed. Agreed-upon delivery times commence on the day our order confirmation is sent out, but not before all order details have been clarified. Delivery shall be considered on time if goods have been dispatched from supplier on the due date, or, in case of buyer’s default, have been made available for shipping by the supplier. We shall not be liable if shipping is not completed due to circumstances beyond our control and force majeure, e.g. strikes, lockouts, accidents and all other circumstances leading to complete or partial work stoppage. Shortage of materials, interruption or failure of electricity or transport lines, disruption of operations within our or our supplier’s business shall be considered accordingly. In all such cases we are authorized to delay shipment for the duration of said circumstances. To claim delayed delivery, the buyer will first have to set an additional period for delivery of no less than 15 working days while threatening to otherwise refuse acceptance of performance. In case of our inability to deliver arising after the conclusion of the contract, the buyer shall not be entitled to claim damages if this inability has been immediately communicated to the buyer. Delayed delivery caused by gross negligence or initial incapacity to deliver shall authorize the buyer to terminate the contract or claim damages for the part of the contract left unfulfilled. Neither in the case of partial nor delayed delivery shall the buyer be entitled to claim frustration of purpose for the full contract.
12. Right to refuse performance, Reservation of the right to cancel
In the event that the buyer’s financial situation deteriorates substantially or that such deterioration comes to our knowledge after the conclusion of the contract, we reserve the right to refuse performance and request the buyer to provide an adequate security deposit to ensure fulfilment of the contract. In case the buyer refuses to provide such a deposit within a reasonable period of time, we reserve the right to cancel the contract and claim damages.
Claims for defects are to be put forward in writing within the periods set out below. Visible defects will be accepted if claimed within 2 weeks of delivery, if the buyer has not processed the goods further. Shortages of up to 1,5% of the delivered quantity are to be borne by the buyer. Goods proven to be faulty and claimed in due course will either be refunded or replaced accordingly as we see fit. Handling expenses for defectives will not be refunded; post processing and other extra costs will only be refunded according to prior agreement. All claims for defects expire one month after receipt of our written rejection. Machinery used for quality control and pre-delivery inspection complies with all current technological standards. Contractual responsibility for such controls and inspections does not amount to further owner’s duties of care, which shall remain the duties of the buyer. Further claims, including but not limited to follow-up costs and damages, are hereby excluded.
Claims extending beyond those laid down in these terms and conditions, including indirect claims, e.g. claims based on damages to items not identical with the goods supplied, are hereby excluded. This includes, but is not limited to, claims based on “culpa in contrahendo”, alleged breach of contract and/or accessory obligations caused by negligence and illegal conduct (e.g. product liability). This exemption shall not apply to liability for guaranteed features as stipulated by law.
15. Proprietary rights
Buyer is obliged to verify that production of goods according to order does not unduly infringe trademark or other proprietary rights of others and if necessary inform us accordingly. Buyer will be held liable for any such claims brought against us related to the execution of his or her order.