1. The following conditions of sale apply to all contracts concluded between ourselves and the customer for the supply of goods. They also apply to all future business, even if they are not explicitly agreed again. Varying conditions of the customer that we do not explicitly acknowledge are not binding on us, even if we do not explicitly contradict them. The following conditions of sale apply unconditionally, even if we are fully cognisant of conflicting or deviating conditions of the customer with respect to processing and delivery.
2. All agreements previously made between ourselves and the customer for the implementation of the purchase agreements are in writing in the contracts. Subsequent amendments, additions and other agreements should be made in writing.
3. Should any individual provision be or become invalid, the remaining conditions remain unaffected.
II. Offer and conclusion of contract
1. Any order from a customer, that qualifies as an offer to conclude a contract, shall not be considered to have been accepted until an order confirmation has been sent or the products ordered have been shipped.
2. Our offers are non-binding and without obligation unless explicitly described by us as binding respectively described as firm offer.
1. The prices are in Euros and in case of doubt shall be judged to be ex-works, excluding freight, customs duty, import duties and packing, plus VAT at the statutory rate.
2. Notwithstanding the above point 1, the prices for export are free ex-works or free German seaport, excluding seaworthy packaging.
3. In the event of changes after submission of the offer or after confirmation of the order and before delivery, that substantially affect the relevant cost factors such as materials, wages and overheads, we are entitled to increase the corresponding prices commensurate with the increase in costs.
4. We are not bound to previous prices for new orders (follow-on orders). We are not bound to accept follow-on orders.
IV. Terms of payment
1. Unless otherwise agreed, our invoices are payable up to 8 days with a 3% discount, up to 14 days with a 2% discount or net within 30 days of the invoice date. A payment shall only be deemed paid as of when we can dispose of the amount of the invoice. In the case of payments by cheque, the payment is considered to have been made when the cheque has been cashed. Any discount is only applied when all previous undisputed invoices have been settled. Any payment made by bill of exchange does not benefit from a cash discount.
2. The right to reject cheques or bills of exchange is reserved. Rediscountable bills and cheques are only accepted conditionally; all associated costs are borne by the customer.
3. In the case of exports, the customer accepts the opening of an irrevocable letter of credit, payment by cash against documents or by agreement.
4. If the agreed payment date is exceeded, interest will be charged at the legal rate of 8 percentage points above the base rate of the ECB, unless we can show that we have suffered greater prejudice. The customer retains the right to prove lesser prejudice.
5. The buyer only has the right to set off, even if complaints or counterclaims have been submitted, once the counterclaims have been legally established, recognized by us or are undisputed. The customer is only entitled to exercise a right of retention if his claim is based on the same contractual relationship.
V. Delivery and performance time
1. Delivery dates or deadlines that were not expressly agreed as binding, are only non-binding indications. The delivery time we specify will only begin when the technical issues have been clarified and particularly not before the provision by the customer of any necessary documents, permits, clearances and before receipt of any agreed payment.
2. However, where the underlying contract covers a fixed transaction within the meaning of § 286 paragraph 2 No. 4 BGB (German Civil Code) or § 376 HGB (German Commercial Code), we are liable according to statutory regulations. The same applies if the customer is entitled, as a result of delay in delivery by us, to enforce the cessation of his interest in further fulfilment of the contract. In this case, our liability is limited to foreseeable, typically incurred damages if the delivery delay does not represent an intentional breach of contract, whereby a fault on the part of our representatives or vicarious agents can be attributed to us.
We are also liable to the customer when the delivery delay falls under the statutory provisions if this is based on a deliberate or grossly negligent breach of contract by ourselves, whereby a fault on the part of our representatives or vicarious agents is attributable to us. Our liability is limited to the foreseeable damage typically incurred when the delivery delay is not based on our intentional breach of contract.
3. In the event that we are responsible for a delay in delivery in culpable breach of an essential contractual obligation, whereby a fault on the part of our representatives or vicarious agents is attributable to us, we are liable according to legal provisions, with the proviso that in this case the liability for damages is limited to the foreseeable typically incurred damages.
4. Events of force majeure entitle us to postpone delivery for the duration of the hindrance and a reasonable start up period, or to withdraw from the contract in part or in its entirety due to the part of the contract not yet fulfilled. Force majeure includes strikes, lockouts or unforeseeable and unavoidable circumstances, e.g. breakdowns that make it impossible to deliver on time despite our reasonable efforts, based on evidence we have to provide. This also applies if the aforementioned hindrance occurs during the delay or with a subcontractor.
The customer can ask us to explain within two weeks whether we want to withdraw from the contract or deliver within a reasonable period of grace. If we do not clarify the situation, the customer has the right to withdraw from the unfulfilled portion of the contract.
We will notify the customer immediately if a case of force majeure occurs as described above. We will keep damage to the customer as insignificant as possible.
5. Any further liability for any other delivery delay on our part is excluded. Any further legal claims and rights of the customer to which he is entitled in addition to the claim for damages because of a delay in delivery caused by us, remain unaffected.
