General Conditions of Sale
§1 General – Area of validity
1.1 Our General Conditions of Sale (GCS) are valid for all business relationships with our customers (hereinafter: „purchasers"), provided the buyer we are dealing with is a company (§ 14 BGB Civil Code). The GCS are also valid in their respective version as a framework agreement for future contracts for the sale and / or delivery of moveable objects with the same purchaser, without us having to refer to them again in each individual case.
1.2 Our GCS exclusively are valid. Differing, opposing or supplementary General Terms and Condition of Business from the purchaser only then become a part of the contract, when and only to the extent that we have expressly agreed to their validity. The requirement for approval is valid in all cases for example, if we complete delivery to the buyer in full knowledge of the purchaser’s General Terms & Conditions of Business without reservation.
1.3 Individual agreements made with the buyer in an individual case (including side agreements, supplements and amendments) in any case take precedence over these GCS.
1.4 Material declarations and indications which must be made to us by the purchaser following conclusion of the contract (e. g. setting of periods, notification of defects, declaration of withdrawal or reduction) require the written form to be effective.
1.5 Indications on the validity of legal regulations are only important for clarification purposes. For this reason legal regulations are also valid without such clarification, provided they have not been directly changed in these GCS or expressly excluded.
§2 Formation of a Contract
2.1 Our proposals are subject to change and are non-binding. This is also the case if we have provided the buyer with catalogues, technical documents (e. g. drawings, plans, computations, calculations, references to German Industry DIN standards), other product descriptions or documents – also in electronic form, in which we have reserved our rights of title and our intellectual property rights.
2.2 Ordering goods by the purchaser is considered as a binding contract proposal. Provided nothing different arises from the contract, we are entitled to accept this contract proposal within 2 weeks following receipt here.
2.3 The acceptance may either be declared in writing (e. g. by order confirmation) or by delivery of the goods to the purchaser.
§3 Prices – Delivery Period and Delay in Delivery
3.1 The delivery date is agreed individually. With special productions the delivery period starts running once the buyer confirms our product description as being in accordance with the contract.
3.2 If the delivery period cannot be kept to for reasons we are not responsible for (unavailability of performance), we shall inform the buyer of this immediately and at the same time inform them of the expected new delivery date. If performance is also not possible within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we shall immediately return any performance already carried out by the buyer. In particular in this case, failure by our suppliers to deliver on time is considered to be a case of unavailability of performance in this sense, if we have concluded a congruent hedging transaction. Our legal rights of withdrawal and termination as well as the legal regulations on development of the contract under exclusion of obligation to perform (e. g. impossibility or unreasonableness of performance and/or supplementary performance) remain unaffected. The buyer’s legal rights of withdrawal and the buyer’s rights to termination also remain unaffected.
3.3 Commencement of delay of delivery is determined according to the legal regulations. Should we find ourselves to be in legal delay, the buyer can then demand lump sum compensation for his damages caused by the delay. The sum of damages for each completed calendar week in delay is 0.5 % of the net price (delivered value), however in total a maximum of 5 % of delivery value of the goods delivered late. The proof remains reserved to us, that the purchaser suffered no damages at all or only significantly lower damages than the sum on hand.
§4 Delivery, Transfer of Risk, acceptance, delay in acceptance
4.1 Delivery is made from the warehouse, which is also the place of fulfilment. At the buyer‘s request and at his expense the goods will be sent to another destination (despatch sale).
4.2 The risk of accidental demise and of accidental deterioration of goods passes to the buyer at the latest on hand-over. With a despatch sale however the risk is already transferred on handing over goods to the person entrusted with completing despatch. The hand-over is considered just the same if the purchaser is in delay accepting it.
4.3 If the buyer is in delay, if he defaults on his action or participation or if our delivery is delayed for other reasons which are the buyer’s responsibility, then we are entitled to demand compensation for damages arising including additional expenses (e. g. storage costs).
§5 Prices and Terms of Payment
5.1 Provided nothing different has been agreed in individual cases, our prices are valid as from the warehouse, plus statutory Value Added Tax.
5.2 With despatch sales (§ 4 Section 1) the buyer pays the transport costs from the warehouse and the costs of any transport insurance should it be required by the buyer. Euro palettes used during transport are excepted; these remain our property.
5.3 The purchase price is due and must be paid within 30 days of the invoice being presented and delivery or acceptance of goods. The purchaser is in delay once the payment period on hand expires.
5.4 The purchaser is only entitled to rights to offset or to rights of retention in as far as his claim has been determined to have legal effect or is uncontested. With delivery faults however the purchaser is entitled to withhold an appropriate part of the purchase price in relationship to the fault.
§6 Retention of Title
6.1 Until full payment of all of our current and future claims from the purchase agreement and a current business relationship (secured demands) has been made, we retain the title of the goods which have been sold.
6.2 Goods under retention of title may neither be mortgaged to a third party prior to full payment of secured demands, nor assigned and transferred as security. The purchaser must inform us immediately in writing, when and to what extent third parties seize goods belonging to us.
6.3 If the purchaser‘s actions are in breach of contract, in particular with non-payment of the purchase price due, we are entitled to withdraw from the contract according to statutory regulations and to demand return of the goods on grounds of retention of title. If the purchaser does not pay the purchase price due, we may only enact these rights if we previously unsuccessfully set the purchaser an appropriate period for payment, or if setting such a deadline can be dispensed with according to statutory regulations.
6.4 The purchaser has the authority to continue to sell goods under the retention of title on in a regular business transaction and/or to process them. In this case the following regulations are valid as supplements.
6.4.1 Retention of title extends to products resulting from processing, mixture or combination of our goods to their full value, wherein we are counted as the manufacturer. If during processing, mixture or combination with third party goods their rights of title continue to exist, then we obtain joint ownership in the ratio of the invoice value of the processed, mixed or combined goods. Otherwise the same is true for the goods created as for retention of title of delivered goods.
