1.0. Applicability, validity
1.1. The following terms and conditions of sale, supply and payment apply exclusively to all the business transactions conducted between us and our customer, subject to the customer being the proprietor of a business, a body corporate under public law or a separate estate under public law.
1.2. Our terms and conditions of sale, supply and payment do not apply to businesses with end users.
1.3. Customers' purchasing conditions are excluded. If, nevertheless, the customer insists on his purchasing conditions being applied, our offer will be deemed to have been declined. We will only recognise customers' conditions at variance with our own if we have expressly agreed their applicability in writing.
1.4. These terms and conditions will also apply to business transactions conducted between us and foreign customers. Provided our terms and conditions do not stipulate otherwise, UN Commercial Law will apply to foreign business.
2.0. Contracts, duties, product specifications
2.1.1. A contract is concluded exclusively by our confirmation of order, either in writing or some other form of text message.
2.1.2. If an enquiry for goods is received from a customer via the Internet, a confirmation of receipt thereof will initially be issued. This confirmation will not constitute a formal contract. A formal contract will be established exclusively by our subsequent confirmation of order in writing or some other form of text message.
2.2. The confirmation of order lays down our duties as the supplier and defines the specifications of the products we have contracted to supply exclusively. Secondary agreements and subsequent alterations must be in writing. Verbal secondary agreements will have no validity.
2.3. For the purpose of defining performance and specifications, we exclude information given in advertising and the contents of our brochures, if not referred to in Tz 2.1. and/or public statements by ourselves, our employees and sales personnel (including trade representatives) if advertising information, brochures, data sheets and/or drawings relating to specifications are not expressly referred to in the written confirmation of order.
We expressly exclude Article 434 (1) 2, Section 2 of the Federal Law Gazette for defining specifications.
2.4. If we are to supply the customer with mass produced parts, he must provide us with information as to materials, dimensions and technical data which have been checked and confirmed by him such that mass production can take place without the need for any contribution to development or design by us, or any obligation on our part to check the said information. The customer will be liable to us for the correctness of drawings and data files.
2.5. If the customer supplies us with solutions to problems and systems, the corresponding contributions will be determined from a list of duties and liabilities, which is to be compiled separately, which supplements the confirmation of order, and which constitutes part of the contract.
3.0. Prices, terms of payment and the right of cancellation by customers ordering via the Internet
3.1.1. Unless otherwise agreed in the written confirmation of order, our prices are ex works, excluding shipping costs and packing. Prices are subject to statutory Value Added Tax at the rate in force, which will be shown separately in invoices.
3.1.2. If the order is placed via the Internet, we reserve the right to arrange billing and settlement through our locally based associated sales company. This will not entail any additional costs.
3.2. Orders for goods to a nett value of less than EUR 150.00 will entail additional handling costs in the sum of EUR 15.00.
3.3. If we are requested to make a delivery direct from the depot to a customer's laboratory, we charge EUR 10.00 to cover our additional costs.
3.4. Our invoices are payable nett, without any deductions, within 30 days of the invoice date. For payment within 10 days of the invoice date, a discount of 2% is allowed. For payment by direct debit, we allow 3% discount. Bills of exchange and cheques will only be considered as payment after they have been cleared. Discounting fees are to be borne by the buyer. If a payment date is not met, we reserve the right to charge costs and interest on arrears at the usual bank rate of interest.
3.5. Unless an alternative period for payment is specified in the confirmation of order, arrears will come into effect on the issue of a warning, or in accordance with Article 286, Section 3 of the Federal Law Gazette at the latest. Interest will be charged at the statutory rate (Article 288, Federal Law Gazette).
3.6. Our customer may only set off debts or exercise a right of retention in cases of undisputed or legally established claims. Any setting off or retention in the case of disputed claims between us and the customer is excluded.
3.7. Customers ordering via the Internet may cancel the contract within a period of approval of seven days without specifying the reasons therefor. Cancellation must be made in writing or by returning the goods.
4.0. Delivery periods and dates, transfer of risk
4.1. Delivery periods and dates are determined in accordance with the corresponding written confirmation of order. We will be entitled to make part deliveries and to invoice them as such, even without prior agreement.
