General Terms and Conditions of Sale
Sales and other delivery contracts are concluded subject to our General Terms and Conditions of Sale below. With the conclusion of the contract, the buyer/ordering party (according to Article 14 Par. 1 BGB (German Civil Code), hereafter referred to as customer), declares his agreement with the validity of our General Terms and Conditions of Sale. We explicitly object to deviations from our General Terms and Conditions of Sale, these shall only apply if we have provided our written consent to them. Our General Terms and Conditions of Sale shall also apply to future sales and delivery contracts, even if they are not explicitly referred to.
I. OFFER, ORDER:
Our offers are without obligation. Offer documents, such as illustrations, drawings and measurements are only approximate and non-binding. We shall reserve ownership rights and copyrights to cost estimates, drawings and other documents. They must not be disclosed to third parties.
With the ordering of goods, the customer bindingly declares the intention to acquire the goods. We shall be entitled to accept the contract offer within four weeks from the date of the order.
For the acceptance, scope and execution of the delivery, the written/telefax or confirmed agreements shall exclusively apply. Telephone or verbal agreements or side agreements require a written confirmation by the parties to be valid.
If the customer is a merchant within the meaning of Article 14 BGB (German Civil Code), the regulations of Article 312e Par. 1 Sentence 1 No. 1-3 and Sentence 2 BGB (German Civil Code), shall not apply.
II. SCOPE OF DELIVERY:
1. For our deliveries, our written order confirmation shall be decisive. Protective equipment shall only be provided, if this has been agreed in writing. Side agreements and amendments require our written confirmation in order to be valid.
2. We shall be entitled and obligated to provide partial deliveries. Partial deliveries shall immediately be invoiced.
III. PRICES AND PAYMENT:
1. Prices, with respect to merchants, shall be stated net, plus the valid statutory VAT on the day of delivery.
2. If significant cost factors should change (particularly wage, material, energy, costs on the basis of legal stipulations), we shall be entitled, with respect to merchants, to adapt the prices accordingly, for deliveries, which take place later than 4 months after conclusion of the contract.
3. All prices are stated ex warehouse and do not include ancillary costs, particularly freight, packaging or insurance. Packaging shall be charged by us at the net cost price.
4. Freight credit notes shall only be charged according to freight goods rates.
5. After receiving the goods, the customer shall be obligated to pay the purchase price without deductions, within 30 days. After expiry of this period, the customer shall enter into payment default, without a separate reminder being required. This shall also apply if possible certificates by inspection organisations are not available, even if, according to the ordering regulation, the surrendering of conventional acceptance inspection certificates belongs to the scope of delivery.
6. Upon payment of the purchase price within 8 days after delivery of the goods, the customer shall be entitled to deduct a 2% cash discount.
7. With all means of payment, the date of payment receipt shall be regarded as the day on which we are able to dispose of the amount.
8. Incoming payments shall be applied to the respective oldest claim, pursuant to Article 367 BGB (German Civil Code). With application to an old claim, cash discounts shall principally not be granted.
9. If deliveries or call-off orders are notified as being ready for shipment and cannot be accepted by the customer immediately after advice, for any reason, the date of receipt by the customer of notification of readiness for delivery shall be regarded as the date of delivery and as a reference date for issuing the invoice and the payment deadlines.
10. The remaining payment conditions shall arise from our invoices.
11. If the customer should enter fully or partially into default with payments – with an instalment – notwithstanding our rights arising from Section VI. No. 3, we shall be entitled to withdraw from the contract, after the fruitless expiry of an adequate grace period, and demand compensation in place of performance.
12. In the event of payment default, default interest of 8% above the base interest rate shall be paid. The assertion of higher default losses shall remain reserved.
13. The right of the customer to offset against our claims shall be excluded, unless the claim to be offset is undisputed or legally acknowledged. The customer may only assert a right of retention with respect to claims from the same contract.
IV. DELIVERY PERIOD:
1. Indications of delivery periods are non-binding. Agreed delivery periods shall begin with dispatch of our order confirmation, however, not prior to receipt by the customer of the documentation, approvals, releases to be obtained, as well as receipt by us of an agreed advance payment, at least in the amount of 40% of the order sum. The delivery period shall be observed if the delivery object has left the factory by its expiry or if the readiness for shipment has been notified.
2. With force majeure or other events impairing delivery, the delivery period shall extend accordingly. The same shall apply with delays in the delivery of raw materials and building materials, to the extent that these delays can be proven to have a significant impact on the production of the delivery object and are not caused by us.
3. Four weeks after exceeding a non-binding delivery date, the customer shall be entitled to set an adequate grace period for us in writing. After the fruitless expiry of the grace period, the customer shall be entitled to withdraw from the contract by means of a written declaration, to the extent that the delay was caused by us. If the customer should delay the shipment, he shall pay storage costs to us in the amount of 0.5% of the invoice amount per month, from the beginning of the second month.
V. TRANSFER OF RISK AND ACCEPTANCE:
1. If the customer should be a merchant, the risk shall be transferred to him with notification of readiness for shipment. With other customers, the risk shall transfer with handover of the goods to the shipper/freight forwarder. At the request of the customer, we shall insure the items at his expense against breakage, transport, fire and water damage.
2. The customer shall only be entitled to refuse acceptance of the goods, if they should deviate significantly from the order.
