General Terms and Conditions of Sale and Delivery
§ 1 Applicability, customer’s legal form
(1) These General Terms and Conditions of Sale and Delivery (GTC) apply to all our business dealings with our customers ("customers"). The GTC apply only if the customer is an entrepreneur (see s. 14 German Civil Code [BGB]), a legal entity under public law or a special fund under public law.
(2) The GTC apply in particular to contracts for the sale and / or delivery of movable property ("goods"), regardless of whether we manufacture the goods ourselves or purchase from suppliers (ss. 433, 651 BGB). Unless otherwise agreed, the general terms and conditions in the version valid at the time of the customer’s order or at least in the version last communicated to him in text form by way of a framework agreement shall also apply to similar future contracts, without us having to refer to them again in each case.
(3) Our GTC apply exclusively. Any diverging, conflicting or supplementary provisions of the customer’s General Terms and Condition shall only become part of the contract if and insofar as we have expressly agreed to their validity in written form. This approval requirement applies in any case, for example, even if we carry out the delivery to the customer unconditionally in the knowledge of the customer’s terms and conditions.
(4) Agreements made with customer in individual cases, (including subsidiary agreements, additions and changes) shall, in any case, take precedence over these GTC. A contract in writing or our written confirmation of such agreements shall be authoritative proof of the content of these subsidiary agreements.
(5) The customer’s legally relevant statements and notifications regarding the contract (eg. on deadlines, notification of defects, withdrawal from a contract or reduction in quantities) must be made in writing, ie in written or textual form (eg. by letter, e-mail, fax). Statutory formalities and other verifications shall remain unaffected by this, particularly in case of doubt about the legitimacy of the declarant.
(6) References to the validity of statutory provisions are merely given by way of clarification. Even without such clarification, therefore, the statutory provisions shall apply, unless they are changed or expressly excluded in these GTC.
§ 2 Conclusion of contract
(1) Our offers are non-obligatory and are non-binding. This shall also apply if we provide the customer with catalogues, technical documentation (eg. drawings, plans, evaluations, calculations, references to DIN standards), other product descriptions or documents, including those in electronic form, for which we reserve rights of ownership and copyright.
(2) Where the customer orders goods, this shall be held to be a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 5 working days after its receipt.
(3) Acceptance of the customer’s order must be stated in writing (eg. by order confirmation in electronic form) to the customer.
§ 3 Delivery period and delays
(1) The delivery period shall be individually agreed or specified by us when accepting the order. In the absence of this, the delivery period is about 6 weeks from the conclusion of the contract and clarification of all technical details.
(2) If we are unable to comply with binding delivery periods for reasons for which we are not responsible (service unavailable), the customer will be informed of this and a likely, fresh delivery period, without delay. If the service is not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we shall immediately reimburse any payment already made by the customer. In particular, our service shall be held to not be available if and when our own suppliers are delayed in delivering to us, if we have concluded a congruent hedging transaction, if neither we nor our suppliers are at fault, or if we are not obliged to obtain the goods in the respective case.
(3) Whether or not we are late in making a delivery shall be determined in accordance with the provisions of s. 286 ff. BGB. In any case, the customer shall be required to send us a reminder. If we are late in making a delivery, the customer can demand a flat rate in compensation for the damages caused by the delay. This shall be 0.5% of the net price (delivery value) for every completed calendar week of delay, but not more than a total of 5% of the delivery value of the delayed goods. We reserve the right to prove that the customer did not incur any damages or only significantly lower damages than the aforementioned flat rate.
(4) The customer’s rights in accordance with s. 8 of these GTC and our statutory rights, in particular in the case of an exclusion of the obligation to perform (eg. due to impossibility or unreasonableness of the service and/or supplementary performance), remain unaffected.
§ 4 Delivery, transfer of risk, acceptance of goods, delay in acceptance
(1) Delivery is ex warehouse, which is also the place of performance for the delivery and any supplementary performance. At the request and expense of the customer, the goods will be shipped to another destination (consignment purchase). Unless otherwise agreed, we are entitled to determine the nature of the dispatch (in particular the transport company, dispatch route, packaging).
(2) Discrepancies in order quantities of up to plus/minus 10% (additional or partial services) shall be deemed to be permissible and not unreasonable.
(3) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon transfer of the goods. In the case of sale by dispatch, however, the risk of accidental loss and accidental deterioration of the goods, as well as the risk of delay shall pass to the forwarder, the carrier or the person or establishment otherwise responsible for carrying out the dispatch. Insofar as goods are accepted, this shall be deemed to be conclusive for the transfer of risk. In addition, the statutory provisions of the law on contracts for works and services shall apply accordingly to an agreed acceptance of goods. Where the customer is late in accepting goods, it shall be deemed to have accepted them.
