1. Scope of terms and conditions
Our deliveries, services and offers are provided exclusively on the basis of the following terms and conditions. These conditions therefore also apply to all future terms and conditions, including where they have not been again expressly agreed. These terms and conditions are deemed to have been accepted, at the latest, upon receipt of the goods or services. Counterconfirmations on the part of our contract partners which refer to their own general terms and conditions are hereby rejected, and are also inapplicable regardless of whether referred to in writing with orders or deliveries. Deviations from these terms and conditions only apply where confirmed by us in writing.
2. Offer and conclusion of contract
Our offers are subject to alteration and are non-binding. Declarations of acceptance and all orders must be confirmed in writing or by telex to be legally valid. This also applies to supplements, amendments or ancillary agreements or the verbal undertakings of our employees.
3. Prices and terms of payment
(1) Unless otherwise specified in the confirmation of order, our prices apply "ex-factory" excluding packaging, which will be charged separately. We reserve the right to reasonably increase our prices where, following conclusion of the contract, cost increases are incurred, particularly as a consequence of collective pay agreements or material price increases. Evidence of such increases will be provided to the customer upon request.
(2) Statutory Value Added Tax is not included in our prices. This will be shown separately in the invoice at the statutory rate applicable on the date of invoice.
(3) Discount deductions require a separate, written agreement.
(4) Unless otherwise specified in the confirmation of order, the purchase price is payable net (without deductions) within 30 days of the invoice date. Wheresoever the customer defaults on payment, we are entitled to demand interest of 4% p.a. above the respective discount rate of the German Bundesbank. Insofar as we are able to supply evidence of greater damages incurred due to default, we are entitled to assert a claim for such. The customer is, however, entitled to supply us with evidence demonstrating that no damages or significantly lower damages were incurred by ourselves as a result of the default on payment.
(5) The customer is not entitled to deny, withhold or set-off payments on the basis of any counterclaims, unless such counterclaims are judicially nonappealable, uncontested or have been acknowledged by us.
4. Delivery and service times
(1) The dates and deadlines stated by us are non-binding insofar as not otherwise expressly agreed in writing.
(2) Wheresoever we are prevented from the timely fulfillment of our obligations as a result of force majeure or other unforeseeable, extraordinary circumstances occurring in the absence of fault, for example, difficulties in obtaining materials, stoppages, strike, shut-out, shortage of transport facilities, official actions, difficulties with energy supplies etc. – including where these occur at our suppliers - the delivery date shall be extended accordingly. Should the stated circumstances make delivery or provision of services impossible or unreasonable, we shall be released of our delivery obligations. We shall inform the customer as quickly as possible of the beginning and end of any such obstructions. The customer may request that we declare, within a period of two weeks, whether we wish to withdraw from the agreement or effect delivery within a reasonable period.
(3) In the event that we default on delivery for reasons occasioned by ourselves, liability for damages due to ordinary negligence shall be precluded.
(4) Wheresoever, subsequent to us defaulting on delivery, the customer grants us a reasonable extension for delivery under threat of rejection, the customer shall be entitled to withdraw from the contract in the event that we fail to deliver by the said extended delivery date; claims for compensation due to non-performance for the amount of foreseeable damage may only be asserted by the customer where the default is based on wrongful intention or gross negligence; in remainder, liability for compensation shall be limited to 50% of actual damages incurred.
(5) Restrictions to liability stipulated in Ss. 3 and 4 above do not apply insofar as a fixed date of delivery has been agreed commercially, or where, in the event of default occasioned by ourselves, the customer is able to assert that its interests in performance of the contract have lapsed.
(6) Observance of our delivery obligations is conditional upon the due and proper fulfillment of customer obligations.
(7) Should the customer default in accepting goods or otherwise infringe his obligation to co-operate, we are entitled to claim damages incurred by ourselves, including any additional expenses. In such cases, the risk of accidental destruction or accidental deterioration of the goods passes to the customer at the point in time in which it defaults in acceptance.
(8) We are entitled to make partial deliveries or render partial services at all times. The customer is obliged to pay separately according to our terms of payment for partial deliveries and partial services that are charged separately by us.
5. Transfer of risk, shipping, insurance
(1) Unless otherwise stated in the confirmation of order, delivery "ex-factory" is agreed.
(2) If the customer wishes, we will arrange for the delivery to be covered by a transport insurance policy; all associated costs incurred for such shall be borne by the customer.
(3) Where freight-paid delivery is agreed, this shall be executed with transport facilities determined by us, and excludes unloading. This is further subject to the requirement that stable roads exist which can support heavy freight vehicles. Waiting times and unloading times of more than 30 minutes per 5 t will be charged separately to the customer.
6. Warranty for defects
(1) The customer will examine the received goods without delay to determine defects, condition and guaranteed properties and is to report obvious defects within one week in writing. Defects which are not revealed despite a careful examination within this period must be reported without delay and in writing immediately upon their discovery. An opportunity to establish the defect on site is to be extended to ourselves.
(2) Should any defects for which we are responsible be ascertained in the goods, at our discretion, we are entitled to remedy such defects or replace the delivery. If defects are remedied, we shall bear all costs for materials, transport and labor; however, only half the costs for installation and assembly. In the event that these costs are increased as a result of the goods being moved to a place other than the place of fulfillment, such costs shall not be borne by us.
(3) Should we be unwilling or unable to effect remedy of the defect/ replacement delivery, particularly where such action is delayed beyond reasonable periods for reasons occasioned by us, or wheresoever the remedy of defect/replacement delivery fails for other reasons, at its own discretion, the customer is entitled to claim a reduction in price or, provided that construction work is not the subject of the warranty, to withdraw from the agreement.
