1. General considerations
The following General Terms and Conditions of Sale and Delivery are integral to the Purchase Agreement. Terms and conditions of purchase of the buyer that conflict with our Terms and Conditions shall be binding upon us only if we have explicitly agreed to them in writing in a particular instance.
Our offers are subject to change with regard to pricing, quantity, delivery timeline and delivery options.
We shall deliver all orders as quickly as possible. However, there are no fixed delivery timelines. In the event that a fixed delivery timeline has been agreed in exceptional instances, the buyer shall be obligated to grant us a suitable grace period in the instance of a delay in delivery.
The date upon which the goods leave our factory or warehouse shall be deemed to be the date of delivery.
Our deliveries shall be effected exclusively ex works in Herne or ex despatch warehouse. The buyer shall bear the risk of transportation. If unspecified, we shall decide upon the method of despatch.
Insofar as delays in delivery are attributable to force majeure, war, civil unrest or similar events for which we are not responsible, including industrial action or lock-out, any dates/deadlines are to be extended by the periods during which the aforementioned event or its effect lasts.
Insofar as there are more than four intervening months between contractual conclusion and the anticipated date of delivery, or if the service can be rendered only after lapse of this period for reasons attributable to the customer, our prices in effect at the time of delivery or supply shall be applicable.
We also reserve the right to pass on price increases resulting from a rise in costs (e.g. changes in the prices of materials, wage increases) to the customer; in the event of a resultant price increase that exceeds 5% of the original net amount covenanted, the customer shall have the right to withdraw from the contractual Agreement. The buyer is required to declare such withdrawal within a period of two weeks after disclosure of the price increase.
The prices are ex works and subject to statutory value added tax.
The weights, volumes, masses or quantities that are definitive for calculation are determined in our respective delivery works, unless the buyer requests an alternative official determination at that party's own expense.
Our invoices are immediately payable without any deductions.
Payment shall be deemed to have been remitted only once the amount is finally available in one of our accounts.
The provision of bills of exchange shall be subject to our approval. Deposits and advance payments are to be remitted after applying value added tax.
6. Quality of goods, technical advice, use and processing
Only the information contained in our product descriptions and specifications and on our identifiers is deemed, in principle, to describe the quality of our goods. Other statements, recommendations or promotional material do not constitute information relating to quality.
The technical advice we provide verbally, in writing or by means of tests in respect of application is deemed solely a pointer that is not binding upon us, and is effected to the best of our knowledge. We do not guarantee that our pointers will not infringe the property rights of third parties. Our information does not release the buyer from the obligation of inspecting the goods supplied by us on that party's own account in respect of their suitability for the intended procedures and purposes. The application, use and processing of our products occur outside our scope of control and are, therefore, the sole responsibility of the buyer. The provision of samples shall serve to describe quality only in the instance of samples that are produced as standard, i.e. not those manufactured in the laboratory.
7. Notices of defects
Following receipt of the goods, the buyer is required to immediately check whether they evince the quality that has been contractually agreed and that they are suitable for the proposed purpose of deployment. Complaints are to be notified immediately in writing. This involves specification of the invoice number, invoice date and the identifiers present on the packaging.
If complaints are not reported in a timely manner, claims for material defects shall be excluded. They shall also not subsist if the goods have been modified by a third party.
In the instance of hidden defects, the complaint must be notified in writing immediately after the defect has been identified. The burden of proof for any hidden defect shall be borne by the buyer. The buyer may return rejected goods only with our express consent.
8. Rights of the buyer in the instance of defects
Legitimate claims for defects on the part of the buyer shall, in the first instance, be limited to the right to supplementary performance. Only if the supplementary performance we effect is abortive may the buyer assert other statutory rights in respect of liability for defects.
Agreement pertaining to a warranty must be effected in writing. A warranty declaration shall be effective only if it details with sufficient precision the nature and duration of the warranty as well as the territorial scope of the protection afforded by the warranty.
10. Compensation for damages
In the instance of slightly negligent infringements of obligations on the part of the seller, that party's legal representatives or other vicarious agents, claims for compensation for damages even of an extra-contractual nature shall be excluded, unless the infringement relates to an obligation that is of fundamental importance for the achievement of the contractual purpose. The seller shall be liable for indirect damages, or for damages that were not to be anticipated at the time of contractual conclusion, only if gross negligence on the part of the seller or that party's legal representatives is in evidence.
If services are delayed, the seller shall be liable only in instances of intent or of gross negligence on the part of the seller or of a representative or vicarious agent in accordance with statutory provisions.
