Terms & Conditions

General Conditions of Sale, Delivery and Payment

Unless otherwise specifically agreed in writing the following terms and conditions apply.

I. Offers

Documents and diagrams, drawings, weights and measurements belonging to the offer are only approximate unless they are expressly defined as binding. Cost estimates, drawings and other documents remain the property and under copyright of the supplier; they may not be disclosed to third parties. The supplier is obliged not to disclose plans defined by the client as confidential to third parties without the client’s authorisation.
SCREENING AND DRYING TESTS: If required, the client is obliged to provide the supplier with sufficient quantities of the material to be processed free of charge for testing purposes. This material and the data derived from it form the basis of the delivery.

II. Scope of delivery

The supplier’s written order confirmation is binding for the scope of delivery. If the supplier has made an offer valid for a certain period of time which has been accepted within this period, the offer is binding unless an order confirmation is subsequently issued within the period. Additional agreement and amendments must be confirmed in writing by the supplier.

III. Prices and payment

Unless otherwise specified prices are ex works, exclusive of packing and loading. Value added tax at the applicable rate will be added to all prices. If the prices of raw materials, wages, freight and similar items go up, the supplier is entitled to demand a reasonable surcharge. Bills of exchange, checks and other securities as well as assigned receivables and other collateral are only accepted by the supplier by way of payment under reserve of timely and full discharge. If bills of exchange and checks are accepted, the supplier is not liable for timely presentation and protest. If receivables are assigned the supplier is not obliged to take legal action to recover the amount assigned. Only payments made directly to the supplier discharge the payment obligations. If payment is delayed interest will be charged at the applicable bank rate for unsecured company loans including expenses, without prior notification and without prejudice for other claims. If payment by instalments has been agreed and an instalment is not paid on time, in full or in part, the total outstanding amount becomes due and payable immediately. Regardless of the method of payment agreed, the supplier is entitled at his discretion either to demand immediate payment of the full purchase price or to withhold delivery until payment is received or to cancel the contract if after the contract has come about the payment claim is discovered to be at risk as a result of the client’s circumstances. This applies regardless of whether the risk occurs before or after the contract came about. Such a risk is deemed to have occurred if a bill of exchange received from the client is protested. Payments may not be retained or offset against any counter claims from the client that are disputed by the supplier.

IV. Time of delivery, delayed delivery

The time of delivery is agreed by the parties to the contract. In order for the supplier to meet the delivery time, all commercial and technical issues between the parties must have been resolved and the client must have fulfilled all obligations, e.g. procured the necessary authorisations or permits or made a down payment. If this is not the case the delivery time is extended by a reasonable period. This does not apply if the supplier is responsible for the delay.
In order for the supplier to meet the agreed delivery time he must in turn have received the correct supplies in good time.
The time of delivery is met when the item to be delivered has left the supplier’s premises by the end of the stipulated time or is notified as ready for dispatch. If the item is subject to an acceptance procedure the planned date of acceptance applies, alternatively the notification of readiness for acceptance – unless acceptance is refused for good reason.
If the client is responsible for delays in dispatching or accepting the delivery item the costs arising from the delay will be charged, starting from one month after notification of readiness for dispatch or acceptance.
If the time of delivery cannot be met due to acts of God, industrial action or other events beyond the control of the supplier the delivery time is extended by a reasonable period. The supplier will notify the client as soon as possible of the beginning and end of any such events.
The client can rescind the contract without notice if the supplier is definitively prevented from performing his obligations in full before passing of risk. The client can also rescind the contract if a partial delivery cannot take place for a given order and the client has a legitimate interest in rejecting the partial delivery. If this is not the case the client must pay the agreed price for the partial delivery. The same also applies if the supplier is not capable of performing his obligations. Otherwise, Section VIII, 2 applies. If impossibility of performance or incapacity arise whilst the client is in default of acceptance or if the client is solely or overwhelmingly responsible for the circumstances he remains obliged to make the agreed compensation.

V. Passing of risk and acceptance

Risk passes to the client when the delivery item has left the factory; this also applies when partial deliveries are made or the supplier has also taken on additional obligations such as payment of transport costs or delivery and installation. If the client’s acceptance is required then risk is passed when acceptance takes place. Acceptance must take place promptly at the time of delivery, alternatively after the supplier’s notification of readiness for acceptance. A non-significant defect does not entitle the client to refuse acceptance.
If dispatch or acceptance are delayed for reasons for which the supplier is not responsible, risk passes to the client from the date of notification of readiness for dispatch or acceptance. The supplier undertakes to take out all insurance required by the client at the latter’s expense.
Partial deliveries are permitted, if not unreasonable for the client.

VI. Retention of ownership

The supplier retains ownership of the delivery item until all payments under the delivery contract have been received.
The supplier is entitled to insure the delivery item against theft, breakage, fire, water and other damage at the client’s expense, unless the client has not demonstrably insured it himself.
The supplier may not pledge or assign the delivery item as collateral. If the item is distrained or confiscated or otherwise disposed of by third parties he must inform the client without delay.
If the client breaches the terms of the contract, in particular through default of payment, the supplier is entitled to recover and the client is obliged to release the item following a written warning. The supplier is not deemed to rescind the contract by exercising his right of ownership or by distraining the delivery item.
If the client has combined the supplier’s goods with other objects to make a single unit, the client is deemed to have transferred a pro-rata co-ownership right to the supplier within the meaning of Section 947 (1) German Civil Code (BGB) and to be holding the unit in safe custody for him without charge.
If the products are sold the client assigns the receivables from the sale together with all auxiliary rights to the supplier for the value of the item delivered.
If an application is made for insolvency proceedings to be opened the supplier is entitled to rescind the contract and demand the immediate return of the delivery item.

