Terms of conditions
General Payment and Delivery Terms
1. General Provisions
These Terms apply to contractors, legal persons, and entities subject to public law or special funds under public law. The Contractor will make deliveries and provide services subject exclusively to the terms and conditions outlined below. Any deviating terms or conditions of the Purchaser that have not been expressly accepted or approved in writing shall not be binding and will not apply even if they may not have been expressly rejected. Any and all agreements, proposals or quotes will be subject only to the Contractor’s terms and conditions. These terms will be deemed accepted and approved when the purchase order is placed or delivery is accepted.
Quotes made by the Contractor are not binding. These quotes will only be valid if they are in writing. The prices quoted will be subject to the proviso that the information on which the proposal or quote is based remains unchanged. The price quoted is to be understood as net price in EUR, excluding value-added tax (VAT), packaging, freight, postage or insurance. Prices are ex works unless otherwise agreed.
3. Drawings and Descriptions
The right of exclusive manufacturing is asserted for any designs, drawings or tools, in particular profiles, which have been made available. Production or reproduction by third parties shall require permission under copyright law by the Contractor. The Contractor hereby warrants that the manufacture, supply and delivery of any items made to its specifications will not violate any third-party property rights. Any and all molds, templates or the like, including drawing and technical documents regarding goods to be supplied or delivered or their manufacture, will remain the sole property of the Contractor, even if the Purchaser may be charged with the costs for said items.
4. Order Acceptance, Purchase Orders, Order Placement
The contract shall become valid upon written confirmation of the purchase order by the Contractor. Any subsequent changes of the order made by the Purchaser will entitle the Contractor to change any terms or conditions of the contract accordingly. Any such changes must also be confirmed in writing. If the Contractor becomes aware of any subsequent circumstances that seem to cast doubt on the solvency of the Purchaser, the Contractor may make further processing of the order, such as delivery or prepayment, conditional or may require reasonable security.
5. Execution and Performance
5.1. Review of the Technical Documentation by the Purchaser
The technical documentation submitted by the Contractor to the Purchaser must be reviewed and approved by the Purchaser regarding all of the properties and characteristics necessary for the intended use. The Purchaser shall sign and return said documentation to indicate approval. If corrections are necessary, then these must be clearly marked. The Contractor will not accept liability for any noticeable defect or deficiency that the Purchaser may have ignored or not objected to or rejected at the time of such review unless the Contractor fraudulently concealed the same defect or deficiency.
Figures, diagrams, schematics, dimensions and drawings, including any descriptions of quality, that are shown in any price lists, catalogues or similar publications shall merely be considered customary approximate values only. Samples shall only be deemed to be approximate representative samples in terms of dimensions, quality or other such properties. Information provided by us regarding properties, dimensions, purpose or intended use, etc. are to be understood as mere descriptions and not assurances of a particular quality.
In the case of technical necessity, we reserve the right to deliver the goods ordered with deviations in terms of quality, dimensions or other such properties. Such deviations shall not merit complaint regarding the delivery unless these changes significantly impair the use of the delivered or supplied items.
The number of items (units) in a package is determined by weighing. The determined weights represent unbinding guideline values for calculating shipping costs. Generally, the Contractor shall be entitled to make deliveries of the product in excess quantities or shortages of up to 10%. The Purchaser shall always pay for the actual quantity supplied.
