GENERAL TERMS AND CONDITIONS
I. Validity of terms and conditions
All our deliveries, services and offers shall be made exclusively on the basis of these General Terms and Conditions of Sale and Delivery (hereinafter referred to as "Terms"). These are an integral part of all contracts that we conclude with a contractual partner (hereinafter also referred to as "Customer"). They shall also apply to all future deliveries, services or offers to the Customer even if they are not separately agreed again. Any conflicting, additional or deviating terms and conditions of the Customer or third parties shall only be binding for us if they are expressly accepted by us in writing. Our terms and conditions shall also apply if we carry out a delivery or service to the customer without expressly objecting to the validity of third-party terms and conditions.
II. Offer and conclusion of contract
- Our offers are subject to change and non-binding, unless expressly marked otherwise. We can accept orders or contracts within 14 days after receipt.
- Our information on the object of the delivery or service such as weights, dimensions, utility values, load capacity, tolerances and technical data as well as our representations of the same, e.g. drawings and illustrations, are only approximate unless they are expressly designated as binding or unless the usability for the contractually intended purpose requires exact conformity. They do not represent any agreement or guarantee of a corresponding quality of the goods.
- We reserve the ownership and copyright of all offers and cost estimates submitted by us as well as drawings, illustrations, calculations, brochures, catalogs, models, tools and other documents and aids made available to the customer. The customer must not make these items available to third parties either as such or in terms of content, disclose them, use them himself or through third parties or reproduce them without our express consent. At our request, he shall return these items to us in full and destroy any copies made if they are no longer required by him in the ordinary course of business or if negotiations do not lead to the conclusion of a contract.
- An order shall only become binding when it has been confirmed by us by means of a written order confirmation. Transmission by telecommunication, in particular by fax or by e-mail, shall be sufficient to comply with the written form in the aforementioned sense provided that a copy of the signed declaration is transmitted. Silence on our part in response to offers, orders requests or other declarations by the customer shall only be deemed to constitute consent if this has been expressly agreed in writing. Insofar as the order confirmation contains obvious errors, spelling mistakes or miscalculations, it shall not be binding on us.
- Supplements and amendments to the agreements made, including these General Terms and Conditions of Sale and Delivery, must be in writing to be effective. With the exception of managing directors or authorized signatories, our employees are not entitled to make verbal agreements deviating from this. Transmission by telecommunication, in particular by fax or by e-mail shall be sufficient to comply with the written form in the above sense provided that a copy of the signed declaration is transmitted.
III. Prices and terms of payment
- Our prices are quoted ex works in the currency indicated and do not include packaging, statutory value, added tax custom duties in the case of export and deliveries or fees and other public charges. All payments are to be made to us free of charge.
- Insofar as our prices are list prices and delivery is to take place more than four months after conclusion of the contract the list prices valid at the time of delivery shall apply (less any agreed discounts). The customer shall be entitled to withdraw from the contract if the upward price adjustment exceeds 5%.
- Unless otherwise agreed in writing, payment shall me made within 14 days of the invoice date. The statutory rules concerning the consequences of default in payment shall apply.
- Checks and bill of exchange shall not be deemed payment until they have been cashed. If bills of exchange are accepted by way of exception the customer shall bear the costs of discounting and collection.
- We are entitled to offset payments of the customer initially against his oldest debt. If costs and interest have already been incurred, we are entitled to offset the payment first against the costs, then against the costs, then against the interest and finally against the (oldest principal debt).
- The customer shall only ne entitled to set-off rights if his counterclaims have been acknowledged by us. The customer can only assert a right of retention under these conditions and furthermore only if his counterclaim is based on the same contractual relationship.
- If it becomes apparent to us after conclusion of the contract that payment of pending claims on our part by the customer is jeopardized by the customer´s lack of ability to pay, we shall be entitled to execute or provide pending deliveries or services from the respective contractual relationship including from other individual orders that are subject to the same legal relationship in particular the same framework agreement, only against advance payment or provision of security. We shall be entitled to set a reasonable period of time for the counter-performance or the provision of a security concurrently with the performance of our service after the unsuccessful expiry of which we shall be entitled to withdraw from the contract.
IV. Delivery time, partial deliveries, force majeure
- Delivery periods shall only be binding if they have been expressly designated or confirmed by us as binding in writing. Transmission by telecommunication in particular by fax or by e-mail shall be sufficient to comply with the written form in the above sense, provided that a copy of the signed declaration is transmitted.
