General Terms and Conditions of Sale, Delivery and Payment (T&Cs)
§ 1 Scope
The following General Terms and Conditions of Sale, Delivery and Payment apply exclusively to persons (companies, legal persons under private law or special funds under public law) acting independently in performing their commercial and professional activity when concluding the Contract. The following contractual provisions shall apply exclusively to all offers purchases and deliveries. The Purchaser's general terms and conditions, even when they are known, shall not apply unless their validity has been expressly agreed in writing. On conclusion of the first contract, agreement shall be reached between the Purchaser and ourselves that these conditions shall apply to all subsequent transactions - including those made verbally, particularly by telephone.
§ 2 Quotation and Conclusion of Contract
Our quotations are without obligation in terms of price and delivery option. Orders placed shall not become binding until we have confirmed them in writing. The Customer shall be bound to his order for a period of four weeks after we have received the order. We have the right to refuse to accept the order, for example after examining the Customer's creditworthiness. Any addenda, modifications or ancillary arrangements to orders already placed must be confirmed in writing by us before they become valid. We retain the ownership and copyright to any cost estimates, drawings and other documents of a tangible or intangible nature - including those in electronic form. Such data shall not be disclosed to third parties. Where the written form is demanded in these General Terms and Conditions of Sale, Delivery and Payment, this requirement shall be deemed to have been met if a declaration is made by fax or in electronic form (e-mail).
§ 3 Delivery and Delivery Period
Our written order confirmation shall govern the scope of the delivery. Part deliveries shall be permitted provided this is reasonable for the Customer. If the goods are not held in stock, additional or short deliveries within a range of 10% must be accepted. The type of delivery shall be at our discretion. The delivery period applies from the day of order conformation and is not binding. Delivery periods confirmed in writing presuppose that all of the conditions required of the Purchaser have been fulfilled. If a deadline for delivery thus confirmed in writing is not met, the Purchaser may withdraw from the Contract after setting a reasonable period of notice. Claims for damages on account of delayed delivery shall be ruled out. In the event of industrial disputes or of any unforeseen obstacles which lie outside our sphere of influence or in the event of obstacles for which the manufacturer's plant is responsible, the delivery period shall be extended accordingly.
§ 4 Transfer of Risk and Acceptance of the Goods Delivered
The risk shall pass to the Customer when the goods being delivered are transferred to the forwarding agent, freight carrier or collection agent, and at the latest when they leave our warehouse or the manufacturer's plant. The risk shall also pass to the Customer when the goods being delivered leave our warehouse or the manufacturer's plant even if our own means of transport are being used for the delivery. If the Customer so wishes, the shipment shall be insured by us at his/her expense against breakage and damage due to transport, fire and water. If shipment is delayed for reasons not attributable to any fault on our part, the risk shall pass to the Purchaser from the day on which the goods are ready for shipment.
§ 5 Prices
All prices apply from the address of the delivery company and do not include packaging, freight, postage and insurance of the goods. The goods shall only be insured against any kind of damage on the express written instruction of the Purchaser and at his/her expense. If a period of more than two months separates the order confirmation and delivery, we reserve the right to enforce any price changes due to increases in wages and prices of materials that have occurred in the meantime.
§ 6 Payment
The prices quoted are in euros. Without any reminder or notice of default, the invoice shall be payable as follows: within 8 days from the date of invoice less 3% cash discount, within 20 days from the date of invoice net or by arrangement, if a good credit rating applies. The Purchaser shall not be released from his payment obligation if the goods are delayed at our premises or in transport due to force majeure, the absence of official permits, etc or if they are not accepted immediately by the Purchaser. The settlement of payments in the case of additional outstanding claims shall take place at our discretion. We shall only accept bills of exchange eligible for refinancing with the Bundesbank [German Federal Bank] if they are based upon special agreements and for the purpose of payment. Bills of exchange or cheques shall be credited with effect from the day on which we finally have access to the counter-value. All costs arising from such transactions shall be borne by the Purchaser. In the event of payment delay, the Purchaser shall pay interest on the money owed at a rate of 8 percentage points above the base rate. We reserve the right to demonstrate and demand higher damages for delay caused by the Purchaser. Moreover, all damages resulting from delay shall be reimbursed by the Purchaser. In the case of failure to observe the terms and conditions of payment or if after concluding the Contract we become aware that a claim for payment is jeopardized by a lack of financial capacity on the part of the Customer, we shall have the right to only carry out any outstanding deliveries and services if payments are made in advance or security is provided.
