General terms and conditions
Preamble
Provisions that have been individually agreed upon within the contractual relationship take precedence over the General Terms and Conditions. Should individual provisions be invalid, this shall not affect the validity of the remaining provisions.
The purchaser's general terms and conditions shall only be deemed to have been agreed effectively if notified to us in due time and if they do not contradict any individual contract and the provisions set forth below.
1. Orders and acceptance of orders
(1) All orders received by us directly from the purchaser or via sales representatives need to be accepted by means of a written order confirmation, except in the case of cash transactions.
(2) Deviations of ordered or delivered articles from the order, in particular in respect of material and finish, as determined by technical advances, shall be expressly reserved.
2. Delivery period
(1) Should a delivery period have been agreed or be required, the following shall apply: the delivery dates given by us shall not be binding, unless these have explicitly been confirmed as "binding delivery dates" by us in writing.
(2) Delivery by us shall be subject to our obtaining supplies ourselves. We shall immediately notify the purchaser should we not be able to obtain supplies ourselves. Should we not be able to obtain supplies ourselves, the purchase contract shall be deemed not to have been concluded.
(3) Compliance with the delivery period shall be subject to the purchaser's fulfillment of his contractual obligations in good time, in particular making the agreed payments and, where applicable, providing the agreed security.
(4) Furthermore, in the event of default for which we are responsible, the purchaser shall only be entitled to assert further rights once an additional period of at least 3 weeks set by him after the default has occurred, has expired without result.
3. Shipment
(1) Should the ordered goods have to be shipped, this shall be done for the account and risk of the purchaser. Except where a special agreement has been made, we shall be free to choose the transport company and the means of transport. The risk shall pass to the purchaser when the goods are dispatched even where delivery carriage paid has been agreed.
(2) Should the shipment be delayed for reasons attributable to the purchaser, the risk shall pass to the purchaser at the time at which the goods are ready for shipment. The costs arising as a result of the delay (in particular storage charges) shall be borne by the purchaser.
(3) We shall not be obliged to insure the consignment against damage in transit or to have this insured, unless we have undertaken to do so, inwriting.
4. Liability for defects
(1) The purchaser shall be obliged to check the delivered goods for existing defects immediately after delivery and to notify us of these defects in writing immediately and in any event no later than within 2 working days from the delivery. Any defects which are only reported later, that is, after the expiry of the period given above, shall not be covered by the warranty.
Notice of defects must be given in writing to be effective. Notice of defects given vis-ŕ-vis sales representatives or transport companies or any other third parties shall not be deemed to be formally correct.
(2) Goods which have to be returned to us as a result of a defect may only be returned with our prior consent. We do not have to accept goods which are returned without our prior consent. In such a case, the purchaser shall bear the cost of returning the goods.
(3) Should a justified defect have been reported and the defect is rectified or the goods are redelivered, the provisions in respect of the delivery period shall apply accordingly.
(4) The existence of a defect established as such and notified properly, shall give the purchaser the following rights:
a) Should the goods be defective, the purchaser shall first of all be entitled to demand rectification. We shall have the right to choose whether the goods will be redelivered or whether the defects will be removed, at our own discretion.
b) We shall furthermore have the right, should our attempt to rectify the situation come to nothing, to make a second attempt to rectify the situation, again at our own option.
Only if the second attempt fails, shall the purchaser be entitled to cancel the contract or to reduce the purchase price.
(5) The purchaser may only claim compensation or the reimbursement of expenses incurred in vain in the event of the grossly negligent or intentional violation of the obligation to deliver goods free from defects. The purchaser must provide evidence of the grounds for and the amount of the damage incurred. The same shall apply to the expenses incurred in vain.
(6) For consumers, the warranty period for new goods shall be 1 year from the date of delivery and for used goods 1 year from the date of delivery. For entrepreneurs, the warranty period for new goods shall be 1 year from the date of delivery and shall be excluded for used goods. Liability according to the product liability act shall not be affected.
5. Liability for breach of duty
In the event of a breach of duty attributable to us, the following shall apply:
(1) The purchaser must give us an adequate additional period of at least 3 weeks within which to remedy the breach of duty. Only once this additional period has expired without result may the purchaser cancel the contract and/or claim compensation.
(2) The purchaser may only claim damages in cases of grossly negligent or intentional breaches of duty by us. Damages in lieu of performance (in case of non-performance, Section 280 (3) in conjunction with Section 281 German Civil Code (BGB) as well as damages for delay in performance (Section 280 (2) in conjunction with Section 286 Civil Code) shall be limited to the negative interest. Damages for nonperformance or failure to render performance as owed (Section 282 Civil Code) shall be limited to the amount of the purchase price. Damages in lieu of performance with exclusion of the duty of performance shall be ruled out.
