General Terms and Conditions of Sale
- Our Terms and Conditions of Sale apply exclusively; we do not acknowledge any contradicting or diverging Terms and Conditions of Sale of our customers, unless we expressly consented to their application in writing. Our Terms and Conditions of Sale also apply if we provide our delivery without any reservation in the knowledge of contrary Terms and Conditions of the customer or such that diverge from our Terms and Conditions of Sale.
- All provisions regarding the execution of this agreement concluded between the customer and us are stipulated in writing in this agreement.
- Our Terms and Conditions of Sale only apply to companies in the sense of § 310 Para. 1 BGB (Civil Code).
§ 2 Offer – offer documents
- If an order must be considered as offer according to § 145 BGB (Civil Code) we can accept the same within 2 weeks.
- We reserve all proprietary rights and copyrights regarding the illustrations, sketches, calculations and other documents. This also applies to such written documents, which are labelled "confidential". The customer requires our express written consent before handing over the same to third parties.
§ 3 Prices – terms and conditions of payments
- Unless otherwise stipulated in the order confirmation, our prices are "ex factory", exclusive of packaging; the latter is invoiced separately.
- The Value Added Tax as legally applicable is not included in our prices; the amount as legally applicable on the day of the invoice is itemised separately on the invoice as.
- The deduction of early payment discounts requires a special agreement in writing.
- Unless otherwise stipulated in the order confirmation, the purchase price is payable net (without deduction) within 30 days from the date of the invoice. The legal provisions regarding the consequences of delays in payments apply.
- The customer only has the right of offsetting if his counterclaims are legally recognised, undisputed or acknowledged by us. The customer is only entitled to exercise any retention rights in so far as his counterclaim relates to the same contractual relationship.
§ 4 Delivery time
- The beginning of our stated delivery times presupposes the clarification of all technical issues.
- Furthermore, the compliance of our delivery obligation presupposes the timely and orderly fulfilment of the customer's obligation. We reserve the plea of a non-fulfilled contract.
- If the customer is in default of acceptance or if he culpably breaches other cooperation duties we are entitled to claim the damages incurred insofar including refund for any additional expenses. The right to further claims is reserved.
- As far as the conditions of Para. (3) apply the risk of accidental loss or accidental depreciation of the purchase object is transferred to the customer from the time where he was in default of acceptance or debtor's delay.
- We are liable according to the legal provisions if the underlying purchase contract is a short selling in the sense of § 286 Para. 2 No. 4 BGB (Civil Code) or of § 376 HGB (Commercial Code). We are also liable according to the legal provisions if due to the delivery delay, which we are responsible for, the customer is entitled to assert that his interest in the continued fulfilment of the agreement has ceased.
- Furthermore, we are liable according to the legal provisions if the delivery delay is due to intentional or grossly negligent breach of contract, which we are responsible for; our representatives' or vicarious agents' fault is assigned to us. If the delivery delay is not due to intentional breach of the contract, which we are responsible for, our liability for damages is limited to the foreseeable damages that are typically incurred in such contracts.
- We are also liable according to the legal provisions if the delivery delay, which we are responsible for, is due to the culpable breach of an essential contractual obligation; in this event the liability for damages is limited to the foreseeable damages that are typically incurred in such contracts.
- For the remainder we are liable in the event of delayed delivery for each completed week of delay within the scope of the flat-rate late compensation to the amount of 3% of the delivery value, however, not more than the maximum amount of 15% of the delivery value.
- The customer's further legal claims and rights remain unaffected.
§ 5 Transfer of risk – packaging costs
- Unless otherwise stipulated in the order confirmation the delivery is agreed "ex factory".
- Separate provisions apply relating to the return of packaging.
- If the customer desires we will cover the delivery in transport insurance; the customer bears the costs incurred.
§ 6 Liability for defects
- The customer's rights of liability for defects postulates that he has orderly fulfilled the obligations of inspection and reproof due according to § 377 HGB (Commercial Code).
- If the purchase object is defect the customer is entitled to choose the removal of the defect or the delivery of a new, faultless object as supplementary performance. In the event of the removal of the defect we are obliged to bear all expenses for the purpose of the removal of the defect, in particular transport, travel, labour and material costs, unless they are increased due to the fact that the purchase object has been moved to a location other than the place of fulfilment.
- If this supplementary performance fails the customer may at his discretion request the withdrawal from the contract or a reduction.
- We are liable according to the legal provisions if the customer asserts claims for damages, which are due to intention or gross negligence, including the intention or gross negligence of our representatives or vicarious agents. If we are not charged with intentional breach of contract the liability for damages is limited to the foreseeable damages that are typically incurred in such contracts.
- We are liable according to the legal provisions if we culpably breach an essential contractual obligation; in this event the liability for damages is limited to the foreseeable damages that are typically incurred in such contracts.
- If the customer is entitled to compensation for damages instead of performance, our liability within the scope of Para. (3) is limited to the foreseeable damages that are typically incurred in such contracts.
