General Terms and Conditions
Our offers, services and deliveries are subject to the following conditions. Deviations require the written form and are only binding for us with our express confirmation. Any deviation from these terms and conditions as well as other collateral agreements require our express written consent to be effective. The rights of the purchaser arising from the contract with us are not transferable. Counter-confirmation by the purchaser with reference to his terms and conditions of business or purchase is hereby contradicted.
1. Offers and conclusion of contract
Our offers are always subject to change and non-binding and are subject to the reservation of self-supply. This shall also apply if we have provided the customer with catalogues, product descriptions or technical documentation (e.g. user manuals, calculations, calculations) in advance of the conclusion of the contract, to which we reserve ownership and copyright. Design or product technical deviations from descriptions or illustrations are possible. The customer cannot derive any rights against us from such deviations. An order shall only be deemed to have been accepted when it has been confirmed by us in writing, by telex or electronically. The customer accepts these terms and conditions by accepting our order confirmation without objection, or alternatively the delivery note. Only the content of our order confirmation or delivery note is decisive for the type and scope of the delivery. Later changes are only effective with our written confirmation. The creditworthiness of our customers is assumed when accepting the purchase contract. Any unsatisfactory information received at a later date shall entitle us to withdraw from the purchase contract or to demand payment in advance. Transactions mediated by representatives as well as agreements or subsidiary agreements made orally or by telephone shall only become binding upon our written confirmation.
All performance data, drawings, illustrations, dimensions, weights or other relevant information are approximate values and are only binding if this has been expressly agreed in writing. The customer is liable for the correctness of his order and his specifications. Order confirmations must be checked by the customer for correctness immediately upon receipt. Any discrepancies are to be complained about immediately.
The prices stated in our order confirmation are decisive, are in Euro, plus the respective legal VAT. Price lists are subject to change and non-binding, errors or price or printing errors are reserved. Previous prices lose their validity with the publication of a new price list. Unless there are special shipping instructions, we choose the type and route of shipping ourselves. Packaging, freight, postage, customs and insurance are at the expense of the customer. Insurance will only be taken out at the express request of the customer. Packaging will be charged at cost price and will not be taken back. We reserve the right to change prices if the cost price changes up to the date of delivery, especially due to wage and cost reasons or due to changes in public fees, charges and taxes.
Delivery periods shall only be deemed to have been agreed as binding if they have been expressly guaranteed by us in writing as binding. Insofar as delivery periods have been agreed as binding, we shall not be in default without a written reminder from the customer. All delivery periods are subject to the proviso that we ourselves are supplied in good time. Partial deliveries are permissible. The observance of deadlines for deliveries and services requires that all documents, necessary permits and releases to be provided by the customer, in particular of plans, are made available in time, that the customer performs the cooperative acts incumbent on him and that the agreed terms of payment are observed. If these conditions are not met, the delivery period shall be extended accordingly. This shall not apply if we are responsible for the delay ourselves.
If the non-compliance with delivery periods is due to force majeure, e.g. war, riot or similar events, strike, lockout, untimely self-supply by a supplier or similar, the delivery periods shall be extended accordingly. If we are in delay with the delivery, the customer may, if he can prove that he has suffered damage as a result, demand compensation for each completed week of delay of 0.5%, but not more than a total of 5% of the price of that part of the delivery which cannot be put into appropriate operation due to the delay.
Claims for damages on the part of the customer due to delay in delivery and instead of performance which exceed the above-mentioned limits are excluded in all cases of delayed delivery, even after expiry of any deadline set for delivery. This does not apply if we are compulsorily liable due to intent, gross negligence or injury to life, body or health: this does not imply a change in the burden of proof to the disadvantage of the customer. The customer may only withdraw from the contract within the framework of the statutory provisions if we are responsible for the delay in delivery.
Upon request, the customer is obliged to declare within a reasonable period of time whether he withdraws from the contract due to the delay in delivery or insists on the services.
If delivery is impossible, the customer is entitled to claim damages, unless we are not responsible for the impossibility, but the customer’s claim for damages is limited to a maximum of 25% of the net order value of that part of the delivery which cannot be used in time or in accordance with the contract due to the impossibility.
