§ 1 Validity
Our sales conditions apply exclusively; any conditions from the customer that are opposing or deviating from our sales conditions will not be accepted by us, unless we agreed explicitly in writing to their validity. Our sales conditions also apply if we are aware of customer terms that oppose or deviate from our sales conditions and perform deliveries to customers without any reservations, irrespective of the chronological order which is referred to in the concurrent conditions of the contracting partners.
§ 2 General provisions
- Any agreement between the contracting parties must be in writing to be effective. Verbal agreements will only become effective once confirmed in writing by both parties.
- Orders only become binding with our confirmation of the order.
- Our general terms and conditions of business only apply for companies as defined by §310 BGB (German Civil Code).
§ 3 Long-term contracts and on-call contracts, price adjustment
- Unlimited contracts can be cancelled with a 3-months notice.
- If an order from the contracting partner is to be qualified as an offer as defined by §145 BGB (German Civil Code), we are able to accept it within 4 weeks unless defined otherwise.
- If labour, material or energy costs change for long-term contracts (contracts with a term of more than 12 months), each of the contracting partners is entitled to request an appropriate adjustment of the price allowing for these factors.
- Unless otherwise agreed, for delivery contracts on call, we must be informed of binding quantities by call at least 3 months prior to the delivery date. Additional costs which were caused by a delayed call or subsequent changes of the call concerning time, quantity or the item of delivery by the buyer are the buyer’s responsibility. In this respect, our calculation is decisive.
- We are entitled to invoice for temporary price surcharges of semi-finished products which are customary in this industry, based on the weight.
- In the case of a price increase for semi-finished products of more than 10%, we are entitled to withdraw from the contract if no agreement can be reached concerning a price adjustment.
§ 4 Drawings and descriptions
- If one contracting partner provides the other with drawings or technical documents concerning the goods to be delivered or method of manufacturing, they will remain the property of the providing contracting partner.
- Both parties obligate themselves to keep data, drawings and other documents that are provided by the contracting partner confidential, especially not to forward or disclose them to third parties.
§ 5 Samples and workshop facilities
- Unless otherwise agreed, we obligate ourselves to perform required repair and maintenance measures for workshop facilities which are provided by the contracting partner and which we use to produce products under the contract. We will charge the costs for these measures to the contracting partner unless the contract provisions specify otherwise.
- If the buyer interrupts or terminates the cooperation during the time period of producing samples or workshop facilities, all production costs which incurred until then will be the buyer’s responsibility.
- Workshop facilities which are provided by us (tools, gauges, etc.) remain our property even if the buyer paid for tool cost shares.
- 4. We will keep the provided workshop facilities for two years after the last delivery to the buyer. Subsequent to that, we will request the buyer in writing to inform us about the further utilization. If the contracting partner leaves us the workshop facilities in connection with another order, we will keep the items for the contracting partner free of charge as of the point in time of the last delivery. Our storage obligation ends if we do not receive any information or if no new order is placed. We are then entitled to charge the contracting partner for the storage costs since the last delivery.
§ 6 Terms of payment
- The purchase price is due upon receipt of the invoice or upon delivery of the objects of purchase, unless otherwise agreed. Our prices are quoted ex works, including value added tax, but excluding packing. The packing will be charged to the contracting partner separately.
- If we delivered partial undisputedly faulty goods, the buyer is still obligated to provide payment for the fault-free portion, unless the partial delivery is of no interest to the buyer.
- Offsetting by the buyer is only possible if the counterclaims were legally determined or are undisputed.
- If the term for payment is exceeded we are entitled to charge default interest as of the due-date in the amount of the rate that we are charged by the bank for overdraft, but at least in the amount of 800 base points above the respective base lending rate of the European Central Bank.
- In the case of delayed payments we are entitled to stop fulfilment of our obligations until receipt of payments. Otherwise, the legal regulations for delayed payments apply.
- Drafts and cheques will only be accepted upon special agreement and only on account of performance and provided that they are discountable. Discount charges will be charged to the buyer as of the due-date of the invoice amount. Drafts will be credited subject to their receipt with validation of the day on which we can actually dispose of the equivalent amount. A guarantee for the timely provision of the draft and cheque and for raising a note protest is excluded.
- If it becomes clear after contract conclusion that our payment claim is endangered due to the lack of the buyer’s ability, we are entitled to refuse our services and specify a reasonable time period during which the buyer will receive delivery versus payment or security. If the buyer refuses this or after unsuccessful expiration of this time period, we are entitled to withdraw from the contract and to claim for compensation.
§ 7 Delivery
- Unless otherwise agreed or accepted in the confirmation of order, we will deliver ex works. Decisive for keeping the delivery date or term of delivery is the notification of readiness for shipment or pickup by us.
