Please note: This is the English translation of our general terms and conditions. In case of doubt, only the original german version (AGB) is valid.
§ 1 Scope of application
1) Our deliveries and services are exclusively subject to the following General Terms and Conditions. These shall apply to all future business relations, even if they are not expressly agreed again separately.
2) We do not recognise any terms and conditions of the Buyer that conflict with or deviate from our General Terms and Conditions of Sale, Delivery and Payment, unless we have expressly agreed in writing to the validity of conflicting or different general terms and conditions.
3) This shall also apply if we have not objected to deviating terms and conditions of the buyer in the individual case or if we carry out the delivery to the buyer without reservation in the knowledge of terms and conditions of the buyer that are contrary to or deviate from our terms and conditions. Similarly, we shall not be obliged insofar as the buyer's terms and conditions deviate from the statutory provisions, irrespective of the content.
§ 2 Offer and conclusion of contract
1) Our offers are subject to change; they are only invitations to submit offers on the part of our potential customers.
2) The order of the desired goods by the potential buyer can be placed either (remotely) verbally, in writing, by e-mail or fax and constitutes a binding offer to conclude a contract.
3) A minimum order value of 75 euros per delivery applies unless otherwise agreed.
4) We are entitled to accept this offer within a period of 10 working days by sending a written order confirmation. The order confirmation can also be sent by fax or e-mail. If the customer does not receive an order confirmation after the expiry of the 10 working days, his offer shall be deemed to have been rejected (cf. §§ 147 f. BGB). If delivery is made without delay, the invoice shall be deemed to be the order confirmation.
5) Illustrations, drawings, weight specifications, calculations, results of data processing procedures in offers and other contents of general printed matter made available by us to the Buyer in the course of the contract initiation shall not be binding for the contents of any subsequent contract unless they are expressly designated by us as binding.
6) In addition, our property rights, copyrights, trademark rights, design rights, utility rights and patent rights thereto shall remain with us. They are entrusted to the potential buyer only for the purpose of the respective offer and may not be reproduced or made accessible to third parties, even in part, without our express consent. The documents handed over within the scope of the contract initiation shall be returned to us free of charge if the order is placed elsewhere.
§ 3 Prices
1) Unless otherwise stated in our order confirmation, our prices shall apply "ex works" or FCA Werl.
2) All prices are quoted in euros (€) and are "net" plus the statutory value added tax.
3) Unless otherwise stated, our prices include packaging but exclude transport and storage costs. Transport or other packaging shall be taken back within the framework of the statutory provisions, provided that it is delivered carriage paid.
4) In the export business, our prices do not include customs duties and any customs export and import fees or taxes.
§ 4 Delivery and delivery periods
1) Delivery shall be ex our works in Werl, unless otherwise stated in the order confirmation.
2) The risk of accidental loss and accidental deterioration of the goods - also in the case of partial deliveries and carriage paid delivery - shall pass to the buyer at the latest as soon as the consignment has been handed over to the person carrying out the transport. If the shipment is delayed for reasons for which the buyer is responsible, the risk shall pass to the buyer on the day the goods are made available.
3) Unless otherwise agreed, delivery dates are to be understood as expected.
4) We are not responsible for delays in delivery and performance due to force majeure and due to events for which we are not responsible but which make delivery or performance significantly more difficult or impossible - these include in particular strikes, lockouts, official orders, failure to deliver ourselves, etc., even if they occur at our suppliers - even in the case of bindingly agreed dates. They entitle us to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time.
If the impediment lasts longer than three months, the buyer shall be entitled to withdraw from the contract after the fruitless expiry of a reasonable deadline set for us. Withdrawal is excluded if the buyer is solely or predominantly responsible for the circumstance entitling him to withdraw or if the circumstance for which we are not responsible occurs at a time when the buyer is in default of acceptance.
5) If the buyer does not accept the goods despite our request, we are entitled to withdraw from the contract after the fruitless expiry of a reasonable deadline set by us for acceptance, which must be at least two weeks. The assertion of claims for damages shall not be excluded by the withdrawal.