- We shall not be liable for impossibility of delivery or for delays in delivery insofar as these are caused by force majeure or other events unforeseeable at the time of conclusion of the contract for which we are not responsible such as operational disruptions of any kind, difficulties in the procurement of materials or energy, strikes in our own and third party operations, lockouts in our own or third party operations, shortage of labor, energy or raw materials, difficulties in obtaining necessary official permits, official measures or failure to deliver, incorrect delivery or late delivery by suppliers. If such events, make it considerably more difficult or impossible for us to deliver or perform and if the hindrance is not only of temporary duration we shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended, or the delivery or service deadlines shall be postponed by the period. Insofar as the customer cannot reasonably be expected accept the delivery or service as a result of the delay, he may withdraw from the contract by means of an immediate written declaration to us.
- We are entitled to make partial deliveries if
- the delivery for the client within the scope of the contractual purpose is usable,
- the delivery of the remaining ordered goods is assured and
- no significant additional expenses or costs are incurred to the client as a result. Additional costs arise (unless we agree to bear these costs)
- If a delivery or service is delayed or if a delivery or service becomes impossible for us for whatever reason, our possible liability for damages is limited in accordance with Section IX of these Terms and Conditions.
V. Place of performance, shipment, transfer of risk
- Deliveries are made ex works. The place of performance for all our obligations is our registered office.
- Shipment shall be made in all cases for the account and risk of the customer. The risk shall pass to the customer at the latest as soon as the goods are handed over to the person carrying out the transport whereby the beginning of the loading process is decisive or has left our warehouse for the purpose of dispatch. This shall also apply if partial deliveries are made or if we have assumed other services (e.g. shipping or installation). If dispatch or handover is delayed as a result of a circumstance the cause of which lies with the customer, the risk shall pass to the customer from the day on which we are ready for dispatch and have notified the customer of this.
- Storage costs after transfer of risk shall be borne by the customer. In the event of storage by us, the storage costs shall amount to 0.25% of the invoice amount (net) of the delivery items to be stored per expired week. We reserve the right to claim and prove further or lower costs.
- Only at the express request of the customer and at his expense will shipments be insured by us against theft, breakage, transport, fire and water damage or other insurable risk.
- We reserve the right to present the shipping costs and to debit the amount in the invoice.
VI. Retention of title
- Delivered goods shall remain our property until full payment of all claims including those arising after conclusion of a contract to which we are entitled against the customer from the business relationship. The customer is obliged to treat the goods subject to retention of title with care in particular he is obliged to sufficiently insure them at his own expense against damage by fire, water and theft at replacement value. The customer hereby assigns to us any claims for compensation arising from insurance policies. We accept this. If an assignment should not be permissible, the client shall irrevocably instruct his insurer to make any payments only to us. Further claims on our part shall remain unaffected. Upon request, the customer shall provide us with evidence of the conclusion of the corresponding insurance policy.
- The customer is only permitted to sell the goods subject to retention of title in the ordinary course of business.
- The pledging and transfer of ownership by way of security of goods subject to retention of title is not permitted for the customer. In the event of seizure or other intervention or access by third parties, the customer shall notify us immediately and provide us with all information necessary to assert our rights. Insofar as the third party is not in a position to reimburse us for any court or out-of-court costs of legal action, the customer shall be liable for the loss incurred by us.
- In the event of resale of the reserved goods, the customer hereby assigns to us by way of security the resulting claims against the purchaser in the amount of the final invoice amount (including the statutory value added tax) of our claim, regardless of whether the purchased item has been resold without or after processing. We hereby accept this assignment. The same applies to other claims that take the place of the reserved goods or arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. If an assignment is not permissible, the customer hereby revocably instructs the third-party debtor to make any payments only to us. The customer is revocably authorized to collect the claims assigned to us in his own name. Our authority to collect the claim ourselves remains unaffected by this. We will not make use of this as long as the customer meets his payment obligations, is not in default of payment and, in particular, no application for the opening of composition or insolvency proceedings have been filed, or Payment has been suspended. However, if this is the case, we may, in addition to the debt collection to which we are entitled, demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment.
- In the event of breach of contract by the customer, in particular in the event of default in payment, we shall be entitled to take back the purchased item. The taking back of the purchased item by us constitutes a withdrawal from the contract. The customer must immediately grant us or our agents access to the goods subject to retention of title and surrender them.
- The processing or transformation of the goods subject to retention of title (reserved goods) is always carried out for us. If the goods subject to retention of title are processed or transformed, we shall acquire ownership directly or – if the processing or transformation is carried out from materials of several owners or if the value of the processed or transformed item is higher than the value of the reserved goods – co-ownership of the newly created item in the ratio of the value of the reserved goods (final invoice amount including VAT) to the other processed items at the time of processing or transformation. The same applies in the case of connection to a new thing, mixing and blending. In the event that no such acquisition of ownership should occur with us, the customer hereby transfers his future ownership or – in the above-mentioned ratio – co-ownership of the newly created item to us as security. If the combination or mixing takes place in such a way that the customer's item is to be regarded as the main item, it is agreed that the customer transfers proportionate co-ownership to us. The customer shall keep the resulting sole ownership or co-ownership in safe custody for us.
