Delivery Terms and Conditions
1.1 The following delivery and payment terms and conditions apply exclusively to all our deliveries. Terms and conditions of the buyer/client, contrary to or deviating from our sales conditions, will only be recognised by us if we explicitly agreed to its validity in writing.
1.2 hese payment and delivery terms and conditions also apply to all future transactions with the buyer/client, insofar as it concerns legal business transactions of a similar type.
2.1 In principle, first quotations are given free of charge. Further quotations and conception work are only done free of charge if the supply agreement becomes legally effective and is implemented.
2.2 We reserve all proprietary and copyrights in connection with documentation regarding the quotation or placing of the order left with the buyer/client, such as calculations, drawings, samples, etc. This documentation may not be made accessible to a third party, unless we expressly grant the buyer/client our permission in writing. If the order is not placed, this documentation should be returned without delay when requested. We obligate ourselves to make plans, designated as confidential by the buyer, accessible to a third party only with the buyer's permission.
3. Scope of the delivery
3.1 Side agreements and amendments are only binding if confirmed by us in writing.
3.2 Safeguards are only co-delivered insofar as it has been agreed to.
3.3 If the buyer falls into arrears or we become aware of a fundamental deterioration in his economic/financial circumstances, we are entitled to make further deliveries dependent on matching cash payment at delivery of the goods.
4. Prices and payment
4.1 Our prices are ex factory, excluding packaging and excluding VAT at the applicable rate. Packaging costs are charged separately. Crates/boxes are credited by two thirds of the calculated value if returned free to us in faultless condition within four weeks after arrival of the goods at the place of destination.
4.2 Insofar as no fixed price agreement has been concluded, reasonable price changes due to changes in wages, material and distribution costs for deliveries, which take effect three months later or after conclusion of the contract, are reserved.
4.3 Insofar as nothing else has been agreed to, the purchase price is payable in cash within 30 days from date of invoice. Interest on arrears will be calculated at 8 percentage points above the relevant basic interest rate. A claim to higher damages due to arrears is reserved.
4.4 A trade discount agreed to by any chance is not allowed for as long as old, out-standing invoices have not been paid yet.
5. Offsetting and rights of retention
Offsetting with counter-claims by the buyer/client is only allowed insofar as it is recognised by us or if it has been legally established. The buyer/client is only entitled to exercise a right of retention if his counter-claims have been established as being beyond dispute or legally binding and if it concerns claims from the same contractual relation.
6. Reservation of proprietary rights
6.1 We retain ownership of the supplied goods until full payment of all claims in terms of the delivery agreement. This also applies to future deliveries, even if we do not constantly and expressly refer to it.
6.2 For as long as ownership has not been transferred to the buyer/client yet, he has to inform us without delay and in writing if the delivered goods have been attached or exposed to other interventions by a third party. Insofar as the third party is not in a position to reimburse us for the judicial and extrajudicial costs of a lawsuit in accordance with § 771 ZPO, the buyer/client is liable for the loss accrued.
6.3 The buyer/client is entitled to resale of the goods subject to retention of title in a normal business transaction. The claims of the buyer from the resale of the goods subject to retention of title, including VAT, the buyer/client already now surrenders to us. This surrender or transfer applies independent of the fact whether the goods are resold without or after processing. The buyer/client retains the power to retract the claim even after the surrender. Our authority to retract the claim ourselves remains unimpeded by it. However, we will not retract the claim as long as the buyer/client honour his payment obligations from the collected cash-in, is not in arrears and especially has not filed for insolvency proceedings or a suspension of payment is in place.
6.4 The treatment and processing or remodelling of the goods by the buyer/client continue to take place on behalf of and for us on our instructions. In this case the expectant right of the buyer/client to the goods is carried forward to the remodelled goods. Insofar as the goods are processed with other instruments not belonging to us, we acquire co-ownership of the new item in relation to the objective value of our goods to that of the other processed items at the time of processing. The same applies in case of a mixture or blending. Insofar as the mixture/blend takes place in a way that the buyer's item is considered the main item, then the agreement applies that the buyer/client transfer proportional co-ownership to us and hold such sole or co-ownership in trust for us. To safeguard our claims against the buyer/client the buyer also surrender such claims to us, which accrue to him by the connecting of goods subject to retention of title with a plot of land against a third party; we accept this surrender already now.
6.5 We are obligated to release the safeguards entitled to us at the request of the buyer/ client, insofar as its value does not exceed the claims to be safeguarded by more than 20%.