6. Supply and Delivery
Goods notified as ready for delivery must be accepted by the Purchaser without any undue delay. Otherwise, the Contractor shall have the right to ship the goods or to store them at the cost and risk of the Purchaser. Upon delivery to the railway, forwarding agent or freight company or, at the latest, when the goods are taken out of storage or are released from the production facility, all risk shall pass over to the Purchaser; this shall also apply if the Contractor is in charge of shipment and delivery. Partial deliveries shall be permitted and shall be invoiced separately. Each partial delivery shall be deemed a separate commercial transaction. Fulfillment or non-fulfillment of a partial delivery will not have any effect on any other partial deliveries. If the Contractor is able to predict that the goods cannot be delivered within the delivery period, the Contractor will immediately inform the Purchaser in writing and state the reasons for the delay and, if possible, the estimated delivery date. Business disruptions both at their own production facility or at external facilities essential to the manufacture, handling or transportation of the goods will relieve the Contractor from his obligation to adhere to delivery schedules without giving rise to any claims for compensation if and to the extent that such a delay cannot be prevented at reasonable cost or in due time. Business disruptions shall include any severe or material obstacles for which the Contractor is not responsible and which the Contractor could not reasonably foresee, in particular general scarcity of raw materials or energy shortages, unavailability of transportation, government interventions, labor disputes, war or civil unrest or major fires. The above sentence shall apply mutatis mutandis in instances where the Contractor would not receive deliveries in due time or deliveries of the correct materials from the upstream supplier or vendor in spite of congruent covering purchase. In cases of Force Majeure, labor disputes, civil unrest, government interventions, failure of our suppliers or vendors to deliver to us or similar unforeseeable, unavoidable and serious events, the contracting parties will be obliged, within the scope of what is reasonable, to exchange any required information and to adjust their respective obligations to the changed conditions in good faith. If delivery is delayed due to the above circumstances or due to any acts or omissions on the part of the Purchaser, the period allowed for delivery will be extended by a reasonable period of time. If the Purchaser, after confirmation of the purchase order, makes changes to the purchase order that would affect the production time, a new period of delivery shall commence upon acceptance and confirmation of such changes. The Purchaser shall only be entitled to withdraw from the contract if the Contractor is responsible for the non-compliance with the delivery date and the Purchaser has granted a reasonable extension of time that has expired to no avail. Compensation for indirect damage, such as loss of profit or covering purchase, is precluded in cases of default in performance. Acceptance of the goods shall take place according to contractual agreements. If acceptance is delayed, the Contractor will be entitled to charge any costs incurred by such a delay. If acceptance is delayed by the Purchaser, then the costs incurred by storing the goods at the Contractor’s warehouse will be charged to the Purchaser, by no less than 50% of the invoiced amount per month. However, the Contractor, after unsuccessful expiration of a reasonable period of time, will be entitled to otherwise dispose of the delivery item and to make the delivery to the Purchaser within a reasonably extended period of time.
7. Reservation of Title
As provided for in Section 449 of the German Civil Code (Bürgerliches Gesetzbuch / BGB), the Contractor reserves title of ownership to the goods supplied and delivered until all claims from the transaction with the Contractor have been settled and until all related payments have been received in full as per the contract for supply and delivery. The Purchaser assigns as security any and all claims for payment of purchase prices by its customers from the conditional sale of any goods supplied and delivered to him subject to reservation of title by the Contractor upon conclusion of the contract between the Contractor and the Purchaser in the amount of the purchase price (plus VAT) of the goods subject to retention of title agreed upon between the Contractor and the Purchaser. The Contractor shall accept said assignment. The Purchaser shall be entitled to collect said amounts receivable as long as he is not in arrears with any payments owed to the Contractor. The right of the Contractor to collect said amounts receivable to him shall remain unaffected. The Purchaser shall obligate himself to disclose to the Contractor the claims assigned and their respective debtors upon reasonable request by the Contractor; furthermore, the Purchaser shall provide the information