1.Scope of Application
If not expressly agreed to the contrary, the following terms and conditions shall be integral parts of all our quotations, deliveries and services and shall be in effect exclusively. They shall also apply for all future business relationships with Client, taking the valid version at the time into account. Client’s deviating terms and conditions of business shall be contradicted to the extent that we do not expressly acknowledge them in writing. At the latest, the acceptance of our commodities shall be deemed acknowledgement of our terms and conditions. These terms shall exclusively be aimed at corporations within the meaning of § 14 German Civil Code. Clients who are not companies within the aforementioned meaning shall expressly notify us thereof.
2. Conclusion of business – Cancellation – Papers
a. Our quotations shall always be none binding. Acceptance of orders and conclusion of agreements shall require written confirmation by us in order to become effective; this shall also apply for alterations and supplements to the individual contract as well as the present terms and conditions of business. The requirement of written form cannot be waived verbally.
b. Orders confirmed by us can only be cancelled with our approval and payment of the following lump-sum cancellation fees: for commodities in stock 35 % / for specially produced commodities 85 % of the value of the commodities.
c. We reserve rights of ownership and copyrights to illustrations, diagrams, calculations and other information. As a matter of principle, all information is to be treated confidentially and exclusively relative to the order and may not be forwarded to third parties without our express written approval.
3. Forwarding of order and client data
We reserve the right to forward order and client data to our suppliers if necessary and in connection with the implementation of the business.
a. In general, prices shall be understood „ex delivery“ warehouse of the commodities, excluding packaging, plus legally valid Value Added Tax. For invoice values of less than 200.00 EUR (net value of commodities without VAT), we reserve the right to charge a surcharge for small-volume orders.
b. We reserve the right to change our prices accordingly if reductions or increases in costs, in particular on the basis of changes of wage or material prices, occur following conclusion of the contract.
c. Invoicing shall be upon dispatch of the commodities or upon dispatch of the notification of readiness for dispatch.
5. Delivery period
a. Generally, delivery dates shall not be binding. Compliance with our obligation to deliver shall presuppose punctual and proper fulfilment of Client’s advance obligations, for example production of the documents/approvals to be procured by it or agreed down-payments. The delivery period shall be deemed complied with if the object of delivery has left the factory or readiness for dispatch has been notified before expiry. If the non-binding delivery date is exceeded, we shall be obliged to implement delivery within a suitable period following receipt of a written reminder from Client.
b. We shall only be liable for delays in delivery and service, also for our representatives and vicarious agents, if we are answerable for them on account of intent or gross negligence. On the other hand, we shall not be answerable for delays in delivery and service based on force majeure and on incidents making delivery/service considerably more difficult or impossible – this in particular including strike, lock-out, lack of raw or ancillary materials, official orders etc., even if they occur with our suppliers or their sub-suppliers, regardless of whether they belong to our group of companies or not. This shall also apply for dates and periods in binding agreements. They shall entitle us to postpone the delivery/service for the duration of the prevention plus a suitable run-up period or to withdraw from the contract partly or totally on account of the part not yet performed.
c. If the prevention lasts for longer then 3 months, Client shall be entitled to withdraw from the contract on account of the part not yet performed following setting of a subsequent period. If the delivery period is extended or if we are released from our obligation, Client cannot derive any claims to damage herefrom.
d. In call orders, the deliveries shall be called within 12 months. Failure to accept within this period shall entitle us to deliver and charge residual quantities in the 13th month without specific request or to cancel pursuant to Section 2b.
e. If delivery is delayed at Client’s request or due to circumstances for which the latter is responsible, commodities reported as ready for dispatch shall be stored at our discretion and at Client’s expense and risk. For storage in the factory, at least 1 % of the amount of the invoice shall be charged for each month. We shall then be entitled to set Client a suitable subsequent period for acceptance and, following its expiry, to dispose of the commodities elsewhere and/or to supply Client with a suitably extended period (possibly, with other similar commodities) or to cancel pursuant to Section 2b.
f. If Client falls into arrears in acceptance or breaches other obligations to involvement, we shall be entitled to demand reimbursement of damage incurred to this extent, including all and any additional expenditure, following fruitless setting of a suitable subsequent period. The right to further claims shall remain reserved. To the extent that the aforementioned conditions are fulfilled, risk of chance destruction or chance deterioration of the commodities shall pass to Client at the point in time at which the latter fell into arrears of acceptance or debtor’s delay. Client’s right to prove that the damage did not even occur or is considerably less shall remain unaffected.
g. We shall be entitled to suitable part deliveries or part services at any time.
a. Deliveries shall be made regularly ex our delivery warehouse. Nature of dispatch and means of dispatch shall be determined by us as expedient.
b. The risk shall pass to Client with the hand-over of the commodities to the haulage contractor, forwarder or other own or outside dispatch person, at the latest when they leave the factory or warehouse. In the event of delay or impossibility of dispatch due to a circumstance for which we are not answerable, the risk shall pass upon dispatch of the notification of readiness for dispatch. Assumption of assembly shall not prevent the passage of risk pursuant to the aforementioned provisions.
c. Insurance against transport damage shall only be concluded upon express written instructions from Client and for its account.
