7. Call Orders / Partial Delivery / Excess and Short Deliveries
In the case of call orders the goods are to be accepted at almost the same monthly quantities unless something different has been agreed in writing. The total quantity shall be deemed called-off one month after the expiry of the period agreed for the call-off or, failing such an agreement, with the end of the sixth month after the conclusion of the contract.
We reserve shipments of quantities of 10 % in excess of or below the ordered quantity as well as with slight deviations in dimensions, weights and from pictures to the extent that the functionality of the delivered goods and their overall appearance is not affected.
We shall be entitled to make partial delivery.
8. Warranty / Liability
Warranty claims of the customer for material defects and defects of title require that the customer duly met his obligation under § 377 HGB [German Commercial Code] to inspect the goods and submit complaints to us in writing immediately on receipt of goods.
If the object of purchase has a defect we shall have the right to choose between subsequent performance in the form of rectification of the defect or delivery of a new item.
If the supplementary performance fails the customer shall be entitled to choose between requesting to rescind from the contract or demanding price reduction.
Any claims by the customer for defects of goods delivered by us become time-barred with the expiry of one year after transfer of risk.
Claims of the customer for damages are excluded. This does not apply to damages caused by injury to life, limb or health or resulting from violation of substantial contractual obligations as well as the liability for other forms of damage based on a willful or grossly negligent breach of duty of the user, his legal representatives or agents. Essential contractual obligations are those that must be met in order to achieve the objective of the contract.
In cases of breaches of fundamental contractual duties the user is liable only for contractually typical, foreseeable damage if they were caused by simple negligence unless claims for compensation of the customer refer to damages caused by injury to life, limb or health.
The restrictions of articles 8.5 and 8.6 of these GTC shall also be applicable for the benefit of the user’s legal representatives or agents if claims are asserted directly against them.
The provisions of the German Product Liability Act shall remain unaffected.
9. Reservation of Proprietary Rights
All delivered products remain our property until full settlement of all claims to which we are entitled against our contractual partner either now or in future. We shall release this security on request at our discretion provided their nominal value exceeds our claims sustainably and by more than 10 %.
Processing or reshaping shall always be performed for us as the manufacturer, but without any obligation for us. If the goods supplied by us are processed with other items that are not our property, we shall acquire co-ownership on the new item at the ratio of the invoice value of the goods delivered by us to the invoice value of the other used goods at the time of processing. If our goods are combined with other movable items to a new uniform item and if the other item is to be regarded as the principal item, our contractual partner shall proportionately transfer co-ownership to us, provided that the main part belongs to him. Objects to which we have acquired the right of property or co-ownership according to the aforementioned regulations are hereinafter referred to as conditional commodity.
The contractual partner is entitled to sell the conditional commodity within an orderly business transaction and to combine it with the objects of third parties. Our contractual partner assigns to us any claims arising from the sale, combination or from some other legal ground regarding the conditional commodity already now fully or in proportion to our sole ownership or co-ownership rights regarding the sold or processed object.
Subject to revocation we authorize the contracting partner to collect the claims assigned to us. Our contracting partner shall pay to us the amounts collected without delay as far as and as soon as our claims become due. Our authority to collect the claims ourselves remains unaffected. At our request our contracting partner is obliged to submit to us all information about the assigned claims and their debtors as well as the associated documentation and to give us all details necessary for the collection. If we are entitled to collect the claims, our contractual partner is be obliged to give us all information required for their collection.
If payments are suspended, an application is filed for insolvency proceedings or insolvency proceedings are opened and in case of the implementation of an extrajudicial debt regulation procedure, the rights of our contracting partner to resell, process, mix or to install the conditional commodity as well as the authorization to collect the assigned claims shall expire – even without revocation on our part.
Our contracting partner shall inform us without delay if third parties gain access to the conditional commodity and the assigned claims. Any costs of interventions or their prevention are to be borne by the contractual partner.
In case of any breach of contract by the contractual partner, in particular in case of delay in payment, we are entitled to demand return of the conditional commodity at the expense of the contractual partner or the contractual partner’s assignment of the claim for return against third parties without us having to declare rescission of contract before or at the same time. Especially taking back the conditional commodity or distraining it does not mean a rescission of the contract by us unless we explicitly declare rescission from the contract in written form.
If our reservation of proprietary rights should be extinguished by export of the goods or for other reasons, or should we lose the ownership of the reserved conditional commodity for any reason then our contractual partner is obliged to grant to us without delay another security for the reserved conditional commodity or another security for our claims which is effective according to the law applicable at the customer’s place of business and and which comes closest to the reservation of ownership according to German law.
We reserve ourselves all rights of property and copyrights regarding illustrations, drawings, calculations and any other documents. This shall also apply to such written documents that are designated as confidential. Before revealing them to third parties the customer needs our explicit approval in written form.
11. Final Provisions
The law of the Federal Republic of Germany shall apply. The terms of the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
If the customer is a merchant our place of business is the place of jurisdiction.
Even if individual provisions of the contract are or become legally invalid, the remaining provisions shall remain valid. Instead of the invalid provisions the statutory provisions apply insofar as they exist.