General Terms and Conditions (Status 1/2014)
Our deliveries are made only on the basis of the following conditions. We hereby object to any terms and conditions of the Purchaser to the contrary: they shall also not be recognized if we do not object to them again after receipt by us.
a) Our General Terms and Conditions of Business apply to all deliveries and services that we provide to purchasers and customers.
They shall also apply to all future business relations, even if they are not expressly agreed again. Deviating terms and conditions of our contractual partners that we do not expressly acknowledge shall not be binding for us, even if we do not expressly object to them. The following General Terms and Conditions of Business shall also apply if we are aware of conflicting or deviating terms and conditions of the customer or client and execute the customer’s order or contract without reservation.
b) Our General Terms and Conditions shall only apply to entrepreneurs within the meaning of §310 para. 1 in conjunction with. § Section 14 of the German Civil Code (BGB).
2. conclusion of the contract. Scope of delivery
a) Our offers are subject to change. Delivery contracts, other agreements and ancillary agreements, in particular insofar as they deviate from these terms of delivery and payment, shall only come into effect upon our written confirmation.
b) These terms and conditions shall also apply to sales based on a trade clause, in particular INCOTERMS.
c) The scope of delivery is based on our written confirmation. A reference to DIN regulations, brochures, catalogs, etc. is a description of performance and not an assurance of properties.
a) Our prices are ex works, plus freight. Packing and VAT.
b) If order-related costs change significantly after conclusion of the contract, the Purchaser shall be obliged to give its consent to a corresponding and reasonable adjustment of the prices.
c) Insofar as the contract is based on list prices, the prices valid at the time of delivery shall be deemed to have been agreed, unless. that fixed prices are expressly submitted.
4. Delivery time
a) Delivery periods shall commence on the date of our order confirmation, but not before all details of the execution have been clarified and all other prerequisites to be fulfilled by the Purchaser have been met; the same shall apply accordingly to delivery dates. Deliveries before the expiry of the delivery period and partial deliveries are permissible. The day of delivery shall be the day of notification of readiness for dispatch, otherwise the day of dispatch.
b) Agreed delivery periods and dates shall be extended or postponed by the period without prejudice to our rights arising from default on the part of the Purchaser. by which the customer is in arrears with its obligations.
c) If we are in default, the Purchaser shall set a reasonable grace period, taking into account the product-specific manufacturing features. After expiry of the grace period, the Purchaser may withdraw from the contract to the extent that its performance is of no interest to him. Further claims are excluded.
5. Supply contracts on call
If, in the case of delivery contracts on call, the goods are not called off or scheduled in good time, we shall be entitled, after setting a grace period to no avail, to schedule the goods ourselves and deliver them.
6. Force majeure and other impediments
a) Events of force majeure shall entitle us to postpone delivery for the duration of the hindrance and a reasonable start-up period or to withdraw from the contract in whole or in part due to the part not yet fulfilled. Force majeure shall be deemed to include strike, lockout or unforeseen circumstances, e.g. operational disruptions, rejects and post-treatment, which make it impossible for us to deliver on time despite reasonable efforts; we shall be required to provide proof of this.
b) The customer may request us to declare within 2 weeks whether we wish to withdraw from the contract or deliver within a reasonable period of grace. If we do not make a declaration, the customer may withdraw from the unfulfilled part of the contract. Further claims do not exist.
7. Test procedure, acceptance
a) If the customer wishes. that necessary tests will be carried out by us, he must inform us of this. The type and scope of the tests as well as the cost allocation shall be agreed upon by the time the contract is concluded.
b) If acceptance is desired, the scope and conditions shall be determined by the time the contract is concluded. Acceptance shall take place at the Purchaser’s expense immediately after the Purchaser has been notified of readiness for acceptance at the Supplier’s works. If the acceptance is not carried out, not carried out in time or not carried out completely, we are entitled to dispatch the goods or to store them at the expense and risk of the customer.
8. Dimensions, weights and quantities
a) Deviations in dimensions, weight, number of pieces and quality within the scope of customary tolerances, relevant DIN regulations and product-specific requirements are permissible.
b) The delivery weights and quantities determined by us shall be decisive for the calculation.
Insofar as necessary at our discretion, we shall pack the goods in a manner customary in the trade at the expense of the purchaser. We do not take back the packaging charged at cost price.
