Terms and conditions
As at: 01/05/2019
1 General information
1.1 The following terms and conditions apply to all our business relationships with our customers (hereinafter referred to as “orderer”). General terms and conditions are only valid if the purchaser is an entrepreneur (§ 14 of the German Civil Code), a legal entity under public law or a special fund under public law.
1.2 General terms and conditions apply in particular to contracts for the sale and / or delivery of movable assets (hereinafter also referred to as “goods”), regardless of whether we manufacture the goods ourselves or obtain them from suppliers (sections 433) 651 of the German Civil Code). The general terms and conditions in their currently valid version also apply as a framework agreement for future contracts for the sale and / or delivery of goods with the same customer, without us having to specifically refer to them.
1.3 Our terms and conditions apply exclusively. Any deviating, conflicting or supplementary general terms and conditions of the customer that deviate from these general terms and conditions shall only become part of the contract if and insofar as we have expressly agreed to their validity. This requirement of the agreement applies in all cases, for example if we carry out a delivery without reservation, if we know the general terms and conditions of the customer.
1.4 In individual cases, separate agreements with the customer (including side agreements, side agreements and changes) always have priority over these general terms and conditions. Decisive for the contractual item is a written contract or our written confirmation.
1.5 Legally relevant declarations and notifications to be submitted to us by the purchaser after the conclusion of the contract (eg. setting of deadlines, notice of defects, declaration of withdrawal or reduction) shall be effective.
1.6 Validity of legal provisions are for clarification purposes only. Even without such clarification, the statutory provisions apply unless they are directly amended or expressly excluded by these general terms and conditions.
1.7 Should individual provisions be legally ineffective, this does not affect the validity of the remaining provisions. In order to replace the ineffective provisions, regulations shall be deemed to have been agreed which come as close as possible to the intended economic result.
2 Conclusion of contract
2.1 Our offers are non-binding in all respects. This shall also apply if we have provided the customer with catalogs, technical documents (eg. drawings, plans, calculations, references to DIN standards), other product descriptions or documents – also in electronic form – in which we are entitled to property rights copyright reserved.
2.2 Illustrations in the catalog and in the offer documents are not binding, as far as we reserve the right to change the design, dimensions and weight.
2.3 The submission of an order by the purchaser of the goods is considered a binding contract offer. Unless otherwise stated in the order, we are entitled to accept this contract offer within 14 days of receipt.
2.4 The order can be accepted either in writing (eg. via an order confirmation) or by delivering the goods to the customer. Verbal or telephone supplements, supplements or additional agreements must be confirmed in writing.
2.5 We are not bound to confirmations that are not from our own company but from agents or agents.
3.1 Delivery is ex warehouse, where also the place of performance is. At the request and expense of the customer, the goods can be shipped to another destination (sale by shipping). Unless otherwise agreed, we are entitled to determine the mode of shipment (in particular shipping company, shipping route and packaging).
3.2 The risk of accidental loss and accidental deterioration of the goods passes to the buyer at the latest with the handover of the goods. However, in the case of sale by shipment, the risk of accidental loss and accidental deterioration of the goods, together with the risk of delay, shall be transferred at the time the goods are handed over to the carrier, the forwarder or any other natural person management of the delivery was ordered. If acceptance has been agreed, this shall be decisive for the transfer of risk. Incidentally, the statutory provisions on service contracts also apply accordingly to an agreed acceptance. If the customer delays the acceptance of the goods, the handover or acceptance shall be deemed to have taken place.
3.3 We only insure the shipment at the express request and at the expense of the customer against theft, breakage, transport, fire, water damage or other insurable risks.
3.4 The customer must confirm any damage to the goods by the carrier on the delivery note immediately after receipt of the goods. Claims for damages for transport damage are not addressed to us, but charged immediately to the freight forwarder; the claims must be received no later than 6 days after delivery.
3.5 We deliver replacement goods after transport damage only against payment of the corresponding costs.
3.6 If the purchaser is in default of acceptance or does not cooperate, or if the delivery is delayed for other reasons for which the purchaser is responsible, we shall be entitled to compensation for the resulting damage, including any additional costs (eg. storage costs).