(4) If the customer is late in accepting goods, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we are entitled to demand compensation for the resulting damages including additional expenses (eg. storage costs). For this we would charge a flat-rate of compensation of 0.5% of the net price (delivery value) of the goods per full week of delay, but no more than 5% of the delivery value of the delivered goods for which acceptance is delayed.
(5) We reserve the right to demonstrate higher damages and to our statutory claims (in particular the refunding of additional expenses, adequate compensation, termination of contracts); the flat-rate of compensation shall however be included in more extensive monetary claims. The customer remains entitled to prove that we have incurred no, or only a significantly lower level of damages than the above flat rate.
§ 5 Prices and terms of payment
(1) Unless otherwise agreed in individual cases, our current prices valid at the time of the conclusion of the contract apply, ex warehouse, plus VAT at the applicable rate.
(2) In the case of sale on dispatch (s. 4 para. 1), the customer shall bear the transport costs ex warehouse and the costs of any transport insurance that the customer wishes to have. Any duties, fees, taxes and other public charges shall be borne by the customer.
(3) The purchase price shall be due and is to be paid within 10 calendar days of invoicing and delivery or acceptance of the goods. However, we are entitled at any time, even in the context of ongoing business dealings, to carry out a delivery in whole or in part only against advance payment. We will state this at the time of confirmation of the order at the latest.
(4) We reserve the right to refuse cheque payments. Cheque payments are only accepted by way of settlement, all costs associated with them shall be borne by the customer.
(5) Upon expiry of the above payment period, the customer is in default. The purchase price is subject to interest during the default at the applicable statutory default interest rate. We reserve the right to assert further damages caused by delay. Our claim to interest on trader’s late payments (cf. s 353 German Commercial Code [HGB]) remains unaffected.
(6) The customer is only entitled to set-off or payment retention rights insofar as its claim is legally established or undisputed. The customer’s counterclaims in accordance with s. 7 para. 6 sentence 2 of these GTC remains unaffected in case of deficiencies in the delivery.
(7) Where it becomes evident, after conclusion of the contract, that the customer may not be able to pay the purchase price (eg. through an application for insolvency proceedings), we are entitled, in accordance with the statutory provisions, to refuse to meet commitments and, where necessary, following an extension period for payment, to withdraw from the contract (s. 321 BGB). In the case of contracts for the production of unreasonable items (custom-made), we can withdraw from the contract immediately; the statutory provisions on dispensing with setting a deadline remain unaffected.
§ 6 Retention of title
(1) We retain ownership of the goods sold until full payment of all our present and future claims under the purchase agreement and ongoing business dealings (secured claims).
(2) Goods subject to retention of title may not be pledged to third parties or transferred as collateral before full payment of the secured claims. The customer must notify us immediately in writing if an application is made for the opening of insolvency proceedings or if a third-party gains access (eg. by way of seizure) to the goods belonging to us.
(3) In the event of a breach of contract by the customer, in particular in the case of non-payment of the purchase price due, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the goods on the basis of the retention of title. The request for surrender of goods does not at the same time mean withdrawal from the contract; rather, we are entitled to demand only the goods and to reserve the right to withdraw from the contract. Where the customer does not pay the purchase price due, we may only assert these rights if we have unsuccessfully set a reasonable deadline for payment to the customer, or if such a deadline can be dispensed with in accordance with the statutory provisions.
(4) The customer is entitled until further notice in accordance with (c) below to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions also apply:
(a) Retention of title extends to the full value of products resulting from the processing, mixing or combination of our goods, and we shall be deemed to be the manufacturer of them. If the property rights remain after processing, mixing or combination with third-party goods, we acquire co-ownership in proportion to the invoice values of the processed, mixed or associated goods. In other respects, the same applies to resulting products as for goods delivered under reservation of title.
(b) By way of security, the customer hereby assigns to us its claims against third parties resulting from the resale of the goods or the product, either in total or to the level of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The customer’s obligations as stated in paragraph 2 also apply to assigned claims.
(c) In addition to us, the customer also remains authorised to collect the claim. We undertake not to collect the claim as long as the customer meets its payment obligations to us, it remains fully solvent and we do not assert the reservation of title by exercising a right in accordance with para. 3 above. In such an event, we shall be entitled to demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for the collection of these, hands over the relevant documents and notifies the debtors (third parties) of the assignment. In addition, in this case, we are entitled to revoke the customer’s entitlement to resell and process the goods subject to retention of title.
(d) If the realizable value of the securities exceeds our claims by more than 10%, we shall, on the customer’s request, release securities of our choice.
