General Terms and Conditions of Sale and Delivery
1. General Information: Provisions deviating from the following or the statutory provisions – in particular, such contained in the buyer’s terms of purchasing – shall be binding on us only if they have been confirmed by us in writing. The unconditional delivery of products or performance of services or acceptance of payments shall not be construed as our acceptance of deviating terms.
2. Quotations/Contracts: Our quotations are subject to change; a contract will be effectively concluded only by our purchase order confirmation given in writing or on a form or by our performance of purchase orders.
Changes, additions and/or the cancellation of a contract or of these terms require the written form.
Declarations and notifications from the buyer after the signing of the contract shall be valid only if they are given in writing.
3. Prices: Unless agreed otherwise, our prices do not include the costs for packaging, insurance, freight or value added tax.
4. Payment/Offsetting: Unless agreed otherwise, the buyer shall pay the purchase price 10 days after delivery of the products or performance of the service. After expiration of the period, the buyer will be in default according to Sec. 286 (2) no. 2 BGB [German Civil Code].
The buyer may only offset payment against undisputed counterclaims or counterclaims established as final and absolute.
5. Place of Performance: The place of performance for the delivery is Höxter.
6. Shipment/Delivery: Unless agreed otherwise, we shall deliver the products at the buyer’s risk while we shall determine the type and route of dispatch and the carrier for the delivery. Part deliveries are permissible. Section 5 remains unaffected.
7. Delivery Dates/Delay: If an agreed delivery deadline is missed for reasons at our fault, the buyer shall set an appropriate grace period for delivery in writing to us. This grace period shall be at least three weeks. If the delivery does not take place after expiration of the grace period and if the buyer intends to exercise its right to reverse the contract for the aforementioned reasons or if it demands damage compensation in lieu of performance, it shall be obligated to expressly notify us before then in writing, setting an appropriate further grace period with a request to make the delivery. The buyer is obligated to declare on our request within an appropriate period whether it will withdraw from the contract because of the delay of delivery and/or if it intends to demand damage compensation in lieu of performance or insists on the delivery.
8. Transport Insurance: We are authorized to purchase appropriate transport insurance on behalf and at the cost of the buyer, which shall provide cover at least in the amount of the invoice value of the products.
9. Reservation of Title: Sold products shall remain our property until all receivables under the business relationship are settled. If the products are treated or processed by the buyer, our reservation of title shall apply to the entire new object.
In the event of a processing, combination or mixing with external objects by the buyer, we shall acquire the co-ownership in the new object at the same proportion as rate of our product’s invoice value to the other object used by the buyer at the time of the processing, combining or mixing.
If the products subject to the reservation of title are combined or mixed with a main object of the buyer or third parties, the buyer shall moreover transfer to us all its rights in the new item on the present day already. If the buyer combines or mixes the products subject to the reservation of title with a main object of third parties, it hereby assigns to us its claims for compensation against the third party on the present day already.
The buyer has the right to resell the products subject to the reservation of title in the course of ordinary business. If the buyer sells these products on its part, without receiving the complete purchase price in advance or step-by-step against the transfer of the purchased item, it shall agree a reservation of title with its customer that is consistent with these terms. The buyer assigns its claims arising from this resale and its rights arising from the agreed reservation of title to us on the present day already. It shall be obligated on our request to disclose the assignment to its own buyers and provide us with the required information and documents that are needed for the assertion of our rights against its buyers. The buyer shall be authorized to collect the receivables for the resale, in spite of the assignment, only for as long as it duly satisfies its liabilities to us.
If the value of the securities provided to us exceeds the value of our receivables, we shall be obligated to release securities at our choice on request by the buyer. An assertion of the reservation of title by us shall constitute a withdrawal from the contract only if we have expressly declared this previously in writing.
10. Acts of God: On occurrence of acts of god, our delivery obligations shall be suspended; if a significant change arises in the conditions existing on the signing of the contract, we shall be entitled to withdraw from the contract. The same applies in the event of energy or raw materials shortages, labor disputes, orders by authorities, traffic congestions or operating failures, or if we do not receive deliveries from subcontractors for the aforementioned reasons or if we receive deliveries from them late or not in the proper form.