4 Delivery times and delivery delays
4.1 The deadlines and delivery times proposed by us are always approximate, unless a fixed deadline or a fixed deadline has been expressly agreed or agreed.
4.2 In the event that we can not comply with binding delivery dates for reasons beyond our control (non-availability of the service), we will inform the purchaser immediately and inform him of the expected new delivery date. If the service is not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; an already paid consideration of the customer will be refunded immediately. The term “unavailability of the service” refers in particular to late deliveries by our suppliers to us, provided that we have concluded a matching hedging transaction. This shall not affect our statutory rights of rescission or termination or the statutory provisions for the execution of a contract for which a performance obligation no longer applies (eg. because fulfillment and / or subsequent performance is impossible or unreasonable). The right of the customer to rescind or terminate the contract in accordance with Section 6 of these general terms and conditions shall also remain unaffected.
4.3 We shall not be liable if the delivery is impossible or if delivery delays due to force majeure or other events that were unforeseeable at the time of the conclusion of the contract (eg. breakdowns of any kind, problems in obtaining) materials or energy, delivery delays, strikes , lawful lockouts, labor shortages, energy or materials, difficulties in obtaining the required regulatory approvals, regulatory intervention, or unfulfilled, incorrectly delivered or late deliveries from our suppliers) for which we are not responsible. Insofar as such events make the delivery or service considerably more difficult or impossible and the hindrance is not merely temporary, we are entitled to withdraw from the contract. In the event of temporary disability, we extend the delivery or performance periods or postpone the delivery or service periods by the duration of the hindrance plus a reasonable start-up period. In the event that the purchaser is not reasonable to accept the delivery or service as a result of the delay, the purchaser can withdraw from the contract by means of a written declaration to us.
4.4 The delivery is subject to the correct and punctual acceptance of our deliveries by our suppliers.
4.5 If delivery has been agreed, the delivery periods and dates begin with the handover to the freight forwarder, carrier or a third party commissioned with the delivery.
4.6 The order period begins with the submission of the order confirmation, but not before all details of the order have been completely clarified, all necessary documents, approvals or approvals have been submitted by the customer and an agreed down payment has been received or credit has been opened.
4.7 Partial deliveries are only permitted if
- the partial delivery can be used by the customer within the framework of the contractual provisions, if
- the delivery of the remaining ordered goods is guaranteed and
- the purchaser incurs no significant additional expenses or additional costs (unless we indicate our readiness to assume these costs).
4.8 Delayed delivery does not apply to us as long as the customer is in default with the service owed to us.
4.9 In the event that we fall into arrears with a delivery or performance or if a delivery or service becomes impossible for whatever reason, our liability is limited to damages within the meaning of clause 7 of these general terms and conditions.
4.10 If the shipment is delayed at the request of the purchaser, the costs incurred for storage in our company or that of our suppliers shall be charged to the purchaser at least one month after the notification of readiness for shipment – 0.5% of the invoice amount for each month. In addition, we are entitled, after setting a reasonable period and without success, to otherwise dispose of the delivery item and to deliver to the purchaser a correspondingly extended delivery period.
5 Warranty / warranty claims of the buyer
5.1 The rights of the purchaser in the case of material and legal defects (including wrong or short deliveries, improper installation or faulty assembly instructions) are governed by the statutory provisions, unless otherwise stated below. In any case, the special legal provisions remain unaffected in the delivery of the goods to a consumer (recourse to suppliers in accordance with §§ 478, 479 of the German Civil Code).
5.2 The basis of our liability for defects is above all the agreement on the condition of the goods. The term “goods condition agreement” also refers to the product descriptions (including those of the manufacturer) designated as such, which are given to the buyer prior to placing the order or are included in the contract in the same manner.
5.3 If the condition is not agreed, the assessment of whether there is a defect is made on the basis of statutory provisions (section 434 (1) sentences 2 and 3 of the German Civil Code). However, we assume no liability for public statements made by the manufacturer or other third parties (eg. advertising messages).
