General Terms of Delivery and Payment
These terms and conditions shall apply to all our obligations arising under contracts that involve the delivery of goods, services and performances, advice, information and/or the like by us with regard to merchants, entrepreneurs and legal entities under public law or special funds under public law. They shall also apply to the unilateral legal acts effected by us or effected with respect to us.
2. Collision Clause
Terms differing from these general terms and conditions shall not be applicable. There shall be particularly applicable neither the conditions contradicting our own conditions nor supplementary or additional conditions to our own conditions. The acceptance of an offer or the implementation of a delivery, in particular, shall not be considered an implied declaration that contrary conditions will be accepted.
3. Contract Conclusion
Our offers are subject to change. The customer will be bound to his orders for a period of two weeks. After the expiry of this period, the customer may revoke the order. A contract shall only come into existence if we accept the order by order confirmation, another explicit confirmation or the actual execution of the order on the basis of these conditions. In case of a verbal conclusion of the contract, the content of our letter of confirmation shall be relevant if this content has not immediately been revoked.
Declarations of sales representatives acting for us will only become subject-matter of this contract if they have been expressively confirmed by us. Basically, sales representatives shall not be authorised to submit statements on our behalf.
Deviations of the delivered goods from pictures, drawings, leaflets, brochures, schedules etc. will be allowed within the limits set by customary tolerances. If there will be deviations due to technical developments, these deviations have to be accepted within the bounds of what is reasonable.
In case of deliveries of special models differing from the standard of the goods offered in our catalogues and leaflets, production-related excess quantities or shortages in quantities have to be accepted.
Obvious mistakes, calculation or typing errors in offers, order confirmations, invoices and other contract documents shall not be binding for us.
In case of such errors and mistakes, a contract will then be concluded with the correct price, provided it is recognisable and calculable for the purchaser.
4. Copyright, Intellectual Property Rights
We reserve ownership and property right to all documents concerning our goods.
By placing his order, the purchaser shall ensure that the manufacture of the constructions and compositions required by him will not infringe upon the intellectual property rights of third parties. In case of claims by third parties due to the infringement of third-party property rights in connection with the constructions prescribed or required by the purchaser, the purchaser shall indemnify us against any kind of claim.
The purchaser can raise claims associated with copy right or industrial property rights against us only if he has expressively informed us about the existence of such right before placing the order.
Prices are quoted in Euro. All prices are net prices plus VAT at the respective legally valid rate as well as shipping costs, packaging costs, postal charges, freight costs, additional freight and insurance costs, fees and custom duties. Packaging and shipping costs can be calculated as a flat rate without individual evidence in the amount of the usual costs.
If a delivery time of more than three months is agreed or if the delivery is delayed for more than tree months due to reasons the purchaser is responsible for, we shall be entitled to make price adjustments insofar as the costs and wages have increased during this period.
6. Delivery Time
The delivery period shall begin once the contract has been concluded, all information has been provided by the purchaser, especially mode of shipment and other special features, and all requirements under the treaty or the traditional practices to be fulfilled by the purchaser have been provided.
Partial deliveries shall be permissible, provided that they were contractually agreed or that they are not unreasonably and usual in line with industry and trade.
The delivery times set forth are intended as approximate only, unless a certain date of delivery has expressively been committed. If the delivery time set forth will be exceeded by more than two weeks, the purchaser has the right to set an appropriate period of grace. If a certain delivery period was exceeded, the purchaser can immediately set the appropriate period of grace.
7. Shipping, Transfer of Risk
The risk shall be transferred to the purchaser when the goods leave our premises or when the purchaser is notified that the goods are ready for collection. Any agreements on transport and insurance costs (e.g. cif, fob, post paid etc.) shall be mere expense clauses that do not affect the transfer of risk. The choice of delivery shall be made at our equitable discretion if the purchaser does not give explicit instructions.
In case of default of acceptance the legal rules shall apply. A permissible sale of the goods in accordance with paragraph 373 section 2 HGB (German Commercial Code) can be carried out on a discretionary basis by ourselves after prior warning.
Our invoices shall be due for payment within 30 days after the date of the invoice without any deduction, unless a longer term of payment has been specifically agreed. From the time of exceeding the term of payment, interest will be charged in the amount of 8 percentage points above the base rate of the Deutsche Bundesbank even without any reminder. Incidentally, the legal delay regulations will be applicable.
Payments must always be settled in accordance with paragraph 366 section 2 BGB (German Civil Code). Whether an agreed deduction of cash account is permitted depends on the age of the claim on the basis of which the receipt of payment was calculated.
Payments are basically to be made free of charge on one of our bank or savings bank accounts. Bills of exchange or checks shall only be accepted on account of performance due to special agreements. All costs and expenses, discounts and interest will be charged to the purchaser. Deduction of cash discount shall not be allowed in case of payment via bills of exchange. In case of payment via check they shall only be allowed if it can be definitely credited to our bank or savings bank account in the ordinary course of business within the agreed cash discount period. We shall not be held liable for a punctual presentation or protest.
