Conditions of sale and delivery
A. GENERAL PROVISIONS
- Our deliveries take place based solely on the conditions
- Any purchasing conditions on the part of the buyer are hereby expressly rejected. Nor do they subject us to any obligations should we fail to reject these once more upon concluding the contract.
- Agreements—particularly insofar as they modify these conditions—shall first become binding with our written confirmation.
- Our general conditions of sale and delivery shall be deemed accepted upon receipt of the goods by the latest.
II. Terms of payment
- Insofar as other conditions have not been agreed upon, payment is to take place within
30 net days, with a 5% discount when it is paid within 10 days after the date of invoice. We shall accept discountable bills of exchange for payment after explicit agreement.
Credit notes against bills of exchange and cheques shall be issued subject to receipt of the amount at the value on the day on which we are able to access the exchange value. If the payment period is exceeded, we shall invoice interest and commission rates in accordance with the corresponding bank rates for short-term loans.
- Independent of the term of any accepted and credited bills of exchange, all of our claims will become immediately due if the terms of payment are not adhered to or if, after the corresponding conclusion of contract, we become aware of circumstances which, in our opinion, sufficiently reduce the creditworthiness of the buyer. Furthermore, in such a case, we are entitled to only carry out any outstanding deliveries against prior payment or a security deposit, as well as to withdraw from the contract or to demand compensation on the basis of non-fulfilment following a reasonable period of grace. What’s more, we may prohibit the reselling of those goods supplied under retention of title, as well as demand their return or the transfer of indirect ownership at the cost of the buyer.
III. Retention of title
- Our deliveries remain our property until the payment of all our claims—regardless of the legal basis—has been completed. This also applies to payments made for specially identified claims. In the case of a current account, the reserved title shall constitute security for our balance claim.
- We carry out handling and processing works under exclusion of acquisition of ownership according to Section 950 BGB [German Civil Code], without any obligation on our part. Processed goods will serve as security for us to the amount of the invoice value of the reserved goods.
- Should the buyer carry out processing with other goods not belonging to us, we shall be entitled to co-ownership of the new item in proportion to the value of the reserved goods with respect to the other processed goods, e.g. at the time of processing. Otherwise, the same conditions apply to the new item which is created as a result of the processing as to the reserved goods. For the purpose of these conditions, these new items are considered reserved goods.
- The buyer may only sell our property in customary business transactions at his normal business conditions and as long as he is not in default.
- The buyer shall only be entitled and authorised to resell the reserved goods under the provision that claims arising from the resale are transferred to us in accordance with Paragraphs 6 and 7. He shall not be entitled to dispose of the reserved goods in any other way.
- The buyer's claims arising from a resale of the reserved goods are hereby assigned to us in advance, irrespective of whether the reserved goods are resold without or after processing, and whether to one or more customers. The assigned claim shall serve as security up to the value of the reserved goods which are sold in each case.
- If the reserved goods are resold—without or after processing—by the buyer together with other goods which do not belong to us, the assignment of the claim arising from the resale shall apply only to the amount of the value of the reserved goods.
- However, as long as the buyer complies with his payment obligations, he is authorised to collect the claims which have been assigned to us from the resale of the reserved goods. Conversely, he may not dispose of such claims by way of assignment. Upon our request, the buyer shall be obliged to inform his customer of the assignment to us.
- Where the value of our existing securities exceeds the total value of our claims by more than 20%, we are obligated to release some of the securities as we see fit at the buyer’s request.
- The buyer must inform us immediately about any seizure or other adverse actions on the part of third parties.
IV. Place of fulfilment and place of jurisdiction
- The place of jurisdiction for both contractual parties, including for complaints based on cheques or bills of exchange, shall be Marl. Marl shall also be the place of jurisdiction. We are also entitled to bring action against the buyer at his place of jurisdiction.
- The above shall also apply to all those who are liable for the obligations of the buyer.
