These terms do not apply to consumers as defined by § 13 BGB.
Our deliveries, services and offers are rendered exclusively on the basis of these Terms of Business. We have made reference to the application of our General Terms of Business upon conclusion of the contract by informing of their content. These are considered agreed to at the latest upon acceptance of the goods or services.
We do not recognize any terms and conditions of the purchaser which conflict or deviate from our terms and conditions unless we have agreed to the application of such in writing. Our Sales Terms also apply if we undertake delivery to the purchaser without attaching any conditions to such in the knowledge that terms of the purchaser conflict with or deviate from our Sales Terms.
§ 2 Offer and conclusion of contract
Our offers are subject to confirmation and are non-binding. Declarations of acceptance and all orders require written confirmation from us for their legal effect.
Our sales associates are not authorized to make subsidiary agreements or to give verbal assurances, which go beyond the content of the written agreement.
Technical information, e.g., measurements, weights and performance data, drawings and pictures are only definitive within the scope of normal technical tolerance parameters, unless these are explicitly agreed in writing and are confirmed as being binding.
§ 3 Prices and acceptance
Unless otherwise specified, the prices contained in our offers are binding for us for a period of 30 days from the date of the offer. The prices specified in our order confirmation are definitive. Additional deliveries and services are invoiced separately.
Statutory VAT is not included in our prices; it is shown separately on the invoice at the statutory rate applicable on the date the invoice is issued.
Unless otherwise agreed, prices are ex works Gelsenkirchen.
Production constraints may result in excess production of up to 10% which the customer shall be required to accept.
§ 4 Delivery period, time of performance
Delivery deadlines or dates are considered as having been agreed approximately. Fixed guaranteed dates require our explicit written confirmation.
Force majeure or operational disruptions encountered by the vendor or its suppliers, which temporarily prevent the vendor through no fault of its own from supplying the object of purchase on the agreed date or within the agreed deadline alter contractually agreed delivery deadlines or dates by the duration of the defective performance caused by such circumstances. If such disruptions lead to performance being deferred for more than two months, the purchaser can withdraw from the contract. Other rescission rights remain unaffected. We are not liable for delays in delivery or performance for which we are not responsible. The agreement is entered into subject to our correct and timely supply by our ancillary suppliers. In the event that the delivery or service is not possible because our ancillary supplier has not met its obligation to supply, we are entitled to withdraw from the contract. We can only then refer to the specified circumstances if we inform the purchaser of these without delay.
If the delay in delivery is due to a grossly negligent or intentional breach of contract or the deliberate violation of a significant contractual duty, we are liable in accordance with statutory provisions. This liability is, however, limited to foreseeable and typically occurring damage, except in the case of intentional breach of contract.
In the event of delayed delivery, liability will also be limited to fixed compensation for default in the amount of 0.5% of the value of the goods supplied for each complete week of the delay, up to a maximum, however, of 5% of the supply value of the deliveries and services affected by the delay. Claims in excess of this are excluded, unless the delay is at least due to gross negligence. § 9 also applies.
We are entitled at any time to make partial deliveries.
§ 5 Passing of risk
Supply ex works is agreed unless stipulated otherwise in the order confirmation.
The risk passes to the purchaser as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of dispatch. If dispatch is not possible for reasons for which we are not responsible, the risk passes to the purchaser when it is informed that the consignment is ready for dispatch.
§ 6 Liability for defects
The rights of the purchaser with respect to defects are subject to the fact that the purchaser has properly met its obligations stipulated in § 377 Commercial Code [HGB] to examine the delivery and complain about defects. A complaint in respect of a defect of goods must be lodged with us in writing at the latest within 2 weeks following delivery. This deadline shall also apply for hidden defects, unless such defects are not determinable with reasonable examinations.
If an item supplied by us is defective, a priority right to remedy the defect as defined in § 439 Section 1 Civil Code [BGB] exists, subject to the condition, however, that we choose how the defect is remedied. The purchaser can reject the type of subsequent performance chosen by us to remedy the defect, if this is not reasonable for it. Our rights resulting from § 439 Section 3 Civil Code [BGB] remain unaffected.
If we choose to eliminate the defect, we can demand that
a) the defective items are at our cost sent to us for repair and subsequent return to the place of performance
b) the purchaser has the defective items ready for inspection and if necessary for repair by us or a third party commissioned by us. The remedy of the defect is not considered a failure until the second attempt to remedy the defect remains unsuccessful.
