GENERAL TERMS AND CONDITIONS
1. General provisions
1.1 All current and future deliveries will be made based exclusively on the following business relations. Terms and conditions of the contractual partner which differ from these shall be applicable provided that they are in accordance with these provisions, otherwise they are hereby expressly rejected.
1.2 The parties agree that these general terms and conditions shall also apply to additional orders without any requirement for special reference to be made to these once again.
1.3 Divergent or supplementary agreements shall only be valid if they are entered into in writing or are confirmed by us in writing.
1.4 Provided that there is a written order confirmation then this shall determine the scope of our delivery obligation. Otherwise this obligation shall be determined based on our quote. Any side agreements or changes require our written confirmation.
1.5 Our product information and other documentation such as illustrations, designs, drafts and specified dimensions shall only form part of the contract if we have designated these as binding.
The seller’s quoted prices are without obligation. Prices are net prices not including VAT. Prices shall be subject to VAT at the applicable statutory amount provided that this is to be charged. Unless otherwise agreed, prices are ex factory, inclusive of loading at the factory, but exclusive of packaging and other costs.
Old catalogues, brochures and price lists shall cease to be valid when a new version is published.
3. Payments, default of payment, retention, withdrawal
3.1 Unless otherwise agreed the payment must be received into our account within 30 days without any discount.
3.2 A 2% discount will be granted if the payment is received within 8 days from the invoice date. Discounts will only be granted if the invoice amount is received in full and in good time. The date that the amount is credited to us shall be the applicable date.
3.3 Claims may not be offset against counter-claims unless these have been determined by force of law.
3.4 In the event that the payment term of 30 days from the invoice date is not met we shall be entitled to charge interest on default amounting to 5 percentage points above the relevant applicable base interest rate.
3.5 We may require advance payment, cash on delivery, cash payment upon submission of invoice or collection by bank direct debit.
3.6 €5.00 will be charged for each of the payment reminders following the first reminder.
4. Delivery periods and default of delivery
4.1 Delivery periods shall only be binding if they are designated as binding in our order confirmation. Compliance with the delivery period is contingent upon the fact that we have received accurate supplies on time ourselves from our own suppliers.
4.2 The delivery period shall be extended appropriately if the failure to comply with the delivery period is attribu-table to force majeure, industrial disputes or other events that are outside of our sphere of influence. This also applies if these events affect our sub-suppliers. We will notify the purchaser of the start and end times of circumstances of this type as soon as possible. We shall also not be responsible for the aforementioned circumstances if they arise during an existing delay.
4.3 The delivery period shall be deemed to have been met if the item to be delivered has left our factory or readiness for shipment has been communicated before the period expires. If shipment of the delivery item is de-layed on grounds for which the purchaser is responsible then we shall be entitled to charge the costs incurred through the delay to the purchaser, beginning one month from the notification of readiness for shipment; the minimum amount charged shall be 0.5% of the invoice amount for each month. All of our deliveries and services provided by this point shall become due for payment at the same time. However, we shall be entitled to dispose of the delivery item elsewhere after setting a reasonable deadline which expires without result, and to supply the purchaser again with a deadline that has been reasonably extended.
4.4 Partial deliveries shall be permitted provided that these are reasonable for the purchaser.
4.5 The purchaser may withdraw from the contract without setting a deadline if the entire performance becomes conclusively impossible for us prior to the transfer of risk. The purchaser may also withdraw from the contract if execution of a part of the delivery becomes impossible for an order and the purchaser has a justified interest in rejecting the partial delivery. If this is not the case then the purchaser must pay the contract price applicable to the partial delivery. The same applies in the event of our inability to perform.
4.6 If we are in default and the purchaser suffers harm as a result of this then the purchaser shall be entitled to demand flat-rate compensation for the default. This shall be 0.5% for each full week of the delay, although shall amount in total to no more than 5% of the value of that part of the overall delivery which cannot be used in time or in accordance with the contract as a result of the delay.
5. Transfer of risk
5.1 Unless the purchase is a sale of consumer goods pursuant to section 474 of the German Civil Code (BGB), risk shall be transferred to the purchaser with the handover of the goods to a shipping company or freight forwarder, however, this shall be no later than when the goods leave the factory, including in cases where the delivery is made by the seller’s lorry.
5.2 We shall be entitled to insure all deliveries against transport damage at the purchaser’s expense.
5.3 If the delivery features signs of transport damage when it arrives at the purchaser’s site or if such damage is identified at a later time, the purchaser must demand a written report of the facts from the freight forwarder without delay.
5.4 If the shipment is delayed or stopped as a result of circumstances which cannot be attributed to us, then risk shall be transferred to the purchaser from the date that notification is provided that the items are ready for shipment. We undertake to take out the insurance at the purchaser’s expense that the latter requests.
6. Exports to the USA and Canada
6.1 We prohibit any direct or indirect export of our products to the USA or Canada.
6.2 The purchaser shall indemnify us against any claims asserted against us from the USA or Canada as a result of export to these countries, including in cases where we have agreed to the export.
7. Retention of title
7.1 We shall retain title to the goods delivered as goods subject to retention of title until all existing claims from the business relationship are fulfilled. This shall also apply if individual or all claims have been incorporated into an open account and the balance has been drawn and acknowledged.
7.2 In the event of serious breaches of contract or an essential deterioration in the purchaser’s assets, the purchaser shall be under an obligation to return all goods in their possession which are subject to retention of title back to us at the purchaser’s expense following a request by us. The purchaser hereby permits us to collect the relevant goods from their premises in this event.
