General Terms and Conditions of Delivery and Payment

I. Area of validity

1. The following terms and conditions of sale apply to all contracts for the delivery of goods concluded between the purchaser and us. They also apply to all future business relationships, even if not expressly agreed again. The purchaser’s deviating terms and conditions, if we do not expressly acknowledge them, are not binding for us, even if we do not expressly reject them. The following terms and conditions of sale apply, even if we execute the purchaser’s order without reservation, despite being aware of the purchaser’s contradictory or deviating terms and conditions.

2. All agreements reached between the purchaser and us for the execution of the purchase contracts are laid down in writing in the contracts; all deviations therefrom, in particular from these terms and conditions, require our written confirmation.

II. Offer and conclusion of contract

1. We can accept the purchaser’s order, which is to be regarded as an offer to conclude a purchase contract, within two weeks by sending a confirmation of order or by sending the products ordered within the same time limit.

2. Our offers are non-binding and without obligation, unless we have expressly designated them as binding.

3. We retain the ownership of, as well as the copyright and other property rights to all illustrations, calculations, drawings and other documents. The purchaser may pass them on to third parties only with our written consent, irrespective of whether or not we have marked them as confidential.

III. Terms of payment

1. Our prices are ex dispatch warehouse/supply works excluding packaging, unless stipulated otherwise in the confirmation of order. We are entitled to increase the price accordingly if the prices of the supply works, the freight costs or the official fees increase between conclusion of the contract and delivery. We are free to choose the supply works, sub-supplier or dispatch warehouse. All additional charges, official fees as well as new taxes, freight costs or their increases that directly or indirectly affect the shipment and make it more expensive shall be borne by the purchaser, provided this is not forbidden by legal regulations. Our prices are exclusive of the statutory Value Added Tax. We will show this separately on the invoice at the legal rate valid on the day of rendering the invoice.

2. A discount deduction is permissible only if a special written agreement exists between us and the purchaser. The net purchase price is due for payment (without deduction) immediately on receipt of the invoice by the purchaser, provided no other payment date is stipulated in the confirmation of order. A payment is considered to have been made only when we can dispose of the sum. In case of payments by cheque, the payment is considered to have been made only when the cheque is redeemed.

3. The legal regulations apply if the purchaser is in default of payment.

4. The purchaser is entitled to set-off, even if notices of defect or counterclaims are asserted, only if the counterclaims have been established as final and absolute by a court of law, or are recognised by us or are undisputed. The purchaser is entitled to exercise a right of retention only if his counterclaim arises from the same contractual relationship.

5. We can offset claims – regardless of their nature – against the purchaser with counterclaims. This also applies if cash payments have been stipulated by one side and other note payments or other payments by the other side. Sentences 1 and 2 also apply to any pending balances of receivables. If receivables and counterclaims are due on different dates, our receivables shall be due at the latest with the counterclaims and with corresponding value date.

IV. Delivery and performance time

1. Delivery dates or deadlines that have not been expressly agreed as binding are exclusively non-binding statements. The delivery time stated by us only begins when the technical questions have been clarified and on the condition that our sub-suppliers properly fulfil our covering purchases. The purchaser shall likewise properly and promptly fulfil all of its obligations.

2. If the basic purchase contract is a firm deal within the meaning of Section 286 Paragraph 2 No. 4 BGB (German Civil Code) or Section 376 HGB (German Commercial Code), we are liable in accordance with the legal regulations. The same applies if the purchaser is entitled, due to a delivery delay caused by us, to assert the discontinuance of his interest in the further fulfilment of the contract. In this case our liability is limited to the foreseeable, typical damages if the delivery delay is not attributable to a deliberate breach of the contract on our part, wherein a fault on the part of our representatives or vicarious agents is to be attributed to us.

We are likewise liable to the purchaser in accordance with the legal regulations in the case of a delivery delay that is caused by a deliberate or grossly negligent breach of the contract on our part, wherein a fault on the part of our representatives or vicarious agents is to be attributed to us. Our liability is limited to the foreseeable, typically occurring damages if the delivery delay is not attributable to a deliberate breach of the contract on our part.

