General Terms and Conditions

 

1. General provisions

1) The present General Terms and Conditions shall apply to business transactions with companies, legal entities under public law and public law special funds. Our deliveries and services shall take place exclusively on the basis of the terms and conditions below. Terms and conditions of the Buyer that are not expressly acknowledged by us shall have no validity. The terms and conditions below shall also apply to future deliveries and services.
2) Our quotations shall be subject to change. All purchase orders and modifications thereof, agreements and subsidiary agreements or amendments and additions to our terms and conditions shall only become binding when they are confirmed in writing by us. The same shall apply to telephone or oral agreements. In the case of products that are manufactured separately to order, the contract shall be deemed to be concluded after it has been confirmed by us in writing, even if there are points that are still to be clarified with regard to the execution that may affect the delivery period and the price.
3) The information and illustrations contained in brochures and catalogues shall be approximations that are customary in the industry, unless we have expressly stated that they are binding. We shall retain our proprietary and copyright rights of use to the documents that pertain to the quotation, such as cost estimates, drawings and descriptions. These may only be passed on to third parties – even in extracts – with our prior written consent. The DIN standards and the familiar tolerance or standard regulations shall apply to raw materials and electrotechnical and mechanical accessories and to our own production.

2. Prices

1) Our prices shall be in euros ex works or ex stock, excluding packaging and plus the applicable VAT.
2) A change in the labour, material or energy costs shall entitle the Parties to demand an appropriate adjustment of the price, taking these factors into consideration.
3) In the event of deliveries to the islands in the North Sea, the costs for transport from the nearest mainland stop shall also be calculated: transport costs from a German border station, border duties, import duties, other duties.

3. Terms of payment

1) All invoices shall be due for payment within 30 days of the invoice date.
2) If we have indisputably delivered partially defective goods, the Buyer is still obligated to pay for the defective item, unless the part delivery is of no interest to it. In other respects, the Buyer can only offset our claims with legally established or undisputed counterclaims.
3) If the deadline is exceeded, we shall be entitled to charge default interest at the rate that the bank charges us for overdrafts, but at no less than 8 percentage points over the basic interest rate of the European Central Bank. The right to assert further damages caused by the delay shall remain reserved.
4) In the event of a late payment, we can cease to fulfil our obligations from the written communication to the Buyer until the receipt of the payments. The granting of an agreed discount rate requires all of the Buyer’s obligations to be fulfilled, including those from earlier transactions.
5) Bills of exchange and cheques shall only be accepted by agreement, on account of performance and on the condition of their eligibility for discount. They shall only be credited after the unconditional receipt of the net proceeds and only to the amount of the same. Discount charges shall be calculated from the due date of the invoice amount onwards.
6) If the terms of payment are not observed or if circumstances become known after the conclusion of the contract that may reduce the creditworthiness of the Buyer, all claims shall become due immediately after receipt of the invoice, irrespective of any payment period. Such circumstances shall also entitle us to execute outstanding deliveries and services only upon payment in advance or the provision of an appropriate security. In the event of refusal by the Buyer or the fruitless expiry of the period, we shall be entitled to withdraw from the contract and to demand compensation.
7) Furthermore, we can prohibit the resale and the processing of goods delivered by us under the same conditions and demand that they are returned to us at the expense of the Buyer or take possession of them without the Buyer being entitled to a right of retention or a similar right.
8) If we can demand compensation, our entitlement to compensation shall amount to at least 20 % of the value of the goods, but at least EUR 50 in the event of a free return delivery.

4. Securities

1) We shall retain title to the delivered goods (reserved goods) until all the receivables arising from the business relationship with the Buyer have been satisfied in full.
2) The Buyer may sell reserved goods in the ordinary course of business as long as it meets its obligations arising from the business relationship with us in good time. However, it may not either pledge the reserved goods or assign them by way of security. It is obligated to protect our rights in the event that the reserved goods are resold on credit.<br/> 3) In the event of infringements of obligations by the Buyer, especially in the event of a late payment, we shall be entitled to withdraw from the contract and to take back the goods after the fruitless expiry of a reasonable grace period that has been set for the Buyer for payment. The statutory provisions relating to the dispensability of setting a grace period shall remain unaffected. The Buyer shall be entitled to return the goods. We shall be entitled to withdraw from the contract if an application is made to initiate insolvency proceedings on the assets of the Buyer.
4) The Buyer hereby assigns to us, by way of security, all the receivables and rights arising from the resale of the reserved goods, including within the framework of a contract of work and services or a contract for work and materials. We hereby accept the assignment. At our request, the Buyer is obligated to inform its customers immediately of the assignment to us and to provide us with the information and documents that are necessary for the collection.
5) The Buyer shall always undertake any processing of the reserved goods for us, but without an obligation to us. If the reserved goods are processed or inseparably mixed with items that were not delivered by us, we shall acquire joint ownership of the new item according to the ratio of the invoice value of the reserved goods to the other processed or mixed items. If our goods are combined with other movable items to form one single item or are inseparably mixed with such items and if the other items can be regarded as the main item, the Buyer shall transfer joint ownership to us on a pro rata basis, insofar as the main item belongs to it. The Buyer shall keep the (jointly owned) property for us free of charge. In other respects, the same shall apply to the item created as a result of the processing, combining or mixing as for the reserved goods.
6) We shall release the above securities on request, at our discretion, to the extent that their value sustainably exceeds our secured receivables by more than 20 %.

