General Terms and Conditions of Business (AGB)

General Terms and Conditions (Sales)

I. Applicability / conclusion of contract 
1. These General Terms and Conditions (Sales) apply to all current and future agreements governing deliveries and other services and entered into with businesses, legal entities under public law and special funds under public law. The seller’s terms and conditions of purchase shall not be recognised, even if we do not explicitly refute them again upon receipt. 

2. Our offers are non-binding and subject to alteration. Verbal agreements, assurances, confirmations, guarantees and statements about purpose of use or application made by our employees in conjunction with the conclusion of agreements, shall be non-binding until confirmed by us in writing. 

3. A written agreement is required before supplying (providing) test certificates compliant with DIN EN 10204. We are entitled to provide copies of such certificates, and to conceal the orderer and the issuer on them. 

4. The Incoterms in their latest version shall govern the interpretation of commercial clauses if there is any doubt.

II. Prices 
Unless agreed otherwise, prices shall be ex-works or ex-warehouse and exclusive of shipping, value added tax and import duties. Goods are calculated ‘gross for net’. Unless agreed otherwise, the fee for any DIN EN 10204-compliant test certificates agreed upon shall be €15 each. 

III. Payment and settlement 
1. Payment must be made without early payment discount in such a way that the amount is available to us on the due date. This applies even if the test certificates compliant with DIN EN 10204 agreed on for the delivery are missing or arrive late. The buyer shall cover the cost of payment transactions. The buyer shall only have a right to withhold and offset amounts to the extent that its counter-claims are uncontested or determined without further legal recourse, and if they are based on the same contractual relationship with the seller and/or the counter-claims entitle the buyer to refuse performance as defined in § 320 BGB (German Civil Code). 

2. If payment is not made on time or is delayed, we shall charge interest at nine percentage points above the base rate, unless higher interest rates have been agreed on. We shall also levy an arrears fee of €40. We reserve the right to assert further damages due to delay.

3. If, when the agreement is concluded, it becomes evident that our right to payment is at risk because the buyer is not in a position to pay, or if the buyer begins to fall into arrears by a significant sum, or if other circumstances arise that suggest to us that the buyer has become much less able to pay, then we can refuse to perform preliminary work. Furthermore, in such cases we are entitled to call in any receivables arising from the current business relationship with the buyer that are not yet due. 

4. Any early payment discount agreed on shall apply only to the invoice value, exclusive of shipping and assumes that all of the buyer’s due liabilities have been settled in full at the time the discount is applied. Early payment discount periods shall begin on the invoice date, unless agreed otherwise.

IV. Performance of delivery, delivery periods and deadlines 
1. Our duty to deliver is conditional upon our being supplied contractually correctly, properly and punctually; in the case of import business, it is also conditional upon receiving monitoring documents and import permits on time.

2. Delivery times are approximate. Delivery periods begin on the date we confirm an order and apply only if all of the details of an order are clarified in good time, and if the buyer fulfils all of their commitments punctually, such as furnishing any official certificates, providing letters of credit and guarantees, making down-payments and providing diagrams approved by the buyer. 

3. What matters when it comes to delivery periods and deadlines is the date on which goods are dispatched from the works or warehouse. If the goods cannot be sent off in time and it is not our fault, then stating that they are ready to send is enough to meet the deadline. 

4. The buyer must ensure that the goods are be inspected without difficulty and must notify us in good time of anything that might hinder delivery. The buyer must unload immediately and properly. If we or somebody else helps, then we do so without legal obligation and at the buyer’s risk. 

5. Uncontrollable events (force majeure) entitle us to postpone delivery by the duration of the hindrance and a reasonable ramp-up time. This even applies if such events occur when things are already delayed. Uncontrollable events include measures involving currency and trade law and other official activities (such as anti-dumping and compensatory investigations, the ordering of a customs assessment and similar), strikes, lock-out, operational interruptions for which we are not responsible (such as fire, machinery and roller breakdown, shortage of raw materials or energy), the obstruction of transport routes, delays in import and customs clearance and any other circumstances that significantly hinder deliveries and performance or make them impossible or economically unviable, without us being responsible for them. It does not matter whether the circumstances occur at our premises, the delivery factory or any supplier of ours. If any of the
aforementioned events make it unreasonable to expect a party to the agreement to perform, then that party may withdraw from the agreement by issuing an immediate written declaration.

