1.1 The following General Terms and Conditions (hereinafter referred to as ‘Terms and Conditions’) are for the settlement of all our deliveries of goods and the related services to companies within the meaning of § 310 (1) BGB. Our general terms and conditions apply exclusively; We do not accept conditions of the customer that conflict with or deviate from our terms and conditions, unless we have expressly agreed in writing. Our general terms and conditions also apply if we carry out the delivery to the customer without reservation in the knowledge of conflicting or deviating conditions of the customer.
1.2 All agreements made between us and the customer for the purpose of executing this contract are laid down in writing in this contract.
1.3 Orders shall only be considered accepted if they have been confirmed by us in writing. This also applies to additions, changes, deletions and other agreements.
1.4 Our terms of sale also apply to all future business with the customer.
2. Prices and deliveries
2.1 The prices stated in the written order confirmation are binding. Unless otherwise agreed, our prices are in Euro ex works excluding freight, customs, import duties and packaging. The legal value added tax is not included in our prices; it will be shown separately in the bill at the statutory rate on the date of invoicing.
3. Terms of payment
3.1 All conditions must be paid by the agreed due date.
3.2 Financial uncertainties with the orderer after acceptance of the order entitle us to make the delivery dependent on a cash payment or other security (bank guarantee). In the case of prepayment in advance, our cash discount system will apply accordingly. Discounts do not apply if all other invoices are not paid at the latest upon receipt of the discounted invoice amount.
3.3 We are entitled to withdraw from a contract if it becomes apparent after conclusion of the contract that our contractual claims are jeopardized by the lack of efficiency of the customer.
3.4 In the event of default of payment with regard to at least two invoice amounts, on cessation of payments, on the commencement of extrajudicial settlement negotiations or on the submission of an application for the opening of insolvency proceedings by the customer, all our invoices become due immediately. Agreed deductions from the invoice amount, such as discounts etc. may no longer be made.
3.5 Set-off rights are only available to the customer if his counterclaims have been legally established or are undisputed. 3.6 The customer may exercise a right of retention only if his counterclaim is based on the same contractual relationship.
4. Risk and shipping
4.1 Unless otherwise agreed, delivery shall be ‘ex works’ or ex warehouse. The handover to the transport operator entails risk, breakage and burden of proof with regard to the proper packaging and loading on the customer. This also applies to franko deliveries.
4.2 In the case of delivery with our vehicles or with vehicles of the supplying factory, the transfer shall be deemed to have taken place at the latest when the goods are available to the consignee on the carriageway in front of the delivery point on the carriage. Unloading is the sole responsibility of the purchaser. Any unloading by the wagon personnel or their assistance in unloading does not imply the assumption of further danger or liability. It is the sole responsibility and obligation of the purchaser to ensure suitable unloading equipment and to provide the necessary workers for unloading.
4.3 Insofar as an insurance is taken out at the request of the purchaser, the costs shall be borne by the purchaser; In such cases we act only as an intermediary to the exclusion of any form of liability.
5. Retention of title
5.1 We reserve the ownership of the goods until receipt of all payments from the business relationship with the customer. In case of breach of contract by the customer, in particular in case of default of payment, we are entitled to take back the goods after withdrawal from the contract. We reserve the right to inspect the reserved goods in our possession at any time in the place where they are located. If we assert our claim for surrender after withdrawal from the contract, the customer hereby irrevocably authorizes us to take possession of the goods in our ownership, whether they are unprocessed or processed, and to enter the place where the Goods are located. In the withdrawal and seizure of the goods by us – without prejudice to the assertion of claims for damages – a withdrawal from the contract. We are entitled after resignation to the utilization of the goods; the proceeds of the realization are to be credited against the liabilities of the purchaser – less reasonable exploitation costs.
5.2 The customer is obliged to treat the goods with care; in particular, he is obliged to insure these at his own expense against damage caused by fire, water and theft to the value of new. If maintenance and inspection work is required, the purchaser must carry it out on time at its own expense.
5.3 The purchaser is obliged to notify us immediately of access by third parties to the goods, for example in the case of a seizure, as well as any damage or destruction of the goods. A change of ownership of the goods as well as their own change of residence must be reported by the purchaser without delay.