If due to legal provisions in accordance with these terms the vendor has to pay compensation for damage which was caused by slight negligence, the liability of the vendor is limited: The liability only exists in the event that significant contractual duties are breached and is limited to the damage typically foreseeable upon conclusion of the contract. This limitation does not apply for injury to life, body and health. If the damage is covered by insurance taken out by the purchaser for the respective damage event (excluding fixed benefit insurance), the vendor is only liable for any losses of the purchaser associated with this, e.g., higher insurance premiums or interest losses until the claim has been settled by the insurance company. No liability is assumed for damage caused by slight negligence due to a defect of the object of purchase. Independent of a fault of the vendor, any liability of the vendor in the event of fraudulent concealment of the defect, due to the assumption of a guarantee or a procurement risk and in accordance with the Product Liability Act [Produkthaftungsgesetz] remain unaffected. Liability due to delay in delivery is conclusively regulated in § 4. The personal liability of legal representatives, agents and employees of the vendor for damage caused by its slight negligence is excluded.
With the exception of our liability based on intent, the limitation period for claims based on defects is one year. The limitation period begins upon delivery (delivery date).
Our products are exposed to wear and tear, which can depending on their use also lead to impairment of their function within the period of one year set forth in Clause 5 above. Such impairment due to wear and tear therefore does not justify any claim against us based on a defect even if this occurs within one year of delivery.
The limitation period in accordance with §§ 478, 479 Civil Code [BGB] is not affected by Section 5).
Claims based on defects are not transferable.
§ 7 Joint and several liability
Any liability for compensation for damages which goes beyond that of § 6 is excluded regardless of the legal nature of the claim asserted. This applies in particular to claims for compensation based on culpa in contrahendo, due to any other breach of duty or due to tort claims for compensation for damage to property in accordance with § 823 Civil Code [BGB].
Liability due to culpable injury to life, body or health remains unaffected. This also applies to liability due to intentional or grossly negligent action and the binding liability pursuant to the Product Liability Act [Produkthaftungsgesetz].
§ 8 Retention of title
Until all claims have been settled (including all balances due based on account current), to which we are entitled from the purchaser now or in future for whatever legal reason, the following securities will be granted to us, which we will release at our discretion upon request, provided their value permanently exceeds the receivables by more than 20%.
The goods remain in our ownership. Processing or transformation always take place on our behalf as manufacturer, without, however, any obligation for us. If our (co-)ownership ceases due to inseparable combination with another object, it is agreed in advance that the proportional value of the (co-)ownership of the purchaser with respect to the combined object (invoice value) is transferred to us. The purchaser grants our (co-)ownership free of charge. Goods with respect to which we have a claim to (co-)ownership are referred to in the following as retained goods.
The purchaser is entitled to process and sell the retained goods in the normal course of business, provided it is not in default. Attachments or security assignments are not permitted. For security purposes the purchaser assigns to us in advance the receivables arising from reselling or any other legal reason (insurance, tort) with respect to the retained goods (including all balances due based on account current) in full. We revocably authorize it to collect the receivables assigned to us for our account. This authorization to collect can only be revoked, if the purchaser does not properly meet its payment obligations.
In the event of third party intervention with respect to the retained goods the purchaser will point out our ownership and notify us immediately.
If the purchaser acts in breach of contract – in particular if it defaults on payment – we are entitled to take back the retained goods or if necessary to demand assignment of the restitution claims of the purchaser vis à vis third parties. The taking-back or attachment of the retained goods by us does not constitute any withdrawal from the contract.
§ 9 Payment
We are entitled despite different terms of the purchaser to first of all appropriate payments to its older debts. If costs and interest have already arisen, we are entitled to first of all appropriate the payment to the costs, then to the interest and finally to the principal goods and services.
Payment is not considered made until the amount is at our disposal. In the case of cheques, the payment is not considered made until the cheque has been honoured.
If the purchaser is in default, we are entitled from the onset of default to charge interest at the rate of 8 percentage points above the basic interest rate (§ 247 Civil Code [BGB]). The vendor is entitled to enforce a higher interest rate. The purchaser is at liberty to provide evidence that less damage has been caused.
If the purchaser does not meet its payment obligations and if we become aware of circumstances which impair the creditworthiness of the purchaser, we are entitled to accelerate the remaining debt, even if we have accepted cheques. We are in this case also entitled to demand advance payment or collateral security.
The purchaser is only entitled to set off its counterclaims if these have been confirmed by a court as being final and not-appealable or are undisputed. Furthermore, it is only authorized to exercise a right of retention if its counterclaim is based on the same contractual relationship.
§ 10 Applicable law, jurisdiction
The laws of the Federal Republic of Germany shall apply to these Terms of Business and the overall legal relationships between the purchaser and us.
If the purchaser is a merchant as defined by the Commercial Code [HGB], a public law legal entity or a public law special fund the courts of Gelsenkirchen have exclusive jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
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