- The liability for culpable injury to life, body or health remains unaffected; this also applies to the mandatory liability according to the Produkthaftungsgesetz (Product Liability Law).
- Unless otherwise agreed above the liability is excluded.
- The statute of limitations for claims for defects amounts to 12 months from the transfer of risk.
- The statute of limitations in the event of delivery regress according to §§ 478, 479 BGB (Civil Code) remains unaffected; it amounts to five years from the delivery of the faulty goods.
§ 7 Joint and several liability
- Any further liability for damages other than stated in § 6 is excluded – irrespective of the legal status of the asserted claim. This particularly applies to damage claims from faults upon the conclusion of the agreement, because of other breaches of obligations or tort claims for compensation of damages to property according to § 823 BGB (Civil Code).
- The limitation of Para. (1) also applies insofar as the customer demands instead of the claim to compensation of damages compensation of useless expenses instead of performance.
- Insofar as the liability for damages is excluded or limited for us this also applies regarding the personal liability for damages of our staff, employees, colleagues, representatives and vicarious agents.
§ 8 Safeguarding of retention of title
- We reserve the property right to the purchase object to the receipt of all payments from the delivery agreement. In the event of the customer's breach of the contract, in particular in the event of delays in payments, we are entitled to take back the purchase object. The taking back of the purchase object on our part is the withdrawal from the agreement. After taking back the purchase object we are entitled to utilise it; the proceeds of the utilisation must be offset against the customer's obligation – minus the adequate utilisation costs.
- The customer is obliged to handle the purchase object carefully; in particular, he is obliged to insure it sufficiently at his own expense to the reinstatement value against theft, fire and water damages. If maintenance and inspection works are required the customer must carry these out timely at his own expense.
- In the event of attachments or other interventions of third parties the customer must inform us immediately in writing so that we may take legal action according to § 771 ZPO (Code of Civil Procedure). As far as the third party is not in the position to refund the judicial and extra-judicial costs of a claim according to § 771 ZPO (Code of Civil Procedure) the customer is liable for the losses we incurred.
- The customer is entitled to sell on the purchase object in the process of an orderly business transaction; however, he already assigns to us all claims amounting to the grand total of the invoice (including VAT) of our claim, which he incurs from the sale to his customers or third parties, and that is irrespective of the fact if the purchase object has been sold on with or without processing. The customer is authorised to collect the claim even after the assignment. Our entitlement to collect the claim ourselves remains unaffected. However, we commit to not collecting the claim as long as the customer meets his payment obligations from the proceeds received, as long as he is not in arrears and in particular as long as there is no petition to initiate composition or insolvency proceedings or as long as there is no suspension of payments. If, however, this is the case we may demand that the customer discloses the assigned claims and the debtors, makes available all details required for the collection, hands over the relevant documents and notifies the debtors (third parties) of the assignment.
- The processing or reworking of the purchase object on the part of the customer is always on our behalf and by our order. As far as the purchase object is processed with objects, which do not belong to us, we acquire the joint property rights of the new object in relation to the value of our purchase object (invoice total, including VAT) to the other processed objects at the time of processing. For the remainder the same applies to the object resulting from the processing as to the purchase object delivered subject to retention of title.
- As far as the purchase object is inseparably mixed with objects, which do not belong to us, we acquire the joint property rights of the new object in relation to the value of our purchase object (invoice total, including VAT) to the other mixed objects at the time of combination process. As far as the mixture takes place in a way that the customer's object must be considered as the main object, it is agreed that the customer transfers the joint property rights pro rata to us. The customer keeps the resulting sole property rights or joint property rights for us.
- The customer also assigns to us the claims to secure our claims against him, which incur against a third party from the combination of the purchase object with a property.
- We commit to release the securities due to us upon the customer's request as far as the realisable value of our securities exceed the claims to be secured by more than 10%; the choice of the securities to be released rests with us.
§ 9 Place of jurisdiction – place of fulfilment
- If the customer is a businessman our head office Iserlohn is the place of jurisdiction; however, we are entitled to sue the customer at the court responsible for his place of residence.
- The Law of the Republic of Germany applies; the application of the United Nations Convention on Contracts for the International Sale of Goods is excluded.
- Unless otherwise stipulated in the order confirmation our head office Iserlohn is the place of fulfilment.
General Terms and Conditions of Purchase
- Our conditions of purchase are apply exclusively; we do not recognize supplier conditions that are contrary to or deviate from our conditions unless we have expressly agreed to them in writing. Our conditions of purchase apply even if we accept the supplier’s delivery without reservations while being aware of supplier conditions that are contrary to or deviate from our conditions of purchase.
- All agreements between us and the supplier for the purpose of carrying out this contract are to be made in writing in this contract.
- Our conditions of purchase apply only vis-à-vis businesses as per § 310 sect. 4 BGB (German Civil Code).
- The supplier agrees to accept our order within a period of 2 weeks.
- We retain the property rights and copyrights for images, drawings, calculations, and other documents; they made not be made available to third parties without our express written permission. They are to be used exclusively for production on the basis of our order; after completion of the order, they are to be returned to us unsolicited. They are to be kept confidential from third parties; insofar the arrangement of § 9 sect. (4) also applies.
