General Terms and Conditions of Sale and Delivery
1. General provisions and scope
a) Our conditions of sale and delivery only apply for operators in terms of § 310 (1) BGB (German Civil Code) and for legal persons under public law as well as special public funds.
b) All sales, deliveries, services and offers are based exclusively on our terms and conditions of sale. We do not recognise any purchaser terms and conditions that contradict or deviate from our terms and conditions of sale, unless we have provided our express written consent in this respect. Our terms and conditions of sale also apply if we execute the delivery to the purchaser without reservation in the knowledge that our terms and conditions of sale contradict or deviate from the purchaser’s terms and conditions.
Individual agreements reached with the purchaser in individual cases, especially partnership agreements, take priority over these terms and conditions of sale. The written contract is decisive in relation to the content of these kinds of agreements.
c) Legally binding declarations and statements to be submitted to us by the purchaser following the conclusion of the contract (for example: deadlines, notification of defects, notice of termination or reduction) must be made in writing to be valid.
2. Offer and offer documents
a) If the order qualifies as an offer pursuant to § 145 BGB, we may accept this offer within 2 weeks.
b) We shall reserve all rights of ownership and copyrights to images, drawings, calculations and other documents; third parties are not permitted to access these documents. These documents may only be forwarded to third parties with our express written consent.
c) Original spare part numbers in the offer documents, catalogues, etc., are only provided for comparison purposes and may not be forwarded to the end consumer.
d) Excess or short deliveries of 10% of the order quantity are permitted for items that are not customarily kept in stock, especially one-off productions.
e) The minimum net invoice value must amount to EUR 20.00. The minimum net invoice value shall be charged for orders below EUR 20.00.
3. Prices and terms of payment
a) Orders for which no fixed prices have been exclusively agreed shall be charged at the market price (current price) applicable on the day of delivery. If a calculation of the list price has been agreed with the purchaser, the list price applicable on the day of delivery shall be charged. In the event of a price increase in relation to the price applicable on the date the order was placed we shall, on request, demonstrate to the purchaser that the price rise was established based on our fair and reasonable discretion, in particular, as a result of price changes by our suppliers, collective wage agreements, changes in the material prices, currency fluctuations and/or specific tax increases.
b) Our prices do not include statutory value added tax. The statutory amount is indicated separately in the invoice on the day the invoice is prepared.
c) All prices are ex-warehouse or ex-factory at our discretion. We are not obliged to ship the goods, unless a relevant agreement has been reached. If we declare that we are prepared to ship the goods, we shall also be entitled to make the delivery on a cash on delivery basis at our discretion.
d) We are entitled to request that the goods are collected against payment. If we do not exercise this right, the purchase price is payable within the period indicated on the invoice without a discount, within 30 days of the invoice date if no payment deadline is indicated. We shall grant a discount of 2% on payments received within 14 days of the invoice date, unless the purchaser is not in default of payment for other deliveries.
e) We are not obliged to accept cheques or bills of exchange. If we accept cheques or bills of exchange, the order shall only be fulfilled once our account has been credited with the relevant amount.
f) In the event that the order is a commercial transaction for both parties, we shall be entitled to charge default interest of 8% over the German Central Bank’s base rate.
4. Offset rights and rights of retention
a) The purchaser is only permitted to exercise their offset rights if their counterclaims are legally binding, undisputed or acknowledged by us.
b) The purchaser may only exercise their right of retention if this relates to claims from the same contractual relationship.
5. Delivery deadline
a) Dates and deadlines specified by us for deliveries and services are non-binding, unless a fixed deadline or a fixed date has been expressly agreed or accepted.
b) The delivery deadline specified by us only starts on conclusion of the contract and is subject to the clarification of all technical issues.
c) If we are impaired from fulfilling our obligations as a result of the occurrence of unforeseeable and exceptional circumstances, which we were not able to prevent despite exercising due care in the relevant circumstances, such as unforeseeable operational disruptions, government intervention, delays in the delivery of important raw and construction materials, power supply difficulties or industrial action, this shall result in an appropriate extension of the delivery period, if the delivery or service is not made impossible as a result. If the relevant circumstances make it impossible to execute the delivery or service, we shall be released from our delivery obligation. We are obliged to immediately notify the purchaser in this case.
d) We are liable in accordance with the statutory provisions, provided that the underlying purchase contract is a fixed-date transaction in terms of § 286 (2) no. 4 BGB or § 376 HGB (German Commercial Code). We are also liable in accordance with the statutory provisions if the customer is entitled to claim that they are no longer interested in the continued fulfilment of the contract as a result of a delay in delivery for which we are responsible.
