General provisions – scope
(1) Our terms of sale apply exclusively; any customer's terms and conditions or customer's terms and conditions conflicting with or deviating from our terms of sale will not be accepted unless we explicitly agree to them in writing. Our terms of sale also apply if delivery is made to the customer without reservation, even if we know of contradictory customer's terms and conditions or customer's terms and conditions deviating from our terms of sale.
(2) Any agreement made between us and the customer for the purpose of performing this contract is fixed in writing in the contract.
(3) Our terms of sale only apply to companies as defined in § 310 paragraph 1 BGB (German Commercial Code).
Quotation – Quotation Documents
(1) Quotations contained in the catalogue are given without engagement and are not binding. Prices are not binding. The terms and prices valid at the time of the order are applicable.
(2) If an order qualifies as a quotation as per § 145 BGB, we may accept it within a period of 2 weeks. Acceptance may be made in writing (e.g. by order confirmation) or by making delivery of the goods to the customer.
(3) We reserve the title and copyright on illustrations, drawings, calculations and other documents. This also applies to written documents marked as "confidential". The customer must seek our explicit written approval before transferring these to third parties.
Prices - Terms of Payment
(1) Our prices are quoted in EUR "ex works", unless otherwise specified in the order confirmation. In cases where delivery is made to a place other than the place of performance (§ 5 paragraph 1), the customer bears the transport cost ex works.
(2) Our prices are quoted net without Value Added Tax. This is indicated on the invoice at the legal rate on the date of billing.
(3) Payment delays are subject to legal provisions. The right to assertion regarding further damages for delay remains reserved. Towards merchants, our entitlement to the commercial maturity interest (§ 353 HGB) remains unaffected.
(4) The customer has offsetting or retention rights only insofar as his claim has been legally established or is uncontested. In the event of defects to the delivery, the customer's reciprocities remain unaffected, in particular as provided for by § 6 paragraph 3 phrase 2 of these terms of sale.
Delivery Term and Delivery Delay
(1) The delivery term is agreed individually or indicated by us at the time the order is accepted.
(2) If we are unable to meet binding delivery terms for reasons beyond our control (non-availability of service), we will notify the customer immediately and indicate the anticipated new delivery term. If the service is unavailable even within the new delivery term, we may withdraw from the contract in whole or in part; any consideration provided by the customer will be refunded forthwith. For this purpose, non-availability of service means in particular delayed delivery by our suppliers if we have signed a congruent hedging transaction and this is not our fault or the fault of our supplier or if we are not obliged to procure items on a case-by-case basis.
(3) Delivery defaults on our side are determined based on legal provisions. In any case, the customer must send a reminder. If we are in delivery default, the customer may claim flat-rate compensation of damages resulting from the delay. The flat-rate compensation is 0.5% of the net price (delivery value) per complete calendar week of default, however not more than 5% of the delivery value of the items delivered late. We may furnish proof that the customer has not suffered any damage at all or a much lower level of damage than covered by the above-mentioned flat rate.
(4) The customer's rights as per § 7 of these sales terms and our legal rights, particularly in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonability of service and/or supplementary performance) remain unaffected.
Delivery, Transfer of Risk, Acceptance, Acceptance Delay
(1) Delivery is made "ex works" and this is the place of performance. At the customer's request and cost, the goods may be shipped to another destination (delivery to a place other than the place of performance). Unless otherwise agreed, we may ourselves select the kind of shipping (particularly forwarders, route and packaging).
(2) We are entitled to make partial deliveries.
(3) The risk of accidental loss and the deterioration of goods is transferred to the customer at the latest at the time of transfer. In cases where delivery is made to a place other than the place of performance, the risk of accidental loss and deterioration of goods and the risk of a delay is transferred at the time of delivering the goods to the forwarder, carrier or other person or organisation assigned with shipping. If an acceptance has been agreed, this is determining for the transfer of risk. Furthermore, any agreed acceptance is subject to the legal provisions of the law on contracts. If a customer is in default of acceptance, this is equivalent to delivery or acceptance. For call-off purchase agreements, the customer is in default if he/she fails to accept the goods within 12 months from the date of the order unless a longer acceptance period has been agreed.
(4) If the customer is in default of acceptance or fails to cooperate or if our delivery is delayed for other reasons attributable to the customer, we may claim compensation for the resulting damage, including additional expenses (e.g. warehousing cost). For this purpose, we charge a flat compensation fee of 0.5% of the delivery value per calendar week, however not more than 10% of the delivery value starting from the delivery time or, if no delivery time has been agreed, starting from notification of readiness for despatch of the goods. The proof of higher damage and our legal claims (in particular compensation for additional expenses, appropriate indemnification, termination) remain unaffected; however the flat amount shall be set off against any additional monetary claims. The customer may furnish proof that we have not suffered any damage at all or a much lower level of damage than that covered by the above-mentioned flat rate.
Liability of Defects
(1) Claims for defects raised by the customer are dependent on him/her having duly complied with his/her inspection and notification obligations as per § 377 HGB.
