1. The General Terms and Conditions of Business (hereinafter: “Terms of Sale”) apply for all our business relationships with our customers (hereinafter: “Buyers“). The Terms of Sale only apply if the Buyer is an enterprise (§ 14 German Civil Code), a legal entity under public law or a special fund under public law.
2. The Terms of Sale apply especially for contracts for sale and/or delivery of movable goods including contract production and external production regardless of whether we produce the goods ourselves or purchase them from suppliers (§§ 433, 650 German Civil Code).
3. Unless agreed otherwise, the Terms of Sale in the version last communicated in text form to the Buyer also apply as framework agreement for similar future agreements, and it is not necessary to indicate this again for each order.
4. Only our own Terms of Sale apply; any differing, contradictory or supplementary General Terms and Conditions of Business of the Buyer only become an integral part of the contract to the extent that we expressly agree to their applicability. This requirement for consent applies in all cases, in particular even if we carry out the delivery to the Buyer without reservations in knowledge of the Buyer’s General Terms of Business
5. Individual arrangements made in an individual case with the Buyer (including collateral agreements, addenda and amendments) always take precedence to these Terms of Sale. For the content of this type of individual agreements however, subject to evidence of the contrary, a written agreement or our written confirmation is decisive.
6. References to the applicability of legal regulations only serve for purposes of clarification. Hence, the legal regulations apply even without this type of clarification, unless they are directly modified or expressly excluded in these Terms of Sale.
Legally relevant statements and announcements of the Buyer regarding the Agreement (e.g., setting of deadlines, notices of defects, withdrawal or price reduction) must be submitted in writing, i.e. in written or text form (e.g. letter, email, fax). Legal form requirements and additional evidence, especially in cases of doubt regarding the legitimation of the declarant, are not affected by this.
1. Our quotations are - after the offer acceptance deadline, if any, has expired - subject to change and non-binding.
2. The order of the goods by the Buyer is considered a binding offer for an agreement. Unless the order stipulates otherwise, we are entitled to accept this offer within 14 days after receipt by us. The acceptance can be communicated to the Buyer either in writing (for instance through order confirmation) or through delivery of the goods to the Buyer.
1. Unless otherwise agreed, our current prices at the moment of the conclusion of each contract apply, and they apply ex stock plus legally required VAT. When goods are sent, the Buyer pays the transport costs ex stock and the costs of transport insurance if the Buyer so desires. Any customs, fees, taxes and other public levies are paid by the Buyer.
2. The purchase price - subject to agreements made to the contrary in individual cases - is due and payable within 30 days of invoicing and delivery or acceptance of the goods. In spite of this, we are entitled at any time - even under current terms and conditions of business - to make a delivery, in full or in part, only in exchange for advance payment; this type of condition is stated at the latest on confirmation of the order.
3. When this payment deadline expires, the Buyer is in default with no need of separate overdue notice. The purchase price accrues interest during delay at the legal interest rate applicable at any time. We reserve the right to claim more extensive damages due to delay. Our claim to commercial maturity interest from businesspeople (§ 353 German Commercial Code) is not affected by this.
4. The Buyer is only entitled to offset or retain title if its claim is legally established or undisputed by us. In the event of defects in delivery, the Buyer’s counterclaims - especially pursuant to § 7 Para. 6 Sentence 2 - are not affected by this.
5. If after conclusion of the contract it becomes obvious (for instance due to application to open bankruptcy proceedings), that our claim to the purchase price is jeopardised by the Buyer’s lack of solvency, then we are entitled pursuant to legal regulations to withhold service and - when applicable after setting a deadline - to withdraw from the contract (§ 321 German Civil Code). For contracts regarding the production of custom-made items, we can declare our withdrawal immediately; legal regulations on dispensing with setting a deadline are not affected by this.
1. Deliveries are made from the warehouse; this is also the place of performance for the delivery and possible subsequent performance. At the Buyer’s request and expense, we send the goods to another specified location (sale to destination). Unless otherwise agreed with the Buyer, we are entitled to determine the method of shipment ourselves (especially, transportation company, shipping route, packaging).
2. The risk of accidental destruction or deterioration of the item is passed on to the Buyer at the latest on delivery. For the case of shipping however, the risk of accidental destruction or deterioration of the goods and the risk of delay is passed on to the shipper, freight carrier or other person or entity designated to handle sending when the goods are dispatched. This also applies if carriage-free delivery to construction site or to warehouse has been agreed.
3. If an approval inspection has been agreed, then this is decisive for passing of risk. The legal regulations for work and service contracts also apply accordingly in other respects to an agreed approval inspection. This applies equally to handover and approval inspection if the Buyer delays acceptance.