4.2. If we are prevented from meeting specified delivery periods and dates and from fulfilling our obligations through circumstances outside our sphere of influence, e.g. operating interruptions, delays on the part of our supplier, hindrances to the delivery of raw materials and secondary materials to us as a consequence of official measures, embargoes, strikes, lock outs, an act of God or damage by the elements to our supplier, we exclude adherence to specified delivery periods and dates. This position will continue until the hindrance is removed. If delivery is rendered impossible on the grounds described above, both we and our customer will be mutually released from our existing obligations.
4.3. Unless otherwise specified in the confirmation of order, EXW Incoterms 2000 will apply.
4.4. Any liability to our customer for compensatory damages as a result of a delayed delivery will only arise in the event of gross negligence and/or malicious intent on our part or that of our employees unless the delivery date is expressly notified to us by the customer as a fixed date and we are therefore under a particular obligation to deliver accordingly.
4.5. We will only be responsible for arranging insurance cover at the express wish and expense of the buyer.
5.0. Performance failures, breaches of duty, liability
5.1. Our duties and the specifications of our products are laid down exclusively in the written confirmation of order.
5.2. Our customer has a duty to examine the products of our manufacture for faults, deficiencies and quantities within seven days and to notify us in writing of any faults, deficiencies or incorrect quantities within fourteen days, so that we can identify any faults, deficiencies or variations in quantity from the content of the purchase order and fulfil our remedial obligations accordingly.
5.3. We will be liable for any losses incurred by our customer in the event of malicious intent and/or gross negligence.
5.4. If our performance falls short in respect of our duties as suppliers or the specifications of our goods, we will be entitled to claim permission from the customer to carry out remedial measures in the form of a replacement delivery or the repair of the goods, at our discretion, within a reasonable period of time. The right to carry out repairs will be limited to two attempts. If the breach of duty or deviation from product specifications arises after the further use of our products, e.g. as components in other articles at a place of delivery by our customer to his customer, the customer must give us an opportunity to carry out our repair work at the said place of delivery.
5.5. In the event of breaches of secondary duties or an insignificant divergence from our duties and product specifications, we exclude any liability to our customer.
5.6. If our customer withdraws from the contract on the grounds of a breach of duty attributable to our negligence, or if the purchase price is reduced, or we take measures to rectify the breach of duty or fulfil the default, we exclude any assertion of claims for compensation of any nature whatsoever.
5.7. Any claims for compensatory damages made on us will be limited to such damages as may be foreseeable from the use of the products supplied by us at the time the contract was concluded.
5.8. The customer has a duty to look after the products supplied by us and to protect them from incompatible environmental influences, e.g. chemical reactions. Wear due to use excludes any breach of duty on our part.
5.9. If our products are exported by our customer, including products which have undergone further processing or use as components by the customer, we will accept no liability for the suitability for export of the contracted products or for their exemption from a state licence or freedom of importation into our customer's export countries.
6.0. Securities, retention of title and other retentions
6.1. Extended retention of title:
The delivered object will remain our property until the customer (if he is a merchant) has discharged all the debts to us arising out of our business relationship with him.
6.2. Prolonged retention of title:
The customer will be entitled to resell our goods in the ordinary course of business. As of then, the debt thus arising will be automatically transferred to us. The customer may not transfer the debt to a third party (this includes banks). If required to do so, the customer undertakes to advise the names of any debtors and the amounts owing.
6.3. Release of securities:
If requested to do so by the customer, we undertake to release securities which exceed the nominal amount of the debt owing to us plus a supplement of 20%. We will decide which security to release.
6.4. The customer will not be entitled to pledge the goods or assign them as a security before the transfer of title.
6.5. If the customer behaves in a manner contrary to the terms of the contract or falls into arrears on payments, we will be entitled to recover the goods and the customer will be under an obligation to hand them over.
