§ 1 General
(1) The following terms and conditions shall apply to all business transacted with us. Contrary terms must be agreed on in writing and in detail. Deviating terms and conditions of our contracting party shall be excluded from the following conditions even when we have not expressly contradicted them.
(2) When the contracting party is no merchant who has been entered into the commercial register he is still subject to the provisions of the Commercial Code on commercial transactions among the above-mentioned merchants in so far as permitted by law. The documents, drawings, brochures, price lists etc. presented in our offer shall not be binding, in so far as they are not expressly specified as binding in our offer and/or order confirmation. We shall reserve unlimited exploitation copyrights on the above-stated documents, even when our contracting party has not taken over the costs in whole or in part. Our contracting party may only disclose such documents to third parties or use them beyond the delivery contract upon our prior consent. At our request or in case of non-placing of the order such documents have to be given back.
§ 2 Acceptance, delivery, delivery time and taking delivery
(1) Our offers shall always be without engagement in so far as not otherwise expressly put down in writing. All orders shall be accepted provided that performance data are achievable. Roughly specified delivery times shall not be binding, unless we have accepted in writing a delivery time as binding to us in a particular case or by way of express derogation from such conditions.
(2) In case of expressly promised delivery times our contractual partial shall be entitled to grant an additional period of time of at least four weeks in writing.
(3) In the event of unforeseeable impediments of production, ongoing interruptions of operation, strike, lockout, shortage of goods and raw material as well as in case of force majeure we shall be entitled to fulfill assumed delivery obligations after such obstacle has been eliminated but without any claim for damages due to our contracting party. We shall also be released from the adherence to expressly stipulated delivery times should such events occur.
(4) In case of transactions requiring longer handling periods or in the event of orders on call (callable orders), calls, deadlines and corresponding specifications have to be specified in writing and in good time. If this does not take place we shall be entitled to prior sale. When stipulated acceptance dates are not observed by our contracting party we shall be entitled to claim damages from our contracting party.
(5) In case of manufacture to customer’s specifications (e.g. special colors) the quantities ordered shall be binding and have to be taken in any case. On the other hand shall no claim by asserted for any additional production of smaller extra volumes. During delivery time we shall reserve the right to construction or dimensional changes of the object of purchase reasonable to the contracting party.
(6) We shall be entitled to withdraw from pending contracts.
§ 3 Risk taking and dispatch
(1) Dispatch shall be executed for the account and at the risk of the buyer. Even in the event of carriage prepaid delivery the risk shall be passed to the buyer as soon as the freight is delivered to the shipping agent or the freight carrier, however, after the freight has left our plant at the latest. This shall also apply when delivery is carried out by our vehicles and / or our personnel. If delivery is delayed for reasons for which our contracting party is responsible the risk shall be passed to our contracting party as soon as readiness for dispatch is announced. Warehousing costs incurred after passing of the risk shall be borne by our contracting party.
(2) Staff members of our contracting party which are present at the point of destination shall be considered as authorized to confirm the propriety and faultlessness of the delivery. This shall also apply when the goods are collected by our contracting party.
§ 4 Prices and incidental expenses
(1) Our prices shall be net prices. The value-added tax rate prescribed by law shall be separately invoiced. In the event of fixed price agreements we shall reserve the right to increase the prices for the delivery which is executed later than six months after conclusion of the contract by a rise of wage costs and material expenses accrued in the meantime.
(2) Unless agreed on otherwise, all prices shall be ex works, i.e. ex our plant.
(3) Any costs for returned goods from claims for reservation of title shall be borne by our contracting party.
§ 5 Payment
(1) Unless agreed on otherwise our invoices shall be payable net cash without undue delay on receipt of an invoice. In case of later payment we shall be entitled to ask for interests and commissions as from maturity which our bank charges for unsecured credits, at least however 5 % above the basic interest rate according to § 288 Para. 1 Clause 2 BGB (German Civil Code).
(2) Our invoices shall be considered as accepted when our contracting party has not objected in writing without undue delay on receipt of the invoice.
(3) Without special agreement bills of exchange shall not be taken in and should such agreement exist only payment of half bill shall be accepted. Discount, stamp duty and other expenses shall be borne by our contracting party. In the event of bills of exchange and checks no obligation shall be assumed for submission or making protest.
(4) If our payment conditions are not complied with we shall be released from all delivery obligations.
(5) We shall be entitled to execute deliveries only against prepayment or securities.
(6) An offsetting against our claims to performance and claims for damages respectively or against other claims as well as the assertion of a right to refuse performance shall be excluded just as well as an assignment of claims existing against us. Within the scope of non-commercial transactions the offsetting shall be restricted to undisputed counterclaims recognized by declaratory judgment of our contracting party, without prejudice to existing rights to refuse performance which are based on the same contractual relationship.
(7) If our contracting party delays payment or in the event that we become aware of circumstances that indicate an existing or impending insolvency (bill of exchange or check protest, attachments or similar) all claims from performed obligations shall immediately be due for payment.
§ 6 Warranty
(1) Upon receipt of the goods our contracting party shall be obliged to inspect them for obvious defects. Should the party locate deficiencies of the goods it shall give notice of the defect to us in writing within a preclusive period of eight days upon receipt of the goods. Such notice of defects may only be considered inasmuch as the goods are still in a condition of delivery. Notice shall be given of defects which may not be detected within the aforementioned period even after most careful inspection by our contracting party in writing without undue delay following their detection and immediate cessation of possible handling.
(2) Should we be obliged for warranty we shall first of all guarantee for deficiencies of the goods according to our choice by rectification of defects or substitute delivery.