We reserve the right to prove that the damage incurred is lower. The right of the customer to withdraw from the contract remains unaffected. The limitation of our liability in the event of a negligent breach of an essential contractual obligation shall remain limited to the foreseeable damage typical for the contract.
Products are delivered directly to the customer. At the customer’s request, the products will be sent to another destination. Unless self-collection or collection by third parties has been agreed upon and the customer has not given any special instructions, we are entitled to determine the type of shipment ourselves, in particular the transport company, route and packaging.
The risk of accidental loss and accidental deterioration shall pass to the customer upon delivery. If the customer is in default of acceptance, this shall be deemed equivalent to handover. In the case of dispatch of goods, the risk of accidental loss and/or accidental deterioration shall pass to the customer upon delivery to the forwarding agent, carrier or other person or institution designated to carry out the dispatch. If dispatch is delayed at the customer’s request, the customer will be charged the costs incurred by storage, starting one month after notification of readiness for dispatch, but at least 0.5% of the net invoice amount for the month if the goods are stored in our factory.
Unless otherwise agreed, our invoices are due immediately without deduction, unless otherwise agreed in the order confirmation and / or invoice. Upon expiry of this period, the customer shall be in default without the need for a separate reminder. If the customer is in default of payment, the default interest for consumers shall be 5% per annum – points above the respective base interest rate, for non-consumers 8% per annum – points above the respective base interest rate, § 247 BGB. We reserve the right to prove higher interest damages. We reserve the right to refuse cheques or bills of exchange. Their acceptance is always only on account of performance. Discount and bill charges shall be borne by the customer and are due immediately. If the customer defaults on payments in a not inconsiderable amount, we shall be entitled to temporarily suspend or withhold further services from the same legal relationship to which we have committed ourselves and to make all outstanding amounts from this contractual relationship immediately due for payment. In this case, any agreed deadlines or periods for the execution of outstanding deliveries and services shall be null and void for us without the need for a separate notice to this effect.
In justified cases we are entitled to demand advance payment or the provision of security.
The customer shall only be entitled to offsetting if his counterclaims have been legally established or acknowledged by us in writing. Furthermore, the customer may only exercise a right of retention if his claim, on the basis of which he is withholding payment, or is based on the same contractual relationship and is either legally binding or has been recognised by us.
The customer is obliged to examine deliveries and services immediately for completeness and obvious defects, in particular also for obvious shortfalls or damage, and to notify us of this in writing without delay, at the latest within one week after receipt of the delivery or service.
In the case of non-obvious (hidden) defects, the customer is obliged to notify us in writing of these defects after their discovery, at the latest within the period of limitation. Timely dispatch of the respective notice of defects shall be sufficient to meet the deadline. If the customer fails to make the above-mentioned notices of defects, liability for the unnotified defect is excluded. The customer shall bear the burden of proof for the compliance and timeliness of the obligation to give notice of defects as well as for the existence and time of detection of a defect.
The period for liability for material defects is 1 year from the statutory warranty period. This does not apply if the law according to § 438 para. 1 No. 2 (buildings and items for buildings), § 479 para. 1 (right of recourse) and § 634 a para. 1 No. 2 (building defects) BGB (German Civil Code) prescribes longer periods.
We shall be entitled to remedy defects at our own discretion by repair or delivery of defect-free goods.
Claims for defects shall not exist in the case of only minor deviations from the quality, e.g. minor deviations in colour, appearance and dimensions, in the case of not insignificant impairment of usability, in the case of natural wear and tear or damage arising after the transfer of risk as a result of incorrect or negligent handling, excessive strain, unsuitable operating materials, defective construction work, unsuitable building ground or due to special external influences which are not provided for under the contract.
If it turns out that services requested by the customer and provided by us were not necessary as a result of a breach of duty on our part, the customer shall remunerate this service and bear the costs incurred by us.
Claims of the customer for expenses incurred for the purpose of subsequent performance, in particular transport, travel, labour and material costs, are excluded if the expenses increase because the object of the delivery has subsequently been taken to a place other than the place of delivery agreed upon at the time of conclusion of the contract, unless the transfer corresponds to its intended use.
We shall be liable without limitation for intent and gross negligence including our legal representatives or vicarious agents as well as for damages resulting from injury to life, body and health based on a breach of duty for which we, our legal representatives or vicarious agents are responsible.