7. Delivery quantities and delivery dimensions
Compared with the order quantity (length, number, weight or similar), an excess or short delivery of up to 10 % shall be admissible if this is justified by the nature of the commodities or the unit of delivery in question. The delivery quantities stated by us shall be decisive for the calculation of the price. Complaints shall be received by us in writing without delay, albeit no later than 10 days after receipt of the commodities. If not, a complaint in this regard shall be ruled out.
a. For the commodities delivered by us, we assume the warranty that they are free from material and manufacturing defects and have the expressly assured properties. An assurance as a contractual property must have been done as such expressly and in writing; apart from this, information of all and any kind shall be non-binding descriptions of the commodities. Our warranty shall not extend to deviations in quality, colour and appearance customary in the trade or technically not avoidable.
b. To the extent that a defect in the commodities for which we are answerable exists, we shall arrange for either remedy of the defect or replacement delivery; the right of choice in this regard shall be with Client as a matter of principle, unless one of the aforementioned possibilities is disproportionate for us. If repeated remedy of the defect or subsequent delivery fails, Client can, at its discretion, withdraw from the contract or demand a corresponding reduction of the price. Further claims, in particular for consequential damage or damage not occurring on the object of delivery itself, shall not exist, except being subject to Section 9 of the present terms and conditions.
c. No warranty is assumed for defects occurring due to unsuitable or improper use, defective assembly or commissioning, defective or negligent treatment, normal wear and tear or other detrimental influences for which we are not answerable. If alterations or repair work are done by Client or third parties on the commodities delivered by us without our prior approval or improperly, all warranty shall be forfeited.
d. Each warranty shall presuppose that Client examines the commodities immediately after receipt and notifies defects in writing without delay. So-called hidden defects shall also be notified without delay after discovery. The precondition for warranty shall additionally be that we are given an opportunity to ascertain the defects ourselves through a representative. Commodities giving rise to complaint shall be stored and treated properly. Returns can only be done with our expressed agreement. Claims to warranty against us shall only accrue to the direct client and shall be non-transferable. The warranty period for new commodities shall be one (1) year starting from the passage of risk, for second-hand commodities it shall be completely ruled out.
9. Limitation of liability
a. Except for injuries to life, limb and health, we shall only be liable to Client for damage occurring to the extent that it is based on intent or gross negligence. In other cases in which we shall be answerable for the damage incurred, especially in cases of breach of essential contractual obligations, liability shall be limited to the foreseeable damage typical for the contract. Further liability for damages shall be ruled out. This shall particularly apply for claims to damages on account of culpa in contrahendo, positive violation of contractual duties or claims from tort. On the other hand, liability on the basis of the mandatory provisions of the Product Liability Act and the Medicinal Products Act and from mandatory provisions connected therewith shall remain unaffected.
b. To the extent that our liability for damages is ruled out or limited, this shall also apply with regard to the personal liability for damage of our salaried employees, workers, fellow-workers, representatives and vicarious agents.
Information on our part with regard to the use of the commodities shall only be deemed as general guidelines. As our commodities can often be used in different ways, Client shall bear the risk of suitability for the intended application as a matter of principle. In this context, we can only regularly give Client assistance regarding application technique.
11. Payment terms
a. As a matter of principle, our invoices for deliveries of commodities shall be due for payment within 30 days, for commissioned work and services rendered within 14 days of the date of invoice cash without deduction. Maturity shall not be postponed by the fact that commodities reported as ready for dispatch are not dispatched through no fault of ours.
b. Cheques and bills of exchange, subject to discountability, shall only be accepted on the basis of specific agreements and on account of performance, all costs and fees being charged. Crediting shall be on the day on which we can freely dispose of the equivalent value; earlier maturity in arrears by Client shall remain unaffected. No liability shall be assumed for punctual presentation, protesting, notification and returning of bills of exchange or cheques not honoured.
c. All payments shall be made without regard for whether Client has examined the commodities or not. Client shall only be entitled to withhold as far as a counterclaim is based on the same contractual relationship. Offsetting shall only be possible with undisputed, acknowledged or legally effective counterclaims. We shall be entitled to offset payments against older debts of Client first and shall inform Client of the nature in such an offsetting. If costs and interest have already been incurred, we shall be entitled to offset the payment against the costs first, then against the interest and finally against the main claims.
