General, Scope of Application
- These General Terms and Conditions of Sale (GTCS) apply to all our business relationships with our customers (purchasers). They are only applicable if the Purchaser is an entrepreneur in the sense of Section 14 BGB (German Civil Code), a legal person under public law or a special asset under public law.
- The General Terms and Conditions of Sale apply in particular to contracts concerning the sale and/or delivery of movable items, irrespective of whether we manufacture these ourselves or purchase them from suppliers. Provided no alternative agreement has been made, the General Terms and Conditions of Sale apply in the version valid at the time the order is placed by the Purchaser, or last communicated to the Purchaser in writing prior to this. They also serve as a framework agreement for similar future contracts even without any explicit reference being required in the individual case.
- Our General Terms and Conditions of Sale apply exclusively. Differing, conflicting or supplementary General Terms of Business of the Purchaser only become a part of the contract if and insofar as we have expressly approved their validity in writing.
- Specific agreements made with the Purchaser on an individual basis (including any amendments, supplements or collateral agreements) always take precedence over these General Terms and Conditions of Sale. Subject to evidence to the contrary, a contract in writing and/or written confirmation from us is decisive with regard to the content of such an agreement.
- Declarations and notifications which are to be made to us by the Purchaser after the contract has been concluded are required in writing in order to be effective.
- References to the validity of statutory regulations are exclusively for purposes of clarification. The statutory regulations are applicable even in the absence of such clarification, provided there has been no direct modification to the General Terms and Conditions of Sale, or the validity of the statutory regulations has not been expressly excluded.
Conclusion of contract
- Our offers are without obligation and non-binding. This also applies particularly if we have provided the Purchaser with catalogues, technical documentation (e.g. drawings, figures, calculations, plans or references to DIN standards), other documents or product descriptions - even in electronic form - to which we reserve the rights of ownership and copyright.
- An order from the Purchaser is considered to be a binding contract offer. Provided no deviations are stipulated in the order, we have the right to accept the contract offer from the Purchaser within two weeks of its receipt.
- Acceptance can be declared either in writing (e.g. by confirmation of order) or by tacit execution of the delivery and service obligations vis-à-vis the Purchaser.
Delivery period and delayed delivery
- The delivery period is always agreed individually with the Purchaser. It does not commence until the Purchaser has provided us with all essential information (e.g. technical details or measurements). Our delivery period, furthermore, does not commence until after the Purchaser has made any agreed prepayments.
- If we are not able to meet binding delivery deadlines due to reasons for which we are not responsible, we will immediately inform the Purchaser of this and simultaneously advise them of the estimated new delivery period. If the service is not performed within the new delivery period, we are entitled to withdraw wholly or partially from the contract. We will reimburse the Purchaser immediately for any reciprocal services already carried out by them.
- Determination of commencement of a delay in delivery is ascertained in accordance with the statutory regulations. A written reminder from the Purchaser is required in each case. If our delivery is delayed, the Purchaser can claim flat-rate compensation for the losses incurred due to late delivery. The flat rate applicable in this case amounts to 0.5% of the net price for each full calendar week of delay. In total, however, it may not amount to any more than 5% of the delivery value of the goods delivered late. We reserve the right to produce evidence to the effect that no damage has been caused to the Purchaser, or that the damage was only of an amount significantly lower than the above flat rate provides for.
- The rights of the Purchaser in accordance with Section 8 (liability agreement), our General Terms and Conditions of Sale and our statutory rights, in particular in the event of exclusion of the duty of performance, shall remain unaffected.
Delivery, acceptance, delayed acceptance and transfer of risk
- Delivery is made ex works, which is also the place of fulfilment for the delivery and any supplementary performance. At the request and cost of the Purchaser, the goods will be sent to a different location to be specified by the Purchaser (sales shipment). Provided no alternative arrangements have been made, we are entitled to decide on the type of shipment (particularly concerning the choice of transport company, shipment route and packaging). If the goods are to be insured against breakage, transport and fire damage, a written request is to be made by the Purchaser for a policy to be concluded at his expense and for his benefit. This request is to be communicated to us in written form by the Purchaser in sufficient time prior to delivery of the goods.
