Terms and Conditions
Terms of sale and delivery
I. General terms and conditions
1. Our products and services are supplied exclusively in accordance with the following Terms and Conditions. These Terms and Conditions shall apply as amended both to future contracts for the supply of goods and services as well as to all future business relationships even if they are not expressly reagreed. These Terms and Conditions shall be deemed accepted at the latest upon receipt of the goods or service. Any contrary confirmation by the business partner with reference to own Terms and Conditions of Business and Purchase is hereby expressly rejected.
2. Deviations from these General Terms and Conditions shall only be effective if they have been confirmed by us in writing.
3. Our offers shall remain without obligation until they have been confirmed by us in writing. All information contained in brochures or documents enclosed in an offer shall only be binding if this is explicitly confirmed. We specifically reserve the right to make minor modifications according to technological progress during lead time.
4. Information and illustrations contained in brochures, catalogues, other documentation and our website are approximations customary in the industry and shall only be binding if expressly confirmed by us in writing.
5. We also reserve the right to make modifications regarding construction, design, the choice of working materials and manufacture even after having sent our acknowledgement insofar as this does not result in changes in price and/or the fundamental functions or the delivery period and this is reasonable for the customer.
II. Prices and Terms of Payment
1. Prices are quoted ex works or warehouse plus value-added tax at the statutory rate and the applicable flat-rate charge for shipment.
2. Unless agreed otherwise, the prices stated in our offers shall be binding for us for a period of 30 days from the date of such offers. The prices stated in our order confirmation shall be decisive.
3. Orders worth over 250.00 EUR will be delivered carriage-paid to destinations in Germany. A lumpsump charge of 6.90 EUR will be invoiced for orders worth less than 250.00 EUR. Special conditions apply for deliveries outside Germany.
4. Our prices are subject to confirmation. They are based on labour, material and overhead costs, as well as cost of outside services (e.g. freight charges, public charges, etc.) at the time of order confirmation. If these costs increase within eight (8) weeks between entering the purchase contract and delivery, we shall be entitled to increase our prices accordingly unless we are in default of delivery.
5. Payment of our invoices shall be effected within thirty (30) days of the invoice date. If a cash discount has been agreed, it shall only be granted as a matter of principle if all due liabilities of the business partner have been settled completely at the time of deducting the cash discount.
6. The receipt of money by us shall be decisive for determining punctual payment.
7. Cheques will only be accepted by agreement and only on account of payment and on condition of eligibility for discount.
8. If the payment deadline is exceeded, interest will be charged in accordance with Section 288 of the German Civil Code (BGB) without a reminder being required. We reserve the right to assert claims with regard to additional damage caused by the delay in payment. Payments shall be made to our point of payment without charge.
9. The business partner is only entitled to a right of retention and set-off as long as his counterclaims have been declared undisputed or final and conclusive. Otherwise, the business partner shall only be entitled to a set-off if his counterclaims have been declared final and conclusive or undisputed.
10. We are entitled to request advance payment of the invoice amounts at any time before dispatch of the goods should we deem this necessary. Should it become evident after conclusion of the contract that our pecuniary claim will be jeopardised by a deficiency in creditworthiness, we are entitled to the rights under Section 321 of the German Civil Code (BGB). We are entitled to demand payment of all receivables that are not barred by the Statute of Limitations from the current business relationship with the business partner. In all other cases, the right to suspension and cancellation of the contract shall extend to all other outstanding deliveries and services arising from the business relationship with the partner.
III. Terms of Delivery, Delay, Inability to Deliver
1. Delivery periods and dates are without obligation unless we have indicated explicitly in writing that they are binding. The business partner may request delivery in writing within a reasonable period of time if a non-binding delivery date has been exceeded by three weeks. This reminder shall cause us to be in delay. Where deadlines for deliveries have been set, these deliveries shall be regarded as having been effected in a timely manner if the consignment has left our warehouse on the last day of the deadline.