d. In arrears in payment, we shall be entitled to demand interest to the amount of 8 % above the basic rate of interest at the time. We reserve the right to claim further default damage. However, Client shall have the right to prove that no or considerably less damage was incurred by us as a result of the arrears in payment.
e. All claims on our parts against Client shall become due for payment immediately, even if cheques have been accepted, if Client stops its payments or falls into arrears in payment, if compulsory enforcement measures are undertaken against it, a ban on payment is enforced, settlement or insolvency is applied for or if securities demanded by us are not provided. Rebates, reductions in price, discounts etc. granted shall be deemed forfeited in such a case; the gross prices to be seen from the invoice shall then be due for payment. In such a case, we shall additionally be entitled to demand advance payments or provision of securities.
f. For part deliveries, payment shall be demanded for each part delivery pursuant to the aforementioned terms.
12. Copyright and industrial protection rights
a. Client shall be obliged to comply with the copyrights and industrial protection rights accruing to us. If not expressly agreed to the contrary, only in the country of our delivery we are obliged to supply commodities free of copyrights and/or industrial protection rights of third parties. Insofar as Client is justifiably sued by third parties on account of copyrights and/or industrial protection rights with regard to the commodities supplied by us and used contractually, we shall take responsibility for this as follows: either we shall amend the object affected at our discretion and at our expense in such a way that a protective right of the third party is no longer breached or we shall supply an adequate replacement object not affected by the protective right. However, if this proves to be a disproportionate mode of procedure for us, we shall withdraw the object and reimburse the purchase price. Claims to damages shall only accrue to Client within the framework of Section 9 and only to the extent that it shall not be answerable for the breach of the protective right. For example, a claim to damages by Client shall also be ruled out if the breach of the protective right is caused by an application not foreseeable for us or by the fact that the object in question is amended by Client or is used together with objects not supplied by us.
b. The prerequisite for the aforementioned mode of procedure shall be notification by Client without delay with regard to the claims being made by the third party and lack of acknowledgement of a breach to the third party and a reservation of all defensive measures and settlement negotiations for us.
13. Retention of title
a. Until receipt of all the payments or satisfaction of all the claims from the business relationship, we shall reserve title to the commodities. Payment shall only be deemed made when we can dispose of the amount. In the event of cheques, payment shall only be deemed made when the cheque has been honoured.
b. In breach of contract by Client, in particular in arrears in payment, we shall be entitled to take the commodities back or to demand cession of Client’s claims of restitution against third parties. Taking the conditional commodities back shall only automatically mean withdrawal from the contract if this is expressly declared in writing. Withdrawal from the contract shall always be entailed in seizure of the commodities by us. Following taking back the commodities, we shall be entitled to utilise them, the profits from the utilisation being offset against Client’s liabilities – less suitable costs of utilisation.
c. Client shall be obliged to treat the commodities carefully; in particular, it shall be obliged to insure them adequately at its own expense against fire, water and theft damage. To the extent that maintenance and inspection work is necessary, Client must carry this out in good time at its own expense.
d. In the event of attachments or other interventions by third parties, Client shall notify us in writing without delay so that we can sue. Insofar as the third party in not in a position to reimburse the judicial and extra-judicial costs to us, Client shall be liable for the damage incurred by us.
e. Client shall be entitled to sell the conditional commodities in the normal course of business as long as it is not in arrears. Pledging or transfers by way of security shall be inadmissible. Client already here and now transfers all claims originating from the sale of the commodities to us to the complete extent. We revocably empower Client to collect the claims assigned to us for its own account and on our behalf. Upon our request, Client shall notify its purchasers of the assigned claims. Over and above this, we shall be entitled to disclose such assignment to Client’s purchasers. We shall be obliged to release the securities accruing to us insofar as the value of the securities exceeds the claim to be secured by more than 10 %; the selection of the securities to be released shall bea matter for us.
14. Place of performance, venue
a. Place of performance for all mutual obligations shall be Münster (Germany).
b. The venue for all disputes directly or indirectly resulting from the contractual relationship shall be Münster (Germany). This agreement on the venue shall also apply for preliminary procedural questions, for suing for damages from tort, suing on account of cheques and bills of exchange. We also reserve the right, if need be, to sue at Client’s general venue.
15. Final provisions
a. Our legal relationships with Client shall exclusively be governed by German law. Validity of the United Nations convention on contracts for international sale of goods (CISG) shall be ruled out.
b. Direct or indirect exportation of our products shall require our written approval.
c. These general terms and conditions are a translation of our German conditions. All rights and duties hereafter shall be determined in a binding manner by the German version, which shall take precedence over the English translation in all cases of doubt and interpretation.