The aforestated limitations shall not apply to damages resulting from injury to life, limb or health. Mandatory statutory liability regulations shall remain unaffected hereby.
11. Statute of limitations
Claims for defects shall come under the statute of limitations in the instance of Section 438 Paragraph 1 No. 3 of the German Civil Code (BGB) one year from commencement of the statutory limitation period. Claims for defects in the instance of Section 438 Paragraph 1 No. 2 of the BGB shall come under the statute of limitations three years from commencement of the statutory limitation period. Mandatory legal regulations in respect of the statute of limitations and of liability shall remain unaffected hereby; these include those specific to injury to life, limb or health, liability for intentional and grossly negligent conduct, liability consistent with the German Product Liability Act, the infringement of fundamental contractual obligations, liability specific to the assumption of warranties or regulations governing the sale of consumer goods.
12. Retention of title
Our deliveries are carried out exclusively under retention of title.
In the instance of conduct on the part of the customer that contravenes the contractual Agreement, in particular specific to default in payment, we shall be entitled to re-appropriate the goods. Re-appropriation shall incorporate both a notice declaring rescission of the contractual Agreement as well as attachment of the purchased item. Following re-appropriation, we shall be authorised to effect disposal; the earnings arising from disposal shall be offset against the liabilities of the customer, duly taking into account disposal costs.
The customer shall be obligated to handle the goods with care. The customer shall be required to notify us immediately in writing in the instance of attachment or other third-party interventions, The customer shall not be permitted to pledge the object of purchase, nor to assign it by way of security.
The customer shall be entitled to re-sell the goods in the ordinary course of business; all claims equivalent to the final invoiced amount accruing to that party from the re-sale are already and at this juncture ceded to us. This shall apply irrespective of whether the goods have been re-sold without having been processed or after processing. The customer shall remain authorised to collect these accounts receivable; our entitlement to collect the accounts receivable ourselves remains unaffected hereby. We undertake to refrain from collecting the accounts receivable for as long as the customer continues to meet that party's payment obligations, refrains from being in default and, in particular, is neither served with an application for initiation of insolvency proceedings, nor evinces suspension of payment. Should this be the case, the customer undertakes to disclose the ceded claims and their debtors to us, to provide all information required for collection and to hand over the related documents.
The processing or re-working of the object of purchase is always carried out on our behalf. If the object is processed in conjunction with other objects that are not proprietary to us, we shall acquire co-ownership of the new article in the ratio of the value of the object of purchase (final invoiced amount plus value added tax) in relation to the other objects processed. If the item delivered is inseparably combined with other objects that are not proprietary to us, we shall acquire co-ownership of the new article, likewise in the ratio of the value of the object of purchase in relation to the other objects combined.
If such combination is carried out such that the article of the customer is to be regarded as the primary article, it is deemed covenanted that the customer shall transfer proportional co-ownership to us. That party shall retain in safekeeping for us the sole ownership or co-ownership thus established.
The customer shall also cede to us the accounts receivable along with all ancillary rights for the purpose of securing our claim against that party accruing by way of the combination of the object of purchase as a fundamental component with a plot of land.
We undertake to release securities to which we are entitled at the request of the customer, insofar as the realisable value of our securities exceeds the receivables to be secured by more than 20%, selection of the securities being our responsibility.
The buyer is to notify us immediately in instances in which third parties attach goods, assert rights to goods or wish to take goods into their possession specific to which a purchase price claim still subsists in our favour (including a residual claim). The obligation in respect of notification shall also be applicable in instances in which, within the parameters of an overall product, a balance claim subsists in our favour, while – on the other hand – the individual item to which third party rights are being asserted has already been paid for. Immediately after disclosure of suspension of payments, the buyer shall be obligated to send us a list of the remaining goods that are subject to retention of title. This shall also apply insofar as the goods subject to retention of title have been processed.
13. Place of performance and place of jurisdiction
The place of performance for delivery shall be the respective despatch unit, and – for payment – Herne.
The covenanted place of jurisdiction for all disputes arising from the Purchase Agreement shall be Herne.
The legal relationships between us and the buyer shall be exclusively subject to German law.
In the event that individual provisions within these General Terms and Conditions of Sale and Delivery shall be or shall become ineffective, the validity of the remaining provisions or agreements shall remain unaffected thereby. The parties shall be required to replace any ineffective provision with one that most closely approximates the economic purpose of the ineffective provision and is effective.
Amendments or supplements to these General Terms and conditions of Sale and Delivery shall be required to be drawn up in writing. This shall also apply to the waiver of the written form requirement.