2. In the case of delays in delivery or in the rendering of services due to force majeure making delivery considerably more difficult or impossible for us - including subsequent difficulties in the procurement of materials, disruption of operations, strike, lock-out, staff shortage, shortage in means of transport etc. as well as all other circumstances, regardless of their nature, without our being responsible for such disruptions. Whether these circumstances occur at our company, at the supplying plant or at the plant of an upstream supplier is irrelevant. Even if the delay in delivery or rendering of service occurs at our suppliers‘ plants, the delivery period shall be reasonably extended, even during a delay. Should delivery become impossible or unreasonable due to the afore-mentioned circumstances, we shall then be released from the obligation to deliver. In the event that the hindrance lasts for more than two months, the business partner shall be entitled to cancel the part of the agreement that has not yet been fulfilled after setting a reasonable deadline. Should the delivery period be extended or if we are released from the obligation to deliver, the business partner may not derive any claims for damages therefrom. We can only invoke the aforesaid circumstances if we have notified the business partner accordingly without delay.
3. If we are responsible for the non-observance of deadlines to which we have committed ourselves or if we are in delay, the business partner shall grant us a reasonable deadline and may rescind the contract when the deadline expires fruitlessly. Claims extending beyond these shall be excluded unless the delay is due to at least gross negligence.
IV. Dispatch, Transfer of Risk, Packaging, Partial Shipment
1. Unless otherwise agreed, delivery shall be made ex works (EXW) in accordance with Incoterms 2010.
2. We shall determine the route and means of shipment as well as the forwarding agent and carrier.
3. If transport is made impossible or extremely difficult by the intended route to the intended destination in the intended period of time for reasons beyond our control, we shall be entitled to send the consignment to the intended destination by a different route; the resultant costs shall be borne by the business partner. We cannot give any warranty for the most favourably priced means of transport.
4. In all transactions, including free deliveries and deliveries free of charge to the buyer’s address, the risk, including the risk of confiscation, shall pass to the partner when the goods are handed over to a forwarding agent or carrier, but at the latest when they leave the warehouse or supplying plant. Transport insurance, the costs of which shall be borne by the partner, will only be obtained by us by means of express written agreement.
5. We are entitled to effect reasonable partial shipments. Excess and short shipments of the agreed quantity shall be admissible as customary in the business.
V. Reservation of Ownership
1. We shall retain title to goods supplied until such time as all receivables from the business relationship with the business partner (including current account balances) have been paid.
2. Provided the partner meets his obligations from the business relationship with us in a timely manner, he shall be entitled to sell these goods in a due and proper course of business. However, he shall not be permitted to pledge the conditional commodity or transfer ownership for security. He is obliged to protect our rights concerning the credited re-sale of the conditional commodity.
3. In case of breaches of duty by the partner, especially delay in payment, we shall be entitled to cancel the order and reclaim the goods following the fruitless expiry of a reasonable period granted to the partner to effect payment; the statutory provisions concerning the dispensability of setting a deadline remain unaffected. We shall also be entitled to rescind the contract if a petition for insolvency is filed for the partner‘s assets. The partner is obliged to surrender the goods.
4. By way of security, the business partner shall herewith assign to us all rights and claims against third parties from the sale of our goods to which we hold title. We herewith accept the assignment.
5. In the event that the goods supplied by us are added to or mixed with other goods, we shall acquire co-ownership commensurate with the value of the conditional commodities at the time of being combined with other goods.
6. If the partner sells the conditional commodities supplied by us or if the conditional commodities are sold or delivered to a third party or are installed within the scope of a contract for work, a contract for work and materials or a building contract – regardless of their value or condition – the partner shall here with assign to us, in the amount invoiced for our performance, all accounts receivable from his contractual partner, including all ancillary rights arising from the sale, delivery or installation of the goods until all designated accounts receivable have been settled in full, including any claims for damages arising from this legal transaction of resale or installation.
