A) General Provisions
Conclusion of contract
Our goods and services will be provided exclusively on the basis of the terms and conditions set out below. These terms and conditions shall also apply to all future business, even if they are not expressly agreed again at a later date. Any terms and conditions proposed by the buyer, which deviate from these terms and conditions and which have not been expressly accepted by us, shall not be binding on us even if we have not expressly rejected them.
Our offers are subject to confirmation. Our declarations shall only be binding if made in writing.
Terms of payment
Unless otherwise agreed, invoices must be paid without the deduction of any cash discounts and in such a manner that the amount due is at our disposal on the due date. The buyer may only offset claims that are undisputed or have been established by final and non-appealable judgment; the buyer may exercise a right to withhold payment only if it is based on the same contractual relationship.
Should the buyer fall into arrears, the seller shall have the right to claim interest at a rate of 8 % above the base interest rate from the time in question.
Should the seller become aware of any circumstances, which cast doubt on the buyer’s creditworthiness, in particular if a cheque is not honoured or the buyer ceases payments, or if there are any other circumstances, which cast doubt on the buyer’s creditworthiness, the seller shall have the right to demand the immediate payment of the whole of the amount still owing to the seller, even if the seller has already accepted cheques. The seller shall also have the right in any such case to demand payment in advance or the provision of security.
III. Crediting of payments
Any contrary directions of the buyer notwithstanding, we have the right to first credit payments for older debts of the buyer, and will inform the buyer of such assignment of a payment. Where costs and interest have already accrued, we shall have the right to first credit the payment against the costs, then against the interest and lastly against the principal amount.
Reservation of title
All goods supplied to the buyer shall remain our property (hereinafter referred to as “reserved goods”) until such time as all claims, to which we are entitled under the contractual relationship, in particular all claims for payment due, have been settled in full. This shall also apply to future and contingent claims, e.g. from promissory notes
Any further processing of the reserved goods shall be deemed to done on our behalf as manufacturer within the meaning of § 950 BGB [German Civil Code], without this giving rise to any further obligations on our part. The goods so processed shall be deemed reserved goods within the meaning of paragraph 1, above.
In the event that the reserved goods are processed, combined or mixed with other goods by the buyer, we shall have co-title to the new item so created in the same proportion as that between the invoice value of the reserved goods and the invoice value of the other goods involved. In the event that our title is lost as a result of the reserved goods being combined, mixed or processed, the buyer hereby already assigns to us rights of title or expectant rights to the new stock or item in the same proportion as that between the invoice value of the reserved goods and the invoice value of the other goods involved, and shall preserve the new stock or item for us free of charge. Our co-title rights shall be deemed reserved goods within the meaning of paragraph 1, above.
The buyer may resell the reserved goods only in the normal course of business, subject to the buyer’s normal terms and conditions of business and as long as the buyer is not in arrears with payment, and providing that the buyer reserves title to the goods and that any claims arising from the resale are assigned to us in accordance with paragraphs 5 and 6, below. The buyer may not dispose of the reserved goods in any other manner. Resale within the meaning of this Section A V. shall also include use of the reserved goods in the performance of contracts for work and contracts for manufacture and supply.
All claims of the buyer arising from the resale of the reserved goods are herewith assigned to us. These claims shall serve as security in the same manner as the reserved goods within the meaning of paragraph 1, above.
If the buyer resells the reserved goods together with other goods, the claim arising from the resale is herewith assigned to us in the same proportion as that between the invoice value of the reserved goods and the invoice value of the other goods. In the event of the resale of goods to which we have co-title, as set forth in paragraph 3, above, that portion of the claim, which corresponds to our co-title share, shall be deemed to be assigned to us.
The buyer is entitled to collect the debts arising from resale unless we revoke the authorisation to collect in the cases set forth in Section A III, paragraphs 3 and 4, above. Upon our request, the buyer shall have a duty to inform his customers immediately of the assignment to us – unless we inform them ourselves – and to furnish us with all information and documents needed for the collection of the debts. In no case may the buyer assign the claims; this also applies to factoring arrangements of any kind, which the buyer is not permitted to enter into, even on the basis of our authorisation to collect claims.
The buyer must immediately inform us of any lien or other encumbrance by any third party.
Should the value of the security existing in our favour exceed the value of the secured claims by more than 10% overall, we shall have a duty, upon request from the buyer, to release security of our choice to the extent of the excess.
Place of performance and jurisdiction
The place of performance and court with exclusive jurisdiction with respect to deliveries and payments (including all legal actions relating to cheques and bills of exchange) as well as for all disputes arising between the parties from or in connection with the contracts concluded between them shall be Essen, provided that the buyer is a registered trader, a legal entity under public law or special fund under public law.
B) Performance of Delivery
Delivery periods, delivery dates
Delivery periods or delivery dates, which may be agreed as being either firm or non-binding, shall only be valid if agreed in writing. Delivery periods shall begin on the date we issue our order confirmation, though not before all of the details of the order have been completely clarified; the same shall also apply to delivery dates.
