A. General terms and conditions of business
- All our deliveries and services – including those for the future – are made exclusively on the basis of the following terms and conditions, including cases of cross-compensation.
- The purchase conditions of the buyer are hereby contradicted. They are not recognized even if we do not expressly contradict them after their receipt. Our terms and conditions shall be deemed to be accepted upon acceptance of our goods at the latest.
- Changes and/or additions to these terms and conditions will be effective only upon our written confirmation.
- Our offers are non-binding. They become binding only by our written order confirmation. Non-recognition of order confirmations must be made in writing before receipt of the goods or within 8 days of receipt of the order confirmation. Non-recognition does not release the buyer from the obligation to pay.
- Concerning the information contained in our general documents or those pertaining to special offers, in particular drawings, illustrations, weight, dimensional and performance descriptions, a concrete quality agreement only exists if this is also expressly the object of the order. As a rule, such information is to be understood as approximate, and changes for technical reasons remain reserved.
- All goods, including those with special quality regulations, shall be deemed to have been delivered according to the agreement upon leaving our manufacturing plant. If the goods are shipped directly to third parties or abroad, the acceptance must be carried out on our premises; otherwise the goods shall be deemed to have been delivered according to the agreement.
In the case of products subject to official acceptance, we undertake to effect this acceptance, to obtain a certificate of acceptance, and to submit it to the buyer. The buyer is not entitled to withhold the purchase price until delivery.
Any difference in weight does justify neither a price reduction nor freight or duty compensation. The weight specifications serve only for an approximate freight and duty determination.
Our prices are quoted in Euro net cash plus freight, packaging, and loading accessories ex works or warehouse as well as the VAT applicable at the time of the delivery or service.
III. Terms of payment
- Payment must be made in cash without any discounts and without loss or by transfer to our account by the 15th of the month following the date of invoicing regardless of the receipt of the goods and irrespective of the right of notification of defects excluding offsetting against disputed claims or claims not enforced by law and the right to retention. A discount deduction is excluded.
- Checks and bills of exchange shall be accepted only on account of payment and due to special agreement.
Bills of exchange or checks shall be credited upon receipt with the value date of the day on which we finally receive the equivalent value. All resulting costs and expenses shall be borne by the buyer. No liability shall be assumed for presentation in due time and for protest.
- If the target is exceeded, interest will be charged in the amount of 5% above the respective base rate acc. to § 247 BGB.
- All our claims shall be due immediately, regardless of the maturity date of any received and credited bills of exchange, if the terms of payment are not adhered to and if we become aware of circumstances which in our opinion are capable of impairing the buyer's creditworthiness. Without prejudice to any further statutory rights, we shall also be entitled to carrying out any still outstanding deliveries or services only against payment in advance. We may also, without rescinding the contract, prohibit the resale and the processing of the delivered goods, demand their return at the expense of the buyer, or take them into our possession without the buyer having a right of retention or any similar right. We are entitled to recover the returned goods by freehand sale and apply the proceeds to the outstanding purchase price claim.
- If we are entitled to claim damages for non-fulfillment according to the statutory provisions, our claim for damages shall be at least 20% of the purchase price, without us being responsible for proof of the damage. However, the buyer is entitled to submit evidence that damage was not incurred at all or that it is significantly lower.
- All goods delivered (reserved goods) shall remain our property until all claims have been settled, in particular the respective balance claim, which we are entitled to against the buyer regardless of legal grounds. This also applies if payments are made on specially designated claims.
- The reserved goods shall be processed on our behalf as manufacturer within the meaning of § 950 BGB, without any obligation on our part. The processed goods are considered reserved goods.
In the event the buyer processes, combines, or mixes the reserved goods with other goods, we shall be entitled to co-ownership of the new item in proportion to the value of the reserved goods compared with the other goods used. If our ownership expires as a result of combining or mixing, the buyer immediately transfers to us the ownership rights to the new stock or item to which we are entitled to the extent of the invoice amount of the reserved goods. He shall hold the same free of charge on our behalf. The joint ownership rights resulting therefrom shall be deemed as reserved goods.
