General Terms of Delivery and Payment
§ 1 General, Validity
- All our offers, deliveries and services shall be subject to these General Terms and Conditions of Business. They also apply to all future business relations, even if they are not expressly agreed again.
- The provisions of these General Terms and Conditions shall not apply to consumers within the meaning of § 13 BGB (=German Civil Code). The statutory provisions shall apply to this group of people.
§ 2 Offer, Order
- The buyer shall be bound by an order placed with us for a period of four weeks from receipt of such order by us.
- If, after conclusion of the contract, we become aware of a significant deterioration in the financial circumstances of the buyer, which justifiably calls into question his solvency or creditworthiness, we shall be entitled to withdraw from the contract in whole or in part. In this case, the buyer shall not be entitled to claim damages.
- If suppliers or other third parties whose performance is decisive for the proper execution of the order by us undergo significant changes, for example in the ability to deliver, the pricing or the quality, we may withdraw from the contract in whole or in part if this makes it impossible or unreasonable for us to fulfil the contract. In such cases, the buyer shall not be entitled to claim damages.
- Passage 3 shall apply also if other circumstances occur after conclusion of the contract which make it impossible or unreasonably difficult for us to carry out the order in accordance with the contract, insofar as we are not responsible for these circumstances. These include especially cases of force majeure and incalculable events. Reasons for hindrance due to force majeure or incalculable events are in particular labor disputes such as strikes or lawful lockouts as well as shutdowns due to labor disputes, mobilization, war, official orders, operational disruptions such as fire, water, machine damage, energy shortages and comparable reasons for hindrance.
- In the cases of passages 3 and 4, the buyer will be informed by us immediately about the impediment to performance or the reason for the impediment to performance and the withdrawal will be declared immediately if necessary.
- Descriptions and illustrations of our goods are only approximate. We reserve the right to make changes up to the time of delivery, which, however, must not unreasonably affect the interests of the buyer.
§ 3 Prices
Unless otherwise agreed, our prices are quoted in EURO ex works, excluding value added tax and freight. These costs shall be borne by the buyer, even if they are not specifically stated.
§ 4 Terms of payment
- Payment of our invoice is to be made within 30 days of the invoice date without a discount and free of charges. Deviating conditions are to be agreed individually in writing.
- The payment must be made cashless to an account named by us.
- In the event of the buyer exceeding the payment deadline, we shall be entitled to demand interest on arrears in the amount of 8% above the base interest rate. The assertion of further damages remains unaffected.
- In the event of default in payment, we shall be entitled to declare our claims due and payable and to make further deliveries only against advance payment or provision of securities. In addition, we shall be entitled to withdraw from the contract in whole or in part after setting a deadline. The same shall apply if, after conclusion of the contract, we become aware of significant changes in the financial circumstances of the buyer which give rise to justified doubts about the buyers’ solvency or creditworthiness.
- The buyer shall only be entitled to set-off if the claims asserted by him have been legally established or are undisputed. The exercise of a right of retention by the buyer is also only possible in the case of legally established or undisputed claims of the buyer.
§ 5 Delivery and Performance Time / Partial Deliveries and Partial Services
- If delivery periods have been agreed, they shall commence on the date of receipt of our order confirmation by the buyer. Delivery periods are considered being kept if the goods have been dispatched or notification of readiness for dispatch has been given by the time of expiry of the delivery period.
- Insofar as cooperation on the part of the buyer is required for the execution of the order, their proper and timely fulfilment is a prerequisite for compliance with our delivery deadlines. If the buyer does not fulfil these obligations in time, the delivery period shall be extended appropriately, but at least by the duration of the delay for which the buyer is responsible.
- If delivery is prevented due to force majeure or incalculable events, the delivery period shall be extended without further ado by a reasonable period, at least by the duration of the hindrance. If such hindrances are not merely temporary, we shall be entitled to withdraw from the contract in whole or in part on account of the unfulfilled part. The term "hindrance due to force majeure or incalculable events" shall be defined in accordance with § 2 passage 4 of this contract. We shall inform the buyer immediately of the beginning and end of such hindrances.