e) In addition, we are also liable in accordance with the statutory provisions, if the delay in delivery is based on an intentional or grossly negligent breach of contract for which we are responsible; fault on the part of our representatives or agents shall be ascribed to us. If the delay in delivery is based on a grossly negligent breach of contract for which we are responsible, our liability for damages is limited to the foreseeable losses that typically occur.
f) We are also liable in accordance with the statutory provisions, if the delay in delivery for which we are responsible is based on the culpable breach of an important contractual duty; however, in this case, our liability for damages shall be limited to the foreseeable losses that typically occur.
g) Apart from this, in the event of a delay in delivery, we shall be liable for 3% of the value of the delivery for every complete week of delay as part of a lump-sum compensation for delay, however this may not exceed 15% of the value of the delivery.
h) Any further liability for a delay in delivery for which we are responsible is excluded. The purchaser’s additional statutory claims and rights, besides compensation claims, to which they are entitled due to a delay in delivery for which we are responsible, shall remain unaffected.
i) We are always entitled to make partial deliveries and perform partial services, if this is reasonable for the purchaser.
j) The compliance with our delivery obligation requires the timely and proper fulfilment of the purchaser’s obligations. The right to raise an objection due to an unfulfilled contract remains reserved.
k) If the purchaser is in default of acceptance or culpably breaches other cooperation obligations, we shall be entitled to demand the reimbursement of losses that arise in this respect, including any additional expenses. The right to assert further claims or further rights remains reserved.
l) If the conditions in k) are present, the risk for any accidental destruction or accidental deterioration of the purchase item shall transfer to the purchaser at the time they entered into default of acceptance or payment.
6. Shipping/transfer of risk
a) Delivery ex-warehouse is agreed unless otherwise provided in the order confirmation.
b) If, in individual cases, we declare that we are prepared to ship the goods to the purchaser, this shall take place at risk to and for the account of the purchaser. This also applies if the shipment takes place from our supplier ex-factory rather than ex-warehouse.
c) At the purchaser’s request, we shall insure the delivery by concluding a transport insurance contract, the costs for which shall be borne by the purchaser.
a) The purchaser’s rights relating to defects requires that the purchaser has properly fulfilled their investigation and defect notification obligations in accordance with § 377 HGB as well as the following regulations:
We must immediately be notified of obvious defects, however no later than within 10 days of transfer of the goods. We must be notified of hidden defects in writing immediately after they are detected.
If the purchase item displays a defect, we are entitled to remedy the defect in the form of defect removal or to deliver a new item that is free of defects at our discretion. In the event that we decide to remedy the defect, we are obliged to bear all the expenses required to remove the defect, especially transport, travel, work and material costs, unless these increase due to the fact that the purchase item has been relocated to a location other than the place of fulfilment.
b) If the remedial action fails, the purchaser is entitled to withdraw from the contract or request a reduction at their discretion.
c) We are liable in accordance with the statutory provisions if the purchaser raises compensation claims that are based on intent or gross negligence, including intent or gross negligence on the part of our representatives or agents. If we are not accused of an intentional breach of contract, the liability for damages shall be limited to the foreseeable losses that typically occur.
d) We are liable in accordance with the statutory provisions if we culpably breach an important contractual duty; however, in this case the liability for damages is limited to the foreseeable losses that typically occur.
e) If the purchaser is entitled to claim compensation for the loss instead of performance, our liability is limited to the reimbursement of the foreseeable losses that typically occur, including in the event defined under c).
f) Liability due to culpability in the event of fatalities, personal injury or damage to health shall remain unaffected; this also applies for mandatory liability in accordance with the Product Liability Act.
g) Liability is excluded unless otherwise regulated above.
h) The period of limitation for claims for defects amounts to 12 months from the date of the transfer of risk.
i) The period of limitation in the event of recourse against the supplier in accordance with §§ 478, 479 BGB remains unaffected; it amounts to 5 years from the date of delivery of the defective item.
8. Joint and several liability
a) Further-reaching liability for damages than defined in no. 5 and no. 7 is excluded, without regard to the legal nature of the claim raised. This particularly applies for compensation claims resulting from culpability for other breaches of duty on conclusion of the contract or due to tortious claims for the reimbursement of property damage pursuant to § 823 BGB
b) The limitation under a) also applies if the purchaser demands the reimbursement of wasted expenses instead of claiming reimbursement for losses rather than performance.
c) If our liability for damages is excluded or limited, this also applies with respect to personal liability for damages assigned to our staff, employees, representatives and agents.