6.4.2 Claims arising from the onward sale of goods or produce towards third parties are transferred by the purchaser to us even now in total or for the size of any joint share of ownership we many have in accordance with the preceding paragraph for security. We accept this transfer. Purchaser obligations mentioned in Section 2 are also valid under consideration of the transferred claims.
6.4.3 The purchaser remains authorised to collect his claims alongside us. We commit not to collect a claim as long as the purchaser fulfils his obligations to pay us, does not fall into payment delay, as long no application has been made to open bankruptcy proceedings and no other fault of his ability to pay is present. However if this should arise, then we can demand the purchaser informs us about the transferred demands and debtors, gives us all details required to make collection, hands us the associated documents and informs debtors (third parties) of the transfer.
6.4.4 If the value of the securities which can be realised exceeds our claims by more than 10 %, on the buyer’s request we shall release securities of our choice.
§7 Purchaser Claims for Faults
7.1 Statutory regulations are valid for the purchaser’s rights concerning material defects and legal defects (including incorrect and short deliveries), provided nothing different is specified below. Statutory special regulations for final delivery of goods to a consumer (supplier recourse in accordance with §§ 478, 479 BGB Civil Code) remain unaffected in all cases.
7.2 Buyer’s claims for defects presuppose he carried out his statutory obligations to examine the goods and give notice of defects (§§ 377, 381 HGB Commercial Code). If a defect becomes evident on examination or at a later point, then we must be informed of this immediately in writing. The notification is considered as immediate if it is made within two weeks, wherein sending the notification on time will suffice for keeping to the deadline.
7.3 The purchaser must give us sufficient time and opportunity for supplementary performance due, in particular to take samples of the goods under question for testing purposes. If a request from the purchaser to resolve a fault turns out to be incorrect, we can demand replacement of costs arising from this from the purchaser.
7.4 If supplementary performance goes wrong or if an appropriate deadline to be set by the purchaser for supplementary performance has passed unsuccessfully or can be dispensed with according to statutory regulations, the buyer may withdraw from the purchase agreement or may reduce the purchase price. No right of withdrawal exists however with an insignificant fault.
7.5 The purchaser’s claims for damages or compensation for futile expenditures only exist according to the measure of § 8 and are otherwise excluded.
7.6 If the purchaser makes particular demands on one or more products, then notice must be given of these by the buyer prior to concluding the contract. The purchaser is given the opportunity prior to concluding the contract to carry out his own trials using a sample and to test the product application against the purchaser’s special demands. We make statements on technical characteristics on the basis of examinations and experiences which in general can be considered reliable. The details however are not binding and are made without granting any guarantee, unless then they have been expressly assured by us, and also in writing.
§8 Other Liabilities
8.1 As long as nothing different arises from the GCS including the following regulations, we are liable for contravening contractual and non-contractual obligations according to appropriate legal regulations.
8.2 We are only liable for damages or compensation for futile expenses – on whatever legal grounds whatsoever – only with intent, with gross negligence of our organs or leading management employees and/or with culpable injury to life, body or health. For damages from contravening a significant contractual obligation (an obligation, fulfilment of which makes the correct implementation of the contract possible at all in the first place and which the contractual partners regularly trusted and may trust), we are also liable for gross negligence of non-management employees and for slight negligence; in these cases however our liability is limited to the replacement of typical contract damages and sensibly foreseeable damages.
8.3 The restrictions on liability arising from Section 2 are not valid, provided we maliciously kept silent about a fault or have accepted a guarantee for the composition of the goods. The same is true for the purchaser’s claims according to the Product Liability Law.
8.4 On account of a breach of duty not resulting in a fault, the buyer may only withdraw or terminate where we are responsible for the breach of duty. A free right of cancellation for the purchaser (in particular in accordance with §§ 651, 649 BGB Civil Code) does not exist. Otherwise the statutory prerequisites and legal consequences are valid.
§9 Limitation of Time
9.1 In deviation to § 438 Section 1 no. 3 BGB (Civil Code) the general period of limitation for claims from material and legal defects is one year from delivery. The special legal regulations for material third party claims for surrender of goods (§ 438 Section 1 no. 1 BGB Civil Code) and for claims in supplier recourse for final delivery to a consumer (§ 479 BGB) remain unaffected. The statutory periods for limitation of time are valid for cases of § 8 section 3 as well as of intentional or grossly negligent breach of duty or of injury to life, limb or health.
9.2 The periods for limitation of time present according to Sections 2 and 3 are also valid for the buyer’s contractual and non-contractual claims for damages, based on defects in the goods, unless use of the regular statutory period of limitation (§§ 195, 199 BGB Civil Code) in individual cases would lead to a shorter limitation of time. The periods of limitation of time in Product Liability Law in each case remain unaffected.
§10 Choice of Law and Place of Jurisdiction
10.1 The law of the Federal Republic of Germany with the exclusion of the UN Convention on Contracts for the international Sale of Goods is valid for these GCS und all legal relationships between us and the purchaser. The preconditions for and effects of retention of title in accordance with § 6 on the other hand are governed by the law at the respective place of storage of the object, provided the choice of law in favour of German law is not permitted or is ineffective according to this.
10.2 If the purchaser is a merchant or if he has no general place of jurisdiction in Germany, then the place of jurisdiction for all disagreements exclusively – including international disagreements – arising directly or indirectly from the contractual relationship is our business headquarters in Krefeld. However we are also entitled to file a suit at the purchaser’s general place of jurisdiction.
10.3 The contract language is German. Should the contractual partners make use of another language alongside this, in cases of doubt German wording has priority.