§ 7 Retention of Title
The delivery item remains our property until all claims resulting from the business relationship with the Customer have been fulfilled. If the Customer should breach any of his obligations, particularly in the event of delayed payment, we shall be entitled to demand the surrender of the delivered goods and to withdraw from the Contract even without setting a time limit; the Customer shall be obliged to hand over the goods. The Customer shall have no right to pledge or assign ownership of the delivered goods by way of collateral security. The Customer shall notify us without delay in the case of pledging, seizure or other dispositions taken by third parties. In the event of resale of the goods during normal business operations, the Purchaser shall assign to us all claims receivable in the amount of the invoice value which the Purchaser acquires as a result of the resale to a third-party. We accept the assignment. We reserve the right to make collection of the receivable as soon as the Purchaser fails to duly meet his payment obligations and enters payment default.
§ 8 Defects/Warranty
The Purchaser must inspect the delivered goods immediately with respect to discrepancies in quality and quantity and send us written notification of any discernible defects within a period of one week after receipt of the goods. Written notification of any concealed defects shall be sent to us within a period of one week after their discovery. To be in compliance with this time limit, it is sufficient to post the notification in due time. The Purchaser shall bear the full burden of proof for all claim prerequisites, particularly for the defect itself, for the time of detecting the defect and for the timely notification of the defect. Our warranty obligation shall expire if notification of the defect does not take place within the time limit or if the Purchaser attempts to interfere with the goods. Defects in partial deliveries do not justify cancellation of the entire order or other orders that have been placed or orders that have not been completed. The aforementioned provisions also apply to the delivery of goods other than those covered by this Contract. Material defects are not natural wear and tear but rather the condition of the delivery which differs from that described in the quality agreement as a result of inappropriate handling, storage or assembly, non-adherence to the guidelines in the terms and conditions, inappropriate maintenance, excessive stress or use in breach of the contract. If the goods delivered are defective, we shall be entitled to choose freely whether to deliver a replacement or repair the defect. In order to enable a decision to be made as to whether or not to repair the goods, the Customer is obliged to deliver the goods to us franco domicile and in the original packaging. It is agreed that cancellation of the Contract and reduction of the purchase price as well as any claims for compensation, particularly including those resulting from loss of profit or other subsequent damage, shall be excluded. Instead, the Customer is entitled to demand repairs, and, if this is not possible, to receive a replacement in the form of goods of the same type free from defects. Should we declare that we are unable to repair the goods or offer a replacement delivery, the Customer shall have the right to cancellation. Any additional claims, particularly those for compensation, shall in any case be excluded. The warranty period for entrepreneurs is one year from delivery of the goods.
§ 9 Compensation/Liability
Any claims for damages and reimbursement of expenses, on whatever legal grounds, in particular due to breach of liabilities arising from the contractual obligations or in tort are excluded. This shall not apply in the case of injury to life, limb or health, failure to meet guarantee commitments, liability under the German Product Liability Act or other mandatory legal liability.
§ 10 Right of Set-off and Retention
The Customer may only assert a right of set-off or retention in the case of uncontested or legally established claims.
§ 11 Place of Performance and Jurisdiction
The place of fulfilment for all claims arising from the contractual agreement is Bargteheide. The exclusive place of jurisdiction for all disputes resulting from this Contract is the company headquarters in Bargteheide. This shall also apply to all claims resulting from proceedings relating to bills of exchange and documents. The laws of the Federal Republic of Germany shall apply exclusively between the parties. The UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
§ 12 Partial Invalidity
Should one of the above conditions of supply and payment be or become invalid, this shall not affect the validity of the remaining provisions. The parties shall undertake to substitute the invalid provision by a provision that corresponds most closely to the outcome of the provision to be replaced.
Bargteheide, January 2011