7. The partner shall notify us immediately of any actions by third parties concerning compulsory execution with regard to the conditional commodity, the accounts receivable assigned to us or any other securities and shall surrender the documents required for intervention. This also applies to impairments of any other nature.
VI. Defect of Quality
1. The purchaser shall inspect deliveries and services immediately on receipt; Section 377 of the German Commercial Code (HGB) shall apply.
2. Warranty claims may not be made for merely insignificant defects or in the case of only minimal deviations in serviceability, natural wear and tear or damage occurring after the transfer of risk as a result of incorrect or negligent treatment, excessive operational demands, the use of unsuitable equipment, poor construction or which are due to particular outside influences which are not expected under the contract or intended use, and in the case of software errors which cannot be reproduced. Should the partner or third party carry out improper modifications or repair work, there shall likewise be no warranty claims for them or for the consequences arising therefrom.
3. The business partner or third party shall report any defects of quality to us in writing. The defects shall be described in the greatest possible detail. Furthermore, defect liability claims may only be made if proof of purchasing the goods (delivery note, invoice etc.) can be presented.
4. All rights regarding the defect of quality shall lapse if the partner or third party does not give us the opportunity to convince ourselves of the defect of quality immediately or, in particular, if he does not make the rejected goods available upon request without delay.
5. Parts or services shall be repaired, re-delivered or repeated free of charge at our discretion - regardless of the period of operation - if the defect is reported to us within the statutory period of limitation and the cause of the defect already existed prior to the transfer of risk. We shall be granted a reasonable period of time for this subsequent performance.
6. Should this subsequent performance fail, the partner or third party may – without prejudice to any claims for damages - rescind the contract or reduce the amount payable.
7. Claims by the partner or third party regarding the expenses required for the purpose of subsequent performance, in particular transport costs, travel expenses, labour costs and material costs etc., shall only be assumed in individual cases if they are reasonable, particularly in relation to the purchase price of the goods.
8. Claims regarding defects of quality will become statute barred in 12 months as from the transfer of risk. This shall not apply to the extent to which the respective state laws provide for longer periods of limitation and in cases of injury to life, limb and health, a deliberate or grossly negligent breach of duty on our part and in the case of malicious non-disclosure of a defect. The statutory regulations regarding suspension of the running of time, interruption and recommencement of the periods shall remain unaffected.
VII. Other Claims for Damages
1. Regardless of their legal basis, claims by the partner for damages and reimbursement of expenses, particularly claims due to breach of duty from the relationship under the obligation and tort, shall be excluded. This does not apply in cases where liability is assumed by force of law, in cases of wilful intent or gross negligence, owing to injury to life, limb and health.
2. Insofar as the partner is entitled to claim damages in accordance with these provisions, they shall become statute barred on expiry of the limitation period for claims concerning defects of quality. The statutory periods of limitation shall apply in the case of claims for damages pursuant to the Product Liability Act.
3. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, legal representatives and our vicarious agents.
VIII. Dealer Aids
Sales and presentation aids, which are made available to the partner free of charge, shall remain our property and may be reclaimed at any time. Any risk associated with the use of such sales and presentation aids shall pass to the partner while they are used by him. He undertakes only to use our goods with the sales and presentation aids and to replace such aids in the event of loss or damage for which he is responsible.
IX. Place of Performance, Jurisdiction and Applicable Law
1. Place of performance and payment is Herzebrock-Clarholz.
2. The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be our registered seat. However, we are also entitled to institute legal proceedings at the registered seat of the partner.
3. Except as otherwise provided, the legal relationships associated with this Agreement shall be governed by German law excluding the United Nations Convention concerning the International Sale of Goods (CISG).
4. Even if individual provisions of these Terms and Conditions prove to be invalid, they shall remain binding in their entirety. This shall not apply if adherence to the contract were to constitute an unreasonable hardship for us or our business partner.