§ 1 Scope of the terms and conditions
- All deliveries, services and quotations of the seller are effected exclusively on the basis of the terms and conditions as defined hereinafter. These terms and conditions also apply to any future business activities even if they have not been explicitly stipulated again. These terms and conditions are considered as accepted at the latest upon receipt of the merchandise or service. Counter acknowledgements of the buyer with reference to his terms and conditions of sale or purchase are hereby disclaimed.
- All agreements between the seller and the buyer referring to the fulfilment of the contract have to be put into writing.
§ 2 Quotation and conclusion of the contract
- All quotations of the seller are subject to confirmation and without obligation. Declarations of acceptance and any orders require the written confirmation of the seller to be legally effective.
- Drawings, illustrations, measurements, weights or other service data are only binding when explicitly stipulated in writing.
- The sales personnel of the seller is not authorised to make any oral subsidiary agreements or warranties that exceed the contents of the written contract.
- Properties of the delivery item are only considered guaranteed inasmuch as the seller has given his explicit written confirmation.
§ 3 Prices
- Unless indicated otherwise, the prices as stated in the seller’s quotation are binding for a period of 30 days as of the date of issue of the quotation. As a standard the prices quoted in the order confirmation of the seller plus the respective VAT are valid. Additional deliveries and services will be invoiced separately.
- Unless indicated otherwise, the prices are valid ex stock plus packaging, postage, freight or forwarding agent charges and customs duties.
- Partial deliveries will be invoiced separately unless explicitly stipulated in a different way.
§ 4 Delivery time and time of performance
- Delivery dates and deadlines can be arranged binding or unbinding but must be in written form.
- Even if binding delivery times or deadlines have been stipulated, the seller cannot be held liable for delays in delivery or service due to force majeure or due to occurrences that make it temporarily considerably more difficult or impossible for the seller to deliver. Among these range in particular strikes, lockouts, official directives etc. even if they occur at suppliers of the seller or their sub-suppliers. Such occurrences entitle the seller to postpone the delivery or service by the time lost by the obstructions plus a commensurate start-up time or to withdraw from the contract in full or in part due to the part of the contract that has not been fulfilled.
- In case the obstructions last for more than three months, the buyer is entitled to withdraw from the part of the contract that has not yet been fulfilled after having set a commensurate respite. In case of a prolongation of the delivery time or in case the seller is exempted from his obligation, the buyer cannot deduce claims for damages from this. The seller can only invoke the mentioned circumstances after immediate notification of the buyer.
- The seller is at any time entitled to effect partial deliveries or performances unless the partial delivery or partial performance is not of interest to the buyer.
- The compliance with contractual delivery or performance obligations by the seller presupposes the accurately timed and proper compliance with all obligations by the buyer.
- In case of default of acceptance of the buyer, the seller is authorised to claim compensation for the resulting damage; upon occurrence of default of acceptance the risk of deterioration by accident or demise by accident is transferred to the buyer.
§ 5 Transfer of perils
The perils are transferred to the buyer as soon as the consignment has been surrendered to the forwarding agent or has left the seller’s warehouse for shipping. In case the shipment is delayed upon the buyer’s request, the perils are transferred to him with the notification of the readiness for shipment.
§ 6 Warranty
- The seller guarantees that the products are free from manufacture or material defects. The warranty period is six months starting from the delivery date.
- In case operating or maintenance instructions of the seller are disregarded, products are changed, parts are exchanged or expendable materials are used that do no correspond to the original specifications, any kind of warranty is inapplicable unless the buyer confutes such a substantiated allegation that it has been one of these circumstances that has caused the defect.
- The buyer is obliged to notify the head of the seller’s customer service of any defects immediately or at the latest within a week after receipt of the delivery, in written form. Defects that have not been detected within this period of time even after due diligence have to be communicated to the seller in writing immediately upon detection.
- In case the buyer advises that the products do not conform to the guarantee, the seller demands at his choice and his expenses that:
In case the buyer demands that repairs under guarantee are effected in another place determined by him, the seller can meet this demand, however, while parts that fall under warranty shall not be invoiced, working hours and travel expenses of the seller shall be invoiced based on the standard prices of the seller.
- the defective part or tool is returned to the seller to be repaired and sent back afterwards;
- b) the buyer keeps the defective part or unit ready so that a service technician of the seller can come out to effect a repair on site.
- In case the rectification of defects fails after a commensurate time limit, the buyer is entitled to demand a reduction of the payment or the cancellation of the contract.
- Liability for normal abrasion is excluded.
- Only the direct customer is entitled to warranty claims against the seller. This right is not transferable.
- The above mentioned paragraphs contain the sole warranty conditions for the products and exclude warranty claims of any other kind. This does not apply to claims for indemnity arising from feature warranties.