If the purchaser does not meet the agreed terms of payment, bills of exchange or checks are not immediately paid on presentation or if we become aware of other circumstances calling into question the creditworthiness of the purchaser, payment of all our claims is due immediately regardless the remaining term of a term of payment or of the payment deadline for a term of bills of exchange taken in. In such a case we shall further be entitled to render outstanding deliveries step by step only against payment in cash or against bank guarantee.
9. Reservation of Title
The goods delivered by us will remain our property until payment of the full purchase price.
The goods may be treated, processed or remodelled only if it is granted that we will get the ownership or co-ownership of the new item at least in the value of the goods delivered by us. Any treatment, processing or remodelling will be executed for us without, however, any obligations resulting from this for us. If a treatment, processing or remodelling will be executed for items in which not only the purchaser but also other parties have ownership in, we shall become the co-owners of the new goods in relation to the value of our goods to the value of other goods originating from other owners. Goods in which we have ownership or co-ownership must be clearly marked or stored separately from other goods.
The purchaser is permitted to resell the goods in the normal course of business, provided the payment of our goods at any time will be ensured. In case of impending insolvency the resale of the goods subject to retention of title shall only be permitted after our special authorisation. The claim of the purchaser arising from the resale of the goods subject to retention of title shall already be assigned to us to the amount of the invoice total. It may be collected in our favour in the ordinary course of business until further notice if it will be guaranteed that our demand for purchase price will be relieved from the proceeds. In case of this payment authorisation being withdrawn, the concerned customers must be informed about this without delay and we must be informed about the names and addresses of these customers without being asked.
Complaints based on obvious defects shall only be considered as having been made promptly if the complaint has been made to us at the latest within one week in writing or by fax.
The warranty time shall in any case be restricted to a period of one year.
We give warranty for defects for which we are responsible at our discretion either by repair or by compensation delivery. The warranty shall be excluded if our goods are used for a purpose different from the one we indicated or if they will not be used in accordance with the release given by us.
Liability for loss of earnings and operational interruption as well as unforeseeable or consequential damages shall be excluded. Liability for gross negligence and for physical injuries, however, shall neither be excluded nor restricted.
Indications we may give about our products do only refer to properties of these products themselves, but not to their usability or operational capability in certain procedures, machines, devices or for certain purposes using other products than the ones we delivered.
Technical application advice will be contractually due only if specially agreed upon. This advice shall be charged separately. Basically, the purchaser himself must check and supervise the suitability of our goods with regard to the purposes and methods foreseen by him. In this case we shall be liable for advice errors only if all relevant information about load, operation, demand, materials, pressures and temperatures or any other possibly important parameters have completely been transmitted to us. It shall in any case be the responsibility of the purchaser to carry out a trial run. Also in case of a consultancy contract being concluded or any otherwise justified liability for wrong advice, we shall be liable only for the amount of damage that would have occurred if a proper trial run would have been carried out.
If we shall produce or purchase tools on behalf of the purchaser, the purchaser must reimburse all costs incurred by this order. The tools will become our property. We will be obliged to surrender them after conclusion of the order only if specially agreed upon.
12. Application of German Law, Place of Jurisdiction
The exclusive application of German law will be agreed for any dispute arising from contracts and about the existence of contracts. Conventions on contracts relating to the international sale of goods and similar conventions shall not be applicable.
Place of jurisdiction for any dispute shall be the court competent for Velbert-Tönisheide.
Conditions of Purchase
Conditions of Purchase
These conditions shall apply to the order (purchase) of deliveries and performances with regard to merchants and entrepreneurs as well as legal entities under public law or special funds under public law (suppliers).
They shall apply mutatis mutandis in the same way to the purchase of goods as well as the use of services or works of entrepreneurs.
1. Collision Clause
For orders of deliveries or performances only our following conditions of purchase shall be applicable. Contrary conditions shall not be applicable.
Particularly, neither conditions contradicting our own conditions nor supplementary or additional conditions to our own conditions shall be applicable. The acceptance or inspection of ordered goods and/or performances, in particular, do not include an implied declaration that contrary conditions will be accepted.
2. Contract Conclusion
Our written order shall be relevant. The order must be confirmed as having been accepted within 8 days from the date of the order. Otherwise, we shall not be bound to the order anymore and shall be entitled to revocation.
We shall be entitled to demand any necessary changes in construction and design of the ordered goods even after conclusion of the contract to that extent that this is reasonable and that the production can still be changed. We will reimburse any resulting verified additional costs, provided that we have been informed about the anticipated additional costs before implementation of the change and provided that theses changes have been approved by us.
Drawings, samples or instructions provided by us shall be part of the contract and shall describe the agreed quality.
3. Time of Delivery and Performance, Contractual Penalty
(1) A delivery must be carried out within the agreed time limits. The time limits shall begin at the date of the order. They shall end with the receipt of the goods at the place of destination. If there were not made any agreements about delivery times, the delivery must be carried out immediately, within two weeks at the latest. The supplier shall be in default if he receives a reminder after the expiration of the delivery time.
The supplier shall undertake to immediately notify any impending delay in delivery.