V. Retention of title
1. The goods supplied shall remain the seller’s property until purchase price has been paid in full. The buyer is obliged to take the steps necessary to uphold the retention of title (or any similar safeguarding rights in the country in which it is based or in the destination country, if different) and shall provide evidence of this on our request. 

2. The following additional terms shall apply inasmuch as permitted by the law of the country in which the goods are found. 
a. The goods supplied shall remain our property (goods subject to retention of title) until all outstanding accounts have been settled, in particular that which is due to us on account in connection with the business relationship (account retention). This shall apply to future and conditional accounts receivable and if payments are made onto specially designated outstanding accounts. This account retention shall finally cease when all of the accounts receivable that remain open and are encompassed by the account retention are settled at the time of payment. However, the account retention does not apply to advance payment or cash transactions, which are dealt with as and when they come up. 
b. Goods subject to retention of title are reworked and processed on our behalf as their manufacturer as defined in § 950 BGB, without placing us under any obligation. Reworked and processed goods are considered goods subject to retention of title as defined in No. 2 a. If goods subject to retention of title are processed, combined or mixed with other goods by the buyer, then we shall become co-owners of the new object and our share shall be calculated by the ratio between the invoice value of the goods subject to retention of title and the invoice value of the other goods used. If our ownership ceases due to combining or mixing, then the buyer shall hereby transfer to us the rights of ownership of the new object due to the buyer to the extent of the invoice value of the goods subject to retention of title, and shall guard these rights of ownership on our behalf without charge. Our rights to co-ownership shall be considered goods subject to retention of title as defined in No. 2 a.
c. The buyer may only sell goods subject to retention of title in conventional business transactions under its normal terms and conditions of business, provided the buyer is not in arrears, and on the condition that accounts receivable generated by selling the goods are transferred to us in accordance with d) to e). The buyer is not entitled to dispose of goods subject to retention of title in any other way.
d. Accounts receivable generated by selling on goods subject to retention of title are hereby ceded to us together with any securities which the buyer acquires for the accounts. They shall serve as security to the same extent as the goods subject to retention of title. If goods subject to retention of title are sold by the buyer together with other goods not sold by us, then the accounts receivable arising from selling them on shall be ceded to us in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods sold. If goods in which we hold co-ownership are sold, then we shall be ceded a portion corresponding with our co-ownership share.
e. If goods subject to retention of title are installed in a property by the buyer, then the buyer shall hereby assign to us the associated right to remuneration up to the value of the goods subject to the retention of title, together with any ancillary rights including the right to a legal mortgage. Such a right shall have priority ranking over all others. We accept this assignment.
f. If the Buyer has sold the claim as part of a true factoring transaction, then our claim shall become payable immediately and the buyer shall assign to us the claim against the factor that replaces it and hand over any sales proceeds to us without delay. We accept this assignment.
g. The buyer is entitled to collect accounts receivable generated by the sale. This right to collect shall cease if we revoke it, and in any event if payment is delayed, if a bill is not paid or if insolvency proceedings are applied for. We will only exercise our right to revoke if, once the agreement has been concluded, it becomes evident that our payment claims arising from this or other agreements with the buyer are at risk because the buyer is no longer sufficiently able to pay. If we request it, the buyer is obliged to inform its customers immediately that it has ceded its accounts receivable to us, and at our request and at any time to provide us with a complete list of the claims to which we are entitled together with the names and addresses of its customers, the amount of the individual claims, dates of invoice and so on, and to provide us with all the information we need to pursue these assigned claims; and to allow us to check this information. 
h. The buyer must inform us immediately of any attachments or other impairments by third parties. The buyer shall carry any costs incurred by releasing the seizure and sorting out and transporting the goods subject to retention of title, provided these costs are not reimbursed by somebody else. 
i. The buyer shall keep the goods subject to the retention of title for us, free of charge. The buyer shall insure them at normal levels of cover against normal risks such as fire, theft and water damage. The buyer hereby assigns to us any compensation to which it is entitled from third parties as a result of the aforementioned type of damage, up to the value of the goods invoices. We accept this assignment.
j. If the invoice value of existing securities exceed the secured accounts receivable including secondary receivables (interest, costs, etc.) by a total of more than 50 percent, then we shall be obliged to release the securities of our choice if the buyer asks us to.