3. In the case that a delivery delay caused by us is attributable to the culpable breach of an essential contractual obligation, wherein a fault on the part of our representatives or vicarious agents is to be attributed to us, we shall be liable in accordance with the legal regulations, with the proviso that the liability to compensate damages is limited to the foreseeable, typically occurring damages.

4. Otherwise, in the case of a delivery delay for which we are responsible, the purchaser can assert a lump sum compensation of 0.5% of the delivery value for each completed week of the delay up to a maximum of 5% of the delivery value.

5. Further liability for a delivery delay for which we are responsible is excluded.

6. We are entitled to make partial deliveries and render partial performances at any time, provided that this is reasonable for the customer; the purchase price for these is due for payment irrespective of the time of the delivery of the remainder.

7. If the purchaser is in default of acceptance, then we shall be entitled to demand compensation for the resultant damages and any additional expenditure. The same applies if the purchaser culpably breaches its obligations to collaborate. On occurrence of default of acceptance or debtor's default, the risk of accidental deterioration and accidental perishing is transferred to the purchaser.

8. In the case of force majeure we can postpone the delivery by the duration of the hindrance plus an appropriate start-up time, or partly or fully withdraw from the contract on account of the as-yet unfulfilled part. We shall inform the purchaser without delay of the performance hindrance. The purchaser can demand that we declare whether we shall withdraw or deliver within an appropriate time limit. If we do not make a declaration, the purchaser can withdraw. In the case of strike, lockout or other economic circumstances that make the delivery or fulfilment of the contract significantly more difficult or impossible, sentences 1 to 4 apply accordingly, regardless of where the circumstances occur.

V. Transfer of risk – dispatch/packaging

1. Loading and dispatch take place uninsured at the purchaser’s risk. We make every effort to accommodate the purchaser’s wishes and interests with regard to the type and route of dispatch; additional costs incurred by this – even in the case of carriage-paid delivery – shall be at the purchaser's expense. Regardless of that, we or our sub-supplier shall choose the dispatch route, freight forwarder or haulier at our own discretion. In the case of transport with our own people we are the haulier. If we issue a credit note for the transport of the goods to a specified place of destination by the purchaser’s own truck, the purchaser is subject to the relevant monitoring and penalty regulations of our sub-suppliers, which we shall announce on request.

2. Goods notified as ready for dispatch must be called off/collected without delay. If a dispatch cannot take place within 2 days after notification of readiness for dispatch, we or our sub-supplier can dispatch the goods or, at our own discretion, store them at the purchaser’s risk and expense and invoice them as delivered in accordance with the contract, unless we or our sub-supplier are responsible for the delayed dispatch. In all other cases the notification of readiness for dispatch is equivalent to the dispatch.

3. We deliver the goods without packaging and not protected against rust.

4. The risk is transferred to the purchaser upon handover to the freight forwarder or haulier, even if we ourselves are the haulier; in case of transport with the purchaser's own truck, the risk is transferred upon loading onto this truck. The respectively valid INCOTERMS are determinative for the layout of clauses.

5. The purchaser shall ensure unhindered vehicle access to the unloading point, including access with a loaded heavy truck-trailer combination. The purchaser shall bear any additional costs incurred due to slippery road surfaces, snow, ice, tractor unit, etc. The purchaser shall make a fork-lift truck/crane available for unloading.

6. In accordance with the packaging regulations, we do not take back transport packaging or any other packaging, with the exception of pallets. The purchaser must dispose of the packaging at its own expense.

7. At the purchaser’s request and expense we shall secure the shipment with transport insurance.

VI. Acceptance

1. An agreed acceptance can take place only in the supply works/dispatch warehouse immediately after notification of readiness for acceptance. The purchaser shall bear the costs.

2. If the acceptance does not take place promptly or fully, we can dispatch the goods without acceptance or store them at the purchaser’s expense and risk. The goods are deemed to have been delivered in accordance with the contract on dispatch or placing into storage.

VII. Warranty/liability

1. The purchaser may only claim for defects if it has properly complied with its duty to examine the goods and notify defects as required by Section 377 HGB (German Commercial Code).