4. If the Buyer delays acceptance, fails to take a collaborative measure or if our delivery is delayed for other reasons not attributable to the Buyer, then we can claim compensation for the damages arising from this including additional costs, especially warehouse costs, starting from the delivery deadline or - if there is not delivery deadline - with the notice that the goods are ready for shipment. We calculate an all-inclusive compensation for this amounting to 0.2% of the invoiced value for each month or part of a month of delay, but at maximum 5% of the invoice amount, starting from the delivery deadline or – if there is no delivery deadline – on notification of readiness of the goods for dispatch. Evidence of higher damages and our legal claims (especially reimbursement of additional costs, reasonable compensation, cancellation) are unaffected by this; the all-inclusive amount must be credited to more extensive monetary claims however. The Buyer has the right to demonstrate that no damages or only significantly lower damages than the all-inclusive sum stated above have been incurred by us.
1. The delivery deadline is agreed individually and stated by us when the order is accepted.
2. If we are unable to comply with binding delivery deadlines for reasons not attributable to us (unavailability of the service), then we notify the Buyer of this immediately and at the same time indicate the foreseeable new delivery period.If the service is not available within the new delivery period, then we are entitled to withdraw from the contract, either entirely or partially; we will reimburse any return service already performed by the Buyer in a timely manner. Late self-delivery by our suppliers is considered an instance of unavailability of the service in this sense if we have concluded a congruent supply arrangement with our supplier and in so far that neither we nor our supplier is at fault or we are not obligated to procurement.
3. The start of our delay in delivery is determined according to legal provisions, although in all cases it requires that the Buyer give notice of the delay.
4. If we incur delays in delivery, then the Buyer is entitled to demand a lump sum in compensation for his damages due to delay. The lump sum for damages comes to 0.2% of the net price for each week of delay, up to a maximum total of 5% of the delivery value of the goods delivered late. We reserve the right to demonstrate that no damages or only significantly lower damages than the all-inclusive sum stated above have been incurred by the Buyer.
5. The Buyer’s rights pursuant to § 8 of these Terms of Sale and our legal rights, especially if a performance obligation is excluded, for instance due to impossibility or unreasonableness of the performance and/or subsequent performance are not affected by this.
1. We retain the title to the goods sold until payment in full of all our present and future claims derived from the purchase contract and from an ongoing business relationship (secured claims).
2. The goods subject to retention of title cannot be pledged or transferred as collateral to third parties before settlement in full of the secured claims. The Buyer is obligated to notify us promptly in writing if an application has been made to open insolvency proceedings or if third parties seize the goods belonging to us (for instance as pledges).
3. The Buyer is entitled - until revocation pursuant to no. (c) - to resell and/or further process the goods subject to retention of title in the normal course of business. In such a case:
a. The retention of title extends to the products created through processing, mixing or combination of our goods to the entire value of these; in this case, we are considered the producer. In the event of processing, mixture or combination with goods of third parties who continue to have ownership, we acquire a co-ownership in the proportion of the invoice values of the goods processed, mixed or combined. In other respects the same applies to the product created as to the goods delivered subject to retention of title.
b. The Buyer hereby assigns to us as collateral any claims against third parties arising from resale of the goods or the product in their entirety or in the amount of our possible share of co-ownership pursuant to the preceding paragraph. We accept this assignment. The Buyer’s obligations mentioned in Para. 2 also apply with respect to the claims assigned.
c. The Buyer is entitled, as we are, to collect debts. We commit not to collect the debt as long as the Buyer meets its payment obligation to us, it is not insolvent and we do not assert retention of title by exercise of a right pursuant to Para. 3. However if this is the case, we are entitled to demand that the Buyer disclose the claims assigned to us and their respective debtors, provide all information necessary for collection, distribute the associated documents and notify the debtors (third parties) of the assignment. Moreover in this case we are authorised to revoke the Buyer’s right to resell or further process the goods subject to retention of title.
d. On request of the Buyer we release the items held as collateral of our choice if the recoverable value of the items held as collateral exceeds our claim.
1. Unless otherwise stipulated, the legal regulations apply for the Buyer’s rights in the event of material defects or defects in title. In any case, specific legal provision for final delivery of unprocessed goods to a consumer are not affected by this, even if the consumer has further processed them (recourse against suppliers pursuant to §§ 478 ff. German Civil Code). If defective goods are processed further by the Buyer or by another company, for instance by incorporation into another product, then claims of recourse against suppliers are excluded.
2. The agreement on the quality of the goods constitutes the basis for our liability for defects. All product descriptions and manufacturer information that are the subject of an individual contract or that had been disclosed publicly at the time of conclusion of the contract are considered as an agreement regarding quality.
3. If the quality has not been agreed, then the existence of a defect is determined pursuant to the legal regulations of § 434 Para. 1 Sentences 2 and 3 German Civil Code. We do not accept any liability for public statements of the manufacturer or other third parties (such as advertising statements) unless the Buyer has indicated to us that these have led to his decision to buy.