- If an impediment due to force majeure or incalculable events leads to a delay in delivery lasting longer than twelve weeks, the buyer shall be entitled to withdraw from the contract regarding the part not yet fulfilled after setting a reasonable grace period. Claims for damages are excluded in such cases. In the same way, we shall be entitled to withdraw from the contract in the event of a delay in delivery of more than twelve weeks due to force majeure or incalculable events. After the expiry of twelve weeks, the buyer may demand a declaration from us as to whether we will withdraw from the contract or deliver within a reasonable period determined by us.
- If we are responsible for exceeding the delivery date, we shall only be in default if the buyer has set us a grace period of at least one month in writing and this period has expired unused. If we are in default, the buyer may withdraw from the contract. The buyer may only assert a claim against us for non-compliance with the delivery period if he has fulfilled his contractual obligations. Claims for damages by the buyer are excluded unless we are guilty of intent or gross negligence.
- We shall be entitled to make partial deliveries and render partial services at any time.
§ 6 Shipment, Transfer of Risk
- The risk shall pass to the buyer as soon as the consignment is made available by us for shipment ex works. If the shipment is made in partial deliveries, the risk shall pass in each case when the corresponding part is made available. This shall also apply if we have taken over other services.
- If the dispatch is delayed due to the conduct of the buyer or if the buyer does not call off the goods in time in the case of call-off orders, the risk shall pass to the buyer upon notification that the goods are ready for dispatch.
- If delivery is delayed at the request of the buyer, if any other delay occurs for which the buyer is responsible, or if the buyer does not call off the goods on time in the case of call-off orders, the goods shall be stored at the buyer's expense. In this case, the buyer shall pay the storage charges incurred, the amount of which shall be limited to 10% of the value of the goods ready for shipment. We reserve the right to charge further costs against proof. The buyer's duty of payment remains unaffected. In addition, we shall be entitled to demand immediate payment for the goods, to otherwise dispose of the delivery item after setting and fruitless expiry of a reasonable period and to supply the buyer within a reasonably extended period.
- Unless otherwise agreed, the means of transport and the transport route shall be determined by us. With this right of determination, no guarantee is assumed that it is the fastest or cheapest mode of transport.
- The dispatch takes place in proper packaging. The packaging will be charged at cost price and will not be taken back. Liability for damage, theft and the like after the transfer of risk is excluded.
- At the request of the buyer, we are prepared to close an insurance (transport, theft or other insurance). There is no obligation to close insurance without explicit agreement. The costs of insurance shall be borne by the buyer.
- Delivered goods are to be accepted by the buyer, even if they show insignificant defects. The rights of the buyer according to § 9 remain unaffected.
§ 7 Retention of title, assignment of claims
- The delivered goods shall remain our property until all payment claims we have against the buyer have been settled.
- Processing and other treatment of the goods subject to retention of title shall always be carried out for us as manufacturer, however, without resulting in any obligations for us. If our ownership lapses as a result of combining or mixing, it is hereby agreed that we shall have co-ownership of the unitary item in proportion to our share of the invoice value.
- The buyer shall be entitled to resell the goods delivered by us in the ordinary course of business and to process the goods if he is not in default of payment or has not suspended or refused payment. Pledging and transfer by way of security of the goods subject to retention of title by the buyer are not permitted.
- If the buyer sells goods subject to retention of title, he hereby assigns to us, until all our claims have been settled, the rights to which he is entitled from the sale against his buyers, including all ancillary rights, in the full amount, in the event of the sale of goods subject to retention of title resulting from processing or combination, in the ratio of our co-ownership. In the event of the sale of the goods subject to retention of title resulting from processing or combination, the assignment shall be in proportion to our co-ownership; in the event of sale together with other goods, the assignment shall be for a total price in the amount of the invoice value of our goods subject to retention of title. This assignment of claims shall also include claims of the buyer on the closing balance of a current account which the buyer has agreed with his buyers, as well as the claim resulting from other legal grounds (e.g. tort) regarding the reserved goods. A separate declaration of assignment is not required. The assignment is already accepted by us now.
- The collection of the assigned claims shall be carried out by the buyer. The right to collect may be withdrawn if the buyer does not meet his payment obligations in an orderly manner, particularly not within the agreed payment deadlines. We may disclose the assignment of claims or demand that the buyer discloses the assignment of claims. The buyer shall be obligated to provide us, upon our justified request, with all information and documents necessary for collection.