2. In case the goods exhibit a defect for which we are responsible, we are obligated, to the exclusion of any right of the purchaser to withdraw from the contract or to have the purchase price reduced, to perform subsequent rectification, unless we are entitled on account of legal regulations to refuse subsequent rectification. The purchaser must grant us an appropriate period of time for the subsequent rectification. The subsequent rectification can take the form of rectification of the defect (subsequent improvement) or the delivery of new goods, whichever the purchaser chooses. We shall bear the necessary costs of rectification of the defect to the extent that these costs are not increased because the contractual item is in a place other than the place of delivery.

If the subsequent rectification fails, the purchaser can demand a reduction of the purchase price or declare its withdrawal from the contract, whichever it chooses. The subsequent improvement is deemed to have failed following the second fruitless attempt unless, on account of the contractual item, further attempts at subsequent improvement are appropriate and reasonable for the purchaser.

The purchaser can only assert claims for compensation of damages on account of the defect under the following conditions if the subsequent rectification has failed. This does not affect the right of the purchaser to assert further claims for compensation of damages under the following conditions.

3. The purchaser’s warranty claims lapse one year after delivery of the goods to the purchaser, unless we have fraudulently concealed the defect; in this case the legal regulations apply. This does not affect our obligations arising from Section VI no. 4 and Section VI no. 5.

4. We are obligated according to the legal regulations to take back the new goods or to reduce the purchase price, even without the otherwise necessary setting of a time limit, if the purchaser's customer as the consumer of the purchased new chattel (consumer goods purchase) could demand that the purchaser take back the goods or reduce their purchase price due to a defect in the goods or if such a right of recourse resulting therefrom is asserted against the purchaser. Beyond that we are obligated to reimburse the purchaser's expenses, in particular transport, travel, work and material costs, which the purchaser incurs in relation to the end consumer in the context of the subsequent rectification on account of a defect in the goods which existed at the time of transfer of risk from us to the purchaser. The claim is excluded if the purchaser has properly complied with its duty to examine the goods and notify defects as required by Section 377 HGB (German Commercial Code).

5. The obligation in accordance with Section VII no. 4 is excluded if the defect concerned is based on advertising statements or other contractual agreements not originating from us, or if the purchaser has granted the end consumer a special warranty. The obligation is likewise excluded if the purchaser itself, on account of the legal regulations, was not obligated to grant a warranty to the end consumer or did not make this objection to a claim asserted against it. This also applies if the purchaser had granted warranties to the end consumer extending beyond the legal degree.

6. We are liable without restriction according to the legal regulations for damage to life, limb and health that is attributable to a negligent or deliberate breach of obligations by us, our representatives or vicarious agents, as well for damages covered by liability in accordance with the Product Liability Act. We are liable in accordance with the legal regulations for damages which are not covered by sentence 1 and which are attributable to a deliberate or grossly negligent breach of contract or fraudulent intent by us, our representatives or vicarious agents. In this case, however, the liability to compensate for damages is limited to the foreseeable, typically occurring damages, provided that we, our representatives or our vicarious agents had not acted deliberately. We are liable within the context of this warranty to the same extent as we have given a guarantee of properties and/or durability with regard to the goods of parts thereof. However, we are only liable for damages that are attributable to the lack of the guaranteed properties or durability, but do not directly occur on the goods, if the risk of such damages is evidently covered by the guarantee of properties and durability.

7. We are also liable for damages caused by simple negligence, provided the negligence concerns the breach of such contractual obligations whose observance is of particular importance for the attainment of the purpose of the contract (material contractual obligations). However, we are liable only if the damages are typically connected with the contract and are foreseeable.

8. Further liability is excluded, irrespective of the legal nature of the claim asserted. This applies in particular to tortious claims and claims for compensation of wasted expenditure in place of performance; this does not affect our liability in accordance with Section IV nos. 2 - 5 of this agreement. If our liability is excluded or limited, this also applies to the personal liability of our salaried staffs, workers, employees, representatives and vicarious agents.

9. The purchaser’s claims for compensation of damages lapse one year after delivery of the goods. This does not apply to injuries to life, limb or the health caused by us, our legal representatives or our vicarious agents, of if we or our legal representatives had acted deliberately or with gross negligence, or if our simple vicarious agents had acted deliberately.