- The buyer is only permitted sell reserved goods in the ordinary course of business and as long as he is not in default of payments to us. However, provided that the claims arising from the resale immediately pass to us in accordance with Article 4 IV 4. The resale is equivalent to the installation in land and soil or facilities connected to buildings or deployment to fulfill other service contracts or contracts for work and materials.
- The claims of the buyer from the resale of reserved goods, including the fulfillment of a service contracts or contracts for work and materials, are now already assigned to us.
If the reserved goods are sold by the buyer along with other goods not supplied by us, the subrogation from the resale shall only apply in the amount of the invoice valuesof the respective reserved goods stated in our invoices. If goods are resold in which the co-ownership rights are due to us in accordance with Art. A IV 2, the subrogation shall apply to the amount of these co-ownership rights. The assigned claims shall serve as security to the same extent as the reserved goods. The buyer undertakes not to conclude any current account agreements with his customer in accordance with § 355 HGB. In addition, the aforementioned advance assignment agreement shall also apply accordingly in the event of a current account agreement concluded contrary to contract with regard to the claims of the buyer resulting from this agreement.
- The buyer is entitled to collect the claims arising from the resale until such permission is revoked, which shall be permissible at any time.
We shall only make use of our right of revocation in the cases indicated under Art. A III 4. The buyer is in no case authorized to assign the claims to third parties. At our request, he is obligated to inform his customers immediately of the assignment to us and to give us the information and documents which are required for collection.
- Insofar as the buyer is entitled to claims against insurance companies or other third parties owing to damage, reduction, loss, or destruction of reserved goods or for any other reasons, the claims shall also be assigned to us in advance with all ancillary rights instead of the sales proceeds and to the same extent.
- If the buyer does not comply with his obligations arising from this or any other contract, we shall be entitled to take back the reserved goods without withdrawing from the contract and to utilize them to the best of our ability in accordance with the purchase price claim. Returns are not considered withdrawal.
- If the value of the securities, including the possibility of offsetting, exceeds the secured claims by more than 20% on a sustained basis, we shall be obligated to release securities of our choice to that extent at the request of the buyer.
- If reserved goods are impounded or if a third party otherwise claims rights to them, the buyer must notify us immediately.
- In countries in which a legal institution similar to the retention of title does not exist, the buyer is obligated to provide the comparable type of security in his own country through his own required cooperation.
- If we are working as a contractor, we are entitled to the lien of § 647 BGB insofar as the ordering party does not meet his obligations to us from the contract or previous transactions.
If the ordering party submits material for processing that is not under his free ownership, it is hereby agreed that we are entitled to withhold payment in view of the aforementioned claims until they have been fully compensated.
V. Execution of deliveries I. Force majeure and other obstacles to delivery
- Events of force majeure entitle us to defer deliveries for the duration of the hindrance and a reasonable period thereafter or to withdraw from the contract in whole or in part because of the part of the contract not yet fulfilled. Strike, lock-outs, mobilization, war, blockades, export and import bans, shortages of raw materials or fuel, fires, traffic jams, disruptions to operations or transport, and other similar circumstances shall be deemed equivalent to force majeure, irrespective of whether they occur at our premises or at those of suppliers or subcontractors.
- The buyer may demand us to provide a declaration as to whether we intend to deliver or withdraw within a reasonable period of time. If we make no declaration, the buyer can only withdraw with respect to the part of the delivery that has not yet been fulfilled, yet is obligated to pay the costs already incurred.
VI. Delivery times
- Delivery times and/or dates shall not be binding for us unless we expressly agree to them as binding.
We shall not assume any liability for timely transportation. Delivery times and dates shall refer to the time of notification indicating readiness for shipment.