required for collection and advise the respective debtors of any such assignment in writing. The Purchaser shall not have the right to pledge any of the goods supplied and delivered to him subject to conditional sale or to transfer the same to any third parties by way of security. Pledging or other such interventions by third parties shall be communicated in writing by the Purchaser to the Contractor without any undue delay. Should the Purchaser be in breach of the contract, and more specifically should there be a delay in payment, the Contractor, upon expiration of a reasonable grace period for performance by the Purchaser, shall be entitled to withdraw from the contract and redeem the respective goods; legal requirements regarding the necessity of setting deadlines shall remain unaffected. The Purchaser will be obliged to surrender the respective goods. The Contractor shall have the right to withdraw from the contract if a petition has been filed to initiate bankruptcy proceedings regarding the assets of the Purchaser. If goods are sold together with other goods that are not the property of the Contractor, the claim of the Purchaser against his customers for the amount of the purchase price agreed between the Contractor and the Purchaser upon conclusion of the respective delivery contract shall be deemed to have been assigned to the Contractor as principal security for the amount of his claims for payment for the goods supplied and delivered. Retention of title shall also apply until any other claims of the Contractor have been satisfied (overall reservation of title). The Contractors will release any securities if the receivables to be collateralized are collateralized in excess of more than 20%. If the goods of the Contractor are combined with other movable property to form a uniform item or if they inseparably mixed with other property or if the other property is the principal object, the Purchaser shall transfer proportional joint ownership to the Contractor to the extent that the principal object is their property. The Purchaser will hold the property or joint property in safe custody on behalf of the Contractor. Furthermore, the same that applies to goods subject to reservation of title shall also apply to goods formed by means of processing, combination or mixing. The Purchaser shall immediately notify the Contractor of any compulsory enforcement measures regarding the goods subject to retention of title, the claims assigned to the Contractor, or other such collateral, and make available any documents required for the latter’s own interventions. The same shall also apply to interference of any other kind. The assertion of the right to retain title or the redemption of delivered goods by the Contractor shall not constitute a withdrawal from the contract.
8. Terms of Payment
Invoices will be issued no earlier than dispatch of the goods from our premises or the point in time the Purchaser has accepted the delivery by default. Unless otherwise agreed, invoices shall be payable in full within 14 days of the invoice date. If the Contractor has indisputably supplied and delivered partially defective goods, the Purchaser shall still be obliged to make payment for the part of the goods that is free from defect unless such partial shipment alone is of no interest or use to him. Moreover, the Contractor is entitled to offset only against legally ascertained or undisputed counterclaims. If the payment date has passed, the Contractor may charge default interest at the rate charged to the Contractor by the bank for overdrafts, but no less than 8 percentage points above the applicable base interest rate of the European Central Bank. Bills of exchange and checks will only be accepted where agreed, and only on account of performance and on condition that they may be discounted. Discounts will be charged as of the maturity of the invoiced amount. No warranty will be extended for due submission of the bill of exchange or check or for protest of a bill. In the case of payment default, the Contractor may, after written communication to the Purchaser, suspend the performance of his obligations until the respective payments have been received. If, after contract conclusion, it becomes evident that the payment claim of the Contractor will be jeopardized through inadequate performance on the part of the Purchaser, the Contractor may refuse performance and set a reasonable period of time for the Purchaser to make payment or provide collateral matching the physical delivery. If the Purchaser refuses to meet said request or if the period of time set expires to no avail, the Contractor may withdraw from the contract and claim damages. If there is a significant deterioration in the financial circumstances of the Purchaser or if the Purchaser is in payment arrears, the Contractor may request immediate payment even for the goods not yet supplied or delivered, for any invoices not yet payable, and for any bills of exchange or checks not yet mature, if the respective amounts are covered by the Contractor’s spending on the respective order.