VIII. Retention of title

1. The goods delivered (goods subject to retention of title) remain our property until the settlement of all of our present or future claims against the purchaser, including all outstanding balance claims from current accounts. In the case of behaviour contrary to the terms of the agreement on the part of the purchaser, e.g. default of payment, we are entitled to take back the goods subject to retention of title after having previously set an appropriate time limit. If we take back the goods subject to retention of title, this represents a withdrawal from the contract. If we seize the goods subject to retention of title, this is a withdrawal from the contract. We are entitled to utilise the goods subject to retention of title after taking them back. After deduction of an appropriate amount for the utilisation costs, the utilisation proceeds shall be offset against the amounts owed to us by the purchaser.

2. The purchaser must treat the goods subject to retention of title with care and adequately insure them at its own expense against fire, water damage and theft to a sum insured equivalent to the new value of the goods. Required maintenance and inspection work is to be carried out promptly by the purchaser at its own expense.

3. The purchaser is entitled to sell the goods subject to retention of title in the normal course of business and/or to use them, provided it is not in default of payment. Pledges or transfers by way of security are inadmissible. The purchaser surrenders to us now and in full, by way of security, the claims (including all outstanding balance claims from current accounts) arising from the resale or another legal reason (insurance, unlawful act); we accept said surrender. We revocably authorise the purchaser to debit the claims surrendered to us in its own name and for its own account. The debit authorisation can be revoked at any time if the purchaser does not comply with its payment obligations. The purchaser is not allowed to assign this claim, not even for the purpose of collecting the claim by way of factoring, unless the obligation of the factor is justified to pay the counterclaims in the amount of the claims directly to us as long as we still have claims against the purchaser.

4. Processing or transformation of the goods subject to retention of title by the purchaser takes place in all cases on our behalf. If the goods subject to retention of title are processed together with other items not belonging to us, we gain joint ownership of the new item in the ratio of the value of the goods subject to retention of title (final invoice amount including VAT) to the value of the other items processed at the time of the processing. The same applies to the new item created by processing as to the goods subject to retention of title. In the case of the mixing of the goods subject to retention of title with other items not belonging to us, we gain joint ownership of the new item in the ratio of the value of the goods subject to retention of title (invoice final amount including VAT) to the value of the other items mixed at the time of mixing. If the purchaser’s item is to be regarded as a principal item as a result of the mixing, the purchaser and we are agreed that the purchaser shall assign proportional joint ownership of this item to us; we hereby accept said assignment. The purchaser shall, on our behalf, safeguard our sole or joint ownership of an item gained in this way.

5. In case of third-party access to the goods subject to retention of title, in particular seizures, the purchaser shall indicate our ownership and shall inform us immediately so that we can assert our ownership rights. If the third party is unable to reimburse us the judicial or ex-judicial costs arising in this context, then the purchaser shall be liable.

6. We are obligated to release the securities, to which we are entitled, to the extent that the realisable value of our securities exceeds the claims to be secured by more than 20%; we can freely choose which securities to release.

IX. Place of fulfilment, place of jurisdiction, applicable law, partial ineffectiveness

1. The place of fulfilment and place of jurisdiction for deliveries and payments (including actions on cheques and bills of exchange) as well as all disputes between us and the purchaser arising from the contract concluded between us and the purchaser is Lünen/Dortmund. However, we are also entitled to bring actions against the purchaser at its place of residence and/or place of business.

2. The relationships between the Contracting Parties are governed exclusively by German Law. The application of the Uniform Law on the International Sale of Goods and the UN Convention on Contracts for the International Sale of Goods is excluded.

3. If individual provisions of these General Terms and Conditions of Delivery and Payment should be wholly or partly ineffective, this does not affect the remainder of the provisions. The ineffective provisions shall be replaced by provisions that achieve the desired economic purpose as far as possible.

All of our deliveries and performances take place exclusively on the basis of these Terms and Conditions of Delivery and Payment. We reject the Purchaser’s Terms and Conditions of Purchase and do not accept them under any circumstances whatsoever. The purchaser accepts our conditions at the latest upon receipt of our goods.

 

 

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