1. General Conditions
1.1 The following conditions apply exclusively to all our goods and services as well as agreements to be concluded with us in the future. These conditions are considered accepted at the latest when our goods or services have been received.
1.2 We do not recognise the purchaser’s General Terms and Conditions unless we have agreed to these in writing.
2. Scope of Delivery and Prices
The scope of our deliveries shall be defined by our written order confirmation. We reserve the right to modify design as well as to make changes to shape, model and colour.
Supplementary agreements, verbal promises and subsequent changes are only valid when confirmed in writing.
The prices in our price list valid on the day of receiving the order shall apply when we calculate our prices.
Prices do not include freight costs, which will be calculated exactly upon receipt of order.
3. Term for Delivery and Service
3.1 The term for delivery only comes into effect from the time that total agreement on all details of the placed order has been reached. The purchaser must fulfill all his contractual obligations before the term of delivery can start.
3.2 If we can prove that our failure to comply with the term of delivery is attributable to mobilisation, war, riots, strikes, lockouts, disruptions of operations at and/or in the business operations of one of our suppliers or to other events that we could not foresee and which were beyond our control, the term of delivery will be extended accordingly. In these cases the purchaser is neither entitled to withdraw from the confirmed order nor is he entitled to any compensation claims.
3.3 If the obstacles described above unduly difficult for us to carry out the contract we shall consequently be entitled to withdraw from the parts of the contract not yet performed. Compensation claims for damages asserted by the purchaser on account of such a withdrawal are excluded if legally permissible.
3.4 In the case of delays caused by us the purchaser is entitled to set us a new reasonable deadline for performance. Thereafter the purchaser may withdraw or claim damages.
Except in cases of gross negligence, damages shall be limited to the verifiable damage that was foreseeable at the point in time at which the contract was concluded. Damages shall however be limited to a maximum of 5 % of the value of the delivery. The same applies when we are responsible for a delivery being impossible to execute.
4. Passing of Risk and Shipment
As soon as the purchased goods have left our warehouse or been handed to the relevant party transporting the goods, the risk passes over to the purchaser. This also applies if we have assumed the transport costs or shipment is made with our own vehicles or if the delay in delivery is caused by the forwarder’s action as long as we have observed the necessary due diligence when selecting and commissioning the forwarder.
5. Retention of Title
5.1 All deliveries are subject to retention of title. Goods delivered remain our property until full and final payment of the purchase price and settlement of all outstanding claims due to us.
It is agreed that if the goods are processed, particularly when converted or installed we shall retain title in accordance with § 450 BGB [German Civil Code].
5.2 The purchaser is entitled to resell goods subject to retention of title only within the normal course of business. Pledging the goods subject to the retention of title or assigning them as a surety is not permitted. The purchaser must inform us immediately about levy of execution or other legal or actual dangers to the goods subject to retention and give us all necessary information at all times.
5.3 The purchaser hereby assigns his claims from all re-sales of the goods subject to retention of title to us – regardless of their condition – including all ancillary rights. If the purchaser collects the accounts due to us, he does this for us on a trust basis. The purchaser is entitled – and this may be revoked at any time – to collect the accounts resulting from transactions in the normal course of business, however, he is equally obligated to transfer the collected amounts to us without delay. We shall be entitled to make the third party buyer aware of the assignment at all times.
5.4 Repossession of the goods subject to retention of title by us shall not constitute a withdrawal from the contract – as long as the German Installment Payment Act does not apply.
5.5 The purchaser is obligated to take out sufficient insurance cover for the goods subject to retention of title against fire, burglary and theft. This must be verified by presenting the insurance policy to us on request.
6. Terms of Payment
Our accounts arising from goods and services are in principle assigned to a factoring company. Unless agreed otherwise with us, this means that you will have to remit the sums invoiced to our factoring company.
6.1 Unless otherwise agreed, invoices to our regular customers are payable within 30 days of invoice date without deductions or within 10 days to qualify for a prompt payment discount of 2%. New customers outside Europe are accepted on a prepayment basis, however, other options can be agreed for longer-term business relationships or if our factoring company accepts the customer.
