1. GENERAL REMARKS
Our deliveries / services are subject to the General Terms and Conditions below. They shall also apply if we do not expressly refer to them in future business relationships. Deviating general terms and conditions shall only apply if we accepted them in advance in writing. This shall also apply if we accept a contractual partner's services without contradiction.
2. OFFERS / ORDER CONFIRMATION
If nothing else was agreed on, our offers are entirely non-binding. Orders and all other agreements shall become binding on us only upon our written confirmation. Delivery notes and invoices shall also be considered as such confirmation. Amendments to the quality of the goods, which are technically or legally required and which are reasonable for the Customer, shall also be permitted after contract conclusion if we referred to such amendments at delivery.
3. DELIVERY TIMES, DELIVERY CONDITIONS AND DEFAULT OF ACCEPTANCE, NO RETRACTION OF DEFECT-FREE GOODS
(1) Day of delivery shall be the day when the goods are shipped. If delivery is delayed for reasons we cannot be held responsible for, the day of supply shall be considered the day of delivery. If delivery dates were agreed, we shall considered to be in default only if we receive a demand. Partial deliveries / partial performances are admissible to the extent to which this is reasonable for the Customer upon their acceptance considering all circumstances. If we cannot deliver on time due to reasons beyond our control, delivery times shall be reasonably extended. Reasons beyond our control shall also comprise labour disputes, disruptions in the operating schedule which could not be prevented although due care had been exercised, disruptions with the supplier, disruptions on transport routes, lack of raw materials and interference by authorities.
(2) We shall not be liable for delayed / omitted deliveries / performances for which our suppliers are responsible; in return, we are obligated to assign our claim for damages in the relevant amount against our suppliers or third parties to the Customer. If the Customer finally fails to be indemnified by our supplier, we shall be subsidiarily liable considering these General Terms and Conditions. This does not entail an extension of the period of limitations.
(3) If an event beyond our control in terms of Section 1 is present, we shall have the right to withdraw from the contract excluding further claims by the Customer. If a later fulfilment after a delay is of no interest for the Customer, they shall have the right to withdraw from the contract excluding further claims.
(4) Without prejudice to further claims, we shall have the right to withdraw from the contract relating to the delayed partial performances if the Customer defaults.
(5) We are not obliged to retract proper goods. The redelivery of such goods expects our prior approval. Charges of such redeliveries are for the account of the customer. In case of retraction of proper goods, we bill an administrative charge of 20 % of our invoice.
4. DELIVERED DOCUMENTS, INDUSTRIAL PROPERTY RIGHTS
All production materials, documents and data which we delivered shall remain our property. Industrial property rights relating to our delivered goods will not be assigned.
5. PASSING OF RISK
The risk of accidental loss or the deterioration of deliveries / performances shall pass to the Customer once the goods left the shipping point in Burbach, even if we, as a special exception, bear the costs of delivery. If the delivery is delayed due to reasons beyond our control, goods will be stored at the Customer's expense and risk; in this case, the notice of readiness for dispatch to the Customer shall be considered the equivalent of delivery. If goods are taken back, the Customer shall bear the risk until the goods were supplied to us.
6. Prices, packaging, sales tax
(1) Unless otherwise agreed, our prices are ex works excluding customs duties (export and import duties, etc.) as well as import taxes and other public charges, plus the respective statutory value added tax. The costs for freight and packaging will be invoiced additionally as a total item. If there is a period of more than 6 weeks between the time the placed order and the due date of the delivery and if the wage, material or energy costs increase by more than 7.5% during this period, we shall be entitled to adjust the price accordingly if we disclose the share of costs in the total price with the price adjustment. If the price increase is more than 5%, the customer may withdraw from the contract within one calendar week after we have drawn attention to the price increase prior to delivery. Packaging, protective materials and means of transport shall not be taken back.
(2) For goods that are not destined for a recipient within Germany, the customer must submit to us the tax receipt (EU foreign country) or the tax export certificate required (other foreign countries) within two weeks after delivery of the goods. After expiry of the deadline, the customer must pay the statutory value-added tax incurred for a delivery within Germany in addition to the respective invoice amount. Alternatively, in the case of deliveries to other EU countries, we can demand that the customer initially pays an amount of 119% of the net amount (excluding VAT), of which we will refund 19% upon presentation of the confirmation of receipt.
