General Terms and Conditions of Business
1- 1. The following terms and conditions of sale, delivery and payment apply to all services provided by our company and prevail as binding without requiring any explicit declaration in this respect.
1- 2. The Customer’s terms of business that diverge from and contradict our own Terms and Conditions of sale and delivery do not bind us, even if they serve as basis for the Customer’s own order placement.
1- 3. Special arrangements are only valid subject to our separate written confirmation. Contractual rights and duties are only transferable to others subject to our explicit consent; Section 354 a HGB [German Commercial Code] remains unaffected hereby.
2. Offer and transaction of contract
2- 1. The prevailing price is that which is applicable on the day of delivery. The transaction is finalised by the written confirmation of order acceptance. The order confirmation defines the item ordered, the volume, price and terms of delivery as binding, to the exclusion of any verbal agreements.
3- 1. Our prices are ex works and specified in Euro without VAT.
3- 2. The prices prevail that were valid at the time the order was placed. We retain the right to amend prices if an interval of more than three months passes between transaction of contract and agreed date of delivery. If wages, costs of materials or market buying rates rise during that interval, we are entitled to adjust the price according to said increase in costs.
3- 3. Secondary costs such as for transport and insurance, customs and important levies are only charged by us proportionately.
4. Terms of payment
4- 1. Our invoices are due for net payment, without deduction, 30 days after the date of the invoice. The Customer defaults in payment without receiving any reminder of payment.
4- 2. The right to withhold or offset claims of the Purchaser disputed by the Seller are ruled out, unless they have been established in court. Furthermore, any retention requires that the counterclaim be based on the same contract. If the Customer is a business enterprise, the Customer is not entitled to withhold performance according to Section 320 BGB [German Civil Code] or to any right of retention.
4- 3. Failure to settle due invoices or other circumstances indicative of a significant deterioration in the financial situation of the Purchaser after transaction of the contract will entitle the Seller to effect outstanding deliveries only against cash in advance or collateral. Failing this within an appropriate period of time, the Seller will be entitled to revoke the contract in whole or in part.
4- 4. Bills of exchange and cheques will only be accepted subject to prior agreement and only as conditional payment and depending on discounting facilities. If payment is made by bill or cheque, the Purchaser bears the costs of discounting and collection.
5. Retention of title
5- 1. We retain title to the goods we deliver until the purchase price has been fully paid including all secondary claims, and in day-to-day business until all our claims have been satisfied, irrespective of the delivery from which outstanding claims are derived.
5- 2. The Purchaser undertakes to carefully store and keep the goods, to which title is retained, at its own expense in suitable premises. The Purchaser provides insurance cover for the goods to which title is retained against loss and damage. The Purchaser assigns its claims derived from insurance policies in advance to the Seller. The Seller accepts said assignment.
5- 3. Payments from the sale of goods that the Seller has sold to the Purchaser and that have not yet passed into the Purchaser’s ownership are herewith assigned to the Seller in the amount of the invoice value agreed between Seller and Purchaser. At the request of the Seller, the Purchaser will inform the Seller about the stock of goods delivered by the Purchaser, although not yet owned by the Purchaser, and about the claims assigned to the Seller and will also inform the customer of the Purchaser of such assignment.
5- 4. The Purchaser is entitled in regular business transactions to dispose of the goods delivered by the Seller subject to retention of title and to collect the claims assigned to the Seller. These rights are extinguished the moment the Purchaser fails to fulfil its duties on time derived from business relations with the Seller, ceases to effect payment and/or becomes exposed to financial collapse. In the event of such circumstances, the Seller is entitled to demand the immediate provisional surrender of all goods to which title has been retained by the Seller, to the exclusion of any withholding right, without any period of grace being set or without right of revocation.
6. Delivery deadline/ deliveries
6- 1. Orders are carried out immediately providing we receive the documents from the Customer on time that we require to deal with the order placement.
6- 2. Delivery deadlines will be stretched if we are unable to comply with them because of force majeure or other disruptions for which we and/or our suppliers are not responsible, e.g. war, terrorist attack, import and export restrictions, industrial dispute or because the official permits or other licences required for delivery have not been made available.
