General Terms and Conditions of Sale and Delivery

General Terms and Conditions of Sale and Delivery

1. General: Provisions deviating from the following or the statutory provisions—in particular in the purchaser’s terms and conditions of purchase—are only binding if they have been confirmed by us in writing. The unconditional delivery of goods, provision of services, or acceptance of payments shall not constitute an acknowledgment on our part of deviating provisions.

2. Offers / Contracts: Our offers are subject to confirmation—a contract is only agreed by our written or pre-printed order confirmation or once orders have been executed by us.

Changes, additions, and/or the cancellation of a contract or these conditions require the written form.

Declarations and notifications by the customer after the conclusion of the contract shall only be effective if made in writing.

3. Prices: Unless otherwise agreed, our prices do not include the costs for packaging, insurance, freight, and value-added tax.

4. Payment/setoff: Unless otherwise agreed, the customer must pay the purchase price to us 10 days after delivery of the goods or performance of the service. After expiry of this period, the customer shall be in default per § 286 Para. 2 No. 2 BGB.

The customer may only offset against undisputed or legally established counterclaims.

5. Place of performance: The place of performance for the delivery is Höxter.

6. Shipping/Delivery: Unless otherwise agreed, we ship the goods at the risk of the customer—we determine the shipping method, shipping route, and carrier. Partial deliveries are permissible. Clause 5 remains unaffected.

7. Delivery dates/Delay: If an agreed delivery date is exceeded for reasons for which we are responsible, the customer must grant us a reasonable grace period for delivery in writing. This grace period shall be at least three weeks. If the delivery does not take place after expiry of the grace period and the customer wishes to exercise his right to cancel the contract for the aforementioned reasons or to claim damages instead of service, he shall be obliged to notify us of this expressly in writing beforehand, setting a further reasonable grace period for delivery. At our request, the customer shall be obliged to declare within a reasonable period whether he will withdraw from the contract due to the delay in delivery and/or demand damages instead of service or insist on delivery.

8. Transport insurance: We are entitled to take out appropriate transport insurance on behalf of and at the expense of the customer, amounting at least to the invoice value of the goods.

9. Retention of title: Goods sold remain our property until all claims arising from the business relationship have been settled. If the goods are treated or processed by the customer, our retention of title shall extend to the new object as a whole.

If the customer processes, combines or mixes our goods with other goods, we shall acquire co-ownership in the proportion of the invoice value of our goods to that of the other goods used by the customer at the time of processing, combining or mixing.

If the reserved goods are combined or mixed with a main item of the customer or a third party, the customer hereby assigns to us his rights to the new item. If the customer combines or mixes the reserved goods with a main item of a third party against payment, he hereby assigns to us his claim to remuneration against the third party.

The customer is entitled to resell the goods subject to retention of title within the framework of an orderly business operation. If the customer sells these goods on his part without receiving the full purchase price in advance or concurrently with delivery of the purchased item, he must agree on a retention of title with his customer per these conditions. The customer hereby assigns to us his claims from this resale as well as the rights from the retention of title agreed by him. At our request, he shall be obliged to notify the purchasers of the assignment and to provide us with the information and documents required to assert our rights against the purchasers. The customer is only authorized to collect the claims from the resale despite the assignment as long as he duly fulfills his obligations towards us.

If the value of the securities provided to us exceeds our claims, we shall be obliged to release securities of our choice at the customer’s request. Our assertion of the retention of title shall only constitute withdrawal from the contract if we have expressly declared this in writing beforehand.

10. Force majeure: In the event of force majeure, our delivery obligations shall be suspended; if there is a substantial change in the circumstances existing at the time the contract was concluded, we shall be entitled to withdraw from the contract. The same applies in the event of energy or raw material shortages, industrial disputes, official decrees, traffic or operational disruptions, or if subcontractors do not supply us, do not supply us on time or do not supply us correctly for the aforementioned reasons.

