1. Content of the Agreement
a)
All the business relationships between us and our customers shall be subject exclusively to the following General Conditions of Sale, Delivery and Payment („Conditions“), unless we have confirmed otherwise explicitly in writing.
b)
Our Conditions shall be considered acknowledged at the latest with the acceptance of the delivery. They shall also be considered acknowledged within the continuing business relationship.
c)
The General Conditions of the customers, regardless their substance and their nomenclature, even if we do not expressly object to them, are applicable only insofar as they do not differ from our Conditions, unless otherwise expressly agreed upon in writing.
2. Offers
a)
Our offers are not binding, unless they are remaining open for a limited period or unless otherwise shown in our order confirmation. Orders are considered as accepted after written confirmation (see 1. b). All agreements are concluded subject to timely, proper and sufficient delivery by our suppliers.
b)
Illustrations and statements in the catalogues and brochures are only approximations. In no event are they guaranteed characteristics. We retain the unrestricted right to ownership and copyright in all the documents (estimates of costs, specifications, drawings, illustrations etc.) given to the customer. They may not be disclosed to third persons.
c)
The rights of the customer under the agreement may not be assigned without our written prior approval.
3. Time for delivery
a)
The stated time for delivery is only approximative and not binding, unless they have been explicitly confirmed as binding. The time for delivery begins on the day of the order confirmation and after final clarification of all technical questions.
b)
Reasonable partial deliveries are permissible and will also be charged.
c)
In case we are responsible for the non-observance of the date for delivery after expiring the time for delivery, the customer may rescind from the agreement provided the customer granted us an additional reasonable period of time in writing.
The customer is only entitled to his claim for compensation of the foreseeable damages, provided the default was caused by our intention or gross negligence.
d)
In case of unforeseen circumstances which are beyond our control and influence our capacity for delivery, the delivery term shall be extended automatically appropriately. The same shall apply in case of such unforeseen circumstances for our subcontractors. In such a case including the case of the acts of God, we are entitled either to rescind the agreement without being obliged to compensate a damage if the delivery cannot be requested from us due to economical reasons.
e)
In case the customer is in default accepting the products or he infringes his duty to collaboration with us, we are entitled to demand the compensation of damages including potential additional expenses. In such a case the risk of the accidental loss or the destruction or deterioration of the sold product passes to the customer in the moment when he is in the default of acceptance.
4. Prices
a)
All prices are ex warehouse or ex works excluding the packing costs and the value-added tax unless any other conditions have been agreed upon in writing.
b)
Prices for those products which are delivered 8 (eight) weeks after the order confirmation are deemed to be not binding. In those cases a price applicable on the day of the delivery considering the cost changes in the meantime shall be the basis for the calculation.
c)
In case tax, duties, contribution or other public rates which concern the product or the delivery are introduced after the conclusion of the agreement we are entitled to claim the corresponding amount from the customer without observing the terms mentioned in 4. b).
5. Payment
a)
Unless no other payment conditions have been agreed upon, the payment has to be effected within 30 (thirty) days net cash.
Payment shall be counted towards the longest outstanding debt. Cheques will only be accepted subject to the receipt of the money. Bills of Exchange will also be accepted subject to he receipt of the money if we exceptionally accept the Bill of Exchange. The customer has to reimburse us at once discounting charges and bill charges.
b)
After the due date we are entitled to claim the payment of the interest in the amount of 4 % p.a. above the respective valid discount rate of the Central Bank of Germany, however, at least 6 % p.a.
c)
Should we learn from a protest regarding the Bill of Exchange or cheque with the customer or from a considerable deterioration of his financial situation, we are entitled to demand the payment of the whole purchase price or an appropriate security (for example absolute bank suretyship on first sight). Should the customer not comply with our demand to make the prepayment or to grant a security, although we have given an appropriate notice, then we are entitled to rescind the agreement. In this case the customer is obligated to return on his costs the products which have already been delivered. Article 454 German Civil Code is excluded.
d)
Unless the customer’s counterclaim is not acknowledged by us or declared by the court, the customer has no right of offsetting or retention against our claim for payment of the purchase price. The customer is only entitled to his right of retention if his claim arises out of the same contractual relationship.
6. Delivery
a)
Delivery will be done on the customer’s costs and risk unless any other written agreement has been made. The packing costs will be charged separately.
b)
As long as the customer does not give us any special instruction, we are entitled to select the mode of the transport.
Partial delivery is permissible.
7. Warranty
a)
We shall replace free of charge all products delivered by us with apparent defects, if written notice of the defect is given to us 10 (ten) days after delivery of the products to the customer. Notice due to so-called hidden defects must be given likewise within 10 (ten) days after discovery. After expiry of 6 (six) months since the delivery of the goods any warranty ends. This term is limitation period and is deemed to be applicable for claims for compensation of so-called consequential damages due to defects as far as no claims are made because of the tort.
b)
The warranty in all cases is subject to strict compliance with the user instructions in our datasheets.
c)
We reserve the right to modify illustrations, dimensiona drawings, technical data and other information in data supply.