10 Shipping and transfer of risk
a) Goods reported ready for dispatch shall be taken over without delay. Otherwise, we shall be entitled, at our discretion, to ship them or to store them at the expense and risk of the customer. One week after the start of storage, the goods are considered delivered.
b) In the absence of special instructions, the choice of the means of transport and the transport route shall be made at our discretion.
c) With the handover to the railroad, the forwarding agent or the carrier or one week after the start of storage, at the latest, however, when the goods leave the factory or the warehouse, the risk shall pass to the customer, even if we have taken over the delivery.
d) We shall take out insurance against transport damage at the express request of the purchaser and at the purchaser’s expense at our best discretion.
11. Terms of payment
a) Unless otherwise agreed, our invoices shall be paid without deduction by the 15th day of the month following the delivery or partial delivery ex works.
b) The Purchaser shall only be entitled to withhold or set off payments due to any counterclaims, including warranty claims, to the extent that undisputed or legally established payment claims exist.
c) We accept discountable and properly taxed bills of exchange on account of payment if this has been expressly agreed in advance. Credit notes for bills of exchange and checks shall be issued subject to receipt less expenses at the value of the day on which we can dispose of the countervalue.
d) In the event of target overruns, interest shall be charged at the rate charged by our principal banks for overdraft facilities, but at least at a rate of 3% above the respective discount rate of the Deutsche Bundesbank.
e) If the terms of payment are not complied with or if facts become known which give rise to justified doubts about the creditworthiness of the customer, all our claims, including those for which we have accepted bills of exchange, shall become due immediately. The same applies to receivables from finished but not yet delivered products and from processed products. In such cases, we shall only be required to perform outstanding deliveries and services against advance payment or security payment and may withdraw from the contract or claim damages for non-performance after a reasonable period of grace.
Furthermore, we are entitled to make use of the option provided for in sec. 13 agreed retention of title, prohibit the resale and processing of the delivered goods and demand their return or the transfer of indirect possession of the delivered goods at the expense of the Purchaser and revoke the collection authorization pursuant to Sec. 13 Revocation The purchaser authorizes us already now to enter his premises in the aforementioned cases, to designate the goods delivered or processed for us as our property and/or to collect the goods. The taking back of the goods shall only constitute a withdrawal from the contract if we expressly declare this.
f) We shall be entitled to set off all our claims against the Purchaser against all claims which the Purchaser establishes against us or those companies in which we directly or indirectly hold a majority interest at any level (§16 of the German Stock Corporation Act (AktG)) at the time of the set-off by way of deliveries or for other legal reasons. The majority shareholdings shall be disclosed to the Purchaser upon request.
12. defects, delivery of goods not in conformity with the contract
a) We warrant the flawless manufacture of the parts delivered by us in accordance with the agreed technical delivery specifications. Decisive for the contractual condition of the goods is the time of the transfer of risk.
b) Defects shall be notified by the Purchaser in writing immediately upon receipt of the goods at the place of destination, hidden defects immediately upon discovery of the defect, but no later than 6 months after transfer of risk.
c) In the event of agreed acceptance pursuant to sec. 6 b) the complaint about defects that could have been detected during the agreed type of acceptance is excluded.
d) We shall be given the opportunity to establish the defect complained of. Goods which are the subject of a complaint must be returned to us immediately upon request. If the purchaser does not comply with these obligations or makes changes to the goods already subject to complaint without our consent, he shall lose any warranty claims.
e) In the event of a justified, timely notice of defect, we shall, at our discretion, repair the defective goods or deliver a faultless replacement. We shall not reimburse dismantling and installation costs or costs for the processing of defective goods by the customer.
f) If we do not fulfill our warranty obligations or do not fulfill them in accordance with the contract, the customer shall be entitled to rescind the contract or reduce the purchase price after expiration of a reasonable grace period with respect to the defective delivery item.
g) Further claims of the customer, in particular claims for compensation for consequential damage caused by a defect, are excluded unless our legal representatives, our management or our executives are guilty of intent or gross negligence with regard to the defect.
h) Warranty claims shall become time-barred 3 months after written rejection of the notice of defects by us, at the earliest upon expiry of the notice period pursuant to b).
i) The above provisions shall also apply in the absence of warranted characteristics and in the case of delivery of goods other than in conformity with the contract.
13 Liability, compensation
a) With regard to the intended use, the Purchaser shall be responsible for proper design/drawing/specification in compliance with any safety regulations. selection of the material and the required test methods, correctness and completeness of the technical delivery specifications and the other technical documents handed over to us as well as for the execution of the production equipment provided. This also applies if changes are proposed by us that meet with its approval.