(3) If subsequent performance goes wrong our contracting party may in principal ask for a lowering of remuneration (reduction) or annulment of the contract (revocation). In case of only minor non-conformity with the contract and especially in the event of only small deficiencies the customer shall not be entitled to terminate the contract. The burden of proof for all preconditions of a claim shall fully rest with the entrepreneur especially for the defect itself, for the time of locating the deficiency and the notification of defects within the prescribed period.
(4) If our contracting party chooses to withdraw from the contract because of a defect of title or quality following a failed subsequent performance he shall not be entitled to any additional claim for damages. If our contracting party chooses compensation for loss suffered following failed subsequent performance the goods shall be kept in his possession, providing it is reasonable to him. Any compensation for loss suffered shall be restricted to the difference between the purchase price and the value of faulty goods. This shall not apply when we have violated the contract in a fraudulent manner.
(5) For entrepreneurs the warranty period shall be two years from delivery of the goods. This shall not apply when our contracting party fails to notify the defect in due time. A limited warranty period of six months shall be applicable for moving or wear parts.
(6) In principal, only the product description of the manufacturer as regards the condition of the goods shall be considered as agreed. Public statements, advertising and promotion of the manufacturer shall not represent any additionally specified condition of goods according to contract. We shall not warrant our contracting party within the meaning of the law. Manufacturer’s guarantees shall remain unaffected hereby.
(7) If our contracting party receives insufficient mounting instructions from us we shall be only obliged to supply faultless mounting instructions and only in the event when imperfect mounting instructions prevent proper erection.
§ 7 Limitations on liability
(1) In case of slight negligent failure to comply with one’s duty our liability shall be limited to a foreseeable, contract-typical, direct average damage. This shall also apply to slight negligent failure to comply with one’s duty of our legal representatives and all persons employed by the debtor in the performance of his obligations. We shall not be liable to companies in the event of slight negligent failure.
(2) The foregoing limitations on liability shall not concern any claim of the contracting party based on product liability. The limitation on liability shall also not apply to personal injury and injury to health attributable to us or in the event of loss of life of our contracting party.
(3) Claims for damages of our contracting party on account of a deficiency shall be subject to a limitation period of one year from delivery of the goods. This shall not apply when we are accused of fraudulent intent.
§ 8 Reservation of title
(1) The delivered goods shall remain our property until all our receivables from a business connection are settled. Nevertheless, our contracting party may process or resell the goods within the scope of a proper business activity. This authority shall cease when an assignment of a claim on the purchase price of the contracting party against its customer is effectively excluded. Any pledging or transfer by way of security of goods with reservation of title for the benefit of a third party shall be excluded without our consent. In the event of seizure of such goods as well as damage or loss our contracting party shall give notice to us without undue delay. The authority of our contracting party to resell reserved goods in a proper business transaction shall also end upon cessation of payments of the contracting party or whenever an opening of insolvency proceedings or of arrangement proceedings to avoid insolvency on the property of the party is requested. In this case, our contracting party shall be obliged to hand out the reserved goods upon a request on our part. The proceeds for taken back and non-processed reserved goods which are realized at best possible utilization shall be credited to our contracting party. A request for the return of reserved goods shall not imply a withdrawal from contract.
(2) When goods with reservation of title supplied by us are joined with other movable property in a new standard property or when a new movable property is produced by processing or rebuilding of reserved goods the reservation of title shall also cover the newly produced property. Our share on ownership of a newly produced property shall be determined according to the ratio of the invoice value of the reserved goods delivered by us to the newly produced property.
(3) All receivables accruing to our contracting party vis-à-vis third parties from the sales of goods with reservation of title delivered by us shall be passed into our ownership upon coming into existence of the receivables for the purpose of safeguarding existing and/or from now on existing claims. Moreover, our contracting party shall transfer to us all claims for which it is entitled now or later with regard to reserved goods for another legal ground and shall assign all rights to be derived from these claims, e.g. claims for damages from insurance benefits, upon coming into existence of the corresponding claim. We shall not collect a transferred claim as long as our contracting party does not assume its obligations. Our contracting parts shall be obligated to name third party debtors on demand. Claims incurred by our contracting party from reselling of reserved goods with reservation of title vis-à-vis third parties must not be taken up in current accounts. If they are nonetheless taken up in current accounts the assignment shall also cover the right to close a current account and the balance of a current account.
(4) At the request of our contracting party we shall be obliged to release any security for which we are entitled, when and so far as a realizable value of the securities exceeds the claims to be secured by 20%.
(5) In case of cessation of payments our contracting party shall be obligated to send without unduly delay a list of the still existing reserved goods with reservation of title even as far as the goods are processed and transmit a list of the claim on third party debtors together with copies of accounts after notice has been given of a cessation of payments.
(6) Should we undertake contingent liabilities in the interest of our contracting party (payment by check / bill of exchange) an extended and broadened reservation of title shall remain until we are fully released from these liabilities.
(7) For financial purposes we shall be entitled to transfer trade accounts receivables.
§ 9 Place of delivery and jurisdiction
(1) Place of delivery for all performances from the delivery contract shall be the place of our business.
(2) Place of jurisdiction (also for actions on bills of exchange and checks) shall be Krefeld. We shall, however, be entitled to assert our rights facing our contracting party at the party’s place of jurisdiction. The German law shall apply.
§ 10 Partial invalidity of terms
(1) Should one or several of these general terms of delivery and payment in whole or in part be invalid or incomplete the validity of the remaining provisions shall not be affected.
(2) The contracting parties shall rather undertake to draw our attention to invalid or incomplete provisions and upon prior consultation with us replace these by a provision of valid content or fill the gap in such a way that the economically pursued purpose is attained.
As of July 2018