- The term of delivery commences with sending our confirmation of order and clarification of all contract parts and is extended appropriately if any conditions exist as described in the section “Force Majeure”.
- Partial deliveries are only acceptable to a reasonable extent. They will be invoiced for separately.
- Within a tolerance of 10 percent of the total order amount, excess or short deliveries caused by production are allowed.
§ 8 Despatch and passing of risk
- Goods that are notified as being ready for despatch are to be accepted by the buyer immediately. If the buyer delays the acceptance, the risk of accidental loss is transferred to the buyer. We are entitled to send the goods at our own choice or to store them at the buyer’s risk and expense.
- In the absence of a special agreement, we will choose the means of transportation and the route of transport
- The risk is transferred to the buyer with the transfer to the railway, the haulier or freight carrier or with the commencement of storage, however, at the latest with the leaving of the plant or warehouse. This also applies if we carry out the delivery.
§ 9 Delivery delay
- If we can foresee that the goods cannot be delivered within the delivery term, we will inform the buyer immediately and in writing accordingly. We will inform the buyer of the reasons for the delay and provide an estimated delivery date as far as possible.
- If the delivery is postponed due to circumstances as described in section “Force Majeure” or due to an act or neglect of the buyer, an extension of the delivery term will be granted which will be reasonable for these circumstances.
- The buyer is only entitled to withdraw from the contract if we are responsible for not complying with the delivery date, the buyer has given us a reasonable extension of time and has threatened us at the time of granting the extension with this consequence in the case of an unsuccessful expiration of this time extension. An extended liability of the supplier according to § 287 BGB (German Civil Code) is excluded.
§ 10 Retention of title
- We retain ownership of the delivered items until all demands against the buyer under this business relationship have been settled.
- The buyer has the right to resell the delivery items in the normal course of business as long as the buyer fulfils its obligations from the business relationship with us on time and as long as no insolvency proceedings have been filed against the buyer. However, the buyer may neither pledge nor transfer conditional goods as a security. The buyer is obligated to secure our rights in the credited resale of the conditional goods.
- Within the scope of reselling, the customer is authorised to collect demands for our account. Our right to collect these demands directly is not affected from this. However, we obligate ourselves not to collect the demands as long as the customer fulfils its payment obligations on time and in particular, if no insolvency proceedings were filed against the customer.
- The contracting partner is obligated to take good care of the item(s) of sale; in particular, the customer is obligated to insure it sufficiently at its own costs against fire, water and theft damages for the reinstatement value. As far as maintenance and inspection work becomes necessary, the customer must perform such work at its own costs on time.
- In the event of behaviour in violation of the contract by the buyer, in particular in the case of delayed payments, we are entitled to withdraw from the contact and take back delivered items after fruitless expiry of a reasonable additional respite defined by us for remedy. The legal provisions concerning the dispensability of granting a grace period remain unaffected. The buyer is obligated to hand over the delivered items.
- We are entitled to withdraw from the contract if insolvency proceedings for the buyer’s assets are filed.
- All demands and rights from the sale or rental of goods which may have been allowed to the buyer, for which we are entitled to rights of ownership, are already now assigned by the buyer to us for security. We hereby accept the assignment.
- The same applies for the sale of demands from sales of goods for which we are entitled to a right of ownership. However, for such a sale of demands to third parties our prior consent is always required. In this case, our demand will be due immediately and the buyer assigns the demands against the factor that take its place to us and will forward its sales proceeds to us without any delay. In the case of our consent, we will accept this assignment.
- Any possible processing or treatment of conditional goods is always undertaken by the buyer for us. If the conditional goods are processed or mixed inseparably with other items that are not our property, we acquire co-ownership of the new item in the ratio of the invoice amount of the conditional goods at the time of processing or mixing to the other items that are processed or mixed.
- If our items are combined or mixed inseparably with other movables to one single item and if this different item is to be considered as the main item, the buyer transfers co-ownership proportionally to us, as far as the buyer is the owner of the main item. The buyer will keep the ownership or co-ownership item for us safely. Otherwise, the same applies for the item that is produced by the processing or mixing as for the conditional goods.
- In the event of impending enforcement measures or impending acquisition in good faith of liens by a third party, this third party must be informed about the ownership of Federwerke Grueber.
- The buyer must inform us immediately in writing of enforcement measures by third parties against the conditional goods, any demands that were assigned to us or other securities by providing us with any documents which are necessary for an intervention. This also applies for any other interference.
- If the value of existing securities exceeds the secured demands by more than 20 percent, we are obligated to release securities at our own choice upon the buyer’s request.
§ 11 Material defects
- The goods are deemed to be according to the contract if they do not deviate or only deviate slightly from the agreed specifications at the time of transfer of risk.
- The condition of the goods is solely based on the agreed technical delivery provisions.
