§1 General information
The following terms and conditions apply to every order, offer, sale and delivery. In any case, upon acceptance of our delivery, our customer recognizes these as solely binding. Deviations are valid only if we have confirmed them in writing. All information in drawings, catalogs, price lists and offers is non-binding.
§2 Offer and conclusion of contract
Unless expressly stated otherwise, our offers are subject to change and non-binding. A contract with the customer is concluded only when we accept the customer's order in writing by issuing an order confirmation or by performing the delivery or service. The acceptance period for us is 4 weeks from receipt of the order. In case of doubt, guarantees of quality or durability, agreements on the quality or declarations on the use of the delivery item and other subsidiary agreements are valid only if they are made in writing. Agreements and information in our offers regarding the quality or use of the delivery item shall take precedence over the information contained in our brochures, drawings, descriptions, price lists and other documents or samples.
§3 Consulting
Insofar as the seller provides consultancy services, this is done to the best of his knowledge. Details and information on the suitability and application of the goods are non-binding and do not exempt the customer from carrying out his own tests and trials with regard to the suitability of the goods supplied for the processes and purposes intended by him.
§4 Prices
Our prices are quoted in EURO excluding VAT, freight costs, postage and CAD costs. In the case of deliveries and services within the EU, the customer must inform the seller of his respective VAT identification number, under which he carries out the purchase taxation within the EU, prior to the execution of the transaction. In the case of deliveries and services from the Federal Republic of Germany to countries outside the EU which are not carried out or initiated by the seller, the customer must provide the seller with the export certificate required for tax purposes. If the proof is not provided, the customer must also pay the VAT to be levied on the invoice amount for the service within Germany.
§5 Delivery time and delay
Insofar as delivery is not made from our stock, orders are accepted subject only to correct and timely delivery to us. In case of doubt, the stated delivery time must be regarded only as approximate. It shall commence on the date of the order confirmation, but not before all details of the execution of the order have been clarified, and all performance requirements to be fulfilled by the customer, in particular down payments, have been made. Delivery deadlines shall be deemed to have been met if at least readiness for dispatch has been notified by the time they expire. Disruptions in business operations for which we are not responsible, in particular due to labor disputes, cases of force majeure, unforeseeable operational disruptions, official interventions both on our part and on the part of our suppliers and subcontractors, shall extend the delivery period accordingly. We shall not be responsible for these circumstances even if they occur during an already existing delay. If the obstacles make our performance permanently impossible, we shall be entitled to withdraw from the contract in whole or in part. Claims for damages due to such a withdrawal do not exist. If, after we are already in default, the customer sets us a reasonable deadline for performance, which must be at least 4 weeks, he shall be entitled to withdraw from the contract if this deadline expires without result. The setting of a deadline is dispensable under the statutory conditions. In the event of default, the customer is obliged to declare at our request within a reasonable period of time whether he insists on performance. We shall be entitled to deliver from the expiry of the delivery period; if the customer is unable or unwilling to accept the goods at this point in time, we shall be entitled to have the goods stored at the customer's expense and risk or to store them at our premises against payment of a standard storage fee and to invoice the entire delivery including the storage costs for immediate payment. All additional costs incurred as a result shall be invoiced separately. Unless otherwise agreed, we are entitled to spread the production of call orders over a period of 3 months at our discretion. Call-off orders must be called off within 6 months at the latest, calculated from the date of our order confirmation. After expiry of this period, we shall also be entitled to deliver and invoice without a call-off order.
§6 Tools and devices
If tools are manufactured or procured on our account for the execution of the order, the tools shall be and remain our property, irrespective of whether the customer has paid the tool costs to us in full or in part and irrespective of whether the tools are temporarily handed over to the customer for use. Tools which become the property of the customer in accordance with a tool contract to be concluded separately shall be adequately insured by us against fire and water damage at replacement value at our own expense. Maintenance and inspection work necessary for the smooth running of production shall be carried out by us in good time at our own expense. Tool overhauls which become necessary after expiry of the agreed tool service life shall be borne by the customer; a reasonable price shall be agreed before the overhaul is carried out. Costs for tool modifications carried out at the customer's request shall be borne in full by the customer.
§7 Collateral
All goods delivered by us shall remain our property until full payment of all claims arising from the business relationship with us and until the checks and bills of exchange issued for this purpose have been honored. The customer may process the delivered goods within the scope of his ordinary business operations until revoked and is entitled to mix or combine them with other goods. In the event of processing, we shall be deemed to be the manufacturer and shall directly acquire (co-)ownership of the manufactured item in accordance with Article 950 of the BGB (German Civil Code). In the event of mixing or combining, we shall acquire (co-)ownership in the ratio of the material value of our reserved goods to the new uniform item. The customer shall store the items in our (joint) ownership for us free of charge with the care of a prudent businessman and protect and insure them against destruction. The customer may sell the goods delivered by us until revoked. The customer hereby assigns the claims obtained through the sale as security for our claims to the extent that is equivalent to our (co-)ownership share in the item. We hereby accept the assignment. The customer is entitled to collect the assigned claim until revoked. The above rights of the customer shall lose their legal effect even without express revocation, if the customer ceases to make payments to us. At our request, the customer must immediately inform us to whom the goods have been resold and which claims he has acquired from the sale. As long as our retention of title exists, the customer may not otherwise assign or pledge the goods subject to retention of title or the items manufactured from them as security. We are entitled to offset all counterclaims to which we are entitled against the customer, and against the customer's claims.