VI. Weights
1. Weights shall be based upon the weighing which we or our suppliers perform. Weights shall be proven by presenting the weighing note. We may also ascertain the weight by theoretical means, without weighing, using the length and recognised statistical methods. We are further entitled to increase the theoretical weight by 2½ % (commercial weight) to compensate for rolling and thickness tolerances. 

2. Unit quantities, bundle quantities and similar specified in the dispatch note are not binding for goods calculated by weight. If item-by-item weighing is not normally performed, then the total weight of the shipment is what counts. Any deviation from calculated item-weights shall be divided up among the items pro rata. 

VII. Test certificates / Inspections
1. A written agreement is required before supplying test certificates (‘reports’) compliant with EN 10204. We are entitled to supply copies of such certificates. The fee for test certificates shall be based on our price list or the issuer’s price list (delivering factory), unless expressly agreed otherwise. 

2. If an inspection is arranged, then it has to happen at the delivery factory or our warehouse as soon as notification has been given that we are ready for inspection. The buyer shall ensure that we are able to appoint the inspection company of their choice, on their behalf and at their or their customer’s expense. Unless agreed otherwise, this permission is granted as soon as the inspection company is stated in the order. 

3. The cost of labour for inspection shall be paid for by the buyer and the material inspection costs will be calculated and invoiced to the buyer according to our price list or the delivery factory’s price list. 

4. If inspection is not done or if it is late or incomplete and we are not at fault, then we are entitled to ship the goods without inspection, or to store them at the expense and risk of the buyer, and invoice the buyer accordingly.

VIII. Call orders, ongoing deliveries 
1. In the case of contracts involving ongoing deliveries, we must be supplied with call orders and type categories for approximately equal monthly quantities, otherwise we are entitled to do this ourselves as we reasonably see fit.

2. If a call exceeds the total contractual quantity then we are entitled – but not obliged – to deliver the excess quantity. We can invoice the excess quantity at the prices valid at the time of calling or delivery.

IX. Shipment, transfer of risk, packaging, partial delivery
1. We shall decide on the shipment route and method as well as the haulier and shipper. Our deliveries shall be from our offices unless agreed otherwise in writing. 

2. Goods notified as ready to ship according to the contract must be called immediately, otherwise we are entitled, following a warning, to either ship them at the buyer’s expense and risk, or, if we so choose, to store them as we see fit and invoice them immediately. 

3. If transport by the intended route or to the intended place at the intended time becomes impossible or severely hampered and we are not at fault, then we are entitled to deliver by another method or to another place; the extra expense incurred shall be carried by the buyer. The buyer will be given an opportunity to respond beforehand. 

4. In the case of call orders, the risk is transferred to the buyer as soon as the goods are made ready for collection. Apart from that, the risk is transferred to the buyer – including the risk of confiscation of the goods – once the goods are handed over to a haulier or shipper, and in any event as soon as they leave the warehouse or delivery factory, regardless of the transaction type, and including carriage-paid and free deliveries. We will only insure the goods on the instructions and at the expense of the buyer. Unloading and the cost thereof shall be for the buyer. 

5. Goods are delivered unpackaged and not protected against rust. We will deliver packaged if agreed upon. Other than that we will package, protect and secure for transport according to our experience and at the buyer’s expense. Packaging, protective and securing equipment shall be taken back to our warehouse within a reasonable time. We shall not cover the buyer’s cost for return transport or for disposing of the packaging themselves. 

6. We are entitled to perform partial delivery as is reasonable. We are also entitled to exceed or fall short of the agreed delivery quantities to a reasonable extent. Stating ‘approximate’ quantities entitles us to exceed or fall short of the amount by up to 10 %.