11. Product Specifications: Our statements regarding our products and services are based on comprehensive research work and experience with production technology. We explain these results for which we do not accept any liability beyond the individual contract, verbally and in writing to the best of our knowledge, meanwhile we reserve making technical changes in the course of the product development. Our product descriptions and specifications, however, describe only the features of our products and our services,
and they do not constitute any guarantee of properties and condition or durability in the definition of Sec. 443 BGB [German Civil Code], unless we have expressly confirmed this previously in writing to the buyer. However, this shall not release the user from the obligation to itself inspect our products and procedures as to their application for the buyer’s own use. This also applies regarding the protection of the proprietary rights of third parties and for applications and methods.
12. Complaints: All complaints, in particular notices of defect, must be received in writing by us without delay, whereas at the latest within 10 days after receipt of the products (in case of hidden defects they must be received without delay, whereas at the latest within 10 days upon their discovery). If the buyer does not notify of the complaints and defects on time or not in the agreed written form, our delivery and performance shall be deemed defect-free with regard to the complaint not made or not in compliance with the requirements of form or the defect not notified on time or not in compliance with the requirements of form. If the buyer accepts our delivery or performance in awareness of a defect, it shall be entitled only to the rights that can be derived from the defectiveness, unless it expressly reserves its rights as relates to this defect in writing.
In addition, a material sample of the complained material (1 kg) and one finished part or offcut and the package identification (MIK number – batch number) shall be enclosed with the written notification.
13. Liability for Defects: The buyer cannot derive any rights from the defectiveness of our delivery and performance, insofar as merely an insignificant reduction of the value or usefulness of our delivery of performance is present. If our delivery and performance is defective and rightly complained by the buyer accordingly, we shall make a new delivery or perform reworking at our choice (subsequent performance). We shall be granted the opportunity to do so within an appropriate period in all cases. If the subsequent performance fails, the buyer may withdraw from the contract or reduce the payment.
In addition, the buyer may demand a refund of expenses required for the purpose of the subsequent performance. These are excluded if the expenses increase because the object of delivery has been transported in retrospect to a place other than the buyer’s establishment, unless the transport is consistent with the object’s intended use.
The statutory recourse claims of the buyer apply against us only provided that the buyer has not concluded any agreements with its own buyers, which goes beyond the statutory warranty claims. The foregoing provision applies analogously to the refund of expenses.
The warranty period for our products, deliveries and performances is 6 months. This does not apply if the law prescribes longer periods under Sec. 438 (1) no. 2 (buildings and objects for buildings), Sec. 479 (1) (recourse claim) and Sec. 634a (1) no. 2 (construction defects) BGB.
14. Shortfalls: In case of incomplete or incorrect deliveries or if we breach another duty (collateral duty) in a manner that is within our responsibility, the buyer shall set us an appropriate grace period in writing for the delivery of the shortfall, the delivery of the owed products or the remedy of the breach of duty. However, the buyer cannot derive any rights from insignificant shortfalls. We shall make a subsequent delivery for more than just insignificant shortfalls where this is reasonable. Otherwise, we shall grant credit.
15. Damage Compensation: We shall be liable for damage compensation, regardless of the legal reason, in particular, for a breach of duty under the contractual obligation and for tortious act, insofar as we, our legal representatives or our vicarious agents have acted with intent or gross negligence, or if the breached duty is essential for reaching the purpose of the contract (cardinal duties). In cases of simple negligence of cardinal duties, our liability for damage compensation shall be limited to the predictable damage that is typical for the contract and it shall amount to at most twice the invoice value for the products in question. The liability exclusion or liability limitation shall not apply if we are invariably liable pursuant to the Product Liability Act in the event of injury to life, body or health or for damages caused on privately used items or for other reasons. If the buyer is entitled to damage compensation claims pursuant to this Section 15, these shall expire on expiration of the limitation period applicable to warranty claims according to Section 13.
16. Place of Jurisdiction: The place of jurisdiction for both Parties is generally agreed to be the place of our registered office (Höxter).
17. Applicable Law: All legal relationships between the buyer and us are governed by the law of the Federal Republic of Germany.
18. Commercial Terms: If commercial terms pursuant to the International Commercial Terms (INCOTERMS) are agreed, the INCOTERMS 2000 apply.
19. Additional Agreements: The supplementing terms for second quality, NT material/off-grade items apply to commercial partners (dealers).
Please be sure to note:
The present terms are an integral part of our General Terms of Sale and Delivery.
20. Partial Invalidity: If individual provisions of these Terms and Conditions should be or become fully or partly invalid, the validity of the remaining provisions shall not be affected thereby.
Constituted on January 1st, 2014.