5.4 We shall be entitled to withdraw from the contract in the event of breach of contract by the purchaser, in particular in the event of default in payment or in the event of breach of the obligations under clauses 6.2 to 6.4 of this clause, and to demand the goods out. The customer is entitled to resell the goods in the ordinary course of business. He now assigns to us all claims in the amount of the invoice, which accrue to him through the resale against third parties. We accept the assignment. After assignment, the purchaser is authorized to collect the claim. We reserve the right to collect the claim ourselves as soon as the customer no longer duly fulfills his payment obligations and is in default of payment.
5.5 The processing or transformation of the goods by the customer is always carried out for us as the manufacturer. If the goods are processed or combined with other objects not belonging to us, we acquire the co-ownership of the new goods in proportion of the value of the goods (invoice amount including value added tax) to the other processing objects at the time of processing. The same applies to the goods resulting from processing as for the goods delivered under reserve.
5.6.The purchaser also assigns the claim for the security of our claim against him, which accrue by the connection of the goods with a property against a third party.
5.7 In the case of goods which the purchaser has to build into a building of a third party as an essential component, the purchaser assigns to us his contractual right to order a security mortgage in the value of the goods (invoice amount including value added tax). We accept this assignment.
5.8 We undertake to release the securities to which we are entitled on request of the Purchaser to the extent that the realizable value of our securities exceeds the claims to be secured by more than 10%; the selection of the securities to be released is our responsibility.
6. Notice of defects and rights of the customer
6.1 The warranty rights of the purchaser presuppose that the purchaser has the following rights according to §§ 377 HGB f. duly fulfilled the duties of investigation and obser- Notification of defects must be made in writing without delay, stating reasons. The customer shall bear the full burden of proof for all claims, in particular the defect itself, for the time of the discovery of the defect and the timeliness of the complaint. Contrary to § 91 (2) HGB (Commercial Code), our sales representatives are responsible for receiving complaints according to §§ 377 f. HGB not entitled.
6.2 Insofar as there is a defect in the purchased item, we shall be entitled, at our discretion, to remedy the defect in the form of a remedy of defects or to deliver a new defect-free item. In the case of removal of defects, we are obliged to bear all expenses necessary for the purpose of correcting the defect, in particular transport, travel, labor and material costs, insofar as these are not increased by the fact that the goods were transported to a place other than the place of performance. If, on the occasion of a review of the defect notified by the customer, it becomes apparent that a defect is not actually present, the customer must reimburse us for the costs incurred. We charge a flat rate of € 48.00 per commenced hour and € 0.51 per driven and departed kilometer. The purchaser is permitted to prove that we have suffered no damage or less damage.
6.3 If the subsequent performance fails, the customer has the right to reduce his choice or to withdraw from the contract.
6.4 Further claims of the customer, in particular due to consequential damages, are excluded.This does not apply in case of intent, gross negligence or breach of essential contractual obligations of the supplier as well as in case of injury to life, limb or health. The right of the customer to withdraw from the contract remains unaffected.
Unless otherwise stated above, we and our vicarious agents and vicarious agents are liable for claims for damages of the customer resulting from a positive breach of contract, from breach of duties in the contract negotiations and from tort, as follows:
a) The liability for personal injury depends on the statutory provisions.
b) Liability for damage to property is limited to 250,000.00 € per event of damage and 500,000.00 € in total.
c) Liability for financial loss is excluded. The limitation of liability under number
7. b) and the disclaimer under point
7. c) shall not apply insofar as in the case of damage to privately used property in accordance with the Product Liability Act or following cases of intent or gross negligence or breach of essential contractual obligations or the absence of warranted characteristics, contractually foreseeable damages are obligatory.
8. Applicable Law / Choice of Jurisdiction / Place of Performance / Severability Clause
8.1 The law of the Federal Republic of Germany applies. The provisions of the United Nations Convention on the International Sale of Goods do not apply.
8.2 If the purchaser is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for all disputes arising from this contract is our registered office.The same applies if the purchaser does not have a general place of jurisdiction in Germany or the place of residence or habitual residence is not known at the time the complaint is filed.
8.3 For our delivery, the place of performance is Herford.
8.4 We are entitled to process the data received from our customers on the basis of the business relationship in accordance with the provisions of the Federal Data Protection Act, in particular to also determine the credit insurer’s data required for the credit insurance.
8.5 The assignment of claims, which our customers from the business relationship with us are entitled, is impossible.
8.6 If individual provisions of the contract with the customer, including these General Terms and Conditions, be or become wholly or partially invalid, this shall not affect the validity of the remaining provisions. Wholly or partially ineffective regulations should be replaced by a regulation that comes as close as possible to the economic success of the invalid.