X. Liability for material defects
1. The internal and external properties of the goods, in particular their quality, variety and dimensions, shall be compliant with the agreed standards, and, if nothing else has been agreed on, with the DIN and EN standards valid at the time the contract was concluded; and if such standards do not exist, then according to convention and commercial practice. Reference to standards and similar regulations, test certificates compliant with reference to EN 10204 similar reports, as well as details of qualities, varieties, dimensions, weights and the suitability of the goods for particular uses do not represent assurances or guarantees, nor do declarations of conformity and related symbols such as CE and GS.

2. The statutory regulations shall apply to the inspection of goods and notification of defects, with the proviso that the duty to inspect the goods after delivery also extends to any test certificates compliant with or issued subject to EN 10204, and that we must be notified in writing about any defects in the goods or test certificates. 

3. If it is intended that the goods are to be installed, then the buyer is obliged under § 377 HGB (German Commercial Code) to assess the internal properties of the goods essential for their use before installation, and to notify us immediately of any defects therein.

4. If a justified notice of defects is issued in good time, then we can choose either to rectify the defect or to supply defect-free goods (rectification). The place of fulfilment for rectification is our headquarters. If rectification does not work or is refused, then the buyer shall enjoy the statutory rights. If the defect is not major and/or if the goods have already been sold, processed or restructured, then the buyer shall only have the right to reduce the price. 

5. We will only cover expenses relating to rectification to the extent that they are reasonable in each case, in particular in relation to the purchase price of the goods; and on no account if they exceed 150 % of the purchase price. Other expenses, such as those relating to installing and removing the defective item, shall only be covered by us as dictated by section XI of these terms and conditions.

6. If the buyer does not immediately provide us with the opportunity to appraise the defect, and in particular if the buyer does not immediately provide us with the contested goods or samples thereof for the purpose of testing, then the buyer shall have no rights with regard to material defects. 

7. If goods are sold as declassified materials, then the buyer shall have no material defect rights in conjunction with the reasons given for declassification or any defects which can normally be expected. We shall not be made liable for material defects if goods are sold as seconds. 

8. The buyer’s other rights are based on section XI of these terms and conditions. This does not affect the buyer’s right of recourse under §§ 478, 479 BGB.

XI. Compensation for damages and limitation 
1. We – including for our executives and other auxiliary workers – shall only be liable for breaches of contractual and non-contractual duties, in particular incapacity, delay, culpability in initiating the contract and disallowed actions, in the event that we acted intentionally or with gross negligence; and in the latter case with a limit to those damages typically foreseeable for the contract when it was concluded. We shall not be liable in any other way, including for damages caused by defects or the consequences thereof. 

2. These limitations do not apply in the event of a culpable breach of fundamental contractual duties if breaching them means risking that the purpose of the agreement is not achieved, or if fulfilling them is essential for the agreement to be performed properly and if the contractual partner may ordinarily assume that they will be upheld. Nor do these limitations apply to damage culpably caused to life, body or health, nor if and to the extent that we have guaranteed the properties of the sold item, nor in cases of compulsory liability under product liability law. This does not affect the rules governing evidence. 

3. Unless agreed otherwise, contractual claims asserted against us by the buyer on the occasion of and in relation to the delivery of goods, including compensation claims resulting from material defects, shall lapse under limitation one year after the goods are delivered. This does not affect our liability for or the limitation of claims relating to intentional or grossly negligent breaches of duty, damage culpably caused to life, body or health, or the limitation of rights of recourse under §§ 478, 479 BGB. The statutory periods of limitation shall apply to these.

XII. Additional terms for wage work
1. These General Terms and Conditions (Sales) shall apply analogously to wage work as well. 

2. The materials given to us for processing must be accompanied by a delivery note. This must include the following minimum information:
    a. Designation of material, quantity and net weight;
    b. Processing required;
    c. Testing procedure required;
    d. Any other information or regulations needed for successful processing. 

If the minimum information is incomplete, missing or incorrect, then we shall undertake processing as we see fit. 

3. Our accounts receivable arising from the order give us a contractual right of lien and retention to the materials we have received as a result of the order. A contractual right of lien and retention can also be asserted on the basis of accounts receivable connected to previously performed work, replacement deliveries and other services, provided they are connected to the subject of the order. A contractual right of lien and retention shall only apply to other claims arising from the business relationship to the extent that those claims are
uncontested or if title has been granted by a court order and the ordered entity belongs to the orderer.