- The delivery periods shall begin on the date of our order confirmation, but not prior to the complete clarification of all details of the order and the procurement of any required official domestic or foreign permits and/or certificates.
- Delivery periods or dates shall be prolonged, regardless of our rights resulting from the delay by the buyer, by the period during which the buyer is in arrears with his obligations under this or another contract, plus a reasonable lead-in period.
- The buyer is entitled to set us a reasonable grace period in the event the delay is caused by us. Only after the expiry of this grace period is the buyer entitled to declare withdrawal, but only to the extent that deliveries have not yet been performed within this grace period.
- Partial deliveries shall be in any case permissible unless they are not economically viable for the buyer.
VII. Dispatch and transfer of risk
- The freight forwarder or carrier is to be determined by us. The dispatch route and the means of shipping, transport, and protection shall be our choice under exclusion of any liability.
If the buyer wishes a special shipping method, this is at his own expense and risk. If we act as a freight forwarder, the German Freight Forwarders' Standard Terms and Conditions (Allgemeinen Deutschen Spediteurbedingungen) shall apply.
- Goods reported ready for dispatch must be collected immediately. Otherwise we are entitled to store the goods at the seller’s cost and risk and to invoice them delivered ex works or warehouse at our best discretion. The same applies in the cases specified in Art. BI 1. For freight-paid delivery, the means of transport must be unloaded immediately by the buyer. Waiting times are always at the expense of the buyer.
- At the moment of delivery to the forwarding agent or carrier or of loading onto our vehicles, but upon the goods leaving our works or warehouse at the latest – also with freight-paid delivery – the risk passes to the buyer in every case – including any seizure.
- In the case of free delivery to the place of use, the agreed price is understood to be free of charge for trucks on drivable roads at ground level.
Unloading is the responsibility of the buyer, who must wait until 8:00 PM on the announced day of delivery. Otherwise, unloading, storage, or return transport shall be performed at the expense and risk of the buyer.
- If there are insignificant defects in delivery items, the buyer must nonetheless accept these irrespective of his rights.
- Insurance policies shall be only taken out at the request of the buyer.
VIII. Defect rights
If it does not concern insignificant defects, the seller shall assume liability as specified in the following paragraphs for any defects in the delivery, including the absence of expressly warranted or guaranteed features. Further liability, in particular for damages, shall be excluded as far as permissible. The exclusion shall not apply in the event that we can be accused of intent or gross negligence. Furthermore, the restriction shall not apply in the case of a culpable breach of essential contractual obligations, in cases of mandatory liability under the Product Liability Act, in case of damage to life, body, and health, and also not in instances in which defects of the object were fraudulently concealed or their absence had been guaranteed.
If the products of the seller demonstrably have defects within 12 months after delivery – assuming single-shift operation – the seller shall, at his discretion, remedy the defect, deliver a defect-free object, or grant credit for the invoice value. In this case, the seller shall bear the necessary transport costs and, if necessary, installation and removal costs to a reasonable extent, but at most up to the value of the respective product. Any additional expenses incurred as a result of the object being transported to a location other than the one to which the item has been delivered will not be accepted, unless the seller was aware that this corresponded to its intended use. The seller shall remove the defect at his discretion using his own employees or a commissioned company. Costs of repair work carried out by a third party commissioned by the buyer without the seller's express consent shall not be reimbursed.
Defects due to incorrect assembly or commissioning, unsuitable or improper use or modifications, or repair work by the buyer or third parties, natural wear, faulty or negligent treatment, excessive use, unsuitable equipment, replacement materials, chemical, electrochemical, or electrical influences exclude any warranty unless they can be attributed to a fault of the seller. Further rights, particularly claims for compensation for damages not relating to the delivery item itself, are excluded.