The customer shall be responsible for ensuring that documents provided by us are only used for the intended purpose and are not published elsewhere, and for ensuring that industrial property rights or other rights of third parties are not infringed on the basis of the information provided by the customer.
b) If a claim is made against us by a third party for compensation of damages, the cause of which lies in the area of responsibility of the customer, the customer shall indemnify us against such claims.
c) All contractual or legal claims not expressly mentioned are excluded, unless our legal representatives, our management or our executive employees are guilty of intent or gross negligence.
This shall apply irrespective of the legal basis of the claims, i.e. in particular for claims arising from positive breach of contract. fault at or after the conclusion of the contract. Default. Impossibility of performance and tort.
14. Retention of title
a) The delivered goods shall remain our property (reserved goods) until all claims, in particular also the respective balance claims, to which we are entitled against the Buyer within the scope of the business relationship have been satisfied.
b) Processing of the goods subject to retention of title shall be carried out for us as manufacturer within the meaning of § 950 BGB (German Civil Code) without obligating us. The processed goods shall be deemed to be goods subject to retention of title within the meaning of para. a).
In the event of processing, combination and mixing of the reserved goods with other goods by the Buyer, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our ownership expires due to combination or mixing, the purchaser shall already now transfer to us the ownership rights to which he is entitled in the new stock or item to the extent of the invoice value of the goods subject to retention of title and shall hold them in safe custody for us free of charge.
Our co-ownership rights shall be deemed to be reserved goods within the meaning of para. a).
c) The Purchaser may resell the Retained Goods only in the ordinary course of business, under its normal terms and conditions of business and as long as it is not in default, provided that it agrees with its customer on a retention of title and that the claims arising from the resale under para. d) and e) pass to us. He shall not be entitled to dispose of the reserved goods in any other way.
The use of the reserved goods for the fulfillment of contracts for work and services and contracts for work and materials shall also be deemed to be a resale.
d) The Buyer’s claims arising from the resale of the goods subject to retention of title shall be assigned to us already now; this shall also apply to the respective balance claims if the resale claim is included in a current account in the amount thereof. The assigned claims shall serve as security to the same extent as the reserved goods.
e) If the reserved goods are resold by the Buyer together with other goods not supplied by us, the claims from the resale or the respective balance claims shall be assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods. In the event of the resale of goods in which we have co-ownership shares pursuant to para. b), a part of the claim corresponding to our co-ownership share shall be assigned to us.
f) The buyer is entitled to collect claims from the resale or balance claims, unless we revoke the collection authorization in the time periods specified in para. 9 e) cases mentioned. At our request, he shall be obliged to inform his customers immediately of the assignment to us – unless we do so ourselves – and to provide us with the information and documents required for collection.
g) The buyer is not entitled to assign the claims in any other way. This also applies to factoring transactions: these are also not permitted to the buyer on the basis of the collection authorization. However, we are prepared to agree to factoring transactions on a case-by-case basis, provided that the countervalue thereof finally accrues to the buyer and the satisfaction of our claims is not jeopardized.
h) In case of breach by the Buyer of the obligation under para. c) we may also demand the return of the reserved goods at the Buyer’s expense, excluding any right of retention. The buyer authorizes us already now to enter his business and to take back the goods subject to retention of title. The redemption is not considered as a withdrawal from the contract.
i) If the value of the existing securities exceeds the secured claims by more than 10% in total, we shall be obliged to release securities of our choice to this extent at the Buyer’s request. The buyer must notify us immediately of any seizure or other interference by third parties.
15 Place of performance and jurisdiction
a) The place of performance for payments is Düsseldorf, for all other obligations the place of the supplying plant.
b) The place of jurisdiction is Düsseldorf, also for actions in bill of exchange and check proceedings. We are entitled to sue the customer at his general place of jurisdiction.
16 Applicable law
The law of the Federal Republic of Germany shall apply exclusively to all legal relationships between the Purchaser and us to the exclusion of the Hague Convention on the International Sale of Goods.
17. Partial invalidity
Should individual provisions of these Terms and Conditions of Delivery and Payment be invalid or void in whole or in part, the contracting parties undertake to agree to a provision by which the meaning and purpose pursued by the invalid or void provision is largely achieved.