6- 3. If we default in delivery, the Purchaser is entitled to cancel the contract if the Purchaser has set us a period of grace for delivery, which we have allowed to pass without outcome. All other claims based on default, particularly claims to damages are ruled out, unless we have caused the delay by wilful intent or gross negligence.
7- 1. Despatch is always at the risk of the Purchaser.
7- 2. We select the mode of despatch, although we always endeavour to comply with the wishes of the Customer.
7- 3. We are not liable for damages incurred by the Customer as a result of transport, although we do ensure proper packaging and loading, without actually acknowledging any legal duty in this respect.
7- 4. It is the responsibility of the recipient to ensure the consignment is complete and to check for transport damages immediately the goods are received and to notify the transport company accordingly. To secure claims for damages, the recipient will have its objections confirmed in writing on the delivery note of the transport company.
– notwithstanding the above exoneration from liability -.
8- 1. We guarantee that the delivered goods feature no significant defects the moment the risk is transferred. We bear no risk
relating to supply. There is only a guarantee if the Seller has explicitly said as much in written form.
8- 2. Where the contract embodies business for the two business partners, the obligation to inspect and lodge objection immediately applies in line with Section 377 HGB.
8- 3. Even if Section 377 HGB is not applicable, the Customer, providing it operates in business, undertakes to give written notification of any obvious defects immediately, at the latest within 2 weeks of delivery of the item in question. Otherwise any rights of guarantee will be ruled out.
8- 4. In cases of justified objection, we supply replacement free of charge, exchanging the defective item, which we take back, for a defect-free replacement. If follow-up performance is not effected within a period of grace of at least one month set by the Purchaser in written form, the Purchaser will be entitled to withdraw from the contract.
8- 5. Other claims are restricted to the assignment of the claims against suppliers to which we are entitled, where obvious defects in the processed raw materials do not need to be acknowledged by us.
8- 6. Ruled out from the lodging of any objection are cases of wear-and-tear, damages due to violence, improper handling and use, excessive use or of impact from the elements.
8- 7.Any intervention in the goods undertaken at own initiative or by third parties will cancel out any right to lodge objection.
8- 8. Where an objection proves to be unjustified and the Purchaser bears responsibility, the Purchaser will refund the costs of follow-up performance constituted by the inspection of the alleged defect.
8- 9. All duties of guarantee are subject to the statute of limitations within one year of delivery of the consignment. Section 475 HGB is unaffected hereby.
8- 10. The advice we give on issues of application, whether it is verbal, by imagery or in written form is given to the best of our knowledge and belief. It is derived from our professional experience and is not considered to be binding.
The Purchaser is responsible for checking the respective suitability of the ordered products for the intended purpose (use, relocation and further processing). The Seller gives no guarantee in this respect.
9. General restrictions of liability
9- 1. In all cases in which the Seller, in divergence from the above-specified terms and conditions, is bound to compensate for damages or input, based on contractual claims or claims subject to the law, the Seller will only be liable for wilful intent, gross negligence or injury to life, body or health on its own part or on the part of its executive employees or vicarious agents. Liability subject to the Product Liability Act irrespective of blame is unaffected hereby. Likewise unaffected is liability for negligence in violating major contractual duties. However, liability will be restricted to the foreseeable damages typical of the contract except for the instance specified in sentence 1.
10.Place of performance and Jurisdiction
10- 1. The place of performance for deliveries and payment is our registered seat of business in Mechernich.
10- 2. Jurisdiction for all disputes derived from the present contractual relations including action for deeds, cheques and bills of exchange, will be decided by our registered seat of business, providing the Purchaser is fully engaged in business, is a legal person subject to public law or a special estate under public law.
10- 3. The laws of the Federal Republic of Germany apply. The provisions of the Convention relating to a Uniform Law on the International Sale of Goods do not apply.
11. Adjustment Clause
11- 1. Should any one of the above provisions prove to be invalid in whole or in part, the rest of the contract retains its validity based on the present General Terms and Conditions of Business. Where provisions have not become an integral part of the contract or prove to be ineffective, the content of the contract will be subject to the law.