General Terms and conditions
1. Validity clause
Our offers, order acknowledgements, sales, advice, deliveries and services to companies are made solely in accordance with the following conditions. We hereby expressly oppose the use and incorporation of any general terms and conditions of business of the purchaser.
2. Prices, payment and default of the purchaser
2.1. The details contained in our price lists are always suggested recommendations and refer to the given number of items in each case. They do not include any statutory value added tax. In relation to the purchaser, the prices agreed upon by us in the order acknowledgement are authoritative; these prices also do not include value added tax. When the invoice is issued, value added tax will be quoted separately for the amount due on this particular day. This is based on the valid price list at the given time minus any discount agreed upon with the purchaser.
2.2. Unless agreed otherwise, payment is to be
made within 30 days from the invoice date without
any deduction or within 14 days of the invoice date
with a 2% discount.
2.3. Acceptance of cheques or bills of exchange,
the latter only with our express permission and for
payment of discount charges, interest and other
expenses and fees associated with the bill of
exchange, is on account of payment only.
2.4. In the event that a payment date is exceeded,
the purchaser is in default without any need for a
reminder. Subject to assertion of extensive rights,
default interest will be charged at 8 percentage
points above the respective base rate.
2.5. The purchaser‘s right of retention is excluded.
This does not apply where the right of retention is
based on the same contractual relationship as our
pecuniary claim or where it is based on stated,
approved or undisputed claims that are legally
binding or a gross breach of duty on our part.
2.6. Any offsetting by the purchaser is permissible
only in conjunction with an undisputed or legally
binding claim.
2.7. Should we receive information that makes the
granting of credit Gto the purchaser for the order
amount appear risky, or should facts come to light
resulting in a deterioration of the purchaser’s
financial circumstances, if an application to initiate
insolvency proceedings is filed, or if the purchaser
proposes an out-of-court scheme of arrangement to
his creditors, we are entitled to demand immediate
payment of our outstanding money. We are also
entitled to accelerate all outstanding monies that are
not yet due and to demand their immediate payment.
Furthermore, in such cases we can also demand
advance payment for all as yet outstanding services.
2.8. We are entitled to call on the same rights if the
purchaser defaults in part or wholly on a payment
and where a purchaser’s bill of exchange or a
cheque is not cashed.
3. Dispatch, transfer of risks
Unless otherwise requested by the purchaser, goods weighing up to 30 kg are dispatched by parcel service, while goods weighing over 30 kg are dispatched by haulier as freight. Up to a net order value of EUR 300, shipping is charged at EUR 8. For net order values over EUR 300, there is no charge for shipping (for shipping by haulier — free delivery, for shipping by rail — free delivery to recipient‘s railway station). The risk of carriage transfers to the purchaser as soon as we have delivered the sold goods to the haulier, freight carrier or any other person or agency charged with the task of delivery, including in cases where carriage-free delivery has been agreed. Any complaints with regard to damage during delivery are to be duly made by the purchaser or his nominated recipient to the Post Office, railway or haulier companies.
4. Delivery time, delays
4.1. The delivery time stated by us will be judged to have been adhered to if the goods were shipped or collected within the delivery period.
4.2. Delays in delivery and services owing to force
majeure and events with causes outside our sphere
of influence, entitle us to postpone the delivery or
service for the duration of the impediment plus
an appropriate start-up time. If the impediment
lasts for longer than three months, both we and
the purchaser are entitled to withdraw from the
contract with regard to the part of the delivery
which has not yet been fulfilled.
4.3. In the event that we default on our service,
the purchaser is not entitled to claim damage
compensation if the default did not infringe on any
essential legally protected interests of the purchaser
(life, health) or where the default is a consequence of
intent or gross negligence. Here too, we shall only be
liable for damages that are typical for such a contract
and foreseeable. However, if the default is based on
infringement of an essential contractual obligation,
we shall be liable for any fault within the scope of
damages that are typical for this type of contract and
foreseeable. Partial deliveries and corresponding
partial invoices are permissible unless it has been
otherwise agreed in writing with the purchaser.