5. Delivery periods and late deliveries

1) The observance of delivery periods shall be conditional on the clarification of all commercial and technical issues between the Parties, the punctual receipt of all the documents that have to be delivered by the Buyer and compliance with the agreed terms of payment and other obligations by the Buyer. If these conditions are not met on time, the periods shall be extended appropriately. This shall not apply if we are responsible for the delay.
2) Observance of the delivery period is subject to correct and punctual delivery by our suppliers. We shall inform the Buyer of impending delays as soon as possible.
3) The delivery period shall be deemed to be observed if the delivery item has left our plant before its expiry or if a notification of readiness for dispatch has been sent. If an acceptance procedure is to take place, the date of acceptance shall be decisive, or alternatively the notification of readiness for acceptance – apart from in the event of a justified refusal to accept the delivery.
4) If the dispatch or the acceptance of the delivery item is delayed for reasons for which the Buyer is responsible, it shall be charged for the costs arising from the delay, starting one month after the notification of the readiness for dispatch or acceptance.
5) If the failure to meet the periods can be attributed to force majeure, labour disputes or other events that are outside our sphere of influence, the periods shall be extended appropriately.
6) If we fall into default and the Buyer incurs damage as a result, it shall be entitled to demand a lump sum compensation for the delay. This shall amount, for each full week of the delay, to 0.5 % of the value of the respective part of the whole delivery that cannot be used on time or in accordance with the contract as a result of the delay. The total compensation shall be a maximum of 5 % of this value. If the Buyer sets us a reasonable grace period for performance – taking the statutory exceptions into consideration – after the due date and if the grace period is not observed, the Buyer shall be entitled to withdraw from the contract within the framework of the statutory provisions.
7) The Buyer shall only be entitled to withdraw from the contract if we are responsible for the failure to meet the delivery date and if it has fruitlessly set us a reasonable grace period for performance.

6. Dispatch and transfer of risk

1) The risk shall be transferred to the Buyer upon the handover of the goods to the carrier or freight forwarder, and as soon as the consignment has left the plant at the latest, even in the event of a shipment in our own trucks.
2) Goods that are reported as ready for dispatch on schedule must be called off immediately. Otherwise, we shall be entitled, at our own discretion, to ship them or to store them at the cost and risk of the Buyer and to charge for them as having been delivered.
3) In the event of a carriage paid delivery, the means of transport must be unloaded by the Buyer immediately. The Buyer shall bear the cost of waiting times.
4) In the event of a free site delivery, the agreed price shall always be free on a truck on a passable road at street level. The Buyer shall be responsible for unloading, including transport to the place of use and place of storage and must bear the costs and risks of the unloading, stacking and storage in this respect in the event of a delay.
5) The recipient acting on behalf of the Buyer at the place of delivery shall be deemed to be authorised to bindingly accept the delivery. Glass breakages in deliveries with glass components shall only be acknowledged if we are liable to pay compensation and the Buyer or the person acting for it with regard to the acceptance of the goods has complained about the broken glass on the delivery note.
6) Part deliveries shall be permitted if they are reasonable for the Buyer.

7. Assembly

1) If we carry out assembly work, our special terms of assembly shall apply in the valid version. The latest version can be requested from us at any time.
2) Unless otherwise agreed, we shall be entitled to transfer the assembly work to a third party company or person. The latter can also carry out the assembly and the carriage in their own name and for their own account.
3) The condition for the agreed assembly price is that all the preparations for smooth assembly have been made on site. Assistants and auxiliary materials such as hoists, power, water etc. must be provided on site. Hole cutting and masonry work, the setting up and dismantling of scaffolding and installation work must be taken on by the Buyer. The Buyer cannot demand remuneration or make deductions to the agreed assembly price for its own assistance with the assembly, without express agreement.

8. Acceptance

1) The Buyer may not refuse to accept deliveries on account of insignificant defects.
2) In the event that the Buyer is in default of acceptance, we shall be entitled, after setting a fruitless grace period of 14 days, to demand either acceptance of the whole order or part of the order or the rescission of the contract and compensation in lieu of performance.
3) The compensation to be paid shall amount to at least 20 % of the order value. The Buyer reserves the right to prove that the actual damages were less or that no damages were incurred.