(4) Insofar as not otherwise specified below, further claims on the part of the customer - regardless of legal basis - are precluded. Consequently, we do not accept liability for damages not caused to the delivery item itself. In particular, we do not accept liability for loss of profit or other economic loss on the part of the customer.
(5) The above exemption from liability does not apply insofar as the cause of damages originates from wrongful intention or gross negligence, or where the customer claims damages for non-performance due to the lack of a guaranteed property in accordance with Ss. 463, 480 (2) of the German Civil Code (BGB).
(6) Insofar as we negligently infringe a substantial obligation of the agreement, we will be liable to compensate foreseeable damage.
(7) The period of warranty is 24 months effective from the transfer of risk. This period is a term of limitation and also applies to claims for compensation for consequential damages, insofar as no claims arising from tortious acts are asserted.
7. Overall liability
(1) Liability for damages extending beyond that stipulated in S. 6 (4) to (6) is precluded regardless of the legal nature of the asserted claim.
(2) The provision of (1) above does not apply to claims made under Ss. 1, 4 of the German Product Liability Act (Produkthaftungsgesetz). This also applies with respect to initial incapacity or justifiable impossibility.
(3) Insofar as liability on our part is precluded or limited, this will also apply with respect to the personal liability of our employees in all positions, representatives and vicarious agents.
(4) The limitation of claims arising from manufacturer's liability in accordance with S. 823 BGB is dependent on S. 6 (7), regardless of whom such claims are asserted against.
8. Retention of title
(1) We reserve title to the goods delivered by us until all payments arising from the business relationship with the customer have been received. Insofar as we agree with the customer that payment of the debt may be in the form of check/bill of exchange, this reservation also persists until redemption of the bill of exchange accepted by ourselves has been effected by the customer, and is not discharged through the credit entry effected by ourselves for receipt of the check.
(2) In the event of conduct contrary to the terms of the contract on the part of the customer, in particular with respect to default on payments, we are entitled to recover the delivered goods. Recovery of the goods by us does not represent a withdrawal from the agreement unless we expressly declare such in writing. Levy of execution (seizure) of the goods by us shall constitute a withdrawal from the agreement in all cases. We are entitled to realize the value of the goods following their recovery, whereby – subject to an appropriate deduction for realization costs – the proceeds from such realization will be credited to accounts payable by the customer.
(3) The customer is obliged to handle the goods with care. In particular, at its own expense, the customer is obliged to adequately insure the goods at value as new against fire, water damage and theft. In the event that maintenance and inspection work is necessary, the customer must conduct such work promptly at its own expense.
(4) The customer must notify us without delay in writing of any levy of execution (seizure) or other actions by third parties in order that we may institute proceedings under S. 771 of the German rules of civil procedure (ZPO). Wheresoever the third party is unable to reimburse us for the judicial and extra-judicial costs of legal proceedings in accordance with S. 771 ZPO, the customer will be liable for any loss incurred on our part.
(5) The customer is entitled to resell the delivered goods in the ordinary course of business; however, it hereby assigns to us all accounts receivable to the total value of the invoice (including VAT) accruing to it from sales to its customers or third parties, and regardless of whether the goods have been sold without or following reprocessing. The customer remains entitled to enforce collection of such accounts receivable following this assignment, whereby our authority to collect the accounts receivable remains without prejudice. However, we undertake to refrain from collection of the accounts receivable insofar as the customer fulfills its payment obligations from the earnings received, is not in default on payments and, in particular, insofar as no application for the institution of bankruptcy or settlement proceedings is submitted, or suspension of payments effected. Should such a case arise, we are entitled to require that the customer notifies us of the assigned account receivable and its commensurate debtor, provides all information necessary to facilitate collection, submits all associated documents, and informs the debtors (third parties) of the assignment.
(6) Any reprocessing or reworking of goods delivered by us on the part of the customer is continually conducted on our behalf. Wheresoever the goods are processed with other objects for which we do not hold title, we shall acquire co-ownership of the new product in a ratio of the value of the goods for which we hold title to that of the other processed objects at the time of reprocessing. In remainder, the same applies to the product of such processing as is the case for goods delivered under reservation of title.
(7) If the goods are indivisibly combined with other objects for which we do not hold title, we shall acquire co-ownership of the new product in a ratio of the value of the object of sale to that of the other combined objects at the time of combination. If combination is conducted in a manner by which the product of the customer is regarded as the main product, it is hereby agreed that the customer shall assign proportionate co-ownership to us. The customer will preserve the resulting sole or co-ownership on our behalf.
(8) In order to secure our accounts receivable against it, the customer shall also assign to us any accounts receivable acquired against a third party as a result of combining the goods with land.
(9) We undertake to release, at the request of the customer, securities to which we are entitled, insofar as the value of our securities exceeds the accounts receivable to be secured by more than 20%. The choice of the released securities is incumbent upon ourselves.
9. Place of fulfillment, legal venue, partial invalidity, applicable law. The place of fulfilment for all of our services is Anröchte. Legal venue for all disputes arising directly or indirectly from the contractual relationship is Lippstadt. Wheresoever any provision of these terms and conditions, or any provision within the scope of other agreements, is or becomes invalid, this shall not prejudice the validity of all remaining provisions or agreements. In the event that any individual provisions are invalid, the parties undertake to agree an alternative provision by mutual consent, which most closely meets the economic intention of the intended provision. German law applies exclusively.
Siemensstraße 1, D - 59609 Anröchte