Terms of Sale and Delivery

Franz Müller GmbH, Mindelheimer Strasse 22, D - 87772 Pfaffenhausen/Germany

§ 1 General Information

The following General Terms of Sale and Delivery shall apply to all business transactions. They apply also without renewed reference for the duration of the entire business connection.
Exceptions to these Terms of Sale and Delivery and, in particular, also Terms of Sale and Delivery laid down by our purchasers shall only apply if they have been expressly agreed to and confirmed by writing. Our General Terms of Sale and Delivery apply even if we execute the delivery in knowledge of opposing conditions or conditions deviating from our terms of sale and delivery. Conventional penalty regulations are recognized only if individually agreed to.
All agreements made between us and the purchaser with regard to the execution of the contract are laid down in writing in the contract.
Our General Terms of Sale and Delivery only apply for enterprises in the sense of section 310 subsection 1 of the German Civil Code (§ 310 Abs. 1 BGB).

§ 2 Offers

Unless stated otherwise our offers shall be subject to change until final conclusion of the contract.
To elaborate an offer we require clearly designated and readable drawings, sketches or dxf-files, dimensioned in mm or sample parts. Our indications on characteristics of the goods, as f.ex. drawings, samples, surface finish, indications on quality and dimensions as well as standards are only approximately mandatory (framework data), unless expressly stated or guaranteed as mandatory by us.
Orders become only obligatory after written confirmation or start of production. In case of doubt our written order confirmation is decisive.
If an order confirmation deviates from the order, the deviation shall be deemed to be acceptable to the purchaser, if the purchaser does not promptly state disagreement in writing.
We retain property and copyright in illustrations, drawings, calculations and other documents. This applies also for such written documents, which are called "confidentially". The purchaser requires our written agreement before passig them to third parties.
In the case of manufacturing or supply according to the purchaser's drawings, samples or data, the purchaser is responsible for each possible injury of patent rights of third as well as any violations of the law.

§ 3 Acceptance, test certificates

If an acceptance of the goods or a first sample examination was agreed upon, the liability for defaults, which the purchaser could have detected during careful acceptance or first sample examination is excluded.
If an acceptance is agreed upon, it can take place only at the plant of the supplier after ready-to-acceptance-notice. The purchaser carries all acceptance costs.
If the acceptance does not take place in time or uncompletely without the supplier being to blame for, the supplier is entitled to dispatch or store the goods without acceptance and on costs and danger of the purchaser.
If the purchaser wishes inspection reports, material test certificates or the like, then he can receive these at his expense, if agreed before in writing.

§ 4 Prices, Price adjustment, subsequent changes

Our prices are in Euro excluding value added tax, packing, freight, postage and insurance.
They are based on present raw material and material prices, wages, taxes etc.. We reserve the right to change our prices accordingly if after conclusion of the contract cost lowerings or increases should occur.
Extra costs, which are caused due to subsequent changes by the purchaser, are at the purchaser's expense; same applies to extra costs, which are caused due to the purchaser's late call, subsequent changes of the call regarding time or quantity. Always our calculation is determining.
Minimum invoice amount: In order to grant the calculated list prices a minimum invoice amount of Euro 100.00 is presupposed. With small orders we have to invoice blanket rates to cover the costs of each article and purchased quantity. Discount deduction only starting from Euro 200,00.
According to the legal regulations the value added tax is separately listed in the invoice.

§ 5 Packing

The pallets or lattice boxes provided by us free of charge are to be sent back immediately free of charge and intact, respectively have to be exchanged. We reserve the right to apply packing lump sums.
Furthermore all packing is effected on request, after instruction and at expense of the purchaser, who is also obliged to dispose of it at his own expense and in accordance to the existing packing regulations.

§ 6 Delivery, delivery times, transfer of risk, force majeur, default of the creditor