9. Material defects

1) The condition of the goods shall be based exclusively on the agreed technical delivery regulations. If we have to make our deliveries in accordance with drawings, specifications, patterns etc. of the Buyer, the latter shall assume the risk regarding the suitability of the goods for the intended purpose. The time of the transfer of risk pursuant to Section 6 shall be decisive for the contractual condition of the goods.
2) We shall not be liable for material defects that emerge as a result of inappropriate or incorrect use, incorrect installation and assembly work by third parties, faulty commissioning, usual wear, incorrect or negligent handling, due to protective coatings that are incorrect or not applied in good time, or as a consequence of external influences (e.g. magnetic fields) and the failure to observe the operating instructions. We shall also not be liable for the consequence of incorrect changes or repair work of the Buyer or third parties that have been undertaken without our consent. The same shall apply to defects that pertain to the light fastness of plastic coatings or relate to supplied parts that are subject to increased natural wear as a result of their material composition or their type of use (e.g. seals, plastic bearings) and to defects that only negligibly reduce the value or the suitability of the goods.
3) Claims for material defects shall lapse in 24 months, or in 12 months if they relate to fitting components and electrotechnical accessories, calculated from the transfer of risk in each case. This shall not apply if the law mandatorily prescribes longer periods, especially for defects to a building and to a product that has been used for a building in accordance with its customary manner of use and has caused the defect in the building.
4) If an acceptance of the goods has been agreed, the reporting of defects that the Buyer could have discovered in a careful acceptance procedure shall be excluded.
5) We must be given the opportunity to establish the reported defects. Goods that have been complained about must be returned to us immediately on request; we shall assume the transport costs if the complaint is justified. If the Buyer does not meet these obligations or makes changes to the goods that have already been complained about without our consent, it shall lose any claims for material defects.
6) In the event of a justified complaint in due time, we shall, at our discretion, repair the goods that have been complained about or deliver a defect-free replacement.
7) If we do not meet these obligations or do not meet them within a reasonable period in accordance with the contract, the Buyer may set us a final grace period in writing, within which we must meet our obligations. After the fruitless expiry of this period, the Buyer may demand a reduction of the price, withdraw from the contract or itself carry out the necessary repairs or have them carried out by a third party at our expense and risk. A reimbursement of the costs shall be excluded if the expenses increase because the goods have been moved to another location after our delivery, unless this corresponds to the intended use of the goods.
8) The Buyer shall only have statutory rights of recourse against us to the extent that the Buyer has not made any agreements with its customer that go beyond the statutory claims for defects. Section 9 (7) final sentence shall also apply to the scope of the statutory rights of recourse.

10. Other claims, liability

1) Unless otherwise specified below, other and further-reaching claims made against us by the Buyer shall be excluded. This shall particularly apply to claims for compensation on account of the infringement of obligations under the contract or from tort. We shall therefore not be liable for damages that have not occurred on the delivered goods themselves. Above all, we shall not be liable for a loss of profit or other financial losses of the Buyer.
2) The above limitations of liability shall not apply in the event of wilful intent, in the event of the gross negligence of our legal representatives or senior executives and in the event of the culpable infringement of essential contractual obligations. In the event of the culpable infringement of essential contractual obligations, we shall only be liable – apart from in cases of wilful intent or gross negligence on the part of our legal representatives or senior executives – for the damage that is typical of the contract and can reasonably be foreseen.
3) The limitation of liability shall also not apply in cases in which there is liability, in accordance with the German Product Liability Act, for personal injury or material damages to privately used items in the event of defects to the delivered goods. It shall also not apply in the event of loss of life, physical injury or damage to health and in the event of the absence of warranted characteristics, if and insofar as the purpose of the warranty was to protect the Buyer against damages that did not occur on the delivered item itself.
4) If our liability is excluded or limited, this shall also apply to the personal liability of our employees, statutory representatives and vicarious agents.
5) The statutory regulations on the burden of proof shall remain unaffected by this.

11. Force majeure

Force majeure, labour disputes, unrest, official measures, the non-arrival of deliveries from our suppliers and other unforeseeable, incalculable and serious incidents shall release the Parties from its contractual obligations for the period of the disruption and to the extent of their effect. This shall also apply if these incidents occur at a time at which the affected Party is in default, unless it has caused the default through wilful intent or gross negligence. The Parties are obligated to provide the necessary information immediately, within reason, and to adjust their obligations to the altered circumstances in good faith.

12. Place of performance

1) Unless otherwise stated in the order confirmation, the place of performance shall be our registered place of business.
2) The place of jurisdiction for all legal disputes, including those relating to bills of exchange and cheques, shall be Bocholt. We shall also be entitled to file a suit in the Buyer’s registered place of business.
3) The law of the Federal Republic of Germany shall apply exclusively to the contractual relationship. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11th April 1980 shall be excluded.

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