Should the buyer fail to fulfil its contractual duties, including duties to assist or other ancillary duties in a timely manner, such as the opening of a letter of credit, the furnishing of domestic or foreign certifications, the making of an advance payment or the like, we shall have the right – without prejudice to our rights arising from any delay on the part of the buyer – to reasonably postpone our delivery periods and delivery dates in accordance with the needs of our production schedule.
The date of shipment ex works shall be decisive for the determination of compliance with delivery periods or dates. If, through no fault of our own, it is not possible to ship the goods, delivery periods or dates shall be deemed to have been met if an advice of readiness for shipment is issued in good time.
Dimension, weight, quality
Discrepancies in dimensions, weights or quality are permitted within the scope allowed by EN/DIN or customary practice. Where agreed, the weights determined by our calibrated scales and will be authoritative for invoicing. The weighing record shall be submitted as evidence of weight. Except where individual weighing is customary, the total weight of the shipment shall be valid. Differences with respect to the individual weights shall be distributed proportionately across the whole shipment.
III. Shipment, packaging and transfer of risk
- We normally sell ex works. Delivery duty paid or delivery duty unpaid may be agreed instead. Unless otherwise agreed, we shall select the forwarder or carrier.
- If loading or carriage of the goods is delayed for a reason for which the buyer is responsible, we shall have the right, at our own best discretion and for the cost and risk of the buyer, to store the goods, to take all measures as we may deem appropriate to preserve the goods and to invoice the goods as if they had been delivered. The same shall also apply if goods, which have been advised by us as being ready for ship, are not called up within a period of four days. This shall be without prejudice to the provisions of law relating to delayed acceptance.
- If and insofar as it is customary in the trade, we shall supply the goods packed or protected against moisture, whereby the buyer shall bear the costs.
- In the case of damage during transport, the buyer must immediately arrange for the damage to be assessed by the responsible body.
- The risk shall pass to the buyer as soon as the shipment has either passed into the custody of the person effecting transport or has left our warehouse for purposes of shipment. If the buyer requests delayed shipment, the risk shall pass to the buyer upon issue of the advice of readiness for shipment.
- The products are delivered free of production and material defects. The buyer has a duty to inspect delivered items within a reasonable time of delivery for quality and quantity discrepancies, and to notify the seller of any such defects. A notice of evident defects shall be deemed to have been made in good time if we receive it within 5 working days of the arrival of the goods. A notice of hidden defects shall be deemed to have been made in good time if we receive it within 5 working days of the defect being discovered. Defects must be notified in writing.
- The buyer shall immediately provide us with the opportunity to satisfy ourselves of the defect; in particular and at our request, the buyer shall place the goods concerned or samples thereof at our disposal.
- If the notice of defects is justified, we will take back the defective goods and supply goods, which are in perfect condition in their place. Alternatively, we may also provide a refund for the diminished value. All other claims, including those for compensation or damages on any legal grounds whatsoever, are excluded. However, this shall have no effect on § 276 subsection 3 BGB [German Civil Code]. Should the buyer fail to provide us with an opportunity to satisfy ourselves of the defect, in particular should the buyer fail to make the goods concerned or samples thereof available to us without delay upon request, all of the buyer’s claims for defects shall become invalid.
- After the agreed final inspection procedure has been carried out, any notices of defects, which could have been detected during said final inspection, shall be excluded.
- In the case of goods sold as declassed goods – e.g. so-called II-a goods – the buyer shall have no warranty rights in respect of the defects we indicated or any other defects, which one would normally expect with such II-a goods.
- The foregoing provisions shall also apply in the case of the delivery of goods other than those stipulated in the contract.
C) General Limitation of Liability
- Except in the case of wilful misconduct or gross negligence, all claims for compensation are excluded, regardless of the nature of the breach of duty, including all claims under tort law.
- In the case of breach of material contractual obligations, we may be held liable for any negligence, though only up to the amount of the foreseeable loss or damage. Claims for loss of profit or expenses saved, or arising out of third party claims for compensation or damages, or any other claims for indirect or consequential loss or damages may not be made, except in cases where we warranted a feature specifically in order to safeguard the buyer against such loss or damage.
- The limitations and exclusions of liability contained in paragraphs 1 and 2, above, shall not apply in the case of claims arising as a result of malicious conduct on our part or in the case of liability for a warranted feature, for claims under product liability law, or for claims for loss or damages arising from fatality, personal injury or health impairment.
- To the extent that our liability is excluded or restricted, the same exclusion or restriction shall also apply to the liability of our employees and staff, representatives and agents.
If a buyer based outside of the Federal Republic of Germany (foreign buyer), or its authorised representative collects goods and transports or sends them abroad, the buyer must furnish us with the relevant export certificates, as required for tax purposes. If such evidence is not furnished, the buyer must pay the value added tax on the invoice amount, as applies to sales within the Federal Republic of Germany.
The law of the Federal Republic of Germany shall apply, with the exception of the application of the “United Nations Convention on Contracts for the International Sale of Goods” (signed of 11 April 1980).
Should any of the provisions of these terms and conditions of business or any provision of any other agreement made between the parties be or become invalid, all other provisions or agreements shall remain in effect.