- The price indicated in the order is binding. In the absence of a differing written agreement, the price includes delivery “free domicile” including packaging. Return of packaging requires a separate agreement.
- The price includes the applicable value added tax.
- We can handle invoices only if they – in accordance with the guidelines in our order – include the order number indicated there; the supplier is liable for all consequences arising from non-compliance with this obligation unless he can prove that he is not responsible.
- If no other written agreement has been made we pay the purchase price with a 2% discount within 14 days of delivery and receipt of invoice or net within 30 days of receipt of invoice.
- We are entitled to set-off and retention to the extent allowed by law.
- The delivery time indicated in the order is binding.
- The supplier agrees to inform us promptly in writing if conditions arise or become apparent to him that indicate that the agreed delivery time cannot be complied with.
- In the event of delayed delivery, we are entitled to claims allowed by law. In particular, we are entitled to demand compensation instead of delivery and cancellation after the fruitless expiry of a reasonable period. If we demand compensation, the supplier has the right to prove to us that he is not responsible for the breach of agreement.
- Delivery is to be made free domicile unless another written agreement has been reached.
- The supplier is obligated to indicate our exact order number on all shipping documents and bills of lading; if he neglects to do so, we shall not be responsible for any delays in handling.
- We are obligated to examine the goods for any deviations of quality or quantity within a reasonable period; a complaint is considered timely if it reaches the supplier within 5 working days of receipt of goods, or in the event of hidden defects, within 5 working days of discovery.
- We are entitled to the full extent of legally allowable claims for defects; in any case we are entitled to demand correction of defects or delivery of a new article from the supplier at our discretion. We expressly reserve the right to compensation, in particular to compensation instead of delivery.
- We are entitled to correct defects ourselves at the supplier’s expense in case of pending danger or particular urgency.
- The statute of limitations is 36 months beginning with the transfer of risk.
- If the supplier is responsible for a product defect, he is obligated to indemnify us from compensation claims from third parties at first request, insofar as the cause stems from his domain and organization and he himself is liable to third parties.
- Within the scope of his liability for damages in the sense of sect. (1), the supplier is also obligated to refund any expenses as per §§ 683, 670 BGB or §§ 830, 840, 426 BGB that arise in connection with a recall campaign we conduct. We will inform the supplier – as far as possible and reasonable – of the contents and extent of recall measures to be made and give him the opportunity to state his position. Other claims allowed by law remain unaffected.
- The supplier agrees to maintain product liability insurance coverage of € 10 million – lump sum – per case of personal damage/material damage; if we are entitled to other claims for compensation, they remain unaffected.
- The supplier shall ensure that no third party rights within the Federal Republic of Germany are violated in connection with his delivery.
- If a third party makes a claim against us in this respect, the supplier is obligated to indemnify us from these claims at first request; we are not entitled to reach any agreements with the third party without permission of the supplier, in particular to reach a settlement.
- The supplier’s obligation to indemnify us extends to all expenses that we incur due to or in connection with claims made by a third party.
- The statute of limitations is ten years beginning with the signing of the contract.
- If we order parts from the supplier, we retain the title to them. Any processing or converting done by the supplier is on our behalf. If our retained goods are processed with third party objects not belonging to us, we acquire the joint ownership of the new object proportionate to the value of our object (purchase price plus VAT) to the other objects processed at the time of processing.
- If the article provided by us is inseparably combined with other objects not belonging to us, we acquire joint ownership of the new object proportionate to the value of the retained goods (purchase price plus VAT) to the other objects combined with it at the time they are combined. If combining is done in such a way that the supplier’s object is considered the main object, it shall be considered agreed that the supplier transfers proportional ownership to us; the supplier holds sole ownership or joint ownership for us.
- We retain ownership of tools; the supplier is obligated to use the tools solely for manufacturing the goods we ordered. The supplier is obligated to insure our tools at new value against fire damage, water damage, and theft at his own expense. The supplier now cedes all rights to compensation from this insurance to us; we hereby accept this cession of rights. The supplier is obligated to carry out the necessary servicing and inspection of our tools as well as maintenance and repairs at his own expense. He must inform us of any breakdowns promptly; if he negligently fails to do so, our rights to compensation shall not be affected.
- The supplier is obligated to maintain strict confidence of all images, drawings, calculations, and other documents and information he receives. They may be revealed to third parties only with our express permission. The confidentiality clause applies even after the end of the contract; it expires when and if the production know-how in the images, drawings, calculations, and other documents becomes general knowledge.
- If the security rights due us as per sect. (1) and/or (2) exceed the purchase price of all our not yet paid for retained goods by more than 10%, we are obligated to release the security rights of our choice at the supplier’s request.
- If the supplier is a businessman, our company seat of Iserlohn is the venue; however, we are entitled to press a suit against the supplier at a court of his residence.
- If the order does not specify otherwise, our company seat is the place of fulfillment.