All indications on delivery times shall be subject to changes, unless delivery time has been agreed expressly in writing.
The beginning of the delivery time indicated by us presupposes the clarification of all technical questions and the punctual and duly fulfilment of the obligations by the purchaser. Additional suggestions of the purchaser for improvement lead to an appropriate extension of the delivery time.
The delivery period begins with the dispatch of our order confirmation and extends appropriately in case of force majeure (subsection 5). Decisive for the maintenance of the delivery date or the delivery time is the supplier's notice of readiness for dispatch and/or readiness for collection.
The delivery takes place "ex works", i.e. the risk shall pass to the purchaser at the latest when the goods leave our factory respectively our stock.
Force majeure, labor disputes, unrests, official measures, missing supplies of our suppliers and other unforeseeable, inevitable and heavily weighing events release the contracting parties for the duration of the disturbance and to the extent of its effect of their obligations to perform. This applies also, if these events occur at a time, in which the contracting party concerned is in delay, unless it caused the delay deliberately or largely negligently. The contracting parties are committed to give the necessary information immediately in the context of the reasonable and to adapt their obligations to the changed conditions.
Part deliveries, over and smaller quantity supplies are permitted to reasonable extent, if nothing different was agreed upon in writing.
Goods ordered on call have to be accepted at the latest within 2 weeks after the supplier's ready-to-dispatch-notice. The observance of this obligation represents a main obligation. In case of non-compliance we are entitled to legal measures. In this case we are also authorized to dispatch the goods after own choice or to store them at expense and danger of the purchaser.
Returns require our written consent.
Upon purchaser's request we will provide the necessary transport insurance at the purchaser's expense.
If the purchaser is in default of acceptance or violates other contractual obligations we are entitled to compensation of the caused damage including possible additional expenses. We reserve the right to further claims. In addition the danger of a coincidental decline or a coincidental deterioration of the goods passes to the purchaser at the moment, in which he is in default of acceptance or debtor's delay.

§ 7 Delivery delay

The supplier is liable according to the legal regulations as far as the applied contract is a firm bargain according to section 286 subsection 2 Nr. 4 of the German Civil Code (§ 286 Abs. 2 Nr. 4 BGB) or according to section 376 of the German Commercial Code (§ 376 HGB) or in so far as the purchaser is entitled to the omission of his interest in the further fulfillment of the contract as a consequence of a delivery delay caused by the supplier.
Additionally the supplier is liable according to the legal regulations in so far as the delivery delay is based on a violation of the contract caused by the supplier's deliberate or roughly negligent violation of contract. As far as the delivery delay is not caused by the supplier's deliberate violation of the contract, the supplier's liability to compensation is limited to the foreseeable, typically occuring damage.
The supplier is also liable according to the legal regulations as far as the delivery delay caused by the supplier is based on a guilty violation of a substantial contractual obligation. In this case, however, the liablity to compensation is limited to the foreseeable, typically occurring damage.
Additionally the supplier is liable in case of delivery delay for a maximum of 10% of the value delivered.

§ 8 Liability for defects

The nature of the goods exclusively depends on the contractual agreements. Crucial for the stipulated condition of the goods is the moment of the transfer of risk according to section 6 subsection 4.
In case the supplier has to manufacture and/or dispatch according to the purchaser's drawings, specifications, samples and so on, the purchaser alone accepts the risk of the suitability of the goods for the intended purpose.
The supplier is not liable for material defects, which result from unsuitable or inappropriate use, incorrect assembly and/or commissioning by the purchaser or third parties, usual wear, incorrect or careless treatment, as well as for the consequences of inappropriate changes and modifications or repairs, made without the supplier's consent by the purchaser or third parties. Same applies to defects, which reduce the value or the suitability of the goods only insignificantly.
Claims for compensation by the purchaser require that he duly complied with his obligations regarding investigation and claims according to section 377 of the German Civil Code (§ 377 HGB) .
As far as a defect of the goods exists, the supplier at his sole option is entitled to remedy the defects or to deliver a new product without defects. In case of elimination of the defect the supplier carries the expenses to a maximum of the sale price. In case the fulfillment fails the purchaser at his sole option is entitled to cancellation or reduction; then the supplier's liability for defects is limited to the foreseeable, typically occuring damage.
The supplier is liable according to the legal regulations, in so far as the purchaser claims for compensation, based on intention or gross negligence including intention or gross negligence of the supplier's representatives or assistants. In case of non intentional violation of the contract the liability for defects is limited to the foreseeable, typically occurring damage.
The supplier is liable according to the legal regulations, in so far as the supplier violates a substantial contractual obligation; in this case, however, the liablity for defects is limited to the foreseeable, typically occurring damage.
As far as the purchaser is entitled to compensation of damages instead of performance, the supplier's liability is limited to the compensation of the foreseeable, typically occurring damage.
The liability due to culpable injury of the life, body or the health remains unaffected; this applies also to the liability according to the product liability law.
Unless otherwise stipulated before, the liability is excluded. Claims for compensation do not exist in case of only insignificant deviation from the agreed nature or with only insignificant damage of the suitability.
The statutory period for complaints is 12 months starting from transfer of risks. This does not apply, as far as the law prescribes imperatively longer periods, in particular for defects of a building and of goods, which have been used according to their usual application for a building and have caused defect of same.
The statutory limitation period in case of a delivery recourse according to sections 478, 479 of the German Civil Code (§§ 478, 479 BGB) remains unaffected.; the statutory period is 5 years starting from delivery of the defective goods.
§ 9 Retention of title

