GENERAL TERMS AND CONDITIONS OF BUSINESS
I. General Information
1. Our general terms and conditions of sale and delivery are valid for our deliveries and services, including all extra and obligatory performances.
2. Deviating terms and conditions of our customers require our written permission to be valid. The same applies for verbal agreements and assurances. We expressly contradict any terms and conditions of business and purchasing of the customer.
3. Our offers are principally non-binding. In case of doubt, a contract comes into being only with our written confirmation and according to this condition, but with the acceptance of our performance at the latest. Sales representatives and external sales employees the right to accept orders.
II. Conclusion of Contract
1. The information contained in brochures or similar documents and provided together with an offer, such as illustrations, drawings, descriptions, dimensions, weights, performance and consumer data, and information regarding the usability of equipment for new technologies, are only approximately authoritative insofar as they are not expressly defined as binding. Characteristics of the goods are considered to be guaranteed if they are agreed upon in writing. Small deviations from the descriptions of the goods are to be accepted and do not affect the terms of sale unless this proves to be unreasonable for the customer. This is particularly the case in regard to modifications and improvements in the name of technical progress. The customer must inform us in regard to any doubts or uncertainties about our products if the catalogues or illustrations contain insufficient information. Otherwise, the choice of the articles ordered will be entrusted to us, provided that the function of the originally desired goods is guaranteed.
2. We retain all proprietary rights and copyrights to cost estimates, drawings and other documents. This information may not be provided to third parties unless necessary for a commission. Drawings and other documents belonging to an offer are to be returned to us immediately upon request and the customer may not keep copies.
III. Prices and Payments
1. The prices agreed are ex works or distribution centre, plus VAT valid on the day of delivery or other services without mounting. VAT is listed separately in the invoice. We decide upon the method of dispatch of the goods. We deliver in standard packaging. Extra costs necessary for special packaging (e.g. sea-proof packing) are to be paid by the customer. Freight-paid delivery is provided only by special agreement that must be made in writing.
2. If the delivery takes place later than four months after the conclusion of the contract, we are entitled to increased the agreed price if the valid prices of our suppliers or other costs on our goods (including public debts) increase between the conclusion of the contract and delivery; otherwise, the price listed in the order confirmation applies.
3. Unless otherwise agreed in writing, all payments are to be made within 30 days from the issuing date of the invoice, net, without any discounts and other deductions. The binding due date of the invoice agreed upon by both parties is determined by calendar day and is printed in the invoice.
4. Bills of exchange can be used as payment only with our consent. Bills of exchange and cheques can be accepted as payment. Discount and collection expenses are to be paid by the customer. A discount may not be deducted in case of payment by bill of exchange.
5. If the customer defaults on the payment of the purchasing price, we are entitled to calculate interest to the amount of 8 percentage points above the respective basic interest rate. In addition, in case of a default of payment, we are entitled to rescind the contract if a payment period set for the customer runs out without payment.
6. The customer has no rights of retention, regardless of whether they are based on another contractual relationship or on the same, unless the counterclaim is undisputed or has been legally determined. The customer is also not entitled to offset with a counterclaim insofar as this claim is disputed or has not been legally determined.
7. Our external representatives and employees do not have the authority to collect.
IV. Delivery Times
1. We will make every effort to deliver the goods on the agreed delivery date, but we assume no guarantee for this date. On principle, our delivery times are insofar only approximate and non-binding. Agreements regarding a binding delivery which deviate from this provision must be express and in writing. If we are not able to deliver on time, we will inform the customer immediately. Damages cannot be claimed against us for late delivery or non-delivery of insofar as we are not guilty of premeditation or gross negligence. The customer's contractual obligations are to be fulfilled in order for us to be able observe the term of delivery.
2. If we get into arrears with delivery for reasons for which we are responsible and the customer has given us an appropriate deadline that we did not meet, the customer may rescind the contract. Customer claims for compensation due to breach of duty are excluded unless we or our vicarious agents have acted with gross negligence or with premeditation.