11.  Product information: The information about our products and services is based on extensive research and technical production experience. To the best of our knowledge, we communicate these results, with which we assume no liability beyond the respective individual contract, both verbally and in writing, but reserve the right to make technical changes in the course of product development. However, our product descriptions and information only describe the quality of our products and services and do not constitute a guarantee of quality or durability within the meaning of § 443 BGB unless we have expressly confirmed this to the customer in writing beforehand. However, this does not release the customer from testing our products and processes for their application for his use. This also applies to the protection of third party property rights as well as to applications and procedures.

12. Complaints: All complaints, in particular notices of defects, must be received by us in writing immediately, but at the latest within 10 days after receipt of the goods—in the case of hidden defects immediately, but at the latest within 10 days after their discovery. If the customer fails to notify complaints and notices of defects in good time or the agreed written form, our delivery and service shall be deemed free of defects with regard to the complaint which is not made or is not in the proper form. If the customer accepts our delivery or service with knowledge of a defect, he shall only be entitled to the rights deriving from the defect if he expressly asserts his rights in writing in respect of this defect.
 Furthermore, a material sample of the rejected material (1 kg), as well as a finished part or section and the batch marking (MIK no. – batch no.), shall be sent to us together with the written notification.

13. Liability for defects: The customer may not derive any rights from the defectiveness of our delivery and service if there is only an insignificant reduction in the value or suitability of our delivery and service. If our delivery and service are defective and the customer rightfully complains about this, we shall, at our discretion, either make a subsequent delivery or remedy the defect (subsequent performance). We must always be given the opportunity to do so within a reasonable time frame. If the supplementary performance fails, the customer may withdraw from the contract or reduce the remuneration.

Furthermore, the customer may demand compensation for the expenses necessary for subsequent performance. These are excluded if the expenses increase because the object of the delivery has subsequently been moved to a location other than the customer’s branch office unless the connection corresponds to its intended use.

Statutory rights of recourse of the customer against us shall only exist to the extent that the customer has not entered into any agreements with his customer that go beyond the statutory warranty claims. Concerning the reimbursement of expenses, the above provision shall apply accordingly.

The warranty period for our goods, deliveries, and services is 6 months. This shall not apply if longer periods are prescribed by law per §§ 438 para. 1 no. 2 (buildings and items for buildings), 479 para. 1 (right of recourse) and 634a para. 1 no. 2 (construction defects) BGB.

14. Shortages: In the case of incomplete deliveries or wrong deliveries, or if we violate any other obligation (secondary obligation) in a manner for which we are responsible, the customer shall set us a reasonable deadline in writing for delivery of the missing quantity, for delivery of the goods owed or for elimination of the breach of duty. However, the customer may not derive any rights from insignificant deviations in quantity. More than insignificant shortfalls shall be replenished by us to the extent that this is reasonable for us. Otherwise, we shall issue a credit note.

15. Damages: We shall only be liable for damages, irrespective of the legal basis, in particular due to breach of duties arising from the contractual obligation and tort, if we, our legal representatives or our vicarious agents have acted intentionally or with gross negligence or if the breached duty is of essential importance for achieving the purpose of the contract (cardinal duties). In the event of a slightly negligent breach of cardinal obligations, our liability for damages shall be limited to the foreseeable damage typical for the contract and shall not exceed twice the invoice value of the goods concerned. The exclusion or limitation of liability shall not apply to the extent that we are mandatorily liable in the event of injury to life, body or health or for damage to privately used items in accordance with the Product Liability Act or other reasons. Insofar as the customer is entitled to claims for damages under Clause 15, these shall become time-barred upon expiry of the limitation period applicable to claims for defects under Clause 13.

16. Place of jurisdiction: The place of jurisdiction for both parties to the contract is our registered office (Höxter).

17. Applicable law: The law of the Federal Republic of Germany shall apply to all legal relationships between the customer and us.

18. Trade terms: Where trade terms have been agreed in accordance with the International Commercial Terms (INCOTERMS), the INCOTERMS 2000 shall apply.

19. Additional agreements: For trade partners (dealers) the additions for II. Quality, NT Material / Offgrade are valid.

We kindly ask for special attention:
These conditions are an integral part of our General Terms and Conditions of Sale and Delivery.

20. Partial ineffectiveness: Should individual provisions of these terms and conditions be invalid in whole or in part, this shall not affect the validity of the remaining provisions.

Constituted on January 1st, 2014.