Conformity of performance of ordered parts with earlier deliveries can only be warranted if this is expressly agreed upon and confirmed by us in writing.
d)
The customer has the right to cancel the respective order if we do not supply the replacement within a reasonable period after notice requesting replacement pursuant to 7. a) or we are unable to supply a replacement.
e)
All further liability, in particular claims for damages due to consequential damages or product liability are excluded, unless we have caused the damage by intention or gross negligence. This exclusion of the liability does not apply if the customer requests the compensation of the damage due to non-fulfilment according to Articles 463, 480 para. 2 German Civil Code due to lack of the guaranteed characteristics. Furthermore, this exclusion of the liability does not apply to claims arising out of Articles 1 and 4 of the Act regarding the Product Liability. This exclusion of the claim also does not apply in case of inability to perform from the beginning or in case of the inability for which we are responsible.
f)
As far as our liability is excluded or limited, this shall apply also to the personal liability of our employees, workers, colleagues, persons who are entitled to represent our company or persons employed by us in the performance of our obligations (Erfüllungsgehilfen).
g)
As far as we infringe by negligence a contractual essential obligation, our liability for property damages and personal damages is limited to the insured sum of our product liability insurance. We are prepared to show the customer on his request the details of our product liability insurance. As far as we infringe by negligence a contractual essential obligation, our liability is limited to the foreseeable damage.
8. Reservation of Ownership
a)
We reserve the right of ownership of all goods delivered by us until the complete settlement of all our claims arising out of the business relationship with the customer („retained goods“). The customer is not authorized to pledge or to assign retained goods as security or to dispose of the retained goods in non-proper course of his business. In case of all seizures of the retained goods or encroachment by third parties we shall have to be notified without delay and completely informed that we can raise our sue according to Article 771 German Code of Civil Procedures. As far as the third party is not in the position to reimburse the costs arising in and out of court in connection with the litigation according to Article 771 German Code of Civil Procedures, the customer is liable for the loss incurred to us.
b)
The customer is entitled to sell the retained goods in the due course of his business, provided that he receives payment from his purchaser or he delivers under the reservation that the property of the retained goods passes to the purchasers after he completely fulfils his obligation to pay the purchase price. The customer already assigns to us his claim for the purchase price arising out of resale with all ancillary claims by way of security and authorizes us to collect the money if the customer is in default of any payment to us. As far as there is no default, the customer is authorized to collect himself his claim for resale price.
c)
If the retained goods have been processed or combined with the property of third parties, we acquire joint property of the new or combined product in proportion to the value of the new or combined product in accordance with Article 947 para. 1 German Civil Code. In case the processed product or new article produced with the retained article is sold, the customer assigns to us already by way of security his claim for the purchase price against his purchaser - in case of the joint property in proportion of the value of the retained article to the new article -. Should the retained good be combined with another movable which is a preliminary object in the sense of Article 947 para. 2 German Civil Code, we are entitled to the purchase price and the claim for compensation due to the loss of the right according to Article 951 German Civil Code.
d)
In case the value of existing securities granted to us exceeds the value of our secured claims by more than 20 %, we are obligated upon the customer’s request to release the excess of securities.
e)
In case of the customer’s cessation of payments or overindebtedness we are entitled to immediately remove the remaining retained article (without having to rescind the agreement) and to receive a list of those purchasers of the customer who have not or not completely paid the price of the goods to the customers. For this case the customer herewith assigns to us his claim pursuant to Article 46 German Bankruptcy Code.
f)
Our rights of retention of ownership pursuant to this clause are valid up to the moment when we are completely released from eventual liabilities which we have assumed on behalf of the customer. This applies in particular to customers’ payments by cheque or Bill of Exchange.
g)
In case of claims out of reserved ownership we shall be free to sue a foreign customer also before his national court and under his national law. In the latter case the reservation of ownership regulation shall be regarded agreed upon which comes economically nearest to the reservation of ownership agreed upon hereabove.
9. General Stipulations
a)
Unless otherwise agreed, the law of the Federal Republic of Germany shall apply. The application of the Convention on the International Sale of Goods is excluded. If in any particular case overriding provisions of foreign law must be applied, our sales conditions shall be applied in such a way that they correspond as closely as possible to our commercial and security requirements.
b)
Place of performance for delivery, payment and other contractual obligations is Willich. This applies even if the purchaser has his seat abroad or the retained goods are delivered abroad.
c)
The venue (also in case of actions in connection with Bills of Exchange and cheques) is Düsseldorf. We are, however, also entitled to sue in the domicile of the customer.
d)
The customer agrees that we may use the data, of which we become aware through our business relation, for business purposes with due observation the Data Protection Law.