§ 7 Conditional sale
- Until the fulfilment of all receivables (including all accounting balance receivables from current account) to which the seller is entitled against the buyer on any legal ground now or in future, the seller is granted the following securities which he will upon demand decontrol at his option as far as their value sustainably exceeds the receivables by more than 20%.
- The merchandise remains the property of the seller. Processing or remodelling are always effected for the seller as manufacturer, however, without obligation for him. In case the (joint) property of the seller expires through alliance, it is already now stipulated that the buyer’s (joint) property of the consistent matter will be transferred to the seller on the basis of the value percentage (invoice value). The buyer keeps the (joint) property of the seller free of charge. Merchandise for which the seller is entitled to (joint) property will be referred to as conditional merchandise in the following.
- The buyer is entitled to process or sell the conditional merchandise in proper business volume as long as he is not in default. Pledging of goods and transfer by way of security are inadmissable. As a precaution, the buyer now already subrogates the receivables (including all accounting balance receivables from current account) regarding the conditional merchandise that result from the resale or any other legal ground (insurance, civil offence) to the full extent to the seller. The seller revocably authorises the buyer to collect the subrogation of the seller on his behalf in his own name. This collection authorisation can only be revoked if the buyer does not properly comply with his payment obligations.
- In case a third party takes hold of the conditional merchandise, in particular in cases of garnishment, the buyer shall be pointed to the property of the seller and inform him promptly so that the seller can claim his property rights. If the third party is not able to carry the judicial or extrajudicial costs arising in this context, the buyer will be held liable for them.
- If the buyer behaves contrary to the contract, especially in case of default of payment, the seller is entitled to take back the conditional merchandise or, if applicable, demand the assignment of the claim for restitution of the buyer against a third party. Neither taking back the conditional merchandise nor impounding of the conditional merchandise by the seller constitute a withdrawal from the contract.
§ 8 Payment
- If not stipulated otherwise, the invoices of the seller have to be settled without deduction within 14 days from issuing of invoice.
Despite other allocation of the buyer, the seller is entitled to credit payments of the buyer against older outstanding debts first. The buyer will be informed accordingly. In case expenses and interests have already accrued, the seller is entitled to credit the payment against the expenses first, then against the interest and finally against the main receivables.
- A payment is only considered effected as soon as the seller is able to dispose of the money. If cheques are used the payment is considered effected after the cheque has been payed.
- In case of default of payment of the buyer, the seller is entitled to claim interests to the amount of 2% above the respective discount rate of the Deutsche Bundesbank as a flat indemnification as of the respective point in time. The interest rate is to be lower if the buyer can prove a lower burden; giving proof of a higher damage by the seller is admissible.
- In case the seller learns about circumstances that put he buyer’s creditworthiness in question, especially if a cheque is not paid or if the buyer stops his payments or if the seller learns about any other circumstances that put the buyer’s creditworthiness in question the seller is entitled to make the remainder of the debt fall due even if he has accepted cheques. In such a case the seller is furthermore entitled to demand advance payments or the provision of securities.
- Even if he has claimed notices of defects or counterclaims, the buyer is only entitled to offset, retention or abatement if the counterclaims are undisputed or have been defined as legally binding. However, the buyer is entitled to retention also for counterclaims resulting from the same contractual relationship.
§ 9 Changes in construction
The seller reserves the right to effect changes in construction at any time, however, he is not obliged to effect such changes also with products that have already been supplied.
§ 10 Limitation of liability
Claims for damages resulting from positive infringement of receivables and from civil offence are excluded against both the seller and his assistants or vicarious agents unless it is a case of deliberate or grossly negligent action. This also applies to claims for damages for non-performance, however, only as far as the compensation of direct or consequential harm caused by a defect is claimed, unless the liability is based upon an assurance which is to protect the buyer against the risk of such damages. Any liability is confined to the predictable damage at the point of conclusion of the contract. In any case a liability of the seller under the product liability law and other claims resulting from the manufacturer’s liability remain unaffected.
§ 11 Cancellation charge
In case the buyer withdraws from a contract without authorisation, the seller is, irrespective of the possibility to claim a higher actual damage, entitled to claim 10% of the sales price for the costs caused by the processing of the order and for the lost profit. The buyer reserves the right to provide evidence of a lower damage.
§ 12 Applicable law, court of jurisdiction, partial invalidity
- The law of the Federal Republic of Germany applies to these general terms and conditions and to any privity of contract between the seller and the buyer.
- In case the buyer is a Vollkaufmann (merchant entered as such in the commercial register) according to the German Commercial Code, a legal body under public law or a separate estate under public law, Neuss is the sole court of jurisdiction for any disputes resulting directly or indirectly from the contractual relationship.
In case one stipulation of these general terms and conditions or of any other agreements should be or become invalid, all other stipulations or agreements shall remain valid and unaffected.