5. Guarantee
5.1 For material defects, we shall initially grant a guarantee of our choice in the form of rectification of defects or replacement. The nature of the goods is always deemed to be that as agreed in our product description. Any public statements, blurbs or advertising on our part do not constitute a contractual statement regarding the nature of the goods. Any irrelevant diminution of the value or suitability is out of the question. This also applies to damage or flaws, which are the consequence of natural wear or transportation damage or non-adherence to operating and assembly instructions. Any improper modification to the goods by the purchaser or a third party renders any claim for consequential damage null and void.
5.2. Rebukes due to incorrect delivery, incorrect
quantities and obvious defects must be specified
in writing by the purchaser immediately, or no later
than 10 days from receipt of the goods. Latent faults
are to be rebuked as soon as the fault becomes
apparent. The deadline is deemed to be observed
if sent off in good time. Any infringement of these
obligations will preclude any claims against us. The
purchaser will bear the full burden of proof for all
eligibility criteria, in particular for the fault itself, for
the point in time when the fault was detected and for
notice of defects in good time.
5.3. Material defect claims expire under statute of
limitations in 12 months. This does not apply in those
cases where longer deadlines are prescribed by law
(§ 438 I No. 2 Structures and Goods for Buildings;
§ 479 I claim under right of recourse; § 634a I No.2
German Civil Code (BGB) Building faults) as well as
in cases of injury to life, body or health, in the event
of intentional or grossly negligent breach of duty and
for fraudulent concealment of such fault.
5.4. In the event of notice of defects, payment by the
purchaser may be withheld by an amount that is of
a proportion in keeping with the material defects as
detected. The purchaser is only entitled to withhold
payment if a notice of defect is put forward, the
justification of which cannot be disputed. If a
notice of defect is deemed to be unjustified, we are
entitled to demand that the purchaser compensate
us for any expense incurred by us.
5.5. First of all, we are to be granted an opportunity
for supplementary performance within a suitable
timeframe. We are entitled to rectify defects or
to redeliver several times over. Ownership of all
replaced parts will pass to us.
5.6. In the event that any repair or replacement still
does not rectify the fault, the purchaser has the
option to withdraw from the contract or to reduce
payment. All other claims, in particular damage
claims, irrespective of the legal basis, are excluded,
insofar as we cannot be held liable for intent or
gross negligence. Exemption from liability does
not apply insofar as we have guaranteed a specific
quality of the goods, which protects the purchaser
from any consequential damage.
5.7. Claims under right of a recourse by the purchaser
against us as under § 478 German Civil Code only exist insofar as the purchaser has not reached an
agreement with his buyers which extends beyond
that of statutory claims arising from defects.
5.8. Duly delivered goods can only be taken back
with our prior permission. For goods returned
with our prior permission we shall issue a credit
note for 30% or more of the net amount invoiced,
depending upon the condition of the goods, minus
administrative costs, inspection and repackaging.
Damaged goods and those that are no longer
included in the currently valid catalogues and price
lists shall not be credited. If a modification to a
customised product is requested by the contractor,
any costs that have been incurred up to such time
must be reimbursed by the ordering party. In the
event that an order is cancelled, the ordering party
is bound to pay all expenses that have been incurred
up to such time. Customised products that have
already been delivered will not be taken back.
5.9. We reserve the right to make minor or
improvement modifications to the products we
supply. Details and illustrations in our catalogues,
brochures, price lists, miscellaneous publications or
estimates, as well as drawings, specifications and
service descriptions of all kinds, dimensions, weights,
consumption information etc., are by nature only
approximations. They do not contain any information
regarding composition or guarantees in any form
whatsoever, as long as such statements have not
been expressly confirmed by us in writing for an order.
6. Impossibility, contract adaptation
6.1. Insofar as a delivery becomes impossible, the purchaser is entitled to claim damage compensation, unless the reason for impossibility is not one for which we are responsible. However, the ordering party’s claim for damages is restricted to 10% of the value of the part of the delivery, which cannot be put into useful service because of the impossibility involved. This restriction does not apply insofar as liability is mandatory in cases of intent, gross negligence or due to harm to life, body or health; this is not combined with any change in the burden of proof to the detriment of the purchaser. The right of the purchaser to withdraw from the contract remains unaffected.