§8 Payments
The customer shall be in default if he does not make payment by the calendar date specified in the contract. The statutory regulation according to which the debtor is also automatically in default thirty days after receipt and due date of an invoice remains unaffected. In the event of late payment, interest on arrears shall be calculated in accordance with the statutory provisions. Unless otherwise agreed, our invoices are due for payment immediately and without any deduction. Timely payment shall be deemed to have been made only if we can dispose of the money in the account specified by us with value date on the due date. Bills of exchange may be presented only with our prior consent. Discount and bill charges shall be borne by the customer. Retention and offsetting due to claims of the customer disputed by us are excluded. A significant deterioration in the customer's financial circumstances shall entitle us, subject to other rights, to execute orders not yet executed by us only concurrently against payment. Under the same conditions, our payment claims against the customer for transactions, if executed, shall become due for payment immediately. At our discretion, we may instead collect the assigned claims on account of performance or demand the return of the reserved goods in the customer's possession at the customer's expense.
§9 Protection rights / patent infringements
We shall only be liable for infringements of industrial property rights and patents if the contractual use of our goods infringes industrial property rights and patents that are valid in the Federal Republic of Germany and are published at the time of delivery. If we have delivered according to drawings, models, samples or other documents provided by the customer, the customer shall be responsible for ensuring that the industrial property and patent rights of third parties are not infringed. The customer undertakes to inform us immediately of any risks of infringements of industrial property and patent rights and alleged cases of infringement that become known.
§10 Warranty and liability
The seller must be notified of defects in the goods which can be detected during a proper inspection within 10 days of receipt of the goods; other defects must be notified to the seller within 10 days of discovery. The notification must be made in writing and it must precisely describe the nature and extent of the defects.
If the goods are defective and the customer has duly notified the seller of this in accordance with sentence 1 of this clause, the customer shall be entitled to the statutory rights subject to the following conditions:
a) The seller shall initially have the right, at his discretion, either to rectify the defect or to deliver defect-free goods to the customer (subsequent performance);
b) The seller reserves the right to make two attempts at subsequent performance. Should the subsequent performance fail or be unreasonable for the customer, the customer may either withdraw from the contract or demand a reduction in the purchase price.
c) For claims against damages and compensation for wasted expenditure due to a defect, the statements on liability in § 10 apply.
The Buyer's claims for defects shall expire one year after delivery of the goods. Instead of this one-year period, the statutory limitation periods shall apply in the following cases:
a) in the event of liability due to intent;
b) in the event of fraudulent concealment of a defect;
c) for claims against the seller due to the defective nature of a product if it has been used for a building in accordance with its usual instructions for use and has caused it to become defective;
d) for claims against damages resulting from injury to life, body or health, which are based on a negligent breach of duty by a legal representative or vicarious agent of the seller;
e) for claims for other damages based on a grossly negligent breach of duty by the seller or on an intentional grossly negligent breach of duty by a legal representative or vicarious agent of the seller;
f) in the event of recourse by the buyer on the basis of the provisions on the purchase of consumer goods. Liability for indirect damages that are based on atypical contractual circumstances and are therefore, not foreseeable by us is excluded. Liability for warranted characteristics is not limited by the above provisions. The Seller shall be liable for damages in accordance with the statutory provisions; however, in the event of a simple negligent breach of material contractual obligations, the seller's liability shall be limited to compensation for typical, foreseeable damages; in the event of a simple negligent breach of non-essential contractual obligations, the seller's liability shall be excluded. The above limitations of liability shall not apply to damages resulting from injury to life, body or health. Insofar as liability is excluded in accordance with the above, this shall also apply in favor of our employees in the event of direct claims by the customer.
§11 Offsetting
The customer may only offset undisputed or legally established counterclaims against our claim for payment.
§12 Miscellaneous/ Jurisdiction
German law shall apply with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods and other bilateral and international agreements on the standardization of sales law; the place of performance and jurisdiction for all claims arising from the business relationship shall be Potsdam. Should one or more provisions be or become invalid, the remaining provisions shall remain valid. Collateral agreements, assurances, amendments or additions to the contract require our written confirmation. Should any individual provisions of these Terms and Conditions of Sale and Delivery or other contractual agreements be invalid in whole or in part, the remaining provisions shall remain valid. In place of the invalid provisions, the parties to the contract shall agree on another valid provision that comes as close as possible to the economic intent of the invalid provision.
ZILLKON Zillgitt GmbH Kontaktfedern, Blankenfelder Dorfstraße 94,15827 Blankenfelde-Mahlow, Version: 04/01/2014