5.4 Claims for defects of the buyer shall only be accepted if he has fulfilled his legal obligations to inspect and report defects (§§ 377, 381 of the German Commercial Code). If a defect becomes apparent during inspection or afterwards, we will be informed immediately in writing. The notification is considered to be immediate if it takes place within two weeks; it is deemed to have been received in good time if the notification was sent within this period. Regardless of this obligation to inspect and notify, the purchaser must notify in writing obvious defects (including faulty or incomplete deliveries) within two weeks of delivery; again, the notification is considered punctual if it is sent within this period. If the buyer omits a proper and proper examination and / or notification of defects, our liability for the undelivered defect is excluded.
5.5 In the case of a defect of the delivery item, the orderer may at first demand either subsequent performance (repair) or delivery of a defect-free item (replacement) at its discretion. If the buyer does not indicate which of these rights he has chosen, we can set a reasonable grace period in which to make that decision. If the buyer does not reach a decision within this period, the right of decision shall pass to us upon expiry of the period of grace.
5.6 We are entitled to make subsequent performance, to which we are obliged, dependent on the buyer paying the purchase price due. However, the buyer is entitled to withhold a portion of the purchase price that is reasonable in relation to the defect.
5.7 The buyer shall give us the time and opportunity necessary to render the supplementary performance, in particular the handing over of the objected goods to third parties for inspection. If the buyer chooses a replacement, he is obliged to return the defective goods to us in accordance with the statutory provisions. The supplementary performance does not include the disassembly of the defective item or the retrofitting after repair, unless we were originally obliged to carry out the assembly.
5.8 We bear the expenses required for testing and subsequent performance, in particular transport, travel, labor and material costs (but not disassembly or assembly costs) if there is a defect. However, should the purchaser’s claim for the removal of the defect prove to be unjustified, we may require the purchaser to reimburse us for the costs incurred.
5.9 In urgent cases, eg. in the event of a risk to operational safety or to prevent disproportionate damage, the purchaser is entitled to remedy the defect himself and demand reimbursement of the expenses that would have been objectively required. The buyer must immediately inform us voluntarily about this voluntary commitment. This right to self-remediation of the defect does not apply if we could refuse the corresponding supplementary performance according to the statutory provisions.
5.10 If the supplementary performance fails or if a period of grace to be set by the buyer for subsequent performance is unsuccessful or superfluous due to statutory provisions, the buyer can withdraw from the purchase contract or reduce the purchase price. In a minor defect, however, there is no right of withdrawal.
6 Right of withdrawal of the customer
6.1 The purchaser is entitled to withdraw from the contract if the entire service for us or our suppliers becomes definitively impossible before the transfer of risk.
6.2 If a performance delay within the meaning of clause 3 of the delivery conditions occurs and the purchaser grants a reasonable period of grace with the express declaration that he will refuse to provide the service after expiry of this period, the purchaser reserves the right to resign if the grace period does not is complied with.
6.3 If the service becomes impossible during a default of acceptance by the customer or through the fault of the customer, the latter remains obliged to pay.
7.1 Unless otherwise stated in these general terms and conditions, including the following provisions, we shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.
7.2 We are liable for damages in case of intent or gross negligence, for whatever legal reason. We are liable only for ordinary negligence if
a) there is a violation of life, body or health
b) damage results from a breach of a material contractual obligation (ie. an obligation the fulfillment of which is essential for the proper and proper performance of the contract and to which the contracting party regularly invokes and on whom it can rely); however, in this case our liability is limited to compensation for foreseeable, typically occurring damage.
7.3 The limitations of liability from clause 7.2 shall not apply if we have fraudulently concealed a defect or assumed a guarantee for the condition of the goods. The same applies to claims of the customer under the product liability act.
7.4 In the case of breaches of duty which are not attributable to defects, the purchaser can only resign or terminate if we are responsible for the breach of duty. A free right of termination of the purchaser (in particular according to §§ 651, 649 of the German Civil Code) is excluded. Incidentally, the legal requirements and legal consequences apply.