VII. Liability for Defects

The supplier is liable for material defects and defects of title of the delivery item, excluding further claims, except as provided in Section VII Guarantee, as follows: Material defects

All parts proving to be defective due to circumstances arising before the passing of risk are to be repaired or replaced at the supplier’s discretion free of charge. The supplier is to be notified of all such defects as soon as they are identified. Replaced parts become the property of the supplier.
In order for the supplier to make repairs and replacement deliveries as appear necessary, the client must provide sufficient time and opportunity in coordination with the supplier to do so; otherwise the supplier is released from liability for the consequences. Only in urgent cases in which the safety of his factory is at risk or to avoid unreasonable damages, in which case the supplier is to be notified immediately, is the client entitled to repair the defect himself or engage third parties to do so and to demand indemnification from the supplier.
If the complaint proves to be justified the supplier bears the costs of the replacement part including transport costs and reasonable disassembly and reassembly costs. In addition, if this can reasonably be required given the circumstances of the individual case, the supplier also bears any costs incurred in providing his engineers and auxiliary workers.
The client has a statutory right to rescind the contract if the supplier ignores a reasonable deadline for repairing or replacing a defect – apart from the statutory exceptions. If the defect is not significant the client is only entitled to reduce the purchase price. In all other cases no right to reduce the purchase price exists.
No guarantee is given for the following cases in particular: unsuitable or improper use, incorrect assembly or operation by the client or third parties, normal wear and tear, incorrect or negligent handling, improper maintenance, unsuitable supplies, defective construction work, unsuitable foundations, chemical, electrochemical or electrical influences, unless the responsibility of the supplier.
If the client or a third party carries out repairs incorrectly the supplier is not liable for the ensuing consequences. This also applies to changes made by the client to the delivery item without the supplier’s prior consent. Defects of title
If the use of the delivery item leads to an infringement of domestic intellectual property rights the supplier will generally procure the right for the client to continue using the delivery item, or modify the delivery item in a way that is reasonable for the client and such that the infringement of intellectual property rights no longer persists. If this is not possible within a reasonable period of time or under reasonable economical conditions the client is entitled to rescind the contract. Under these conditions the supplier is also entitled to rescind the contract. Furthermore the supplier will indemnify the client for undisputed or legally enforceable claims by the holders of the intellectual property rights.
Notwithstanding Section VII. 2, the supplier’s obligations in case of an infringement of intellectual property rights are limited to those stated in Section VII. 7. The obligations only arise when

the client notifies the supplier as soon as any claims for breach of intellectual property rights are made,
the client supports the supplier to a reasonable extent in defending the claims and/or enables the modification of the delivery item in accordance with Section VII. 7,
the supplier has reserved the right to all defending measures, including out of court settlements,
the defect of title is not due to an instruction given by the client and
the infringement was not caused by the client changing the delivery item on his own authority or using it in a way incompatible with the contract.

VIII. Liability

If the client cannot use the delivery item in the way intended by the contract due to the fault of the supplier resulting from not or incorrectly carrying out suggestions and agreements made before or after the contract is signed, or from a breach of other secondary contractual duties – especially instructions for operating and servicing the delivery item – the provisions of Sections VI and VII. 2 apply accordingly and to the exclusion of all and any other rights of the client.
For damages other than to the delivery item the supplier is only liable on whatever legal grounds for

intent,
gross negligence on the part of the owner / board members or senior managers,
culpable damage to life, body, health,
defects which he fraudulently concealed or for whose absence he warranted,
defects of the delivery item to the extent that liability exists pursuant to the German Product Liability Act for damages to persons or personal property.

In cases of culpable breach of primary contractual duties the supplier is also liable for gross negligence of other staff and for simple negligence; the latter is limited to typical damages for the type of contract and which could reasonably have been foreseen. All other claims are excluded.

IX. Statute of limitations

All claims by the client on whatever legal grounds are subject to prescription after 12 months. For deliberate or fraudulent conduct and for claims under the German Product Liability Act the statutory limitations apply. They also apply for defects to a building or for delivery items which in accordance with their normal use were used for a building and caused it to be defective.

X. Place of performance, jurisdiction and applicable law

The place of performance for both parties is the registered office of the supplier. Any disputes are to be resolved by the court at the supplier’s place of business in 76829 Landau/Pfalz. The supplier is also entitled to bring legal action at the client’s place of business. The law of the Federal Republic of Germany applies to the contractual relationship. UN commercial law (United Nations Convention on Contracts for the International Sale of Goods, dating from 11.04.1980) does not apply. In case of legal action brought before the relevant foreign courts for the client’s place of business the supplier can waive the application of German law, whereby the supplier’s conditions of delivery and payment are to be applied to the extent permitted.

XI. Subsequent orders

These conditions of delivery also apply to subsequent orders and orders for repair work which are not expressly confirmed in writing.