General Terms and Conditions
I. Conclusion of contract
1. The following conditions apply for all orders. Deviant agreements can only be effected in written form. Oral agreements and indications concerning model, dimension and the like are only binding if they are confirmed by us in written form.
2. Our offers are not binding and subject to change. Orders placed to us only apply as accepted, if they are confirmed by us in written form.
3. Hereby we object the purchasing conditions of the purchaser. These are also not accepted, if we don’t object them again in written form after reception at our company. At the latest with the reception of our products our “General Terms and Conditions” are considered as accepted.
4. The conditions of the German Commercial Code (HGB) concerning trading operations among registered traders are also considered as agreed, even if the purchaser is not a registered trader in the sense of the German Commercial Code (HGB).
II. Prices, payment conditions, execution of delivery and acceptance
1. Our prices are subject to change. The prices valid on the delivery day are calculated. Our prices are calculated ex works exclusive packaging and freight. If the production costs increase between the conclusion of the contract and the delivery, we are entitled to demand the price, which has to be calculated because of the cost increase even then if a fixed price has been agreed.
2. If modifications of the model are necessary, is it on demand of the purchaser or because of incorrect documents or indications (plans, drawings, indicated dimensions, indication of operating data or design data), which were made available by the purchaser, hereby the agreed price increases.
3. Concerning obvious miscalculations we have the right to cancel the contract without claims can be made. We also have this right, if the fulfilment of the contract cannot be expected by us because of salary changes, increases in commodity prices and so on.
4. Packagings are calculated at cost price and are not taken back. We have the right to select the suited packaging. If the purchaser renounces on adequate or any packaging, the assertion of any claims concerning damages or incorrect delivery, is excluded.
5. The delivery is effected ex works at the risk of the purchaser. This also applies for the delivery by custom-owned vehicles. An agreed franco-delivery only gives the purchaser the right do deduct the freight at the payment of the invoice.
6. Delivery dates are indicated according to the best of one’s knowledge, but without obligation and guarantee. If the delivery date is exceeded this neither entitles to rescission nor to assertions of claims. If external delivery handicaps occur, the readiness to deliver corresponds to the delivery.
7. Payments, unless otherwise agreed, have to be effected 30 days after invoice date in cash without discount. The invoice is issued at delivery or delivery- respectively acceptance readiness, even if the delivery delays without our fault. If the term of payment is exceeded we can calculate beginning with the day of exceeding, default interests in the amount of 4 % above the respective Federal Bank discount rate.
8. The set-off and retention of our claims is only admissible at due- and accepted-, as well as legal counterclaims.
9. Noncompliance of the payment conditions or circumstances, which emerge after the respective conclusion of contract and which reduce, according to our opinion, the creditworthiness of the purchaser, result in the maturity of our claims. In such a case we are also entitled to effect the outstanding deliveries only against advanced payment or security deposit. If these securities are also not provided within an adequate extension of time, we can cancel the contract or can demand compensation for damages because of non-payment.
Moreover we can prohibit the resale and the processing of the products which were delivered with reservation of property rights and can demand their return or the transfer of the indirect property at the expense of the customer and can object the debit authority according to III/7. The purchaser accepts right now the privation of the delivered products.
10. At any time we can demand the providing and the intensification of the general securities for our claims, also when they are conditional or limited.
11. If problems concerning the transfer of the invoice amount to Germany occur, for whatever reason, the thereby arising disadvantages are for the account of the purchaser. Concerning sales in foreign currencies the purchaser has the exchange risk beginning with the conclusion of the contract. If the agreed payment method cannot be kept, the purchaser is obliged to effect the payment according to our choice.
12. Acceptance and storing of things and documents of the purchaser are effected on its risk. Rights and duties out of the sales contract may not be transferred to others without our agreement.
13. Operational disturbances and events of force majeure entitle us to delay the delivery for the duration of the handicap and for an adequate start-up time. Strikes, lockouts and other circumstances correspond to the force majeure, which complicate the delivery for us essentially or make it otherwise impossible, equal if they occur at ourselves or at a sub-supplier. The purchaser can demand a declaration by us, if we cancel the contract or if we want to deliver within an appropriate time. If we don’t make a declaration, the purchaser can cancel the contract.
14. The purchaser is entitled to receive those products, for which special acceptance test procedures are agreed, in the supplying plant after announcement of the acceptance- or delivery readiness. With the announcement of the acceptance- or delivery readiness our performance is considered to be effected. The personal acceptance test procedure costs borne by the purchaser. The factual acceptance costs are in general separately calculated.
15. If an acceptance test procedure is agreed, it can only be effected in the supplying company after announcement of the acceptance readiness in the range of the contractually determined deadline.
16. If the agreed acceptance test procedure is not effected, not effected in time or not completely effected, we are entitled to send the products without acceptance or to store it at the cost and the risk of the purchaser. With the acceptance announcement/delivery readiness the goods are considered to be at all points delivered according to contract.