7.5 The above exclusions and limitations of liability apply to the same extent to our representatives, legal representatives, employees and other vicarious agents.
7.6 Insofar as we provide technical information or act as a consultant and this information or advice is not part of the contractually agreed scope of our services, this is free of charge and to the exclusion of any liability.
8 Right of withdrawal of the supplier
8.1 In the event of unavoidable and unforeseen events within the meaning of Section 3 that materially affect the economic meaning or content of the service or adversely affect our business, we shall be entitled to rescind the contract. In the case of such a withdrawal, the customer has no claim for damages.
9 Prices and terms of payment
9.1 Unless otherwise agreed, our prices are ex warehouse or ex supplier, excluding packaging, which is calculated at cost price and is excluded from the exchange. The prices are exclusive of VAT. All calculations are made in Euro (€).
9.2 Unless otherwise agreed, the payment must be made in cash without deduction to the paying agent of the supplier.
9.3 In the case of dispatch by consignment (clause 3.1), the purchaser bears the costs of shipment from the warehouse and the costs of a transport insurance requested by the purchaser. Any duties, fees, taxes or other public payments shall be borne by the purchaser. We do not take back shipping packaging or other packaging within the meaning of the packaging ordinance; this becomes the property of the buyer. Pallets are excluded.
9.4 The assertion of a right of retention based on claims arising from another contractual relationship or offsetting against claims other than undisputed or not legally binding is inadmissible.
9.5 We shall be entitled to render or provide further deliveries or services against payment of a security only if circumstances arise after the conclusion of the contract which could significantly affect the creditworthiness of the purchaser and on the basis of which the purchaser pays our outstanding claims within the contractual relationship (including other individual contracts covered by the same framework agreement or similar).
9.6 Until full payment of all due invoice amounts including default interest, we are not obliged to make further deliveries within the framework of a current contract.
10 Retention of title
10.1 The objects delivered by us remain our property until all our current claims against the customer have been fulfilled, together with future claims, as far as they concern the delivered objects.
10.2 The purchaser is entitled to resell the delivery items (reserved goods) in our ownership in the ordinary course of business. However, he assigns all claims from this resale to us immediately, regardless of whether the reserved goods are resold prior to processing or thereafter or whether they are associated with real estate or movable assets. If the goods subject to retention of title are resold after processing or together with other goods not belonging to us or if they are connected with real estate or movable property, the customer’s claim against his purchaser shall be deemed as assigned amount in the amount of the delivery price between the purchaser and us for the reserved goods were agreed.
10.3 The customer remains authorized to collect the claim even after the assignment. Our authority to collect the claim itself remains unaffected; However, we undertake not to do so as long as the customer duly fulfills his payment obligations. If the customer makes use of the collection authorization, we are entitled to collect the proceeds collected in the amount of the agreed delivery price for the reserved goods.
10.4 The processing or transformation of the reserved goods is carried out for us as a manufacturer in accordance with § 950 of the German Civil Code, without obligation to us. If the reserved goods are processed together with other objects, we acquire co-ownership of the new goods in proportion of the market value of our goods to that of the other processed goods at the time of processing. The customer then stores the new goods with the usual care free of charge for us.
10.5 We undertake to release the securities to which we are entitled on request, provided that their realizable value exceeds the value of the claims to be secured by more than 20%.
10.6 If we accept bills of exchange as a means of payment, our right of retention remains in force until it is determined that no further claims from this bill can be asserted against us.
11 Applicable law, place of performance and place of jurisdiction
11.1 All legal relationships between us and the customer are subject to the laws of the Federal Republic of Germany to the exclusion of all international and supranational (contractual) legal systems, in particular the UN sales convention. The conditions and consequences of the retention of title according to § 10, however, are subject to the law applicable to the storage location of the reserved goods, unless the jurisdiction in favor of German law is or is ineffective.
11.2 The place of performance for all rights and obligations arising from this contractual relationship is Paderborn.
11.3 The place of jurisdiction is our registered office in Paderborn, which also applies to complaints, checks or bills of exchange. However, we are also entitled to sue at the customer’s registered office.