- The risk of accidental loss or accidental deterioration of the goods, as well the risk of delay, is transferred on delivery of the goods to the forwarder, carrier or other person or institution appointed to execute the shipment. At the latest however, it is to be transferred upon handover to the Purchaser.
- If the Purchaser delays acceptance or fails to cooperate, or if a delivery is delayed due to other reasons for which the Purchaser is responsible, we are entitled to demand compensation for damages which ensue as a result, including additional expenditure (e.g. storage or additional transport costs).
Prices and payment conditions
- Unless an alternative agreement has been made in an individual case, the prices valid at the time of conclusion of contract shall apply. These prices are ex works plus statutory VAT but excluding packaging, freight, customs duties and import-related ancillary costs. Our prices are based on the prices of commodities and materials and wages valid on the day the contract was concluded. If verifiable price increases in commodities and materials or wage increases affecting the order being processed are implemented during the period of contract fulfilment, the net price to be paid by the Purchaser will increase in accordance with the increase in price of the individual items concerned, provided there is a period of more than 4 months between conclusion of contract and delivery date. If cost reductions for individual items in this area take place simultaneously during the above-mentioned period, these will be taken into account for the benefit of the Purchaser and offset against the price increases which have been implemented.
- The purchase price agreed in each case is to be paid within 14 days of invoicing and delivery of the goods (with 2% early payment discount) or within 30 days of invoicing and delivery of the goods without deduction. If 2% early payment discount is granted, it is always applied to the delivery price excluding ancillary costs. Nevertheless, even in the course of an ongoing business relationship, we are entitled at any time to request advance payment - entirely or partially - prior to delivery. Any reservations on our part are to be communicated at the time of sending the written confirmation of order, at the latest.
- Upon expiry of the above-mentioned payment period, the Purchaser is in default. Interest is to be paid on the purchase price at the applicable statutory rate during the period of default (Section 288 BGB). We reserve the right to claim additional compensation for any losses caused by the delay. Our right to commercial interest after due date (Section 353 HGB - German Commercial Code) shall remain unaffected by this.
- The Purchaser is only entitled to use the rights of set-off or retention to the extent that his claim is legally enforceable and undisputed. In the case of deficiencies in performance, the reciprocal rights of the Purchaser, particularly in accordance with Section 7 para. 6 sentence 2 (Purchaser's Claims for Defects) of our General Terms and Conditions of Sale, shall remain unaffected.
- Should it become clear after conclusion of the contract (e.g. by means of an application to open insolvency proceedings) that our claim against the Purchaser for the purchase price is endangered on account of the Purchaser's lack of ability to perform, in accordance with statutory provisions we are entitled to refuse performance and - if necessary, after setting a deadline - to withdraw from the contract. In the case of contracts concerning the manufacture of non-fungible items (custom-made to the Purchaser's specifications) we are entitled to withdraw immediately. Statutory regulations concerning the lack of necessity to set deadlines shall remain unaffected by this.
Retention of title
- We retain title to all goods sold until full payment of all our current and future claims arising from the sale contract and any ongoing business relationship with the customer. The goods delivered subject to retention of title may not be pledged to third parties or transferred for purposes of security before full payment of the secured claims. The Purchaser is to inform us immediately in writing if an application to open insolvency proceedings is submitted, or if third parties gain access to the goods belonging to us (e.g. by pledge).
- If the Purchaser behaves in a manner which is in breach of the contract, particularly by non-payment of the due purchase price, in accordance with statutory provisions we are entitled to withdraw from the contract and/or demand return of the goods on the basis of retention of title. A demand for the return of goods does not constitute a declaration of withdrawal; instead we are entitled solely to demand return of the goods and reserve the right to withdraw. If the Purchaser does not perform his duty to pay the due purchase price, we may only enforce the above-mentioned rights after setting a reasonable deadline for payment of the due purchase price without success, or if the setting of such a deadline can be dispensed with in accordance with statutory provisions.
- The Purchaser is authorised to resell and/or process the delivered goods subject to retention of title by us in the ordinary course of business, unless any revocation has been declared in accordance with item c below). The following provisions apply by way of supplement in the event of a resale in the ordinary course of business and/or processing:
- The agreed retention of title extends to the full value of the products following the processing, mixing or combining of our goods, whereby we are to be considered the manufacturer. If, in case of such processing, mixing and combining with their goods, the third party's right of ownership subsists, we shall acquire joint ownership in proportion to the invoice value of the processed, mixed or combined goods. Otherwise the same shall apply for the ensuing products as for the goods delivered subject to retention of title.