III. Reservation of proprietary rights
1. All delivered products remain our property and are considered as products subject to retention of title till the fulfilment of all claims, particularly also the respective payment balance requests, to which we are entitled, irrespective of legal basis. This also applies if payments are effected on specially designated claims.
2. Machining and processing are effected for us as producer in the sense of § 950 German Civil Code (BGB), without obligating ourselves. The treated products are considered as products subject to retention of title according to figure 1.
Concerning the processing, connection, mixing of the products subject to retention of title with other products by the purchaser, we are entitled to have the co-ownership at the new product proportional to the invoice value of the other used products. If our property expires by connection or mixing, the purchaser transfers us right now, the property rights at the new stock or the product to which he is entitled in the range of the invoice amount or the products subject to retention of title and stores them for us free of charge. The co-ownership-rights arisen by this are considered as products subject to retention of title in the sense of figure 1.
3. The purchaser may only sell the products subject to retention of title in the usual course of business according to its normal business conditions and only as long as he is not in default, provided that the claims out of the resale according to figures 4-6 are assigned to us. He is not entitled to dispose of the products subject to retention of title otherwise.
4. The claims of the purchaser from the resale are already now assigned to us. In the same scale they serve to the security like the products subject to retention of title.
5. If the products subject to retention of title are sold by the purchaser together with other, not by our company sold products, the assignment of the claims out of the resale in the amount of our invoice of the respectively sold products applies. Concerning the sale of the products at which we have a co-ownership according to figure 2, the assignment of the claim in the amount of the co-ownership parts applies.
6. If the products subject to retention of title are used from the purchaser to fulfil a service contract or contract for work and materials, the claims out of this contract, figure 4 and 5, apply correspondingly.
7. The purchaser is entitled to confiscate claims out of the sale according to figure 3-6 till our contradiction, which is allowed at any time. In no case the purchaser is authorised to assign the claim. On our demand he is obliged to inform its purchaser immediately about its assignment to us – unless we don’t do it by ourselves – and to give us the necessary information and documents for the confiscation.
8. If the amount of the securities, existing for us, exceeds our claims totally by more than 20 %, then we are obliged to release securities according to our choice on demand of the purchaser.
9. The purchaser has to inform us immediately about a garnishment or about disturbances by third persons.
10. If the reservation of property rights or the assignment according to the law, in which range the products are, are not efficient, then the security corresponding to the reservation of property or assignment in this range is considered as agreed. Hereby the contribution of the purchaser is demanded, he has to take all measures which are necessary for the approval and preservation of such rights.
IV. Trade mark rights
1. If we have to deliver according to samples, drawing or models of the purchaser, he assumes liability that hereby no trade mark rights of third persons are injured. For all indirect and direct damages, which result from the infringement of possible trade mark rights, the purchaser has to pay damages.
V. Defects, delivery of products, which are not contractual
1. Decisive for the contractual condition of the products is the time of leaving the supplying plant.
2. After execution of an acceptance test procedure of the products by the purchaser the claim of defects, which are determinable at the agreed acceptance test procedure, is excluded.
3. If defects, occur the machining and processing must immediately be stopped.
4. Claim of defects of the customer have to reach us within a week after reception of the products at the destination point in written form or by fax. Defects which cannot be determined within a deadline even at most accurate inspection have to be indicated immediately after discovery, but at the latest three months after reception of the products in written form. After this deadline each claim expires.
5. If the purchaser doesn’t give us the occasion to convince ourselves about the defect, if he doesn’t make the rejected products immediately available, particularly on demand, all damage claims expire.
6. Damage claims prescribe at the latest two months after written refusal by us.
7. Claims for replacement of damages, which not occurred at the products (consequential harm caused by defect) are excluded.
8. Concerning taking back of the products we deduct 20 % taking back costs. Special designs are excluded from taking back.
9. The preceding determinations are also valid concerning delivery of other than conventionary products.
10. Concerning the execution of a commission order we are only liable for the correct execution of the by us overtaken works up to an amount of the confirmed- respectively the rising labour costs.
11. We reserve the right to effect the elimination of possible defects on demand in our company. Performances of third persons for the elimination of defects are only accepted by us, if we authorised these performances as well as from their kind as from their extent and their cost amount.
Our liability is exclusively based on the agreements mentioned in the preceding sections. All claims which were not explicitly conceded there, also claims for damages, consequential costs as well as expenditures of third persons, irrespective of legal basis, are excluded. § 276 section 2 German Civil Code (BGB) remains unaffected.
VII. Partial efficiency
These determinations remain valid to the full extent also in case of legal inefficacy of single determinations.
VIII. Place of performance, place of jurisdiction, application of German law
1. Place of performance for both parts is Lennestadt-Altenhundem
2. Place of jurisdiction for all disputes, even in the drafts- and cheque process is Lennestadt-Grevenbrück
3. For all privities of contract between us and the purchaser only applies, with exclusion from the foreign law, the authoritative right at our location for privities of contract of internal parties.