B. EXECUTION OF THE DELIVERIES:
I. Delivery period – delivery date
- The delivery period commences on the date of our confirmation of order, however not before all the details concerning its execution have been clarified.
- The delivery period and delivery date are considered to have been complied with upon the timely announcement of readiness for delivery, even if dispatch is impossible through no fault on our part.
- Irrespective of our rights arising from the delay of the buyer, the agreed delivery period shall be extended by the period of time by which the buyer is delayed with regards to their obligations from this or another contract.
- In the case that we ourselves are in delay, the buyer must give us a reasonable grace period. Following expiry of this grace period, he may cancel the contract if the goods have not been declared ready to ship by this time.
- Claims for damages resulting from non-compliance with deadlines or dates of delivery are hereby excluded.
II. Force majeure
- Events of force majeure, e.g. strike, lockout and business interruptions, shall entitle us to postpone delivery by the duration of the interference plus a reasonable start-up period, or to withdraw from the part of the contract which has not yet been fulfilled. All circumstances which significantly impede delivery or which make it impossible shall be regarded in the same light as force majeure, irrespective of whether they occur at our premises or at those of our subcontractors. The buyer may demand notification from us as to whether we wish to withdraw from the contract or deliver within a reasonable period of time. If we do not provide a notification, the buyer may withdraw from the contract.
III. Shipping and assumption of risk
- Even in the event of shipment which is freight-free or free, goods shall always be transported at the expense and risk of the buyer. In all cases, shipping shall be carried out via the least expensive means of shipping with no liability on our part.
- We may choose the means of transportation and protection, as well as the dispatch route, with any liability being excluded.
- Packaging is non-returnable.
- Goods which have been reported ready for shipment must be retrieved immediately. Failing this, or should it be impossible for the buyer to do this, we have the right to store these according to our discretion at the buyer's expense and risk, and to invoice these as “delivered to the factory”.
IV. Price calculation
- The quantities delivered by us are essential for the calculation of prices. We charge our prices as applicable on the day of delivery. This means that we reserve the right to make price increases or reductions in accordance with material prices and changes to costs which may arise before delivery, even when these are enacted with retroactive effect.
V. Defects – delivery of non-contractual goods
- The buyer is to raise any complaints in writing within 14 days following
receipt of the goods at their destination.
- Any defects which cannot be discovered within this period—even by careful examination—are to be reported without delay after these are discovered and with an immediate stop to any processing 6 months after receipt of the goods at the latest.
- We take defective products back and remedy the defect or deliver a properly-functioning item. In doing so, if the rectification or replacement delivery fail, the other contractual party reserves the right to demand a reduction in price or to, at his discretion, withdraw from the contract. Regardless of their legal basis, any additional claims—including claims for damages—are excluded. Section 276 Par. 3 BGB [German Civil Code] remains unaffected.
- Should, upon request, the buyer not promptly provide the material which they have complained about, all claims for defects shall become void.
- Claims for defects shall expire two years after delivery (Section 438 Par. 1 No. 3 BGB).
- If the contractual quantity is exceeded due to individual call-off orders from the buyer, we are entitled to deliver the excess. The excess will be invoiced at contract terms. Partial deliveries are permissible in each case. Each partial delivery shall be deemed an independent transaction. Insofar as individual provisions of the conditions of sale and delivery should prove to be ineffective, the effectiveness of other provisions shall not be affected by this.
In all cases, only German law shall apply—to the exclusion of foreign law.
- Please note that all of the vendor’s model names for their own goods are for internal use only and thus function as article numbers. Upon concluding the sales contract, the buyer obligates himself to no longer use these internal model names and to use their own article numbers or labels when reselling. In doing so, a defect in title on the part of the vendor pursuant to Section 435 BGB is excluded in connection with the disputed model names of the sold goods.
- The customer shall not be entitled to offset with alleged counter-claims resulting from the contractual relationship without our consent (offsetting ban).