6.2. Insofar as any unforeseen events considerably
alter the economic significance or content of the
delivery or exert a major influence on our operation,
the contract will be suitably adapted taking good
faith into consideration. Insofar as this is not
economically feasible, we are entitled to withdraw
from the contract. In the event that we wish to
make use of this right of withdrawal, we shall
immediately notify the purchaser of such intention
after determining the consequence of the event in
question. This includes cases when an extension
of the delivery period was initially agreed with the
purchaser.
7. Miscellaneous claims for damages
7.1. Claims for damages or compensation of expenditure by the purchaser (hereinafter referred to as: claims for damages), irrespective of the legal basis, in particular due to any infringement of obligations from the contractual obligation and from unlawful acts, are excluded.
7.2 This does not apply in instances of mandatory liability, e.g. in accordance with the Product Liability Act, in the event of intent, gross negligence, harm to life, body or health, or due to the infringement of essential contractual obligations. Claims for damages for the infringement of contractual obligations, however, are restricted to damage that is foreseeable and typical for the type of contract, insofar as no intent or gross negligence is present or liability exists due to injury to life, body or health. A change in the burden of proof to the detriment of the ordering party is not associated with the preceding regulations.
7.3. Insofar as the purchaser is entitled to claims for damages in accordance with this section, these will lapse with expiry of the statutes of limitations for claims for material defects in accordance with Section 5.3. In the event of claims for damages in accordance with the Product Liability Act, the legal statutes of limitation are binding.
8. Retention of title
8.1. We retain title to the goods we supply until the purchaser has fulfilled all his requirements to us, on open account of each claim for payment of account balance. The purchaser may resell the delivered goods only in the course of normal business transactions and under his standard terms and conditions of business. During the sale, the purchaser agrees on a retention of title to the extent of the clauses 8.1 to 8.7 of these conditions.
8.2. The purchaser may process the delivered goods or combine them with other objects. Processing or combination with movables ensues for us in our role as manufacturer. The purchaser will hold the new item in custody for us with the due care and diligence of a responsible businessman. The processed or combined item is subject to retention of title.
8.3. If the purchaser acquires sole ownership through processing or combining goods, he shall assign co-ownership to us according to the value of our goods incorporated in the new item in proportion to the value of the other components in the new item at the time of installation.
8.4. In the event that the new item should be resold, the purchaser hereby assigns to us all claims from the resale against his buyers as well as all associated subsidiary rights by way of security in the amount that corresponds to the value as invoiced by us for the processed or combined goods. Satisfaction of the assigned claim element is of prime importance. The direct debit mandate and preconditions of their revocation are subject to Section 8.5. of these conditions.
8.5. The claims due to the purchaser from a resale, processing or an installation or any other legal basis (insurance, illegal act etc.) have been assigned to us by way of security. We authorise the purchaser until revoked, to collect the claims assigned to us on his account and in his own name. As soon as the purchaser fails to honour an obligation to us, or one of the circumstances stated in Section 5.9 above comes into effect, we are entitled to revoke the collection authorisation, notify the debtors of the assignment and to demand payment to us.
8.6. If the value of the securities in place for us exceeds our claims in a sustained manner by more than 15% in total, we shall release securities of our choice if called to do so by the purchaser.
8.7. In the event of attachments and confiscation of goods subject to retention of title or enforcements in claims assigned to us, the purchaser must refer to our rights; he must also immediately notify us of these measures and upon threat of default he has to take up, at his own expense, the required legal redress in order to secure our rights.
9. Place of fulfilment, court of jurisdiction, severability clause
9.1. Place of fulfilment is Hennef. Court of jurisdiction is Siegburg. The law of the Federal Republic of Germany is valid. Use of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
9.2 In the event that individual provisions of the contract with the purchaser including these general terms and conditions of business are or become wholly or in part invalid, the validity of the remaining provisions shall remain unaffected by this. The wholly or partly ineffective ruling should be replaced by an effective ruling, the economic success of which is as close as possible the ineffective ruling.