The following terms and conditions of sale and delivery apply to the handling of our deliveries and services to companies and are the basis of the orders placed with us, unless otherwise expressly declared in writing when the contract was concluded. They shall therefore also apply to all future business relations, even if they are not expressly adopted explicitly again. Convened deviations only apply to the business for which they were made and must be confirmed by us explicitly for each order. Other conditions shall not become part of the contract, even if we do not expressly refute them.
2. Offer and Conclusion of Contract
Our offers are subject to change and non-binding. Declarations of acceptance and all orders require our written or telex confirmation to be legally effective. Drawings, illustrations, dimensions, weights, technical details, or other performance data are only binding if this is expressly agreed in writing. Our sales employees and representatives are not authorized to make verbal collateral agreements or to give verbal assurances that go beyond the content of the written contract.
The prices are quoted in EURO. The prices stated in our order confirmation plus the respective statutory value-added tax are decisive. If our own prime costs are shifted between the day of the order confirmation and the day of delivery due to price adjustments at our suppliers or due to changes in wage rates, we are entitled to adjust the prices to the current prices which are then considered as agreed.
4. Place of Performance, Transfer Risk, Packaging and Transport
Our deliveries are made in the mode of dispatch selected by us from Verl (place of performance). The risk is transferred to the buyer as soon as the shipment has been handed over to the person carrying out the transport or has left the place of performance for the purpose of shipment. If the goods are ready for dispatch and if dispatch or acceptance is delayed for reasons for which the buyer is responsible, the risk shall pass to the buyer upon receipt of the notification of readiness for dispatch. We are entitled to pack the goods in the manner customary in the industry or to provide them with the appropriate transport and auxiliary means. We charge packaging, transport, means of transport and other aids at cost price. Transport packaging and all other packaging in accordance with the packaging regulations will not be taken back. The customer is obliged to ensure proper disposal of the packaging at his own expense. The goods travel at the expense and risk of the purchaser. At the request of the buyer, the goods ordered will be insured by us at his expense against theft, breakage, transport, fire and water damage, and other insurable risks.
5. Delivery Dates, Delivery Periods, Operational Disturbances, Partial Performances
Delivery dates or periods, which can be agreed upon binding or non-binding, must be in writing. If we are in default, we must first be granted a reasonable period of grace, which may not be less than 21 days, unless the purchaser is no longer interested in the fulfillment of the contract. After the fruitless expiry of the grace period, the buyer may assert his legal rights. We shall not be responsible for delays in delivery and performance due to force majeure and due to events beyond our control which make delivery significantly more difficult or impossible, – this includes in particular difficulties in procuring materials, operational disruptions, strikes, lock-outs, lack of means of transport, official orders, energy supply difficulties, etc., even if they occur at our suppliers or their sub-suppliers – even if binding deadlines and dates have been agreed. They entitle us to postpone the delivery or service by the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part with regard to the part not yet fulfilled. We will inform the buyer of the delivery difficulties immediately. We shall be entitled to make partial deliveries which are reasonable for the buyer.
6. Terms of Payment, Interest on Arrears, Maturity, Counterclaims
The customer undertakes to pay the purchase price within 10 days of receipt of the goods. After this period the customer is in default of payment. The delay can also be caused before the expiry of 10 days by a reminder. During the period of default, the customer must pay interest on the money debt at a rate of 9% points above the base rate. This does not exclude the assertion of further damages caused by default. However, the purchaser reserves the right to prove that we have incurred less or no damage. We shall not be liable for the timely presentation, protest, and notification and return of a bill of exchange in the event of dishonor unless we are guilty of intent or gross negligence. The buyer may only offset against an undisputed or legally established claim. He is not entitled to a general right of retention if he is a merchant within the meaning of the HGB. This shall not apply if the general right of retention is based on undisputed or legally established claims. The assertion of the special right of retention of the unfulfilled contract remains unaffected by this. If we become aware of circumstances which call the creditworthiness of the buyer into question, in particular, if the buyer does not honor a check or suspends payment, or if we become aware of other circumstances which call the creditworthiness of the buyer into question, we shall be entitled to declare the entire remaining debt due, even if we have accepted checks or bills of exchange. In this case, we are also entitled to make the performance incumbent upon us dependent on advance payment or an appropriate security deposit. If we are obliged to make any advance payment, we may refuse performance if it becomes apparent after the conclusion of the contract that our counterclaim is endangered by the lack of performance of the other party. A lack of ability to perform exists, among other things, in the event of war, import and export bans, the death of suppliers, the opening of insolvency proceedings, individual enforcement, or protest of a bill. We are entitled to set a deadline within which the buyer must, at his discretion, either effect counter-performance or provide security. After the unsuccessful expiry of this period, we are entitled to withdraw from the contract.