Notifications of defects within the above-mentioned scope shall only be acknowledged if they are asserted within two weeks after receipt of the goods, in the case of initially unrecognizable defects, immediately after knowledge has been obtained by written declaration. Complaints about quantity will only be taken into account if they are submitted in writing immediately after receipt of the consignment.
If the seller has to deliver according to the buyer's drawings, models, or samples, the buyer guarantees him that the objects manufactured according to his originals do not violate industrial property rights of third parties. If a third party prohibits the seller from manufacturing or delivering the objects on the basis of a property right belonging to him, the seller is entitled, to stop the manufacture or delivery and to demand compensation for the costs incurred without being obliged to check the legal situation. If the seller incurs damages in such a case as a result of the violation or the assertion of a property right by third parties, the buyer must provide compensation or indemnify the seller from any damage resulting therefrom. Returns require the prior consent of the seller.
IX. Right of withdrawal of the buyer and other liabilities of the seller
The buyer can withdraw from the contract if the complete performance finally becomes impossible before the transfer of risk. The same applies if the delivery is not performed within a reasonable period of time despite the reminder of the buyer and maturity. This period of time may not be less than one month unless the impediment to performance is at least predominantly the responsibility of the buyer or it is a case of para. 6 sect. 4. As far as partial deliveries are possible that can be used by the buyer after termination of the contract, the right to withdraw shall be limited to the parts not yet delivered. Should the inability to perform occur during the time of refusing the acceptance or by any fault on part of the buyer, then the latter shall remain liable for consideration. If partial deliveries have already been provided as per sect. 1, there shall exist a claim for remuneration.
The buyer shall furthermore be entitled to withdraw from the contract if the seller permits an additional period granted to him for the repair of a defect, for which he is responsible under the conditions of sale, to expire without taking action and through his own fault. Should the seller decide to remedy the defect by removing it, the buyer has a right of withdrawal only after the removal of the defect has failed twice. The adequate grace period shall not commence before the defect and the seller's responsibility have been acknowledged and proven. The buyer can also assert a claim for reduction instead of his right of withdrawal.
If the buyer or a third party improperly makes modifications or repairs without the prior approval of the seller, the seller shall not be liable for any ensuing results. The seller's liability shall exclusively be in pursuance with the agreements made in the above paragraphs. All not expressly conceded rights, e.g. on delivery of an object free of defects, withdrawal from contract or reduction, and compensation of damages of every type, which were not related to delivery item itself, and regardless of which legal ground, are excluded.
Deviations therefrom apply only for intentional or grossly negligent damages caused by the legal representative or vicarious agents of the seller or if there is a liability for compensation according to the respective applicable national law which cannot be excluded contractually, particularly for product liability.
X. Acceptance, retrieval, right of withdrawal of the seller
Goods purchased on call must be accepted within one month of the request for acceptance. If the buyer is in default of acceptance, the seller can store the goods at the expense and risk of the buyer and invoice all costs incurred. The same applies if, due to circumstances for which the buyer is responsible, goods ready for dispatch cannot be shipped.
If the buyer continues to be in default of acceptance despite setting a deadline, if he is in arrears with a due payment for more than 30 days, or if the buyer commits another serious breach of contract, the seller is entitled to withdraw from the contract and to claim compensation for the damages.
The place of jurisdiction for disputes shall be Siegen.
XII. Final provisions
I. Should any particular provisions be fully or partially invalid, the remaining provisions shall remain valid. Ineffective provisions shall be replaced by such provisions as are best suited to the economic purpose of the contract, with due regard for the interests of both parties.
XIII. Third party beneficiary rights, assignment prohibition
This contract does not establish the rights of third parties. An assignment of rights and claims from this contract by the buyer requires our written consent.
XIV. Special acceptance procedures and costs
A specially agreed acceptance must be made at our works at the expense of the buyer immediately after notification of readiness for acceptance. Should the acceptance not take place, it shall be deemed to have been effected after the expiry of 12 working days after notification.
Last updated: 8/11/2014