§ 5 Terms of payment
1) Unless otherwise agreed, payment of the purchase price shall be made exclusively in cash without deduction to our account within 30 days of invoicing.
2) Bills of exchange and cheques are not accepted.
§ 6 Offsetting and rights of retention
The buyer shall only have the right to offset if his counterclaims against us have been legally established or are undisputed. The buyer is only entitled to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
§ 7 Retention of title
1) All goods delivered by us remain our property as long as we have payment claims against the buyer.
2) In the event of resale, the buyer hereby irrevocably assigns to us the claim for payment thereby acquired together with all ancillary rights and securities; we hereby accept the assignment. The buyer shall be irrevocably instructed by us to collect this claim in his name but for our account. The costs arising from the collection shall be borne by the buyer. At our request, the buyer shall disclose the assigned claim in terms of amount and debtor, provide all information necessary for collection and immediately hand over to us the documents pertaining thereto as well as immediately notify his debtor of the assignment in writing, without prejudice to the right that we ourselves notify the debtor of the assignment.
3) The buyer is obliged to insure the goods delivered by us from the time of the transfer of risk, in particular against unlawful removal, breakage, fire, water and other damage, at least in the amount of the market value of the goods and to provide us with evidence of the conclusion of the insurance policies on request, for example by presenting the insurance certificates. If the buyer does not comply despite our request, we shall be entitled to take out the necessary insurances at the buyer's expense. The buyer hereby irrevocably assigns to us his claims for reimbursement from the insurance relationships against the insurance companies; we hereby accept the assignment.
4) The buyer is obliged to treat the goods subject to retention of title with care.
5) The buyer may neither pledge the goods subject to retention of title nor assign them as security. In the event of seizures and attachments as well as other enforcement measures or dispositions by third parties, the buyer must notify us immediately and send us the corresponding documents (seizure protocol, attachment protocol, etc.). In addition, the buyer must state on record that the goods are subject to our retention of title when these measures are carried out. If he violates these obligations, the resulting intervention costs shall be borne by the buyer - without prejudice to our further claims.
6) We shall be entitled to withdraw from the contract in the event of conduct in breach of duty on the part of the buyer, in particular in the event of default in payment and/or in the event of a breach of a duty in accordance with clauses (3) to (5) above, which the buyer continues despite the setting of a reasonable deadline for conduct in accordance with duty, and thereafter to demand the return of the goods. The setting of a deadline is not required in the cases of § 323 paragraph 2 and § 324 BGB. The assertion of claims for damages shall not be excluded by the withdrawal.
7) If the value of the securities exceeds our claim to be secured by more than 10%, the buyer is entitled to demand release to this extent; the selection of the securities to be released is incumbent on us.
8) The processing, mixing or transformation of the object of sale by the buyer shall always be carried out for us. The legal consequences shall be governed by §§ 947 f. BGB. The buyer also assigns to us claims to secure our claims against him which arise against a third party through the connection of the object of sale with a plot of land; we already accept this assignment now.
§ 8 Warranty
The statutory provisions shall apply unless otherwise stipulated below:
1) The buyer must notify us in writing of obvious and recognisable defects without delay, but at the latest within three working days of receipt of the goods; timely dispatch shall suffice to meet the deadline. The buyer's attention is expressly drawn to the obligations to inspect and give notice of defects pursuant to § 377 of the German Commercial Code (HGB).
The purchaser must notify us in writing of non-obvious and non-recognisable defects within three working days of discovery; timely dispatch shall also suffice here to meet the deadline.
2) With regard to the quality of the object of purchase, only the product description in the order confirmation shall be deemed agreed. Public statements, recommendations or our advertising do not constitute a contractually binding specification of the quality of the goods, unless such a specification is expressly agreed in writing between us and the buyer.
3) Natural wear and tear and the impaired condition of the object of purchase due to unprofessional or improper handling do not constitute defects. We also do not provide any warranty for damage and malfunctions which are due to faulty installation or commissioning carried out by the buyer, faulty or unsuitable power supply, operation with the wrong type of current or voltage, and failure to carry out necessary or recommended operating and/or maintenance work. Likewise, no warranty is provided if parts are replaced or consumables are used that do not comply with the original specifications.