3. Unforeseen circumstances for which we are not responsible (such as power failure, delay in the delivery of essential components and other materials, import difficulties, operating and traffic problems, strikes, lockouts, force majeure, and so on), extends the delivery time accordingly. If we are also not able to perform after an appropriate extension, both the customer and we are entitled to rescind the contract. Customer claims for compensation are excluded. If we rescind, we will repay the customer any payments it has already made.
4. Partial deliveries and minor discrepancies in the orders (especially for customer-specific items) are permissible up to +/- 10%.
V. Shipping, Transfer of Risk, and Acceptance
1. The cheapest form of delivery takes place from our distribution centre without guarantee. We may make partial deliveries. Transport insurance is the responsibility of the customer.
2. To the best of our knowledge, shipping takes place under the exclusion of our own liability. In particular, we are not responsible for changes and deterioration in the goods during transport or due to improper storage.
3. Risk is transferred to the customer as soon as the goods have left our factory or the distribution centre, even if we are assuming other services such as freight-free shipping, transport, or similar services. If we have informed the customer that the goods are ready for shipping or pick-up, risk is transferred to the customer if it does not request delivery of or pick up the goods and we have set a deadline for the customer that has passed without success.
4. On principle, the customer is obliged to accept the goods that are ready for delivery.
VI. Breach of Duty Due to Defects
1. The customer must inspect the goods immediately after receipt. We must be informed of recognizable defects in writing within a week after the receipt of the goods. If this does not happen, the goods are considered to be approved.
2. Our liability extends to a faultlessness of the goods that corresponds to state-of-the-art technology.
3. Insofar as we have claims against our suppliers, our liability is transferred to the supplier along with these claims, and the supplier accepts this transfer. Any customer claims for the remuneration of costs incurred within the scope of the assertion of claims against a supplier is then excluded in any case if any cost-causing measures, especially the institution of legal proceedings, was not coordinated with us in advance.
4. If a claim against the supplier is out of the question or the supplier refuses liability towards the customer, our liability is limited to post-fulfilment, that is, replacement delivery or rectification of defects, as we choose. The customer must send us the defective goods or exchanged parts. If post-fulfilment fails or we are not able to provide it, the customer is entitled to rescind the contract or reduce the purchase price.
5. Our liability due to damage amounts to one year from the delivery of the goods.
6. We guarantee that all goods delivered are, at the time of transfer of risk, free of any material and processing faults which make them unsuited for normal use. The goods are guaranteed only to the extent that we repair or replace faulty delivered goods as we choose. The replacement piece and repaired goods are guaranteed in the same manner as the delivered goods.
7. Signs of wear and the results of improper storage or use of the goods on the part of the customer are excluded from the guarantee.
8. Due to any changes or servicing performed by the customer or a third party, liability is excluded for the resulting consequences.
9. Customer claims that go beyond the above-mentioned claims, no matter what the legal grounds, are excluded. For this reason, we are not liable for damage that is not on the goods itself or for any other pecuniary losses of the customer. This non-liability does not apply to personal injury; for other damages, it does not apply insofar as the cause of damage is due to premeditation or gross negligence. It also does not apply insofar as the damage is caused by a missing property that we guaranteed. The exclusion of a liability for compensation that goes beyond this does not apply to claims according to §§ 1, 4 of the Produkthaftungsgesetz (German Product Liability Act).
10. The transfer of guarantee claims to third parties is fundamentally excluded.
VII. Special Conditions for Repair Commissions
1. Repairs are carried out only according to the standards of the following conditions.
2. Cost estimates are only made upon request. The customer is responsible for transport costs in any case. We are entitled to seek reimbursement for the cost prices of the new packaging of returned goods.
3. Repair invoices are to be paid net and immediately. We are entitled to return repaired items piece by piece until all repair costs have been paid.
4. We are only liable for proper repair of specific faults, not for complete overhaul or repair of other damage.
5. We are only obliged to repair items if the necessary spare parts are available to us or if they can be obtained at a reasonable price from our suppliers.
VIII. Retention of Title
1. The delivered goods remain our property until the fulfilment of all claims arising from the concrete order. We retain title until the fulfilment of all claims due to us from the business relationship with the customer for any legal reason.