§ 7 The customer’s claims for defects
(1) Insofar as nothing different is determined below, the statutory legal provisions apply to the customer’s rights (eg. in the event of incorrect and short delivery as well as improper installation or inadequate assembly instructions). In all cases, the special statutory provisions on final delivery of the unprocessed goods to a consumer remain unaffected, even if they have further processed them (supplier recourse in accordance with s. 478 BGB). Suppliers’ claims are excluded if the defective goods have been further processed by the customer or another entrepreneur, eg. by incorporating them into another product.
(2) Our liability for defects in goods sold shall be based on the agreed goods quality. All product descriptions that are the subject of the individual contract or that have been publicised by us (in particular, in catalogues or on our website homepage) shall be considered as being an agreement on goods quality.
(3) Insofar as goods quality has not been agreed, this shall be assessed in accordance with the legal provisions on whether or not goods are defective (s. 434, para. 1, sub-paras. 2 and 3 BGB). We accept no liability for the statements by the manufacturer or other third parties that are made public (eg. advertising statements).
(4) The customer shall only be considered to have claims for defects if it has complied with its statutory obligations to examine goods and give notification of its objections (ss. 377, 381 HGB). Where goods are defective at the time of delivery, examination or at any later time, we must be notified of this immediately in writing. In any case, obvious defects must be reported in writing within 5 working days from the date of delivery, and any defects that cannot be identified during examination, within the same period from the time they are discovered. In accordance with the relevant statutory provisions, we cannot be held liable for defects that are reported to us improperly, late or not at all.
(5) If the delivered goods are defective, we can first of all choose whether we provide supplementary performance by eliminating the defect (rectification) or by delivering a defect-free product (replacement). Our right to refuse supplementary performance under statutory requirements remains unaffected.
(6) We are entitled to make the due supplementary performance dependent on the customer paying the purchase price owed. The customer is, however, entitled to retain a proportion of the purchase price in relation to the defect.
(7) The customer shall give us the necessary time and opportunity to provide the due supplementary performance, in particular, handing over the goods objected to, for examination purposes. In the case of replacement of these, the customer must return the defective item in accordance with the statutory provisions. Where we were not originally required to install items, supplementary performance shall not include the removal of the defective item or reinstallation.
(8) Where goods are actually defective we will bear the costs of testing and supplementary performance, in particular transport, road, and labour costs and those of materials (not removal or installation costs). Where this is not the case, we may demand reimbursement (in particular for inspection and transport costs) from the customer for costs incurred in connection with the unwarranted demand for the defect to be dealt with, unless the absence of a defect was not discernible to the customer.
(9) In urgent cases, where operational safety is at risk or in order to prevent disproportionate damage, the customer has the right to eliminate the defect himself and to demand reimbursement from us for any objectively required expenses. The customer must inform us without delay, where possible in advance, if it takes steps to rectify defects in goods itself. If we were entitled to refuse a corresponding supplementary performance in accordance with the statutory provisions the customer shall not be entitled to reimbursement of rectification costs it itself incurs.
(10) If the supplementary performance has failed or a reasonable period set by the customer for the supplementary performance has expired unsuccessfully or can be dispensed with in accordance with the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. The customer shall not be entitled to withdraw from the contract as a result of a minor defect.
(11) Even where defects are present in goods, the customer shall only have claims for damages or the reimbursement of futile expenses in accordance with s. 8; other such claims are excluded.
§ 8 Other liability
(1) Insofar as these GTC, including the following provisions, do not stipulate otherwise, we shall be liable in the event of a breach of contractual or non-contractual obligations in accordance with statutory provisions.
(2) Regardless of the legal grounds for this, we shall be liable for damages in the event of culpable malice or gross negligence. In accordance with the statutory provisions, in cases of ordinary negligence, we can only be held liable (eg. for lack of due diligence in matters relating to our company), and to a lesser extent, for:
(a) damages resulting from harm to life, limb or health,
(b) damages resulting from the significant breach of a fundamental contractual obligation (an obligation the fulfilment of which enables the proper execution of the contract in the first place and compliance with which the contractual partner regularly relies and may rely on); however, in this case, our liability shall be limited to compensation for foreseeable, typically occurring damages.
(3) The liability limitations in accordance with para. 2 above shall also apply to breaches of duty by or for the benefit of persons whose fault we answer for under the law. They do not apply if we fraudulently concealed a defect or have given a guarantee for the quality of the goods and for the customer’s claims under the Product Liability Act.
(4) The customer may only withdraw from or terminate a contract as a result of a breach of duty that is not based on a defect in goods, if we are responsible for the breach of duty. The customer does not have an unrestricted right to terminate the contract (in particular in accordance with ss. 651, 649 BGB). For the rest, the legal requirements and legal consequences apply.