XIII. Place of fulfilment, jurisdiction and applicable law
1. The place of fulfilment for our delivery and the buyer’s payments is our corporate headquarters. The place of jurisdiction is either the court in Stuttgart which has subject-matter jurisdiction, or the buyer’s place of jurisdiction, whichever we choose.

2. Any legal relationships between us and the buyer shall be governed by German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG) dated 11.04.1980.

 

General Conditions of Purchase

I. Applicability
1. These General Conditions of Purchase apply to current and future orders of goods and services, and the handling thereof. We do not recognise the seller’s terms and conditions, or any conditions differing from these Conditions of Purchase, unless stated otherwise in these Conditions of Purchase or in the agreement with the seller. If we accept goods without expressly refusing the seller’s terms, then this on no account means that we recognise them. 

2. Verbal agreements by our employees shall not become binding until confirmed in writing. 

3. When we draw up offers, we do so for free and without commitment. 

4. The Incoterms in their latest version shall govern the interpretation of commercial clauses.

II. Prices
1. The agreed price is a fixed price. 

2. If prices are “free to the door”, “free to destination” or include any other free types of delivery, then they shall include shipping and packaging costs. If delivery is not included, then we will always select the cheapest freight method unless we have stipulated a particular kind of shipment.

III. Payment
1. Unless agreed otherwise and unless the seller offers better conditions, payment within 14 days shall attract a 3 % early payment discount, within 21 days a 2 % early payment discount, and within 30 days net. 

2. Payment and discount periods begin upon receipt of invoice, but not before receipt of goods and, in the case of services, before they are approved, and, where documentation, test certificates (such as inspection certificates) and similar documents are part of what is being delivered, not before these are handed over to us as contractually stipulated. 

3. Payment shall be by cheque of by transfer. Payment shall be considered on time if the cheque is posted on the due date or if the bank is instructed to execute the transfer on the due date. 

4. Maturity interest shall not be given. Interest on arrears shall be five percentage points above the base rate. We shall always be entitled to demonstrate that damages due to postponement are less than what the seller is demanding. 

5. We shall enjoy the statutory rights to offset and retain title. In particular we are entitled to withhold the purchase price if the agreed test certificates compliant with EN 10204 are not supplied.

IV. Delivery deadlines / delay
1. Agreed delivery deadlines and periods are binding. We must be informed immediately in writing if delivery delays seem imminent. Appropriate suggestions should be given to us about how to mitigate the consequences. 

2. The delivery date or deadline shall be measured by when the goods are received by us, unless agreed otherwise in writing. 

3. If the seller is delayed in delivering, then we shall enjoy the statutory rights. In particular, if we set an appropriate period of grace and it lapses with no outcome, we can demand compensation instead of delivery. Our right to delivery only ends when the seller has paid compensation. 

4. The seller may only cite a lack of necessary documents which we should have supplied if the seller did not receive those documents even after warning us in writing.

V. Retention of title
1. With regard to the seller’s right to retain title, their conditions shall apply with the proviso that ownership of the goods shall be transferred to us upon payment, and the extended form, known as Kontokorrentvorbehalt (current account retention) shall not apply.

2. The seller can only demand the goods through retention of title if it has already withdrawn from the agreement.

VI. Performance of delivery and transfer of risk
1. The seller shall carry the risk of accidental destruction or deterioration, including in the case of free delivery, until the goods are handed over at their destination. 

2. Partial deliveries require our approval. 

3. Excess and short deliveries are only permitted within the customary limits. 

4. The seller shall carry the cost of packaging unless agreed otherwise in writing. If we do on occasion carry the cost of packaging, then we must be charged as little as possible. The obligation to take packaging back shall be based upon the German Packaging Ordinance dated 21.08.1998, as most recently amended.

VII. Declarations on nature of origin
1. At our request, the seller shall provide us with a supplier’s declaration about the preferential origin of the goods. 