7. Notice of Defects, Warranty
The object of purchase is free of defects if it has the contractually agreed quality. Only the agreements effectively made in accordance with clause 2 shall be deemed to have been agreed upon. Public statements, recommendations or advertising do not constitute a contractual description of the quality of the goods. The customer does not receive guarantees in the legal sense. Manufacturer guarantees remain unaffected by this. The buyer must check the contractual conformity of the consignment immediately in every case. If the buyer wishes to make a complaint about defects, the complaint must be made immediately, but at the latest within 10 days, in the case of obvious defects. The time of delivery and the date of receipt of the notification of defects shall be decisive for the calculation of the period. Defects that cannot be discovered within this period even with careful examination must be notified to us immediately after discovery. In the case of justified complaints, we are entitled and obliged to choose between repair or replacement (supplementary performance). In order to provide this supplementary performance, the buyer is entitled to set a reasonable period of grace, which must be at least 21 days. If the supplementary performance fails or the set period expires without success, the buyer is entitled to demand, at his discretion, a reduction in price, rescission, or compensation for damages instead of performance. In the event of a minor breach of contract of the goods, in particular, in the case of minor defects, the customer shall only be entitled to a reduction of the purchase price. Compensation instead of performance is limited to typically foreseeable damages. The warranty period is one year after the delivery of the object of purchase. The entire clause 7 does not apply if a buyer takes recourse to the seller because of a claim by a consumer due to a defect (entrepreneur recourse).
8. Retention of Title
The goods shall remain our property until payment of all claims, regardless of their legal basis, until all bills of exchange and checks given to us in payment have been honored, even if the purchase price for specially designated claims has been paid. In the case of a current account, the retained title shall serve as security for our balance claim. Any treatment or processing of the goods subject to retention of title shall be carried out on our behalf, free of charge and without any other obligation on our part in such a way that we are to be regarded as the manufacturer in accordance with § 950 BGB (German Civil Code), i.e. we shall retain title to the products at any time and to any degree of processing. If the buyer processes the goods with other goods that do not belong to us, we shall be entitled to co-ownership of the new object in the ratio of the invoice value of the goods subject to retention of title to the other processed goods at the time of processing. Otherwise, the same applies to the new object resulting from the processing as to the reserved goods. It shall be deemed to be reserved goods within the meaning of these conditions. The buyer is only entitled and authorized to resell the goods subject to retention of title on the basis of a contract of sale, a contract for work and materials, a contract for work and materials or a similar contract, as long as he is not in default and if the claim from the resale passes to us. The buyer’s claims arising from a resale of the reserved goods are hereby assigned to us as security for all claims to which we are entitled from the business relationship, regardless of whether the reserved goods are resold without or after processing or whether they are resold to one or more buyers. At our request, the buyer is obliged to inform the third party buyer of the assignment for payment to us. If the value of the securities existing for us exceeds our total claim by more than 20% in total, we are obliged to release securities of our choice to this extent at the request of the buyer or a third party affected by the over-securing. The buyer is not entitled to dispose of the reserved goods in any other way. Pledging or transfer of ownership by way of security is not permitted. The buyer must inform us immediately in the event of seizure, confiscation, or other third-party dispositions. If the buyer acts in breach of contract – in particular default in payment – we are entitled to withdraw from the contract in accordance with the statutory provisions. After withdrawal, the buyer is obliged to return the goods.
9. Place of Jurisdiction
The place of jurisdiction for all claims and legal disputes arising from the contractual relationship, including summary proceedings based on bills of exchange and documentary evidence, shall be Gütersloh, provided that the purchaser is also a merchant within the meaning of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law. In all other respects, the statutory provisions shall apply.
10. General Limitation of Liability
In the event of a breach of insignificant contractual obligations, negligence in contractual negotiations, and illegal actions, liability shall only be assumed in the event of intent and gross negligence. The above limitation of liability does not apply to essential contractual obligations or to claims arising from product liability. Furthermore, the limitation of liability shall not apply in the event of physical injury or damage to health attributable to us and in the event of loss of life of the customer.
11. Contractual Language, Applicable Law, Severability Clause
The contract language is German. The law of the Federal Republic of Germany shall apply to the exclusion of the UN Convention on Contracts for the International Sale of Goods and to the exclusion of the provisions of German international private law, insofar as it declares foreign law to be applicable. Should a provision of this condition and the other agreements made be or become invalid, the validity of all other provisions or agreements shall not be affected.