6.6 The reservation of proprietary rights only apply after successful withdrawal from the con-tract; attachment of a delivered item is only possible insofar as a relevant issuing title exists.
7. Delivery time
7.1 The start of the delivery time specified by us presupposes the timely and proper fulfilment of the buyer's obligations. The delivery time starts under these preconditions at the time of receipt of the order confirmation at the buyer/client. Objection to the contract not complied with is reserved.
7.2 The delivery time is adhered to if the item to be delivered has been forwarded up to its expiry.
7.3 If the buyer/client defaults on accepting the goods or if he culpably breaches other cooperation obligations, we are entitled to demand compensation for such damages, including possible additional costs. Additional claims are reserved. Insofar as preceding preconditions exist, the risk of a coincidental degeneration or a coincidental deterioration of the goods is transferred to the buyer/client at the point of time in which he defaults on acceptance or if he falls into arrears.
7.4 In case of defaulting on a delivery not due to premeditation or gross negligence, we are liable for a flat-rate default compensation of a ½% of the value of the supplied goods, but with a maximum of not more than 5% of the value of the supplied goods.
7.5 Further statutory claims and rights of the buyer/client because of a delivery default remains unaffected.
7.6 Unexpected events after conclusion of the agreement, which are beyond our control and that hinder delivery, entitle us to extend the delivery term by 8 weeks if the impediment to performance is of a passing nature. After expiry of the abovementioned term we are entitled to withdraw from the contract if the impediment to performance still exists. Possible advance payments by the client have to be reimbursed.
7.7 If we become aware of a fundamental deterioration in the financial circumstances of the client, we are entitled to withdraw. Possible advance payments by the client have to be reimbursed.
8. Transfer of risk – packaging costs
8.1 Unless otherwise stipulated in the order confirmation, delivery "ex factory" applies.
8.2 If the buyer/client requires it, we will arrange cover for the delivery through goods in transit insurance, the cost of which will be paid by the client.
9.1 Only the customer knows all the conditions / influencing factors. He is therefore in principle required to qualify our equipment for his proposed application itself. A legally binding assurance of certain properties or suitability for a specific application can not be derived from our datas.
9.2 In event of defects the rights of the buyer/client predetermine that he has observed his obligation to properly investigate and to issue notification of the defects according to §377 HGB.
9.3 Should the delivered goods already be defective at the time of the transfer of risk despite all the necessary care taken, we are entitled to rectification of our choice either in the form of removing the defect or to supply a new defect-free item. We should still be allowed the opportunity of rectification within a reasonable time period.
9.4 Claims for defects do not exist in case of insignificant deviations from the agreed nature, in case of insignificant impediment of usability, in case of natural wear and tear and, after transfer of risk, in case of damage due to faulty or negligent handling/treatment, excessive load, unsuitable operating equipment, defective building works or because of special external influences, which have not been predetermined according to the agreement.
Furthermore, claims by the buyer/client for defects, which came about due to unsuitable and improper use or storage, faulty assembly by the buyer/client or a third party, repair attempts on own authority and modifications are excluded. Furthermore, claims for defects in case of damages caused by chemical, thermal or electric elements, which cannot be influenced from our side, as well as usage not intended for or non-adherence to our data and/or catalogue sheets are excluded.
9.5 If the rectification fails, the client is entitled to choose between withdrawal or reduction.
9.6 According to statutory stipulations we are liable for compensation, if the buyer/client lodge such claims, which are based on premeditation or gross negligence (including premeditation or gross negligence of our representatives or agents/subcontractors). Insofar as we are not accused of any premeditated breach of contract, the liability for compensation is limited to damages that can typically be expected. We are liable according to statutory stipulations, insofar as we have culpably breached a funda-mental contractual duty; in this case however liability is limited to damages that can typically be expected.
9.7 If the buyer/client has a claim to compensation instead of performance, our liability is also limited, in terms of Paragraph 4, to compensation for damages that can typically be expected.
9.8 Liability for culpable injury to life and body or a hazard to health is unaffected; this also applies to the obligatory liability according to the Product Liability Act.
9.9 The statute of limitation for claims for defects is 12 months, calculated from date of risk transfer.
10. Other stipulations
10.1 The possible invalidity of single stipulations does not affect the validity of the rest of the stipulations.
10.2 Place of execution is 57518 Betzdorf.
10.3 In case of any and all disputes resulting from the business relationship the place of jurisdiction is 57518 Betzdorf.
10.4 The contractual relation is subject to German law. The UN uniform sales law (UN Convention on Contracts for the International Sale of Goods) does not apply.