§ 9 Statute of limitations
(1) Notwithstanding s. 438, para. 1, sub-para. 3 BGB, the general period of limitation for claims arising from defects as to quality and legal defects is one year from the date of delivery. Insofar as goods acceptance has been agreed, the period of limitation begins with the acceptance.
(2) The above periods of limitation stemming from sale of goods law also apply to the customer’s contractual and non-contractual claims for damages based on a defect in goods, unless the application of the regular statutory limitation period (ss. 195, 199 BGB) would lead to a shorter limitation period in individual cases. Claims for damages by the customer in accordance with s. 8, para. 2, sub-paras. 1 and 2(a), and in accordance with the German Product Liability Act, shall nevertheless be time-barred exclusively in accordance with the statutory limitation periods.
§ 10 Forms and tools
(1) Prices of moulds and tools, unless specifically stated, shall not include the cost of one-off samples, testing or equipment processing, or costs for changes carried out by the customer. We will bear the costs of samples for which we are responsible.
(2) Unless otherwise agreed, we are and shall remain the owner of the moulds and tools manufactured for the customer by ourselves or by a third party commissioned by us. Mould and tools shall only be used for the customer’s orders inasmuch as it fulfils its payment and product acceptance obligations. We are only obliged to replace these moulds and tools free of charge if these are required in order to fulfil an order quantity that has been guaranteed to the customer. Our obligation to retain moulds and tools shall terminate 2 years after the last part-delivery from the mould or tool and following prior notification of the customer.
(3) Where an agreement has been made that customer shall become the owner of the moulds and tools, ownership shall be transferred to it after full payment of the purchase price. Instead of being handed over to the customer, the moulds and tools shall be stored by AGOFORM, for the customer. Independently of the customer’s legal right to the surrender of the moulds and tools, we are entitled to their exclusive possession until the termination of the contract. We have an obligation to mark the moulds and tools as being third-party property and to insure them at the customer’s expense, if the customer requests this.
(4) In the case of customer's own moulds and and/or moulds and tools lent or made available to AGOFORM by the customer in accordance with para. 3 above, our liability shall be limited to our obligation to store and maintain these, and to due diligence as in dealing with our own affairs. Maintenance and insurance costs shall be borne by the customer. Our obligations shall terminate if, after completion of the order and the corresponding request, the customer does not collect the moulds and tools within a reasonable period of time. So long as the customer has not fulfilled its contractual obligations in full, we are in any case entitled to retain moulds and tools.
§ 11 Provision of materials
(1) If materials are delivered by the customer, they shall be delivered on time and in perfect condition at its own expense and risk with a reasonable quantity, unless otherwise agreed, of at least 10%.
(2) If these conditions are not met, the delivery time will be extended accordingly. Other than in cases of force majeure, the customer shall bear the additional costs incurred for interruptions to production.
§ 12 Industrial property rights
(1) Where we have to deliver in accordance with to drawings, models, samples or parts provided by the customer, the customer warrants that third-party property rights in the country of destination of the goods will not be breached thereby. Our customers will be informed of any industrial property rights we are aware of. The customer must absolve us from third-party claims, and must compensate us for damages caused. Where we are prohibited from producing goods by a third party because of property rights it holds, we shall be entitled, without checking the legal situation, to stop the work until the customer and the third-party have clarified the legal situation, without examining the legal situation. If, due to the delay, the continuation of the order is no longer reasonable, we shall be entitled to withdraw from it.
(2) Drawings and samples that you provide, which did not lead to the order, will be returned on request; otherwise we are entitled to destroy them three months after submission of the offer. This obligation also applies to the customer accordingly. The party that is entitled to destroy drawings and samples must notify the other party to the contract of its intention to do this in good time beforehand.
(3) We are entitled to copyrights and, where applicable, industrial property rights, and in particular to all rights of use and exploitation of the models, moulds, tools and devices, designs and drawings designed by us or by third parties on our behalf.
(4) If there are other legal defects, s. § 7 shall apply accordingly.
§ 13 Choice of law and jurisdiction
(1) The present GTC and the contractual relationship between us and the customer are subject to the laws of the Federal Republic of Germany, to the exclusion of international uniform law, in particular the UN Sales Convention.
(2) If the customer is a trader within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, our exclusive place of jurisdiction for all disputes arising directly or indirectly from our contractual dealings shall be our place of business in Löhne, Germany. The same applies if the customer is an entrepreneur within the meaning of s. 14 BGB. However, in all cases, we are also entitled to file a claim at the place of performance of the delivery, or in accordance with these GTC or with an individual agreement that takes priority, or at the customer’s general place of jurisdiction. Priority laws, especially exclusive jurisdictions, remain unaffected by this.