The delivered goods remain the property of the supplier until fulfilment of all contractual obligations by the purchaser.
The purchaser is entitled to sell these goods in an orderly business transaction as long as he follows his contractual obligations with the supplier in time. Pawning or security transfer are not allowed. The purchaser is obliged to ensure the supplier's rights in case of a credited resale of the goods under retention.
If the purchaser violates his professional ethics, especially with delay in payment, the supplier is entitled also without setting a time limit to take back the goods delivered; the purchaser is obliged to give back the goods. Taking back the goods delivered does not mean a cancellation of the contract, unless otherwise stated in writing.
The supplier is entitled to cancellation of the contract, if the purchaser becomes insolvent or bankruptcy proceedings are commenced.
Already now the purchaser assigns all claims and rights from the sale or if applicable from a letting of the goods to which he may have been authorized, and where the supplier has property rights to the supplier. The supplier herewith accepts the assignment.
A possible treatment or processing of the goods under retention undertakes the purchaser for the supplier. If the goods are treated or inseparably melted with other substances which are not of the supplier's property, the supplier acquires joint ownership on the new product in relation to the invoice value of the goods under retention compared to the value of the other treated or melted products at the time of treatment or melting.
If the goods of the supplier are connected or inseparably melted with other mobile objects and if the new product is considered main product, the purchaser transfers proportionally joint ownership to the supplier as far as the main product belongs to him. The purchaser keeps the property or joint ownership for the supplier. To the product resulting from processing or connection and/or mixture same applies as to the goods under retention.
The purchaser has to inform the supplier immediately about compulsory execution measures of third parties regarding the goods under retention, claims assigned to the supplier or other securities and the purchaser has to hand over the necessary documents for an intervention. This applies also to impairments of other kind.
If the value of the existing securities exceeds the secured demands altogether around more than 20 per cent, then the supplier is obligated upon request of the purchaser to the release securities after own choice.

§ 10 Payment Terms

Our invoices have to be settled by bank transfer within 10 days from invoice date with a 2% cash discount deduction (with contract manufacturing 10 days net) or within 30 days from invoice date without any cash discount deduction.
In case of the purchaser's delayed payment the supplier is entitled to invoice penal interest at a value of 8 % over the basis interest rate of the European Central Bank. The supplier reserves the right to invoice a higher damage caused by delay. In addition - after written notice to the purchaser - the supplier can stop the fulfilment of his contractual obligations till receipt of the payments.
A set-off is permissible only with undisputed or legally binding counterclaims. The purchaser is not entitled to the right of retention due to contested counterclaims or counterclaims from another contractual relation.
Any claims of the purchaser against the supplier are to be made in writing. If the purchaser is in arrears with a due payment or if his solvency deteriorates (e.g. cheque is not cashed), then the entire still existing balance of debt becomes due and the supplier can demand cash payment and/or advance payment for the still open supplies; In addition the legal rights are entitled to the supplier.
If it becomes evident after conclusion of the contract that the supplier's claim for payment is endangered by the purchaser's lack of ability to pay, then the supplier can refuse performance and determine an appropriate period, in which the purchaser has to effect matching payment with delivery or offer securities. In case of the purchaser's refusal or unsuccessful expiration of the period the supplier is entitled to withdraw from the contract and ask for damages.
§ 11 Warranties

A further liability for defects as provided in section 8 is excluded - regardless the legal nature of the claim. This applies in particular to claims due to default during conclusion of the contract, other breaches of duty or due to tortious claims to compensation of damages in accordance with section 823 of the German Civil Code (§ 823 BGB).
The limitation for claims, not being subject to the bar period of the liability for defects, is 18 months. This period starts from knowledge of the damage or the tortfeasor.
As far as liability for compensation against the supplier is excluded or limited, this is valid also with regard to the personal liability for compensation of the supplier's employees, workers, collaborators, representatives and assistants.
The legal regulations regarding the weight of evidence remain unaffected.

§ 12 Place of performance, legal venue and applicable law

The place of performance shall be Pfaffenhausen/Germany unless otherwise agreed to in the order confirmation.
Any disputes arising from the agreement, also lawsuits regarding bills of exhange and cheques, shall be submitted to the law court of Memmingen/Germany. The supplier shall also be entitled to file a lawsuit at the place of the purchaser's head office.
The law of the Federal Republic of Germany shall apply; the United Nations Convention on Contracts and the International Convention on Contracts (uniform purchase regulations EKG and uniform contract regulations EAG) shall not be applicable.
This document is a translation. In case of doubt the German version prevails.


Up-date: 1st November, 2003
Translation: March 2004

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