- If the value of our security (including the assignment in advance) exceeds our claim by more than 20%, we are obliged, at the request of the buyer, to release the security at our discretion in accordance with the excess value.
- In the event of breach of contract by the buyer, in particular in the event of default in payment, we shall be entitled to take back the goods subject to retention of title or to demand the assignment of the buyer's claims for surrender against third parties. The buyer is obliged to surrender or assign the goods. The taking back of the goods subject to retention of title or the demand for surrender by us shall at the same time constitute a rescission of the contract pursuant to § 449 (2) of the German Civil Code (BGB).
- In the event of access by third parties to goods subject to retention of title or claims to which we are entitled, the buyer shall be notified of our ownership or our rights and shall inform us immediately thereof, as well as of any other impairment of our rights.
§ 8 Retention of Title, Security for Export Deliveries
- The rights and obligations of the contracting parties set forth in § 7 shall also apply in principle to deliveries abroad.
- If certain measures or actions are required in the importing country in order to give effect to the rights set forth in § 7, the buyer shall notify us thereof and shall carry out such measures or actions at his own expense.
- If the law of the importing country does not permit retention of title but allows the seller to reserve other rights to the delivery item, we may exercise all such rights. Insofar as an equivalent security for our claims against the buyer is not achieved, the buyer shall be obliged to provide us with additional securities of equivalent value at his expense.
§ 9 Warranty, Liability
- Unless otherwise stipulated in the following provisions, we shall provide a warranty for all our deliveries within 12 months of the transfer of risk.
- Deviations in quality, weight, unit of quantity, color, thickness and size of the goods, which are customary in the industry, shall not constitute a defect and shall not entitle the buyer to make a complaint.
- The warranty shall be excluded if the defect is due to the conduct of the buyer or third parties attributable to him. This includes, for example, improper use of the goods, incorrect or improper handling, unsuitable operating materials, as well as chemical, electrochemical or other influences. This limitation of liability shall not apply if the damage is due to intentional or grossly negligent conduct on our part or to intentional or grossly negligent conduct on the part of our vicarious agents.
- Defects in the goods delivered by us must be reported to us in writing by the buyer no later than eight days after receipt, hidden defects immediately after their discovery, but no later than eight days after discovery.
- In the event of a justified and timely notice of defect, we reserve the right to make a subsequent improvement or replacement delivery. The buyer is obliged to give us the necessary and appropriate time and opportunity to carry out all actions necessary for the rectification or replacement delivery after consultation. In the case of a replacement delivery, the defective goods must be returned to us immediately in their original condition.
- If we fail to make a replacement delivery within a reasonable period set by the buyer or if the rectification of defects fails twice, the buyer shall be entitled to choose between the right to reduce the purchase price or the right to withdraw from the contract and the right to assert any claims for damages.
- The afore mentioned provisions shall be conclusive of our warranty obligations towards the buyer, unless mandatory statutory provisions prescribe a more extensive warranty.
- Claims for compensation for damage which has not occurred to the delivery item shall be excluded in principle. This exclusion shall not apply if the stated damage is based on intentional or grossly negligent conduct on our part or on the part of our vicarious agents. The exclusion of liability shall also not apply if there is a mandatory statutory liability and in the event of culpable injury to life, body and health.
§ 10 Applicable law
All legal relations between us and the buyer shall be governed exclusively by the laws of the Federal Republic of Germany, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG), unless mandatory statutory provisions conflict with this agreement.
§ 11 Place of performance, place of jurisdiction
- The place of performance for the services of both parties is Hehlen.
- The place of jurisdiction shall be Hehlen or the court responsible for Hehlen, unless mandatory statutory provisions to the contrary exist. We shall have the right to choose the place of jurisdiction of the buyer's headquarters instead of this court.
§ 12 Statute of Limitations
All claims of the buyer, irrespective of their legal basis, shall become time-barred after 12 months, unless a longer period of limitation results from the above provisions or mandatory statutory provisions.
§ 13 Final Provisions
- Should individual provisions of these General Terms and Conditions be or become invalid, this shall not affect the validity of the remaining provisions. An invalid provision shall be replaced by the statutory provision.
- The contract shall exceptionally become ineffective if it would represent an unreasonable hardship for one of the contracting parties, considering the amendment referred to in passage 1.
- In case of disputes over interpretation of single points, paragraphs or passages, the version in German language shall be considered binding.