The same shall apply in the event of intervention of the provisions of the Product Liability Act. However, our liability shall be limited to compensation for foreseeable, typically occurring damage. Even in cases of gross negligence, our liability is limited to the foreseeable damage typical for the contract, if none of the above-mentioned exceptional cases apply. A change in the burden of proof to the disadvantage of the customer is not associated with this regulation. In the event of a breach of duty which is not based on a defect, the customer may only withdraw from the contract if we are responsible for the breach of duty, provided that the other legal requirements are met. Withdrawal is excluded if the breach of duty is insignificant. Our liability for other culpable breaches of material contractual obligations is limited to the amount covered by our business liability insurance.
The above liability provisions shall also apply in favour of our employees and our other vicarious agents.
7. Retention of title
The delivered goods remain our property until they are paid for (reserved goods). However, the customer may sell or process the goods within the scope of his business operations. Any pledging or assignment of these goods as security in favour of third parties is excluded without our consent. In case of seizure of these goods by third parties, the customer must notify the seller immediately. Costs and damages shall be borne by the customer.
In the case of processing and subsequent sale, the following supplement applies:
- The delivered goods remain our property until full payment of our claims against the buyer.
- The authority of the buyer to process and sell goods subject to retention of title in the ordinary course of business ends with the buyer’s suspension of payments or if bankruptcy or composition proceedings are applied for over the buyer’s assets to apply for bankruptcy. In this case, the buyer is obliged to surrender the unprocessed reserved goods upon our first request. We will credit the purchaser for any unprocessed goods subject to retention of title taken back with the proceeds that he obtains from the best possible realisation (§254 BGB). A revocation or a demand for surrender of the unprocessed reserved goods by us does not constitute a withdrawal from the purchase contract.
- Pledging or transfer by way of security of the reserved goods or the assigned claim is not permitted.
- By processing the reserved goods, the buyer does not acquire ownership of the new item in accordance with § 950 BGB. The processing is carried out by the buyer for us without any liabilities arising from this. If the reserved goods are processed, we shall acquire co-ownership of the new object to the amount of the invoice value of the reserved goods that have been processed into the new object..
- The buyer hereby assigns to us the claim from a resale of the reserved goods, also to the extent that the goods have been processed. The assignment is limited to the amount of the invoice value of the reserved goods that have been processed into the new item.
- The buyer will not collect the assigned claims as long as the buyer meets his payment obligations. However, the buyer is obliged to give us the third party debtors on request and to notify them of the assignment. He is entitled to collect the claims himself as long as he meets his payment obligations and the seller does not give him any other instructions.
- The reservation of title shall also remain in force if we include our individual claims in a current account and the balance has been struck and acknowledged, unless the balance has been settled.
- We undertake to release the securities to which we are entitled according to the above provisions at our discretion to the extent that their value, taking into account the value added by the buyer, exceeds the claims to be secured by 10%.
- We must be informed immediately of any attachments, stating the name of the pledgee.
- As soon as he has stopped payments, and immediately after notification of the cessation of payments, the purchaser is obliged to send us a list of the goods still subject to retention of title, even if they have been processed, and a list of the claims against the third-party debtors together with invoice credit notes.
- If there are still goods from previous deliveries, for which the buyer has already acquired ownership, the buyer shall transfer the ownership back to us as soon as new claims arise from our subsequent deliveries. The retention of title expires according to 6 a.
Should we enter into contingent liabilities in the interest of the buyer, e.g. payment by cheque, the extended and expanded reservation of title shall remain in force until we are released from these liabilities.
8. Applicable law, place of jurisdiction
The law of the Federal Republic of Germany shall apply without the reference norms of international private law and excluding the United Nations Convention on Contracts for the International Sale of Goods (CSIG).
As far as the customer is a merchant in terms of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, Siegen is agreed as place of jurisdiction. The same shall also apply in the event that the customer does not have a general place of jurisdiction in Germany. We are, however, also entitled to bring an action at the customer’s place of business.
No subsidiary agreements have been made. Any change or addition to these General Terms and Conditions must be made in writing.
If individual provisions of this agreement are or become ineffective, the effectiveness of the remaining provisions shall be determined by whichever comes closest to the economic purpose of the ineffective provision. Otherwise, the statutory provisions shall apply.