7. Invoice, payment
(1) We may also issue our invoices electronically and transmit them electronically to the customer. Our invoices are payable immediately and are due with the delivery/service unless otherwise agreed. However, even within the framework of an ongoing business relationship, we are entitled at any time to make a delivery in whole or in part only against advance payment; we must declare such a reservation at the latest with our order confirmation. Discounts shall not be granted unless expressly agreed in advance. The customer shall be in default upon expiry of the aforementioned payment period. If the receipt of the invoice is disputed, the customer shall be entitled to payment without reminder no later than thirty days after delivery of the goods. This shall not affect the possibility of causing the default elsewhere or the right to demand commercial interest on the due date.
(2) Payments shall be made in Euro. They are to be sent free of charge to the paying agents specified by us. Bills of exchange and cheques are not accepted.
(3) Payments shall always be offset first against any costs, then against interest, then against the principal debt, initially against the unenforceable debt and then against the older debt. The customer is not entitled to withhold and set off payments due to any counterclaims, including claims based on liability for defects, unless the claims are undisputed or have been legally established.
(4) In the event of circumstances which become known to us after conclusion of the contract and which give rise to reasonable doubts as to the creditworthiness of the customer, we shall be entitled to demand immediate payment of all our claims, including bills of exchange. This applies in particular in the case of creditworthiness regressions caused by economic information files (from a rating of creditworthiness as "strained") or in the case of a at least comparable deterioration of the rating in our commercial credit insurance. We may then demand advance payment; instead, the customer may demand performance step by step at the location of the goods.
8. LIABILITY FOR DEFECTS
(1) The Customer shall immediately inspect delivered goods and notify of relevant defects in writing within seven calendar days at the latest after the goods were received at the destination; latent defects have to be notified immediately after they were detected. Otherwise, goods shall be considered as accepted. Only if the Parties expressly agreed on them in writing in advance will samples, images and drawings as well as presentations and information in our catalogues and brochures which we supplied contain a guarantee or an agreement on the quality. The delivery of goods by the customer at our cost has to be aligned with us in advance.
(2) There are no claims for defects if the deviation from the agreed quality is insignificant or if usability is impaired only insignificantly. In case of non-delivered reduced quantities of less then ten per cent, the right to withdrawal from the contract shall be excluded. We shall be liable for defects relating to material quality only to the extent to which our relevant supplier would be liable to us. In return, we are obligated to assign our claims for damages against our suppliers or third parties in the relevant amount to the Customer. If the Customer finally fails to be indemnified by our supplier, we shall be subsidiarily liable considering these General Terms and Conditions. This does not entail an extension of the period of limitations. Apart from that, the state of the technology of the order submission shall be authoritative.
(3) If we are liable for defects, we shall have the right to choose between rectification and delivery of new goods; the contested materials shall be returned. If the Customer intends to withdraw from the contract, to reduce the price, to claim damages instead of performance or to execute self-help, subsequent performance shall be considered as failed only after the second unsuccessful attempt. The legal cases of dispensability to set a term shall remain unaffected.
(4) The Customer's claims due to required expenses for the purpose of subsequent performance, such as transport, labour and material costs, shall be excluded if expenses increase due to the fact that the goods supplied by us were delivered to another address of the Customer, unless delivery occurred in accordance with the course of business.
(5) In case of wage labour, our liability for damages shall be limited to the fact that we perform such labour according to the Customer's prescriptions about which we were informed in writing in advance. We shall not be liable for damages which are caused by the supply or the processing of inadequate materials or prescriptions by the Customer or third parties. Only if the Customer requested this in advance shall we perform a suitability test for the supplied goods / prescriptions; apart from that, we are obligated to examine or warn only in case of apparent defects relating to supplied materials / prescriptions. We shall not be liable for the suitability of the products processed by us for the purposes which the Customer or third parties intended. In case of early termination of the order due to defective materials / prescriptions, the Customer shall have to pay for wage labour performed until this moment. The Customer shall be liable for defects resulting from defective materials / prescriptions.
(5) There is no right of recourse against us if the Customer granted rights to the purchaser which go beyond legally required claims for damages in Germany.
(6) If nothing else was agreed on, all claims for damages shall become time-barred within one year, unless a longer period of limitation is required by law. The period of limitation shall begin once the Customer received the goods.
9. LIMITATION OF LIABILITY
(1) We exclude liability for negligent violation of duty regarding supplied goods / supplied amounts of goods and other legally protected interests if these do not relate to essential contractual obligations, to damage from injury to life, body or health or to claims on the basis of product liability law. The same shall apply to violations by our vicarious agents. Liability for violating essential contractual obligations shall be limited to foreseeable damage which is typical for such contract; this shall also apply in case of gross negligence, unless there is an injury to life, body or health.
