Terms and Conditions
General Terms and Conditions of Sale and Delivery (as of 17/08/2008)
All terms and conditions listed below shall apply to all current and future business between the purchaser or customer and us even if we do not object to deviating terms and conditions of purchase or counter confirmations, which we hereby expressly reject.
Offers are non-binding Samples and information about the composition of the goods are non-binding and for information purposes, unless they are expressly guaranteed. Any order placed by the purchaser or customer with us and any quotations, information and other agreements on the part of our employees shall only become binding for us when they are confirmed in writing.
The relevant prices are our generally applicable prices on the delivery day unless a price has been agreed in writing as a fixed price. If passing on a cost increase that has occurred between the time the order was placed and the time of the delivery is prohibited by law, we shall be entitled to withdraw from the contract.
4. Delivery, transfer of risk
We shall be entitled to make partial deliveries. Deliveries, including freight-free deliveries, shall be at the risk of the purchaser or customer. The risk shall transfer at the latest when the goods are loaded onto the means of transportation. Goods that have not been accepted are stored for the account and at the risk of the purchaser or customer.
Dispatch shall be at the purchaser’s or customer’s expense.
In the case of freight-free return, the packaging shall be credited to 2/3 of the value used. Parcel packaging will not be taken back.
In the case of a delay in acceptance on the part of the purchaser or customer, we shall be entitled to refuse delivery of the non-accepted goods. If a smaller quantity is accepted, the scale price for the accepted goods shall apply.
8. Disruption to delivery
Any circumstances or events for which we are not responsible but that result in deliveries being prevented or being severely hampered, shall release us from our obligation to deliver for the duration of their effect.’
If a notice of defects is not issued within 8 days of the receipt of the goods or if the goods are used, mixed or sold on by the purchaser or customer, this shall constitute unconditional approval. A complaint about a delivery does not constitute an entitlement to reject further deliveries from the same or another contract. Any action initiated by us for the purpose of damage mitigation shall not constitute recognition of defects. Once they have been returned, defective goods shall be replaced or at our discretion an alteration or reduction carried out. When guaranteeing properties, our liability for damages shall be limited to twice the value of the goods to the exclusion of indirect damage in the case of consequential damage. Any warranty obligation shall be extinguished if the purchaser or customer or a third party eliminates the defect.
10. Standard of liability, scope of liability
In the event of a breach of contractual obligations, we shall only be liable for intent or gross negligence; within this framework, our liability for vicarious agents shall be limited to liability for careful selection and any necessary monitoring. In the case of liability for delay and impossibility, the purchaser or customer may only request the additional expenses for a covering purchase. We shall not be liable for indirect damages or consequential damages. The amount of compensation is also limited to twice the value of the goods.
11. Payment terms
Our invoices are payable on receipt as follows:
within 14 days with 2% cash discount
within 30 days net, without deduction
The due date begins on the day of delivery.
Bills of exchange shall only be accepted subject to discounting options against payment of all expenses on account of payment. Counterclaims shall only entitle the purchaser or customer to set-off if they are undisputed or have been established by a court of law. The purchaser or customer shall have right of retention only against claims arising from the same contractual relationship. Our employees are not entitled to accept payments or other dispositions without written authorisation.
12. Default of payment, doubt as to credit worthiness
In the case of default of payment, which occurs without a reminder, we shall calculate default interest pursuant to section 247(1) of the German Civil Code (BGB) – base rate p.a. in conjunction with section 288(2) (BGB) 8% p.a. fixed and assert a claim for further damages. All rebates, discounts and other remuneration shall cease. Furthermore, we may withhold or refuse, in whole or in part, further deliveries from this and other contracts and request the immediate payment for all deliveries, advance payment and in the case of culpability, damages due to non-performance.
13. Retention of title, securities
a) Secured receivables, release in the case of excessive collateral.
The following securities shall be granted until all claims are paid, including balance claims, to which we are entitled against the purchaser or customer and the companies in his area, irrespective of the legal basis. If the value of the claims exceeds the receivables by more than 20% in total, we shall be obliged on request by the purchaser or customer to release the securities of our choice. All securities granted to us by the purchaser or customer may be realised in order to satisfy our claims.
b) Retention of title, machining and processing, mixing and combining
We shall retain title to the goods until the full payment of all existing claims. Machining and processing shall carried out for us at all times to the exclusion of the acquisition of ownership by the machinist or processor in accordance with section 950 of the German Civil Code (BGB), but without any obligation on our part. If the goods are mixed, combined or processed with other items, the purchaser or customer hereby assigns to us his ownership or co-ownership and possession rights to the new entity and holds them in safe custody for us, insofar as we have not already become co-owners of the new object in accordance with the ratio of the value of the reserved goods (cost price) to that of the other goods at the time of mixing, combining or processing. Pledging or transfer of our ownership/co-ownership by way of security is prohibited.
c) Right of disposal
Provided he is a trader, the purchaser or customer is authorised to sell our property in the ordinary course of business; this authorisation shall be extinguished if the purchaser or customer is in default of payment or agrees with his customer the unassignability of the claim.
d) Extended retention of title
If the purchaser or customer sells our goods (machined or processed, mixed or combined), he hereby assigns to us all existing claims arising from them against his customers, also insofar as they include remuneration for services, with all ancillary rights, and in particular securities. If the purchaser or customer sells our goods after processing, combining or mixing them with goods that do not belong to us, we shall be jointly entitled (trustees) in addition to being joint creditors; alternatively, the claim of the purchaser or the customer against his customer shall be assigned in the proportion of the sales value of the reserved goods supplied by us to the value of the goods sold by the purchaser or customer. Assignment to us always relates to the part of the claim that can still be realised. At our request, the purchaser or customer shall disclose the assignment and provide us with the necessary information and documentation. Furthermore, the purchaser or customer hereby assigns to us any future claims arising from damage to the goods delivered by us. The purchaser or customer himself is revocably entitled to collect the claim assigned to us if he is not in default; he may not assign it to a third party.
e) Asserting the right of retention, third-party claims, claims arising from possession
At the expense of the purchaser or customer, we may store our goods separately, label them or collect them, and also prohibit their disposal in any way. If we take back the goods on the grounds of the right of retention, this shall not constitute a withdrawal from the contract and the purchaser or customer is obliged to send back the goods at his own expense; he shall be liable for the reduced value, for costs incurred by us due to taking back the goods (min. 10% of the price) and any loss in profit. He shall notify us without delay, if necessary by telephone, telegram or telex, if our rights are under attack by a third party. He hereby waives any claims arising from possession.
f) Security claim, prohibition of disposal.
We shall be entitled to request securities of our choice (in particular land charges) and their reinforcement at any time for the proper fulfilment of the obligation of the purchaser or customer; we are authorised to make use of the assets of the purchaser or customer which are subject to our actual influence and as security/pledge and to exploit them. The purchaser or customer may assign, pledge or otherwise dispose of claims which he has against us only with our consent.
14. Place of performance, jurisdiction, applicable law
The place of performance for all deliveries, also freight-free deliveries, is the dispatch plant in Velbert or the relevant distribution warehouse. Place of performance for the liabilities of the purchaser or customer and place of jurisdiction is at our registered office. However, we may sue at the domicile of the purchaser or customer and before any other possible court. The contract is governed exclusively by German law, as it applies to business between residents on the domestic market.