(3) Should the purchaser be solely or predominantly responsible for circumstances which would justify his cancellation of the contract, or should the circumstances justifying the cancellation of the contract, occur during the purchaser's failure to take delivery, cancellation of the contract shall not be permitted.
6. Exclusion of risk in respect of obtaining supplies and guarantees
We do not assume any risk in respect of obtaining supplies. The assumption of any kind of guarantee whatsoever is excluded, unless an explicit written agreement has been concluded with the purchaser about this. Manufacturer warranties shall remain thereby unaffected.
7. Prices
Prices are calculated in Euro plus the applicable VAT.
8. Payment terms
(1) All supplier invoices shall be paid net cash. Cash discounts shall require a previous written agreement.
(2) Default interest shall be paid if the agreed payment date has been exceeded or following reminders; consumers shall pay 5% and entrepreneurs 8% over the respective base interest rate.
(3) Bills of exchange are only accepted on account with previous written agreement. Discounting fees are charged from the date payment is due, regardless of the date of acceptance of the bill of exchange. The supplier does not assume any guarantee for timely collection procedure or timely protest.
(4) If bills of exchange or checks are not credited on time by the drawee, then all other existing claims of the supplier against the purchaser shall fall due at this time. Any other existing payment period shall lapse. The same shall apply if a claim is not paid on the due date.
(5) The purchaser shall not be permitted to withhold the payment or set this off against any counterclaims of the purchaser, except where claims are undisputed or have been finally and conclusively established.
(6) All claims against the customer, regardless of the legal relationship on which these are based, shall become immediately due and payable should circumstances arise which give us the right to cancel the contract pursuant to statutory or contractual provisions.
9. Retention of title
(1) All the goods delivered by us shall remain our property until the purchase price has been paid in full and until all claims arising from the business relationship have been settled in full (extended retention of title). The purchaser shall only be allowed to dispose of the goods subject to the retention of title in the purchaser's ordinary course of business. However, the purchaser shall not under any circumstances transfer ownership of the goods by way of security to third parties.
(2) If the goods are sold in the ordinary course of business, the purchase price shall take the place of the goods. The purchaser hereby assigns to us all claims arising from any sale of the goods.The purchaser shall be entitled to collect these claims, provided that he complies with his payment obligations towards us. Taking into account the extended retention of title (anticipatory assignment of the respective purchase price claim), assignment to third parties, in particular to a bank, is in violation of the contract and is therefore not permitted. We shall be entitled to check the sales documents of the purchaser and inform his buyer of the assignment at any time.
(3) If the purchaser's claim from the resale has been paid into a current account, then the purchaser hereby assigns his claim from the current account to the supplier in respect of his customer. The assignment shall be for an amount equivalent to the amount we charged the purchaser for the resold goods subject to retention of title.
(4) Should execution be levied in respect of the goods at the purchaser, we must immediately be notified, by being sent a copy of the record of the execution and a statutory declaration in lieu of an oath, that the goods on which execution was levied are goods delivered by the supplier and are subject to retention of title.
(5) The assertion of the rights of the supplier arising from the retention of title shall not release the purchaser from his contractual obligations. The value of the goods at the time at which they are taken back will simply be credited against the claim we have against the purchaser.
10. The supplier's right of cancellation
We shall be entitled to cancel the contract for the following reasons:
a) Should it become apparent, contrary to what was assumed before the contract was concluded, that the purchaser is not creditworthy. Lack of creditworthiness may in any event be assumed in the case of bill of exchange or check protest, default in payment by the purchaser or an unsuccessful attempt to levy execution at the purchaser. This does not necessarily have to relate to us.
b) Should it become apparent that the purchaser provided incorrect information about his creditworthiness and this information is of considerable significance.
c) Should our goods which are subject to retention of title be sold other than in the ordinary course of business of the purchaser, in particular by transferring ownership by way of security or pledging the goods. Exceptions to this shall only apply insofar as we have given our written consent to the selling of the goods.
11. Place of performance, place of jurisdiction, other provisions
(1) Insofar as the purchaser is an entrepreneur or public law corporation or public sector fund, the exclusive place of jurisdiction for any disputes arising directly or indirectly from the contractual relationship shall be Emsdetten. The place of performance for all obligations arising from the contractual relationship shall be our registered office.
(2) German law shall be applicable in any event, especially to the cross-frontier delivery of goods.
(3) Should individual provisions of the present General Terms and Conditions be or become fully or partly invalid, the validity of the remaining provisions will not be affected. The fully or partly invalid provisions shall be replaced by a provision which comes as close as possible to the economic purpose of the invalid provision.