- A guarantee for a certain purpose of utilization or certain suitability will only be provided to the extent that this was explicitly agreed to.
- If we deliver based on statements, specifications, drawings, etc. from our buyer, the risk of suitability for the intended purpose of utilization is incumbent upon the buyer.
- Contents of agreed specifications and a purpose of utilization which is mentioned therein do not constitute a guarantee. A written agreement is required for a guarantee.
- We are not responsible for material defects which are caused by inappropriate or improper storage, utilization, incorrect installation, usual wear and tear or incorrect treatment or for the results of changes or processing which the buyer or a third party carries out on the delivered items. The same applies for deficiencies which only slightly reduce the value or suitability of the items.
- All material defects become time-barred after 12 months.
- If acceptance of the goods or first sampling was agreed, claims of defects are excluded which the buyer should have noticed during diligent acceptance inspection or first sampling.
- We must be provided with an opportunity to inspect the claimed defect. Objectionable goods are to be returned to us upon request; we will bear the transportation costs if the claim of defects is justified. If the buyer does not comply with these obligations or carries out changes to goods which were already complained about, the buyer will loose possible entitlements for claims of defects. The amount of possible transportation reimbursement is limited to the most favourable transportation version.
- In the case of a justified and timely claim of defects we will correct the claimed goods or deliver a perfect replacement at our own choice.
- If we do not comply with our obligations or not within a reasonable time period according to the contract, the buyer can grant us a last extension of term in writing by which we must comply with our obligations. After unfruitful expiry of this respite, the buyer can request a price reduction, withdraw from the contract or carry out necessary subsequent improvements itself or have them carried out by third parties at our cost and risk. Cost reimbursement is excluded as far as expenses are increased because the goods have been transported to a different location other than the agreed delivery location in the contract after completion.
- Legal recourse entitlements of the buyer against us only exist as far as the buyer has not reached any agreements with its customer which exceed the legal entitlements for claims of defect. For the extent of the recourse entitlements the last sentence of the preceding paragraph applies accordingly.
§ 12 Miscellaneous entitlements, liability
- As far as not specified otherwise in the following, any other and further entitlements of the buyer against us are excluded. In particular, this applies for claims for damages due to neglect of duty under the obligation and from unlawful acts. Therefore, we are not liable for damages which did not incur to the delivered goods themselves. In particular, we are not liable for loss of profit or other financial losses incurred to the buyer or third parties.
- The above liability limitations do not apply for intent, gross negligence of our legal representatives or managerial employees or for culpable violations of essential contractual obligations. In the case of culpable violations of essential contractual obligations, we are only liable for reasonably foreseeable loss typical for contracts, except for cases of intent or gross negligence by our legal representatives or managerial employees.
- The liability limitation also does not apply in those cases in which for personal injury or property damage to objects for personal use liability is provided for defects of delivered items in accordance with the Product Liability Act. It also does not apply in the case of injury to life, body or health and in the case of a violation of guarantees which were explicitly provided by us and as far as the guarantee was for the purpose of securing the buyer against damages that did not incur to the delivered goods themselves.
- As far as our liability is excluded or limited, it also applies for the personal liability of our employees, staff, workers, legal representatives and auxiliary persons.
- The legal regulations concerning the burden of proof remain unaffected hereof.
§ 13 Force majeure
Force majeure, industrial conflicts, riots, official measures, delivery failure by our suppliers and other unforeseeable, inevitable and major events release the contracting partners for the duration and to the extent of their effect from their performance obligation. This also applies if these events occur at a point in time at which the affected contracting partner is in default, unless this default was caused intentionally or gross negligently. Within reasonable limits, the contracting partners are obligated to immediately provide the required information and to adjust their obligations to the changed conditions in good faith.
§ 14 Place of performance, place of jurisdiction and applicable law
- If the confirmation of order does not specify otherwise, our place of business in Hagen is the place of fulfilment.
- Our place of business in Hagen is the place of jurisdiction for any litigation, including within the scope of draft and cheque proceedings. We are also entitledto sue at the place of business of the buyer.
- The law of the Federal Republic of Germany shall exclusively apply for the contractual relationship.
- Any dispute arising from this contract concerning the delivery of our products with a party with place of business outside the federal territory of Germany will be decided as binding and final according to the arbitrary rules of the German institution for arbitrary jurisdiction (DIS) and without appealing to the regular jurisdiction. The arbitrary rules of DIS will be applied for the arbitration proceedings unless the parties explicitly agreed otherwise. The arbitration proceedings shall be held in English. The board is formed by three judges. Each of the appointed judges must hold qualifications for judgeship as defined by the German Judiciary Act. The judges shall be appointed by the DIS nomination committee.
- Applying the UN Vienna Convention on the International Sale of Goods (CISG) from 11 April 1980 is excluded.