(2) The regulation of section 9 sub-section 1 shall apply to damages in addition to performance as well as instead of performance, independent of the legal grounds, especially in combination with defects, consequential harms caused by a defect, violation of duties resulting from the contractual obligations or from torts, as well as in case of compensation for wasted expenditure (for delivery delays please refer to 3).
10. RIGHT OF RETENTION
(1) The goods shall remain our property until full payment.
(2) If retained goods are processed to new movable goods by the Customer, processing is performed without creating an obligation for us from this. The new good shall become our property. In case of unions, mixing or processing with goods which we do not own, we shall acquire co-ownership of the new good. Co-ownership shall be based on the ratio of the retained goods value to the entire value of processed, unified or mixed goods. If the Customer acquires sole ownership due to union, mixing or processing, they shall already now assign co-ownership to the Customer in the ratio of the retained goods value to the other goods at the time of union, mixing and processing. In this case, the Customer has to store their property or the goods they have co-ownership in free of charge, which are also considered as retained goods in terms of these provisions.
(3) The Customer shall have the right to use retained goods in the normal course of business or to sell them to the consumer subject to their right of retention until the goods have been fully paid. In advance, the Customer shall hereby assign to us all receivables, including VAT, which result from the use of retained goods. If retained goods are sold or used together with other items which we do not own, the assignment shall only comprise the part of the receivables which is equivalent to the ratio of the retained goods delivery value to the delivery value of those goods which we do not own. The Customer's right to sell or process retained goods in the normal course of business shall cease to exist upon our revocation. If there is no revocation, it shall cease to exist upon the Customer's default at the latest. If the Customer sold receivables in the framework of a real factoring, they shall already now assign the substituting receivable against the factor to us. If the consumer effects a payment to one of our Customer's bank accounts, the Customer shall already now assign to us the claim resulting from the credit to their financial institution. We shall accept the assignment mentioned above.
(4) The Customer is entitled to collect assigned receivables as long as they fulfil their payment obligations. The right to collection shall cease to exist upon our revocation. If there is no such revocation, it shall cease to exist once the Customer is in default for more than a month at the latest. Our right to collect receivables ourselves shall always remain unaffected. We shall have the right to inform our Customer's clients about the assignment and to demand payment to us, unless insolvency proceedings were instituted and this conflicts with insolvency court orders. Upon request, the Customer shall always be obligated to provide us with a detailed list of all receivables we are entitled to, including the clients' names and addresses, the amount of individual receivables, the invoice etc., to give us all information which is required to assert a claim for the assigned receivables and to allow us to review this information.
(5) If the Customer violate their duties, such as default of more than a month or suspension of payments, we shall have the right without setting a term to gain possession of retained goods, to satisfy ourselves at our discretion and to have access for this purpose to the Customer's premises, unless insolvency proceedings were instituted and this conflicts with insolvency court orders. Resulting expenses shall be borne by the Customer. If we take goods back due to the right of retention, this shall be considered as a withdrawal from the contract only if we expressly declare this or process the goods.
(6) Pledging or transfers by way of security of retained goods or the assigned receivables, accordingly, are not permissible. The Customer shall immediately inform us about the access of third parties to the retained goods or to assigned receivables (e.g. pledging or other accesses by third parties). The costs of interventions against accesses by third parties shall be borne by the Customer if these are not compensated by the relevant third party.
(7) The Customer shall store retained goods for us free of charge. They are obligated to reasonably insure them against usual risks (fire, theft, water etc.). The Customer hereby assigns their claims for damages to us. They do so to the amount of the equitable lien value to which they are entitled to to insurance companies or any other party liable in case of damages of the type mentioned above. We shall accept such assignment.
11. VALIDITY, APPLICABLE LAW, PLACE OF PERFORMANCE, VENUE
(1) Should single regulations of these General Terms and Conditions be or become totally or partially void, ineffective, illegal or non-enforceable, this does not affect the effectiveness of the remaining General Terms and Conditions. Instead, the Parties shall agree on a regulation which comes as close as possible to the legally invalid regulation. Otherwise, legal regulations apply.
(2) The contractual relationship between the Customer and us shall be subject to the laws of the Federal Republic of Germany including the United Nations Convention on Contracts for the International Sale of Goods (CISG). Place of performance for deliveries / services and payment shall be our registered office. Venue for these General Terms and Conditions or this agreement on the venue – also relating to legal disputes on the effectiveness of the contract – shall be the court having jurisdiction in this area and for such cases, unless the Parties have an arbitration agreement. In case of contracts set up in several languages, the German version shall be considered as the original.