This, however, will result in no case in an extension of the delivery time. If he shall fail to give notice in good time, he shall be obliged to compensate us for the additional damage resulting from this delay from the date at which the delivery delay was foreseeable, without prejudice to any claims for damage compensation due to delay.
(2) Partial deliveries shall be permissible only if they were contractually agreed. We shall be entitled to reject partial deliveries, unless partial deliveries are reasonable for us and expressly mean no unreasonable additional expenses.
(3) If the supplier does not deliver within two further weeks after the date of the reminder he was set in default with, this will incur a contractual penalty of 1% of the invoice total for each new week after delay of delivery. In addition, there will be demand for compensation of the damages caused by default, especially for compensation of the additional costs in case of covering purchase.
Any delivery including proper and sufficient, especially unbreakable packing must be carried out free of charge to the reception point indicated by us. The departure of the goods is to be notified without delay. The supplier shall bear the risk until our acceptance at the reception point. Any necessary assurance shall be taken over by the supplier.
Any notice of defects according to paragraphs 377, 378 HGB (German Commercial Code) shall be considered given in time if it is received by the supplier within a period of 10 days as of receipt of the goods or in case of hidden defects as of discovery of the defects.
6. Warranty Claims
Unless otherwise agreed, the supplier shall render warranty in accordance with the legal regulations. This warranty shall also apply to the compliance of implementing regulations given by us.
If a defect in quality will appear within six months of the transfer of risk, it shall be assumed that the item was already defect at the time of the transfer of risk, unless this supposition is incompatible with the type of the item or the defect.
7. Trade Mark Rights, Confidentiality Obligations and Contractual Penalty
The supplier shall be liable for ensuring that his delivery and his use by us does not infringe upon any patents or property rights of third parties. He shall indemnify us and our customers from all claims resulting from the use of third-party property rights. Other terms shall only become valid if the delivered goods were manufactured according to the plans and drawings made by us. In this case, however, he has to immediately inform us about property rights of third parties he knows or he should know. Plans, constructions and drawings made by us shall remain our property and must be given back to us after implementation of the order.
They may not be made accessible to third parties. Procedures and constructions developed by us that become known to you in connection with our order are to be kept confidential. Employees must also be encouraged and obliged to maintain confidentiality. Employees may only obtain knowledge of our constructions and procedures within the framework of this being unavoidable. Any violation of the confidentiality obligations imposed hereby shall forfeit a contractual penalty of € 10,000.
Goods may be manufactured for third parties by using all or parts of our plans, constructions or drawings only after our prior consent. Our consent shall also be needed if you want to inform third parties about you being our supplier.
Materials furnished by us shall remain our property. They must be separately stored as such and may only be used for our orders. The supplier shall also be reliable for any reduction in value or loss irrespective of blame. The materials shall be used and processed exclusively for us. New items produced therefrom shall become our property.
9. Statute of limitations
Our requirements shall generally come under the statute of limitations during the statutory periods. The guarantee for material defects, in particular, shall last at least two years whether the items are new or used. Shortening the statutory warranty periods and the statute of limitations shall be rejected. In case of supplementary performance in accordance with paragraph 439 BGB (German Civil Code), the limitation will start again as soon as the supplementary performance has been concluded.
10. Invoices, Prices
(1) The invoicing shall depend on our order. The invoice, indicating our order number as well as the date of our order, must be sent in duplicate to our address. Invoices shall be issued separately for each purchase order. In case of any agreed or permitted partial delivery, the invoice must be issued at the time of the provision of the last partial delivery. Payments must first be made after complete delivery of goods free of defects and after proper issuing of the invoice with input tax statement.
(2) Generally, all prices shall be fixed prices unless anything else has been expressively agreed upon. They shall include all additional costs, particularly shipping and insurance costs.
(3) Unless otherwise expressively agreed, we shall pay on receipt of the proper invoices from the 1st to the 15th of a month on the 20th of a month, on receipt from the 16th to the 31st of a month on the 5th of the following month with 3% discount or within 60 days net. Discount periods shall begin only after complete delivery and receipt of the proper and complete invoice.
(4) We shall have the right to set off our own claims against any claim arising from deliveries or performances irrespective of the legal basis on which they arise. The exclusion of set-off of any sort shall not apply.
11. Tools, Drawings and Models
The costs for the tools, drawings and models needed for the manufacture of the ordered good as well as their maintenance or replacement shall be concluded in the agreed purchase price. We must bear such costs in addition to the agreed purchase price only if this has been expressively agreed and if the tools, drawings and models will become our property. They must be returned to us upon request after completing the order. We shall, however, not be obliged to accept. Tools, models, training material, matrices, patterns and the like as well as drawings, drafts and instructions provided by us shall remain our property and must be returned to us after completion of the order.
12. Prohibition of assignment
Purchase price, remuneration or any other compensation claim against us shall not be assignable.
13. Agreement on Jurisdiction and Applicable Law
The following agreement on jurisdiction shall apply to operations with merchants: It will be agreed upon the exclusive competence of the court competent for Velbert.
Place of performance shall be Velbert.
The applicable law of the Federal Republic of Germany will apply exclusively.