- The Purchaser now assigns claims which ensue against third parties from the resale of the goods or produce, either in full or to the amount of any joint ownership share in accordance with the above paragraph, to us. We accept this assignment. Obligations of the Purchaser as regulated in Section 6 Item 2 also apply in consideration of any claims assigned to us. The orderer is to respect any joint ownership rights assigned to us with the diligence of a prudent businessman.
- The Purchaser, as well as ourselves, are authorised to collect the claim. We undertake not to collect the claim as long as the Purchaser duly fulfils his payment obligations to us, there is no lack of ability to perform, and we do not enforce retention of title by means of exercising a right in accordance with Section 6 Item 2 of the General Terms and Conditions of Sale. If this should be the case, however, we may demand that the Purchaser informs us of the assigned claims and the relevant debtors, provides all details required for the collection, hands over all required and associated documents and makes the assignment known to the debtors. Furthermore, in this case we are entitled to revoke the Purchaser's authorisation to resell and process the goods subject to retention of title. We are obliged to issue the revocation in writing.
- If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice upon the request of the Purchaser.
Claims for defects
- Concerning the rights of the Purchaser with regard to material defects and defects of title, statutory provisions shall apply unless otherwise specified below. In all cases the special statutory regulations for final delivery of the goods to a consumer shall remain unaffected.
- Our liability for defects is primarily based on the agreement concluded concerning the condition of the goods. Templates provided by us are non-binding and for inspection only; they contain no binding information on specific properties. Technical values are only approximate guidelines, unless they are expressly assured in writing.
- Unless a particular quality has been agreed, the warranty for defects conforms with the statutory provisions. We assume no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
- Any defect claims made by the Purchaser must comply with the legal obligations for inspection and notification of complaints in accordance with Sections 377, 381 HGB. If a defect is revealed during the investigation or subsequently, we are to be notified immediately of this in writing. Notification is considered immediate if it is made within two weeks; the deadline is deemed to have been met if the notification has been sent in due time. Irrespective of this obligation for inspection and notification, the Purchaser is to provide notification of obvious defects within two weeks of delivery; in this case the deadline is also deemed to have been met if the notification is sent in due time. If the Purchaser fails to carry out the investigation and/or notification of defects in due form, our liability for the defects of which we have not been notified is excluded.
- If the delivered object is defective, we are entitled to choose whether we render subsequent performance by removing the defect or by delivering a defect-free object. Our right to refuse subsequent performance under the legal requirements shall remain unaffected.
- We are entitled to make the prescribed subsequent performance contingent on the Purchaser paying the due purchase price. The Purchaser has the right, however, to retain part of the purchase price which is in proportion to the defect.
- The Purchaser has to give us the time required for and the opportunity to provide the prescribed subsequent performance; in particular he must hand over the goods in question for purposes of examination. In the event of a replacement delivery, the Purchaser is to return the defective item to us in accordance with statutory provisions. Subsequent performance does not involve disassembly of the defective item or new assembly, unless we were initially obliged to perform assembly.
- Necessary costs of examination and subsequent performance, in particular transport, road , labour and material costs, are to be borne by us if a defect actually exists. Otherwise we may request the Purchaser to reimburse us for the costs which ensue from the unjustified defect removal request, unless the lack of defectiveness was not discernible to the Purchaser.
- If subsequent performance has been unsuccessful, or if a reasonable deadline to be set by the Purchaser has expired without success, or if this deadline can be dispensed with according to statutory provisions, the Purchaser is entitled to withdraw from the sale contract or reduce the purchase price on the basis of the existing defect. In the case of a minor defect, a right to withdraw does not exist.
- The Purchaser's claims to damages and/or compensation for wasted expenditure exist only in the case of defects pursuant to Section 8. In all other cases they are excluded.
- Provided nothing to the contrary is stipulated in the General Terms and Conditions of Sale, including the following provisions, we shall be held liable in the case of a violation of contractual and non-contractual obligations in accordance with statutory provisions.