- In the event of excess collateralization of more than 20% - twenty percent - we shall release the excess part to the customer upon request.
- In the case of deliveries of goods to other jurisdictions in which the retention of title provisions pursuant to paragraphs 1 to 7 above do not have the same security effect as in the Federal Republic of Germany, the customer hereby grants us a corresponding security interest. If further declarations or actions are required for this, the client shall make these declarations and take action. The client shall cooperate in all measures that are necessary and conductive to the effectiveness and enforceability of such security interests.
- Any complaints about the goods must be received by us within 10 days after delivery of the goods to the customer. Otherwise, the goods shall be deemed approved. Hidden defects that were not recognizable during an immediate, careful examination must be reported to us in detail within 10 days of discovery. Deliveries made to third parties must be checked before forwarding. The commercial obligation to give notice of defects remains unaffected.
- In the event of material defects, we shall initially be entitled to rectify the defect or deliver a replacement at our discretion within a reasonable period of time. If the subsequent delivery or repair fails, the customer has the right to reduce the purchase price or to withdraw from the contract. If a material defect is due to fault on our part, the customer may claim damages under the conditions specified in Section IX.
- The customer´s right of withdrawal is excluded if he is unable to return the service received and this is not due to the fact that the return is impossible due to the nature of the service received or we are responsible for the impossibility of the return or if the defect has only become apparent during the processing or transformation of the goods.
- In the event of defects in components from other manufacturers which we are unable to remedy for licensing or factual reasons, we shall, at our discretion, assert our warranty claims against the manufacturer and supplier for invoices of the customer or assign them to the customer. Warranty claims against us shall only exist in the case of such defects under the other conditions and in accordance with these terms and conditions if the legal enforcement of the aforementioned claims against the manufacturer and supplier was unsuccessful or is futile, for example due to insolvency. For the duration of the legal dispute, the statute of limitations of the relevant warranty claims of the Customer against us shall be suspended.
- The warranty shall not apply if the customer modifies the delivery item, or has it modified by a third party without our consent and this makes it impossible or unreasonably difficult to remedy the defect. In any case, the customer shall bear the additional costs of remedying the defect resulting from the modification.
- The warranty period shall be six months from delivery or, if acceptance is required, from acceptance.
- A delivery of used items agreed with the client in individual cases shall always be made to the exclusion of any warranty.
VIII. Excess or short deliveries
In the case of custom-made products, excess or short deliveries are unavoidable due to the production process.
The deviation can be up to 20 %, for order quantities < 10.000 meters.
For larger order quantities, the deviation can be up to 10%.
Compensation shall be adjusted accordingly within this framework.
- Our liability for damages, irrespective of the legal grounds, in particular for impossibility, delay or incorrect delivery, breach of contract, breach of duties during contractual negotiations and tort, shall be limited as follows, insofar as fault is involved: We shall not be liable in the event of simple negligence on the part of our executive bodies, legal representatives, employees or other vicarious agents, insofar as this does not involve a breach of material contractual obligations, the fulfillment of which is a prerequisite for the proper execution of the contract and on observance of which the contractual partner may regularly rely.
- Insofar as we are liable for damages on the merits in accordance with the above paragraph 1, this liability shall be limited to damages that could typically have been expected to occur within the scope of the respective contractual relationship. Indirect damage and consequential damage resulting from defects of a delivered item shall furthermore only be compensable insofar as such damage is typically to be expected when using the delivered item as intended.
- In the event of liability for simple negligence, our obligation to pay compensation for damage to property and further financial losses resulting therefrom shall be limited to an amount of EURO 1,000,000 per case of damage, even this involves a breach of material contractual obligations.
- The above exclusions and limitations of liability shall apply to the same extent in favor of our corporate bodies, legal representatives, employees and other vicarious agents.
- Insofar as we provide technical information or act in an advisory capacity and do not provide this information or advice as part of the contractually agreed scope of services owed by us, this shall be done free of charge and to the exclusion of any liability.
- The exclusions and limitations of our liability set forth in this Section IX shall not apply to our liability for willful misconduct, for guaranteed characteristics or for injury to life, body or health or our liability under the German Product Liability Act.
X. Applicable law
The law of the Federal Republic of Germany shall apply to the contract.
XI. Final Provisions
- The place of jurisdiction for all disputes arising from the business relationship between us and a client is exclusively Ratingen among merchants. We may also choose to bring an action before the competent court at the principal´s place of business.
- The law of the Federal Republic of Germany shall apply to the entire legal relationship with the Customer, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- The transfer of rights and obligations of the client to third parties is only possible with our written consent.
Status: 01. January 2022