7.3 If the goods subject to retention of title are combined with other items to form a single item and if the other item is to be considered to be the main item, then the purchaser shall be under an obligation to transfer proportional co-ownership in this to the extent that the main item belongs to the purchaser.
7.4 If the purchaser sells the delivered goods on as intended, then they hereby assign to us the claims against their own customer arising from the resale together with all ancillary rights until all claims have been repaid. In justified cases the purchaser shall be under an obligation following a request from us to disclose the assignment to the third-party purchasers and to provide to us the information required to assert their rights along with any documentation.
7.5 The purchaser undertakes only to sell the goods delivered by us upon the proviso that they retain the title to these goods until the purchase price has been paid in full, and agree that title to the new item and the claim arising from this shall take the place of the retention of title if this ceases to apply as a result of resale, combination, processing or amalgamation.
7.6 There is no withdrawal from the contract in the event that the goods are taken back by us. All claims shall be due for payment immediately. This applies in particular in the event that an application is made to open insolvency proceedings in relation to the purchaser’s assets.
7.7 If the realisable value of the existing collateral provided for us exceeds our secured claims by more than 10% based simply on this retention of title regulation or together with other collateral, we shall be under an obligation to this extent following a request from the purchaser to release the collateral that exceeds the realisable value of 110% of the goods subject to retention of title/property pledged as collateral. We shall be entitled to select the collateral to be released.
7.8 The purchaser shall be under an obligation to insure the goods subject to retention of title against any insurable damage. They hereby assign their claims under the insurance policies to us in advance and following a request from us shall provide evidence that the policies have been taken out.
7.9 The purchaser must notify us without delay of any seizure by third parties of the goods subject to retention of title or of claims which supplant this, providing the corresponding documentation.
8.1 We accept the following warranty for material defects and defects of title to the exclusion of any further rights.
8.2 We shall not be liable for colour variations or changes in form as compared with the brochure documentation which do not essentially impair the quality or functionality of the goods. Warranty claims shall be excluded to this extent.
8.3 Any parts which were defective upon transfer of title shall be repaired or new items shall be delivered by us at our discretion. Notifications of defect and complaints must be made in writing without delay, whereby notifications of defect from companies must be provided to us in writing no later than 5 days following receipt of the goods.
8.4 The normal warranty period shall be 12 months unless the transaction involves a sale of consumer goods (section 474 BGB).
8.5 The purchaser shall have a right to withdraw from the contract within the scope of the statutory regulations if with due regard to the statutory exceptions we allow a reasonable period that has been set for us for repair or for a replacement delivery on account of a material defect to expire without fulfilling this obligation. If the defect is merely a negligible one then the purchaser shall only be entitled to a reduction in the contract price. Otherwise any right to a reduction in the contract price shall remain excluded.
8.6 No warranty is accepted in the following cases.
8.7 Unsuitable or improper use, defective assembly or commissioning by the purchaser or third parties, natural wear and tear, defective or negligent handling.
8.8 We shall not be liable for the consequences resulting from the fact that the purchaser or a third party repairs the item improperly. The same applies to changes made to the delivery item without prior consent from us.
9. Defects of title
9.1 If the use of the delivery item results in a breach of industrial property rights or copyrights, we shall at our own expense procure a right for the purchaser to continue using the item or modify the item delivered in a way that is reasonable for the purchaser and in such a way that there is no longer a breach of the property right.
9.2 If this is not possible under reasonable economic conditions or within a reasonable period then the purchaser shall be entitled to withdraw from the contract. We shall also be entitled to withdraw from the contract under the prerequisites as stated.
9.3 Furthermore we shall indemnify the purchaser against claims of the owner of the property right which are undisputed or have been determined by force of law.
9.4 Our obligations as stated in no. 1 for cases of breaches of property rights or copyrights are conclusive. They only exist if the purchaser informs us without delay of any breaches of property rights or copyrights, the purchaser supports us to a reasonable extent with the defence against the claims asserted or allows us to implement the modification measures, all defence measures including extra-judicial regulations are reserved for us, the defect of title is not based on instructions from the purchaser and the breach of the right has not been caused by the fact that the purchaser has modified the delivery item independently or has used it in a manner which is not in accordance with the contract.
10.1 We shall only be liable – based on any legal grounds whatsoever – for damage which has not arisen on the delivery item itself in cases of: wilful intent, gross negligence on the part of the owner/executive bodies or executive staff, culpable injury to life, limb or health, defects which have been maliciously concealed or the absence of which has been guaranteed, defects of the delivery item provided that liability is incurred under the Product Liability Act for personal injury or material damage to items used for private purposes.
10.2 In the event of a breach of essential contractual obligations (known as cardinal obligations) we shall also be liable for gross negligence on the part of non-executive staff and for slight negligence, which in the latter case shall be limited to damage which is foreseeable and is typical for the contract, and to a maximum of the net value of the goods delivered from which the defective item originates.
Any further claims shall be excluded.
11. Place of jurisdiction, applicable law
11.1 The court which has jurisdiction for our company shall be invoked in the event of any disputes which arise from the contractual relationship. However, we shall also be entitled to bring an action at the purchaser’s registered head office.
11.2 The prevailing law of Germany for legal relations between German parties shall apply exclusively to all legal relations between us and the purchaser. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
In the event that one or more of the preceding provisions is ineffective, this shall not affect the effective nature of the other terms and conditions that have been agreed. If required the purchaser and seller shall undertake in such a case to replace the ineffective provision with an effective agreement which best serves the business purposes sought by both sides and the implementation of the contractual relationship.