- We are liable for damages - for whatever legal reason - within the scope of liability in tort due to malicious intent and gross negligence. In the case of simple negligence we are only liable, subject to less-strict liability standards, in accordance with the statutory provisions
- a. for damages ensuing from injury to life, limb and health,
- b. for damages ensuing from the significant breach or an essential contractual obligation (in this case an obligation, the fulfilment of which is absolutely necessary to enable proper execution of the contract and in the adherence to which the contractual partner regularly trusts and may be expected to trust). In this case, however, our liability is limited to compensation for damages which are foreseeable and may typically occur.
- Limitations of liability defined in Section 8 Item 2 also apply to breaches of duty by and/or to the benefit of persons for whose negligence we are responsible under statutory provisions. They are not applicable if we concealed a defect fraudulently or accepted a guarantee for the condition of the goods, and for claims of the Purchaser in accordance with the Product Liability Act.
- In the case of of a breach of duty which is not a defect, the Purchaser is only entitled to withdraw if we are responsible for said breach of duty. Free right to terminate on the part of the Purchaser is excluded. In all other cases the statutory requirements and legal consequences shall apply.
Industrial property rights
- The orderer assures that the manufacture and delivery of objects prepared in line with details provided by him do not infringe on the industrial property rights of third parties. The orderer is obliged to release us from any compensation claims by third parties. In the event of third parties enforcing industrial property rights, we are entitled - without any examination of the legal situation - to withhold deliveries and services until the legal situation is clarified, and demand payments of the proportional delivery price.
- Costs of forms (e.g. tools, models), which have to be produced in order to carry out orders from the orderer and/or which are produced for us by third parties, are to be borne by the orderer. We will notify the orderer of the respective costs prior to conclusion of the contract.
- Forms are retained and stored by us for any repeat orders from the orderer for a period of one year. Storage costs are borne by us. Our duty of retention expires if the orderer does not reclaim the forms within one year. Our negligence liability concerning the retained forms is restricted to consideration of due diligence.
- During the one-year storage period the orderer has the right to reclaim the forms at any time. In such a case the stored forms may be collected by prior arrangement. Furthermore, it is possible for the forms to be sent to an address provided by the orderer if requested. In this case, the orderer is obliged to bear the costs for packaging and transport. The forms will only be insured against transport damages if the orderer requests. Costs which ensue from packaging, transport and insurance are to be borne by the orderer and will be invoiced separately.
- If the orderer does not request release of the forms within the above-mentioned one-year period, ownership of the forms is transferred to us. In this case we are able to decide if the forms are to be further retained or destroyed.
- In deviation from Section 438 I No. 3 BGB, the general limitation period for claims ensuing from defects in quality and title is one year from delivery. If an acceptance has been agreed for an individual contract, limitation commences with the acceptance.
- If the goods in question comprise a construction or an object which has been used as part of a structure in keeping with its usual manner of use and this has caused its defectiveness, the limitation period amounts to five years from delivery in accordance with the statutory regulation. Furthermore the additional statutory agreements concerning limitation shall remain unaffected.
- The above-mentioned limitation periods in accordance with sales law also apply for contractual and non-contractual compensation claims of the Purchaser based on a defect of the goods, unless the application of standard statutory limitation would lead to shorter limitation in an individual case. Claims for damages by the Purchaser, in accordance with Section 8 II, sentence 1, sentence 2 lit. A as well as the Product Liability Act, however expire exclusively in accordance with statutory limitation periods.
Choice of law and place of jurisdiction
- Our General Terms and Conditions of Sale and the contractual relationship between us and the Purchaser are subject exclusively to the law of the Federal Republic of Germany under exclusion of international uniform law, in particular the United Nations Convention on Contracts for the International Sale of Goods (CISG).
- If the purchaser is a businessman within the meaning of the German Commercial Code, a legal person under public law or a special asset under public law, the sole place of jurisdiction - also in an international context - for all indirect or direct disputes arising from our contractual relationship is our head office in Gütersloh. The same applies if the Purchaser is an entrepreneur in the sense of Section 14 BGB (German Civil Code). We are entitled in all cases, however, to file a lawsuit at the place of fulfilment for the delivery obligation in accordance with these General Terms and Conditions of Sale and/or an overriding individual agreement, or at the general place of jurisdiction of the Purchaser. Overriding statutory provisions, particularly those relating to exclusive competences, shall remain unaffected.