VI. RESERVATION OF OWNERSHIP:
1. We shall reserve the right to ownership of the goods delivered by us, until receipt of all payments from the delivery contract. If the customer should be a merchant, we shall reserve the right to ownership of all goods delivered by us, until receipt of all payments from the business relationship with the customer. The handling and processing of goods delivered by us and still under our ownership shall always take place on our behalf, without any liabilities arising for us. If the goods under our ownership should be mixed, combined or linked with other items, the customer shall now already assign to us his ownership or co-ownership rights to the new object and shall safely keep the object. The customer shall only be permitted to sell goods under our ownership within the scope of regular business transactions, to the extent that he is not in payment default. With conclusion of the contract, he already assigns claims to us, to which he is entitled against his buyers, with all ancillary rights, from the sale or for other legal reasons, in their full amount for purposes of security. The customer shall remain entitled to collect the claims, as long as he does not enter into payment default with us.
2. If the value of the security to which we are entitled should exceed the claims by more than 20%, we shall be obligated to release the security to which we are entitled, at the request of the customer; the selection of the security to be released shall be at our option.
3. During the term of the reservation of ownership, the customer shall be entitled to hold and use the delivery object, as long has he fulfils the obligations arising from the ownership reservation and does not enter into payment default. If the customer should enter into payment default or not fulfil his obligations in connection with the reservation of ownership, we shall have a right to withdraw from the contract, after the fruitless expiry of an adequate grace period set by us, and demand return of the delivery object from the customer.
4. Goods subject to reservation of ownership may only be pledged, assigned by way of collateral, leased or passed on to third parties with our written consent.
5. In the event of access by third parties to the goods that are subject to reservation of ownership, particularly with pledging, the customer must immediately notify us in writing and notify the third party of our reservation of ownership. The costs for actual and legal prosecution of our security ownership shall be borne by the customer, to the extent that they are not obtainable by third parties.
6. For the term of the reservation of ownership, we shall be entitled to insure the goods that are subject to reservation of ownership, at the expense of the customer, against fire, water and other damage, to the extent that the customer does not provide evidence of sufficient insurance himself.
7. The customer shall be obligated to keep the goods that are subject to reservation of ownership in a proper condition, for the term of the reservation of ownership and have all necessary maintenance work and repairs carried out immediately.
VII. GUARANTEE/WARRANTY FOR DEFECTS:
For defects to the delivery object, we shall be held liable under exclusion of further claims, notwithstanding Section IX. of these conditions, as follows:
1. Only our direct buyer shall be entitled to rights due to defects against us and these rights are not transferable. Defects are to be immediately complained about in writing. If the customer should be a merchant, he must immediately inspect the goods after receipt and notify any defects to use immediately – obvious defects within a period of 8 days after receipt of the goods – in writing; otherwise, the goods shall be regarded as approved and the assertion of rights due to defects shall be excluded. To the extent that the delivery object was defective upon transfer of risk, we shall be entitled, at our option, to eliminate the defect (remedy) or delivery of a non-defective item (replacement delivery). Replaced objects shall become our property.
2. The customer shall not be entitled to eliminate defects himself or have them eliminated, unless we should be in default with the elimination of the defect or the customer is forced to eliminate the defect due to urgent operational requirements or due to risk of default.
3. With a replacement delivery, our guarantee shall be limited to the cost of the replacement object and the shipping costs. These shall only be assumed, if they arise within the Federal Republic of Germany. Remedy costs arising abroad shall only be borne by us, to the extent that they would also have arisen with a domestic remedy location.
4. If the remedy/replacement delivery should fail, for reasons that are our responsibility, or if we should not adhere to a deadline set for remedy, the customer shall have a right – within the scope of legal regulations – to reduce the contract price or withdraw from the contract, at his option.
5. Defect claims do not exist with unsuitable or improper use of the delivery object, with faulty installation or commissioning by the customer or third parties, natural wear and tear, damage resulting from faulty or negligent treatment, improper maintenance, the use of suitable resources, improper storage or other circumstances for which the customer or third parties are responsible.
If the customer should be a merchant, all defect claims shall expire one year after transfer of risk. For premeditated or fraudulent behaviour and for claims under product liability law, the statutory periods shall apply. The statutory period shall also apply in the case of culpable injury to life, limb and health.
1. To the extent that nothing different arises below, our liability/compensation – regardless of the legal grounds – shall be excluded. We shall not be held liable for losses, which have not occurred on the delivery object itself, we shall particularly not be held liable for foregone profit or other financial losses incurred by the customer.
2. This liability exclusion shall not apply with premeditated acts and gross negligence. It shall furthermore not apply to defects, which have been fraudulently concealed or their absence has been guaranteed/with liability for guaranteed characteristics of state, claims under product liability law and with culpable injury to life, limb and health.
3. To the extent that we have negligently infringed a material contractual obligation, our liability shall be limited to the foreseeable loss.
The place of performance is Wittingen. Wittingen is the exclusive legal jurisdiction for all disputes arising from the business relationship, if the customer should be a merchant. However, we shall also be entitled to file suit at the domicile of the customer. The law of the Federal Republic of Germany shall exclusively apply to our relationships with the customer. Provisions of the UN Convention on the International Sale of Goods shall not apply. If one or several of the above mentioned clauses should be invalid, this shall not affect the validity of the remaining provisions.
As of 06/2005