4. As a rule, we do not accept liability for defects that the Buyer is aware of or is unaware of due to gross negligence, when concluding the contract. The Buyer’s claims for defects can only be asserted if the Buyer has complies with its legal obligations of inspection and notification of defects (§§ 377, 381 German Commercial Code). In the case of construction materials and other goods intended for installation or other further processing, an inspection must be carried out in all cases immediately before processing. If a defect is detected on delivery, on inspection or at any later time, then the Buyer must notify us of this promptly in writing. Obvious defects must be reported in writing within 5 working days from delivery, and defects not detectable on inspection must be reported within the same period from discovery. If the Buyer fails to perform the proper inspection and/or notification of defects, then our liability for the defect not reported or not reported on time or in the proper manner is excluded pursuant the legal regulations.
5. In the event of defectiveness of the delivered item, we can initially choose between subsequent performance by repairing the defect (rectification) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under legally required conditions is not affected by this.
6. We are entitled to make the subsequent performance owed dependent on the Buyer’s payment of the purchase price that is due. The Buyer can however retain a portion of the purchase price that is proportional to the defect.
7. The Buyer must allow us the time and opportunity required for the subsequent performance owed, in particular to transfer the goods subject to complaints for purposes of testing. In the event of replacement delivery, the Buyer must return the defective item to us in accordance with legal regulations.
8. Subsequent performance does not include disassembly of the defective item nor installation of the replacement delivery unless we were originally obliged to install it. The costs required for testing and subsequent performance, especially transportation, infrastructure, labour and material costs, as well as disassembly and installation costs, are paid or reimbursed by us pursuant to legal regulations, if a defect actually exists. Otherwise we are entitled to claim compensation from the Buyer for unjustified requests to remedy defects (especially testing and transportation costs). The latter does not apply if the absence of defects was not detectable for the Buyer.
9. If subsequent performance has been unsuccessful or a deadline for subsequent performance has lapsed without results or deadline-setting can be dispensed with according to legal regulations, then the Buyer can withdraw from the purchase contract or implement a price reduction. There is no right to withdrawal in the case of an insignificant defect.
10. The Buyer’s claims to compensation for damages or compensation of needless expenses only apply in the event of defects pursuant to § 8; in other respects such claims are excluded.
1. Unless otherwise stipulated in these Terms of Sale or in the subsequent provisions, we are liable for breach of contractual and extra-contractual obligations in accordance with legal regulations.
2. We are liable for compensation for damages – independently of the respective legal basis – in the context of liability for fault in cases of wilful intent and gross negligence. In cases of simple negligence, we are liable, without prejudice to legal limitations on liability (for instance diligence in own affairs or insignificant breach of obligations), only
a) for damages based on injury to life, body or health,
b) for damages based on breach of an essential contractual obligation (any obligation that must be performed to make proper performance of the contract possible in the first place and on the fulfilment of which the contractual partners regularly rely and may rely); in this case, our liability is limited however to compensation of foreseeable, typically occurring damages.
3. The limitations on liability derived from Para. 2 also apply with respect to third parties and when obligations are breached by individuals (including for their own benefit) for whose misconduct we are responsible pursuant to legal regulations. They do not apply if a defect was concealed fraudulently or a quality guarantee was extended for the goods, nor do they apply to the Buyer’s claims pursuant to the German Product Liability Act.
4. The Buyer can only withdraw from or cancel the contract due to a breach of obligations if the breach of obligations is attributable to us. An unrestricted right of cancellation for the Buyer (in particular pursuant to §§ 650, 648 German Civil Code) is excluded. In other respects, the legal requirements and consequences apply.
1. In deviation from § 438 Para. 1 no. 3 German Civil Code, the general limitation period for claims due to material defects and defects in title is one year from delivery. If an acceptance inspection is agreed, then the limitation period begins with the acceptance inspection.
2. If the goods consist of a construction or an item that is usually utilised for a construction and if the goods have caused the construction to be defective (construction material), then the limitation period is for 5 years after delivery pursuant to legal regulations (§ 438 Para. 1 no. 2 German Civil Code). This likewise does not affect other specific legal regulation on limitation periods (especially § 438 Para. 1 no. 1, Para. 3, §§ 444, 445b German Civil Code).
3. The limitations periods under sales law mentioned above also apply to the Buyer’s contractual and extra-contractual claims to compensation for damages based on a defect in the goods unless the application of the ordinary legal limitation period (§§ 195, 199 German Civil Code) would lead to a shorter limitation period in the individual case. The Buyer’s claims to compensation for damages pursuant to § 8 Para. 2 Sentence 1 and Sentence 2(a) and to the German Product Liability Act lapse only in accordance with the legal limitation periods.
1. For these Terms of Sale and for the contractual relationship between us and the Buyer, the law of the Federal Republic of Germany applies.
2. If the Buyer is a businessman, entrepreneur, legal entity under public law or a special fund under public law, then the exclusive [jurisdiction] for all disputes arising directly or indirectly from the contractual relationship is our registered office in Hattingen. In spite of this, we are also entitled to file claims at the place of performance of the delivery pursuant to these Terms of Sale, or to an individual agreement that takes precedence, or at the Buyer’s general jurisdiction. Legal provisions that take precedence to this, especially regarding exclusive jurisdiction, are not affected by this.