6.2 If the purchasers is in arrears we charge interest at the rate of the usual bank overdraft rate, but at least 5% above the Bundesbank [German Central Bank] bank rate charged at that time.
6.3 If a purchaser falls into arrears or we become aware of circumstances that would affect the purchaser’s creditworthiness we are entitled to declare all accounts due immediately irrespective of legal basis. We shall also be entitled to withhold further goods and services, including from other business transactions, and to demand prepayment or securities for them as well as withdraw any special benefits which may have been granted to the purchaser.
6.4 The purchaser is not permitted to set-off any counterclaims unless the counterclaim is undisputed or has been declared final and absolute.
Notifications of actual defects by the purchaser which were foreseen by us shall not entitle the purchaser to withhold payments at least not until an opportunity to rectify defects granted us has failed.
7. Warranty for Defects in the goods
7.1 If our goods or services contain a defect at the point in time at which risk passes over to the purchaser we are obligated to provide either free rectification or replacement. In the case of impossibility or failure of rectification as well as our refusal or our culpable delay the purchaser has the right to reduce payment or cancel the contract. The purchaser must allow us sufficient time and opportunity to rectify the defect or replace the goods.
The purchaser may only rectify the defect himself or have it rectified by third parties in urgent cases in which operational reliability us at risk to save us from incurring disproportionately large damages and if he notifies us of the probable costs. He may invoice us for the necessary costs. The same applies if we are in default with the rectification of defects. A mandatory condition, however, is that we are informed in advance in all cases. We shall not guarantee the workmanship and quality of such work.
7.2 Defects – in the form of lack of warranted characteristics – must be contested in writing immediately after being discovered. Claims for obvious defects are excluded at the latest 10 days after the purchaser has accepted the delivery. After receiving a defect free delivery the purchaser cannot at a later stage claim damages that were noticeable on acceptance. Any damages and losses there may be certified in the waybill immediately when the goods are received by asserting a claim with the freight forwarder.
7.3 If we do not acknowledge defects notified on time the purchaser’s right to assert claims based on notified defects shall consequently becomes time barred 6 months from the point in time at which the defect was notified on time.
7.4 We shall not be liable for damages that are due to unsuitable or improper use by the purchaser or third parties, normal wear and tear, faulty or careless handling, unsuitable working materials, poor processing, chemical, electromechanical or electrical factors, unless they have been caused by us.
7.5 Unless the following states otherwise, all further claims asserted by the purchaser are excluded irrespective of legal basis. Therefore we shall not be liable for damages that have not been incurred to the delivered item itself. In particular, we are not liable for lost profit or any other financial losses incurred by the purchaser.
7.6 The above exemption from liability shall not apply if the cause of the defect is due to intent or gross negligence, however the replacement obligation is limited to the foreseeable damage. If we have intentionally breached an important contractual obligation we are liable for the replacement of foreseeable damage.
8. Joint Liability
Compensation for damages, on any legal ground, that has not been mentioned in the preceding provisions is excluded, in particular for non-fulfilment for impossibility, for negligence at conclusion of contract, for breach of contract other than delay or impossibility and for unlawful acts. This exclusion of liability shall not apply in the case of intent or gross negligence on behalf of our owners or management staff and in those cases in we are liable under the German Product Liability Act for personal injury or property damage to privately owned items as a result of defects in the delivered item. It also does not apply to the lack of characteristics that were specifically guaranteed if this assurance was specifically aimed to protect the purchaser from damages not incurred on the delivered item itself. It shall not apply either in instances in conflict with § 4 German AGB Act [GT & C].
Irrespective of the legal basis for the liability for damages, under no circumstances may we be held liable for damages that can be assigned to the purchaser’s risk and sphere of control and whose type and scope was not foreseeable at the time at which the contract was concluded.
Any liability that has been excluded or limited in the above with regard to us shall also apply to the personal liability of our salaried staff, employees, assistants and representatives.
9. Final Provisions
The place of performance for all obligations is the registered office of our company unless specified otherwise.
Our choice for the exclusive place of jurisdiction is Bonn. For non-traders this agreement on the responsible court is only valid in the event that the customer does not have a general place of jurisdiction within the Federal Republic of Germany.