6.6. If, in the case of exported goods, the foregoing provision for retention of title is inapplicable under the law of the export country, the customer will be under an obligation to take out insurance cover in accordance with the law of the export country and the to arrange the requisite registration, and we will be entitled to request that this be done. If the exporting customer falls into arrears on payments, we will be entitled to take the goods into our possession and to place them into store separately or away from the customer's business premises without this being associated with withdrawal from the contract.
6.7. If we are entitled to preferential right, our security will also warrant for future insolvency costs.
6.8. Ordinary retention of title:
If the customer is not a business proprietor within the meaning of Clause 1.1 of these General Conditions of Business, we will be entitled to the ordinary retention of title until the ordered goods have been paid for.
6.9. We will be entitled to withhold deliveries to the customer if any payments are outstanding for previous deliveries.
7.1. If a guarantee is given, it will take the form of a special written document, separate from the confirmation of order.
7.2. A guarantee will only be effective if it is personally signed by a sole authorised signatory or joint authorised signatories consisting of two company directors or one director and an authorised clerk.
7.3. Neither specifications nor descriptions of performance constitute any form of guarantee. The presumption of implied guarantees is expressly excluded.
8.0. Product liability
8.1. We are the manufacturers of the goods processed and delivered by us. For goods and parts supplied to us, which we combine with our components, the manufacturer is our supplier.
8.2. We accept product liability for the goods supplied by us, including any factual liability arising out of erroneous product information, data sheets or documents which we have compiled.
8.3. In the case of cross border deliveries to foreign customers, we do not undertake any checks on our products for compliance with any particular provisions of the national law of the country in which the customer is domiciled.
8.4. If the customer suffers a loss as a consequence of our negligence resulting from the incomplete or faulty manufacture or design of our products, or as a result of erroneous advice, information or operating instructions after our products have been handed over, including a loss on which a claim under statutory product liability could be based, we hereby agree between us and our customer that the liability shall be limited to the amount of the respective sums insured for property damage and personal injury covered by the indemnity insurance policy concluded with our insurers. If so requested by the customer, we will advise him of the name of the insurance company and the respective sum insured.
8.5. If a claim is made against us by a third party on the basis of product liability as a result of work carried out by the customer on our goods, the customer will be under an obligation to forfeit our direct relationship and release us from third party claims unless the liability is exclusively attributable to our components which have been incorporated in the customer's product. We promise to support the customer in the defence of such claims.
9.0. Data protection
9.1. We will be entitled to store and process customers' data which we have obtained from the business relationship, in so far as these are available to the customer.
9.2. The buyer will release us from all and any claims by third parties in respect of data supplied to us. If data are transferred to us, irrespective of in which form, the buyer will make corresponding copies for security purposes.
Our server data are saved on a regular basis. In the event of a loss of data, the buyer has a duty to transfer the corresponding data to us again, free of charge. The buyer will be aware that all users on the transmission path are capable of accessing transferred data and is to take this risk into account accordingly.
10.0. Tools and models
If tools and models are developed or commissioned to be developed by us for the purpose of executing a customer's order, they will remain our property even after the order has been executed. This will still apply if the customer bears all or part of the development costs.
11.0. Place of fulfilment, court of jurisdiction
11.1. Verbal agreements are invalid. All agreements must be in writing, including renunciation of the written form.
11.2. If any clause in these Condition of Sale and Supply should be invalid, the validity of the content of the other provisions will not be affected thereby. The invalidity of one or more provisions of our General Terms of Supply and Payment will not give rise to the overall invalidity or inapplicability of the General Conditions of Supply and Payment.
11.3. The place of fulfilment for deliveries and payments shall be Engen.
11.4. The court of jurisdiction for any disputes whatsoever arising between us and our customer (in so far as he falls within the circle of customers specified in Clause 1.1 of our General Conditions of Business), is agreed to be the District Court of Singen or Konstanz exclusively, whichever we choose.
The court of jurisdiction in the case of persons not covered by Clause 1.1 will be as laid down in statutory regulations.
KARL BERG GMBH - Industriestrasse 3b - 78234 Engen/Germany
Tel. +49 7733 9410-50 - Fax +49 7733 6434
Stand of the General Business Conditions: 02/2002
All former copies are invalid
Terms and conditions
1.0. Applicability, validity