4) In the event of a defect, we shall be entitled, within the scope of the subsequent performance owed, at our discretion first to remedy the defect (rectification) or to deliver a defect-free item (replacement). However, we shall be entitled to refuse subsequent performance if it is only possible at disproportionate cost. The costs are disproportionately high in particular if the total expenses for subsequent performance are higher than 30% of the market value of the goods sold. The further rights of the buyer remain unaffected; however, we expressly point out that we can only pass on the conditions of the supplier or manufacturer to the buyer here.
5) The buyer reserves the right to reduce the purchase price or to withdraw from the contract at his discretion if the subsequent performance fails. Subsequent performance shall be deemed to have failed if two attempts at subsequent performance fail. If the buyer then chooses to withdraw from the contract due to a legal or material defect, he shall not be entitled to any additional claim for damages due to the defect. If, on the other hand, the buyer chooses compensation after subsequent performance has failed, the object of purchase remains with the buyer if this is reasonable for him. The compensation shall be limited to the difference between the purchase price and the value of the defective item. The above provisions of this clause shall not apply if we have fraudulently caused or concealed the defect.
6) In the event of a minor breach of contract, in particular in the event of only minor defects, the buyer shall not be entitled to withdraw from the contract.
7) If, in the event of a return of goods made on the occasion of a complaint, it transpires that the buyer's complaint was unjustified, we shall be entitled to demand both the costs of shipment and an appropriate remuneration for the inspection of the goods from the buyer.
8) Parts replaced under warranty become our property and must be returned to us.
9) If the buyer receives defective assembly or operating instructions, we are only obliged to supply him with defect-free assembly or operating instructions and this only if the defect in the assembly instructions prevents proper assembly or the defect in the operating instructions prevents proper operation.
10) The buyer does not receive any guarantees in the legal sense from us.
11) The warranty period is one year from delivery of the goods. This shall not apply in the event of an intentional or grossly negligent breach of duty, in the event of injury to life, limb or health caused by a negligent breach of duty on our part or an intentional or negligent breach of duty on the part of one of our legal representatives or vicarious agents, or if longer periods are prescribed by law (§ 438 para. 1 no. 2 BGB; § 479 para. 1 BGB; 634 a para. 1 no. 2 BGB).
§ 9 Limitations of liability
1) We shall not be liable for damages caused by our legal representatives or vicarious agents through slightly negligent breach of non-essential contractual obligations. This applies regardless of the legal nature of the asserted claim, in particular from delay, other breach of duty or tort. This limitation of liability does not apply to claims for injury to life, limb or health and for breach of essential contractual obligations, the fulfilment of which gives the contract its character and on which the purchaser may rely.
2) We only deliver in accordance with the buyer's specifications, which is why the buyer is solely responsible for the correct and sufficient dimensioning and project planning of the purchased item as well as for compliance with all legal requirements necessary for the use and operation of the purchased item.
§ 10 Liquidated damages
Insofar as we are entitled to claim damages on the basis of these General Terms and Conditions of Sale, Delivery and Payment or in accordance with statutory provisions, we shall be entitled, at our discretion, to calculate the damages specifically or to make a lump-sum payment. The lump sum for damages shall amount to 15% of the order value plus any expenses. We reserve the right to claim further damages. The buyer is expressly permitted to prove in the specific case that no damage or a reduction in value has occurred at all or that it is significantly lower than the lump sum and to demand a corresponding reduction.
§ 11 Applicable law, place of performance, place of jurisdiction
1) The law of the Federal Republic of Germany shall apply. The provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 shall not apply.
2) The place of performance for all rights and obligations arising from this contract is our plant in Werl, NRW.
3) The place of jurisdiction for all disputes arising from and in connection with this contract is Arnsberg.
§ 12 Miscellaneous
Should individual provisions of the contract, including these terms and conditions, be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes as close as possible to that of the invalid provision.
§ 13 Final provision
All terms and conditions of sale, delivery and payment of earlier date are hereby cancelled.
Status 09 March 2019
GT&C