2. The customer is obliged to sell the reserved goods only in the ordinary course of business at its normal terms and conditions of business as long as it is not in arrears. It may resell the reserved goods only to the degree that the claim from the resale is passed on to us according to the following Items 3-5. It may not use the reserved goods in another manner.
3. The customer assigns its claims from the resale of reserved goods to us now, regardless of whether the reserved goods are to be sold to one or more buyers. The customer is entitled to collect the assigned claims from a resale until we revoke this right, which may occur at any time. The customer not entitled to assign the claim in any case.
4. Upon our demand, the customer is obliged - insofar as we do not tell its buyers ourselves - to inform the buyer immediately that it has assigned the claims to us, to prove to us that it has informed the buyer, and to send us any information and documents required for the collection of the assigned claimed.
5. Upon customer demand, we are obliged to release the securities when their realizable value exceeds our claim by more than 20%. We reserve the right to select which securities are released.
6. The purchaser is obliged to inform us of an attachment of a claim or other impairment by third parties immediately. If the customer does not meet a payment deadline or violates any other contractual agreements or if circumstances become known to us, which are suited to reduce the customer's creditworthiness, we are entitled to forbid the resale of reserved goods, to demand their return or the granting of direct ownership on the cost of the customer, or, if the goods were already sold, but is completely or partially not yet paid, demand payments directly from the customer's buyer.
7. If the customer comes into arrears, we retain the right to reclaim the goods and sell them elsewhere on the open market, as well as assume the transfer of third-party claims and collect the claims ourselves. The customer must allow us entry to its premises so that we can recover our goods.
8. The demand for the return of the goods is not considered a rescindment of the contract. We are entitled to use the reserved goods and pay them off to settle the open claims from their proceeds. We are entitled to charge the customer a flat rate sum of 30% of the gross sum issued on the invoice to cover damages. This will be reduced to 25% if the goods are returned in their original packaging. The customer is entitled to prove that the damages were not incurred at all or to the amount of the applicable percentages.
9. The customer is further obliged to insure the reserved goods and is responsible, in accordance with good business practices, to assign us any insurance or compensation claims due to the perishing or deterioration of the reserved goods.
10. In the case of § 947 Section 2 BGB (German Civil Code), the customer transfers the ownership of the product to us in advance in the relation of the material values under agreement of the free storage relationship. This product is thus also considered to be reserved goods.
IX. Export Business
1. The goods are transported at the customer's risk even if the goods are sold carriage paid or the agreed prices include free delivery so that any losses incurred during transport due to damage - no matter for what reason - are born by the customer. Additional costs for freight tariffs, taxes, and custom duty increases are to be paid by the customer.
2. We are entitled to charge the customer additional costs arising from new fees due to national or regional laws (including customs) or from increases in existing fees, whereby the costs of manufacturing or delivery of the goods are directly or indirectly affected or taxed, to the full amount of the agreed purchase price.
X. Proprietary Rights and Patents
1. The use of our name and trademark is prohibited unless we give our prior written permission.
2. For customer-specific manufacturing, the customer frees us from the proprietary rights of third parties for the deliveries and services in order, keeps us free from the claims of third parties, and shall compensate any damage incurred due to such claims. We are responsible for the customer's proprietary rights and patents only if we have agree thereto in writing.
XI. Data Protection
We are entitled to use the data of our customers or third parties, no matter if this data comes from our customer or a third party, if required, for business reasons within the scope of the Bundesdatenschutzgesetz (German Data Protection Act).
XII. Place of Fulfilment, Jurisdiction
The place of fulfilment for both parts of the contract is Hagen, Germany. The place of jurisdiction - even in case of bill of exchange or cheque payment enforcement proceedings - is Hagen, Germany.
XIII. Final Conditions
1. Even in case of deliveries to foreign countries, only German law applies. The application of the UN Sales Convention is excluded.
2. Amendments or revisions of these regulations must be in writing. The stipulation for the written form may also only be changed in writing.
3. If any individual provisions of these general terms and conditions of business become ineffective, the other provisions of the contract between the customer and us remains binding. We are entitled to replace invalid provisions with provisions that approximate the purpose of the invalid provision, insofar as legally possible. As an aid, the authority of existing legal regulations is agreed upon.