2. If the seller provides declarations about the preferential or non-preferential origin of the goods sold, the following shall apply: 

a) The seller undertakes to enable customs officials to check evidence of origin, to provide the necessary information and to furnish any necessary confirmations. 

b) The seller is obliged to compensate for any damages arising because the declared origin is not recognised by the responsible authorities on account of a lack of certification or because there is no way of verifying it – unless, that is, the seller is not at fault.

VIII. Liability for defects and limitation
1. The seller must supply us with goods that are free of material defects and defects of title. The seller must ensure that the items and services they supply comply with the recognised rules of technology and any contractually agreed properties and standards. 

2. When we receive the goods, we will check their quality and completeness in whatever way is reasonable and technically feasible. Unless there are specific reasons to believe that goods may be defective, a reasonable incoming inspection consists of an external examination with the naked eye, and not an examination of the inner properties of the goods. Notice of defects shall be deemed punctual if received by the seller within eight working days by letter, fax, e-mail or telephone. The period within which to notify of defects begins when we (or, in the event of a drop-shipment, our customer) notice the defect, or should have noticed it. 

3. If the goods have a material defect, then we shall enjoy the statutory rights to choose. If the seller attempts to rectify it, then this shall be considered unsuccessful after only one attempt. We shall have the right to withdraw, even if the duty which the seller has breached is only minor. 

4. We can ask the seller to reimburse expenses relating to a defect and payable by us in relation to our customer, even if the defect already existed when the risk was transferred to us. 

5. Our claims for defects shall be subject to a 36 month period of limitation. This period begins when notice of the defect if given punctually as defined in point 2 above. The seller’s liability for defects shall cease no later than ten years after delivering the goods. This limitation shall not apply if our claims are based on facts which the seller knew about or could not have been unaware of, yet did not reveal to us. 

6. The seller shall hereby cede to us by way of fulfilment any claims which the seller shall have the right to make against its own suppliers on account of and in relation to the delivery of defective goods or other goods whose guaranteed properties are lacking. The supplier shall provide us with any documents needed to assert such claims.

IX. Payment of the statutory minimum wage
1. Regarding our orders for services or work done within Germany, the supplier undertakes to obey the regulations of the Minimum Wage Act (Gesetz zur Regelung des allgemeinen Mindestlohns dated 11 August 2014, as most recently amended). The supplier undertakes to pay its employees the statutory minimum wage and to oblige its subcontractors to do the same, along with any other contractors they may use. The supplier declares that it is not excluded from the awarding of public contracts.

2. If services and work are done in the economic areas or sectors of industry mentioned in § 2a of the Illegal Employment Act (Gesetz zur Bekämpfung der Schwarzarbeit und illegalen Beschäftigung), then the following shall apply: The supplier is obliged, at our request and at any time, to provide us with proof of payment of the minimum wage by the contractor and, where relevant, the contractor’s subcontractors, for the last two years subject to mandatory logging in compliance with § 17 MiLoG. This proof should be furnished by providing records
of working hours and the amounts paid for them. Furthermore, the supplier will, at our request and at any time, allow us to inspect the relevant (anonymised) wage and salary lists.
There will be a contractual penalty of €10,000 for every time the supplier fails to comply with this duty to furnish proof.

3. Should we be held liable by third parties in this respect (§ 13 MiLoG, § 14 AEntG), then the supplier will indemnify us against any claims, including the cost of legal defence, upon our first written request.

4. If the contractor contravenes the regulations stated here, we shall be entitled to terminate the contractual relationship without notice. The same applies if the supplier breaches agreed duties to furnish proof.

X. Place of fulfilment, jurisdiction and applicable law 
1. The place of fulfilment for delivery is our place of business unless agreed otherwise. 

2. The place of jurisdiction is Stuttgart. We can institute proceedings against the seller in its own jurisdiction and in the place of jurisdiction of our own branch office with which the agreement was concluded, as entered into the commercial register. 

3. Any legal relationships between us and the seller shall be governed not only by these Conditions but also by German law, including the UN Convention on Contracts for the International Sale of Goods (CISG) dated 11.04.1980.

XI. Applicable version
The German version of these General Conditions of Purchase shall be authoritative if there is any doubt.