9. Liability for Delivery Defects
The nature and quality of the goods are determined exclusively by the agreed technical shipping instructions. If the Contractor has to deliver based on drawings, specifications, samples, etc. which are submitted by the Purchaser, the latter shall assume the risk of suitability for the intended purpose. The date of the transfer of risk shall prevail in relation to the contractual condition of the goods. Complaints shall be lodged with immediate effect within the meaning of Section 377 of the German Commercial Code (Handelsgesetzbuch / HGB). Hidden defects must be reported immediately upon detection without any undue delay. The Contractor will not accept responsibility for improper or inappropriate use, faulty assembly or installation or the like caused by the Purchaser or by third parties. The same shall apply to natural wear, faulty or negligent handling, consequences of inappropriate modifications or modifications made without the prior consent of the Contractor, or repair work undertaken by the Purchaser or any third party. The same shall also apply to any defects that would compromise the value or suitability of the goods for use to an insignificant extent. The Contractor shall be given opportunity to ascertain the defect that is the subject of the complaint. Upon request, faulty goods shall be returned to the Contractor without any undue delay. If the Purchaser fails to comply with this obligation or makes any modifications to any goods already found to be faulty without the consent of the Contractor, any warranty claims concerning material defects will be deemed forfeited forthwith. When justified defects are properly reported, the Contractor will provide supplementary performance in the form of supply and delivery of replacement goods free from defect. If supplementary performance fails, the Purchaser may decide to reduce the price or withdraw from the contract. The right of the Purchaser to assert claims arising from defects shall lapse after 12 months in all cases. However, this shall not apply if the relevant statute stipulates longer mandatory periods of limitation.
10. Other Claims, Liability
Unless stipulated otherwise below, any other or further claims of the Purchaser against the Contractor shall be excluded. This specifically applies to claims for damages arising from breach of contract regarding contractual duties or tortious acts. The Contractors shall therefore assume no liability for any damage that did not occur to the goods supplied and delivered as such. Above all, the Contractor will not assume liability for any loss of profit or other such financial losses on the part of the Purchaser. The above limitations of liability shall not apply in instances of malice, gross negligence on the part of legal representatives or executive staff or in instances of culpable violation of cardinal duties. In the case that a cardinal duty is culpably breached, the Contractor shall assume liability only for reasonably foreseeable damage typical to this type of contract but with the exception of instances of malicious intent or gross negligence on the part of the legal representatives or executive staff of the Contractor. Furthermore, this limitation of liability will not apply in instances where liability must be assumed for personal injuries or material damage to privately used objects if goods are defective according to the German law on product liability (Produkthaftungsgesetz / ProdHaftG). Moreover, this limitation of liability shall not apply to instances of injury to life, limb or health or if guaranteed qualities or warranted characteristics are absent, if such warranty was made with the intention of providing security for the partner against undamaged goods supplied and delivered as such. If the liability of the Contractor is precluded or limited, this shall also be true for the personal liability of its staff, employees, legal representatives or agents. Statutory provisions regarding the burden of proof shall remain unaffected.
11. Place of Performance, Legal Venue and Applicable Law
Depending on the placement of a particular order, the place of performance shall be the Contractor’s registered business address in Wipperfürth, Nienburg or Köthen, Germany. The exclusive legal venue for services, deliveries or payments, including actions on checks or bills of exchange or similar legal disputes between the contracting parties regarding purchase orders placed with the Nienburg- or Köthen-based units will be the relevant court in either Bernburg (Amtsgericht) or Dessau (Landgericht). The Contractor may also file actions against the contractual partner in another legal venue with jurisdiction over him as provided for by Sections 12 ff. of the German Code of Civil Procedure (Zivilprozessordnung / ZPO). The contractual relationship shall be governed exclusively by the law of the Federal Republic of Germany.
12. Severability Clause
If no specific agreement is contained herein, the pertinent statutes shall apply. If any of the provisions contained herein should be or become invalid or unenforceable, the validity of the remaining provisions shall remain unaffected. This shall not result in the invalidity or unenforceability of the entire contract. The invalid or unenforceable provisions shall be reinterpreted such that the intended commercial purpose is achieved as a result. If such reinterpretation is not possible, the contracting parties shall be obliged to replace the invalid or ineffective provision with a new one that most closely reflects the original intention in terms of its commercial objective.
13. Final Provisions
At the time of printing all of the information contained herein reflected the current state of technology and was compiled to the best of our knowledge. EXTE GmbH offers no guarantee for the accuracy or thoroughness of this information. Subject to changes, errors, and typographical errors. The use of text or figures is allowed only with express permission from EXTE GmbH.