(2) If the delivered items are defective, we may choose to provide supplementary performance by repairing the defect (remedy) or by delivering an item free from defects (replacement). Our right to refuse supplementary performance under the legal provisions remains unaffected. Any expenses involved in inspection and supplementary performance, in particular transport, shipping, labour and material costs (not removal and installation costs) will be borne by us if a defect actually exists. If a claim for removal of defects raised by the customer turns out to be unjustified, we may claim compensation for the resulting cost from the customer.
(3) We may request that the customer pays the purchase price due before carrying out the supplementary performance. However the customer may withhold an appropriate portion of the purchase price on a pro-rata basis to the defect.
(4) If the supplementary performance fails, the customer may at his/her discretion withdraw from the contract or request a price reduction. However in the event of an insignificant defect there is no right of withdrawal.
(5) We assume liability in line with legal provisions as far as the customer asserts damage claims which are based on gross negligence including intent or gross negligence by our representatives or agents. If we are not accused of intentional contract violation, our liability for damages is limited to the foreseeable typical damage.
(6) We assume liability in line with legal provisions if we have culpably violated a major contractual obligation; in this event liability for damages is also limited to the foreseeable typical damage.
(7) If the customer is entitled to compensation for damage instead of performance due to a negligent violation of obligations, our liability is limited to compensating for the foreseeable typical damage.
(8) Liability due to culpable damage to life, body or health remains unaffected; this also applies to mandatory liability based on the Product Liability Act.
(9) Unless otherwise agreed above, liability is ruled out.
(10) The statute of limitation for claims for defects is 12 months from the date of transfer of risk. This does not apply if the purchased items are typically used for a building and have caused a defect.
(11) The statute of limitation in the event of delivery recourse as per § 478, 479 BGB (German Civil Code) remains unaffected and is five years from the date of delivery of the defective item.
(1) Any additional liability for damage compensation than that provided for in § 6 is ruled out, irrespective of the legal nature of the claim raised. This applies in particular to damage claims due to faults at the time of signing the contract, any other breach of duty or actions in tort for compensation of material damage as per § 823 BGB.
(2) The limitation set out in paragraph (1) also applies if the customer claims compensation for useless expenses instead of performance within the framework of compensation of damage.
(3) If liability for damages towards us is ruled out or limited, this also applies to personal liability for damages of our employees, staff, representatives and agents.
Retention of Title
(1) We reserve the title to the sold items until full payment has been received of all present and future claims from the purchase contract and any ongoing business relationship (secured claims). If the customer acts contrary to the contract, in particular in the event of a payment default, we may take back the purchased items. The taking back of the purchased items by us implies a withdrawal from the contract. After having taken back the purchased item, we may dispose of it otherwise, and the income from the disposal will be set off against the customer's liabilities less an appropriate amount for the cost of disposal.
(2) The customer is obliged to handle the purchased items with care.
(3) In the event of a garnishment or other third party intervention, the customer must notify us forthwith for us to bring proceedings before the court as per § 771 ZPO (German Civil Process Order). If the third party is unable to refund court and out-of-court costs for an action as per § 771 ZPO, the customer is liable for the resulting loss.
(4) The customer may resell the purchased item within due course of business; however the customer hereby assigns to us all claims to the amount of the invoice total (including VAT) of our claim accruing from the resale towards his/her purchasers or third parties, irrespective of whether the purchased item has been resold with or without being processed. The customer is authorised to collect these claims even after such assignment. Our right to collect the claims ourselves remains unaffected. However we undertake to not collect the claims as long as the customer meets his/her payment obligations using the proceeds received, is not in default of payment and no application for composition or insolvency proceedings has been filed or payments suspended. However if this is the case, we may request that the customer informs us of the assigned claims including debtors and all information required to collect payment, delivers all the related documents and informs the debtors (third parties) of such assignment.
(5) The processing or alteration of purchased items by the customer is made on our behalf. If the purchased item is processed with other items which are not our property, we acquire co-ownership of the new item on a pro-rata basis of the value of the purchased item (invoice total including VAT) and the other processed items at the time of processing. Furthermore the item produced by processing is subject to the same provisions as the purchased item under reservation.
If the purchased item is inseparably blended with other items which are not our property, we acquire co-ownership of the new item on a pro-rata basis of the value of the purchased item (invoice total including VAT) and the other blended items at the time of blending. If blending is made in a way that the customer's item is considered as main item, it is hereby agreed that the customer grants us co-ownership on a pro-rata basis. The customer stores the so produced property or co-owned property for us.
(7) We undertake to release our securities at the customer's request insofar as the achievable value of our securities exceeds the claims to be secured by more than 10%; the selection of securities to be released is at our discretion.
Place of Venue - Choice of Law - Place of Performance
(1) If the customer is a merchant, the place of venue is our headquarters in Heimerdingen; however we may sue the customer at the court at his place of residence.
(2) The laws of the Federal Republic of Germany apply, the UN Convention on Contracts for the International Sale of Goods is excluded.
(3) Our headquarters are the place of performance unless otherwise stated in the order confirmation.
Valid: April 2013