9. Reservation of title
a) The goods shall remain our property until complete payment of all, including future and conditional claims, regardless of their nature, to which we are entitled in relation to the purchaser from the business relationship.
b) If the purchaser is in breach of contract, especially in the case of default in payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and reclaim the goods based on the reservation of title and withdrawal. We are entitled to sell the goods after they have been reclaimed. The proceeds of sale are offset against the purchaser’s liability, less the costs for repossession and the sale of the goods.
c) The purchaser is obliged to keep the goods owned by us in good condition and to insure these goods against fire and water damage as well as theft at the replacement value at their own expense. Necessary repairs and maintenance activities must be executed immediately by our repair service or the manufacturer, except in emergencies.
d) The purchaser must immediately notify us of any attachments or other interference by third parties so that we can commence proceedings in accordance with § 771 ZPO (Code of Civil Procedure). The purchaser is also obliged to transmit the attachment records and a statutory declaration issued by the purchaser that we own the goods.
If the third party is not in a position to reimburse the court and out-of-court costs associated with a lawsuit pursuant to § 771 ZPO, the purchaser shall be liable for the losses that we incur.
e) The purchaser is entitled to resell the goods during the normal course of business; however, the purchaser hereby assigns any receivables, to which they are entitled from their buyers or third parties in connection with the resale, to us in the amount of the final invoice (including value added tax), regardless of whether the goods were resold with or without further processing. The purchaser remains entitled to collect these receivables even after assignment. This does not affect our entitlement to collect the receivables ourselves. However, we shall not collect the receivables as long as the purchaser meets their payment obligations from the proceeds received, does not default on payment and, in particular, does not apply to commence insolvency proceedings or composition proceedings or if payments are suspended. However, if this is the case, we can request that the purchaser provides information on the assigned receivables and their debtor, that they provide all the information necessary for collection, submits the associated documents and informs the debtor (third party) of the assignment.
f) The purchaser is not entitled to any other disposals, in particular, assignment by way of security or pledging. In the event of the resale of goods subject to the reservation of title against credit, the customer is obliged to secure our rights.
g) The processing or conversion of the goods by the purchaser is always performed on our behalf. If the goods are processed with other items that do not belong to us, we shall acquire joint ownership of the new item in proportion to the value of the item to the other processed items at the time of processing. Apart from this, the same applies for the processed item as is applicable for the goods delivered under reservation of title.
h) If the goods are inseparably mixed with other items that do not belong to us, we shall acquire joint ownership of the new item in proportion to the value of the item to the other mixed items at the time of mixing. If the items are mixed so that the purchaser’s item is considered to be the main item, it is hereby agreed that the purchaser shall transfer proportional joint ownership to the main item to us. The purchaser shall preserve the sole ownership or joint ownership on our behalf.
i) If the purchaser sells the goods together with goods that we do not own for a total price, the amount of the purchaser’s receivable equivalent to our invoice amount shall be assigned to us. If the purchaser’s receivables from the resale are received in a current account, the amount of the purchaser’s receivable from the current account equivalent to our invoice amount shall be assigned to us. This assignment also relates to the recognised balance as well as the existing “causal” balance in the event of customer insolvency.
j) For our security, the purchaser shall also assign receivables that arise towards a third party as a result of combining the goods with property.
k) We shall release the securities assigned to us at the purchaser’s request once the realisable value of our securities exceeds the secured receivables by more than 10%; we shall select the security to be released at our discretion.
a) We are not obliged to accept returned goods that have been ordered and delivered correctly and which are free of defects, unless we have expressly agreed to the return in specific individual cases.
b) The costs for the return must be borne by the purchaser if it has been agreed to by us. The purchaser is obliged to take over a flat rate of 15 percent of the net purchase price, however at least EUR 5.00 per item, as return-to-storage or return costs, if the return takes place for reasons for which the purchaser is responsible. This also applies if we are forced to repossess goods subject to the reservation of title for reasons for which the purchaser is responsible.
This does not affect our right to assign higher costs for the return in individual cases, or to raise a claim for higher costs in the case of the return of goods subject to the reservation of title.
11. Other provisions
a) The place of jurisdiction is Essen, if the purchaser is a registered merchant. However, we are entitled to file proceedings at the purchaser’s local court.
b) The place of fulfilment is Essen, unless otherwise provided by our order confirmation.
c) German law applies for all legal relationships between the parties. The UN Convention on Contracts for the International Sale of Goods does not apply.
Dated: October 2010