6. We shall be entitled to make partial deliveries and partial performance at any time if this is acceptable to the customer. Variation of order quantities are generally considered reasonable if they do not exceed +/- 10%.
7. If the customer defaults on acceptance, we are entitled to claim compensation for the resulting damages and any additional expenses. The same applies if the customer is guilty of breaching his duties to cooperate with us. In the event of default of acceptance or delay in payment, the risk of accidental deterioration or accidental loss shall pass to the customer.
VI. Transfer of risk - shipping/packaging
1. Loading and shipping take place without insurance at the customer's risk. We will strive to take into account the type of transport and transport needs and interests of the customer and any resulting additional costs - even with carriage paid agreed - are to be borne by the customer.
2. We do not take back transport or other types of packaging in accordance with the packaging regulation, with the exception of pallets. The customer is responsible for disposing of the packaging at its own expense.
3. If a shipment is delayed at the request of, or through the fault of, the customer, we will store the goods at the expense and risk of the customer. In this case, the notification of readiness for shipment is equal to shipment.
1. Warranty claims of the customer shall only exist if the customer's examination and complaint obligations are properly fulfilled in accordance with § 377 HGB. Notifications of defects are to be made in writing immediately and no later than 10 days after delivery. In the case of hidden defects, these must be notified immediately after discovery.
2. In the event of a defect in the goods that is attributable to us, we are obliged to undertake supplementary performance, which thereby excludes the rights of the buyer to withdraw from the contract or have the purchase price reduced, unless we are entitled on the basis of legal regulations to refuse to correct the defect. The customer shall grant us a reasonable period for the supplementary performance. The supplementary performance may consist in elimination of the defect (repair) or in delivery of a new product as preferred by the customer. In the event of a repair, we shall bear the necessary expenses, provided these do not increase because the subject of the contract is at a place other than the place of fulfilment.
In the event of subsequent non-fulfilment of performance, the customer can either demand a price reduction or declare that it is withdrawing from the contract. The repair is considered to have failed with the second unsuccessful attempt, insofar as the customer does not consider additional repairs of the subject of the contract reasonable or acceptable.
Claims for damages in accordance with the following conditions due to the defect may only be made by the customer if the supplementary performance has failed. The customer's right to claim further damages in accordance with the following conditions will remain unaffected.
3. The warranty of the customer shall lapse, unless otherwise agreed, twelve months after delivery of the goods, unless we have fraudulently concealed the defect. In this case, the statutory regulations apply. Insofar as the law in accordance with § 438 paragraph 1 No. 2 BGB, § 479 paragraph 1 BGB and § 634 paragraph 1 No. 2 BGB stipulates longer periods, these shall appy.
4. We have unlimited liability under the statutory provisions for damage to life, limb and health, caused by a negligent or wilful breach of duty by ourselves, our legal representatives or vicarious agents, as well as damages that are covered by liability under the Product Liability Act. For damages that are not covered by Clause 1 and are based on deliberate or grossly negligent breach of contract and bad faith by ourselves, our legal representatives or our vicarious agents, we are liable according to the statutory regulations. In this case, however, the liability is limited to the foreseeable, typically incurred damage if we, our legal representatives or our vicarious agents did not act intentionally. To the extent that we provided a quality and/or durability guarantee, concerning the goods or parts of them, we shall also be liable under this guarantee. For damages that are not based on the absence of guaranteed quality or durability and which do not directly affect the goods, however, we shall only be liable if the risk of such damage is clearly covered by the quality and durability guarantee.
5. We are also liable for damages caused by negligence where the negligence concerns the infringement of contractual obligations, where compliance is of special importance (cardinal obligations) for the purpose of the contract. However, we are only liable if the damage is typically associated with the contract and predictable.
6. Any further liability is excluded, irrespective of the legal nature of the claim; this applies especially to tort claims or claims for reimbursement of futile expenses instead of the performance. Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees, workers, co-workers, representatives and sub-contractors.
7. Claims by the customer due to a defect expire twelve months after delivery of the goods. This does not apply in cases where we, our legal representatives or our sub-contractors inflict injury to life, limb or health, or if we or our legal representatives have acted with intent or gross negligence, or if our simple vicarious agents have acted with intent.
8. Recourse claims in accordance with § 478, 479 BGB only exist if the claim by the consumer was justifiable and only to the extent of the law, but not in cases where ex gratia payments have not been agreed with us, and presuppose fulfilment of obligations on the part of the beneficiary of the recourse claim, in particular his compliance with defect reporting requirements.
VIII. Retention of title
1. Until settlement of all claims, including all balance demands from the current account, which exist now or will exist in the future with respect to the customer, the delivered goods (reserved goods) remain our property. In the case of behaviour of the customer contrary to contract, e.g. payment delay, we have the right following the setting of a reasonable deadline, to repossess the goods under reservation. If we take back the reserved goods, this represents a withdrawal from the contract. If we pledge the reserved goods, this represents a withdrawal from the contract. We are entitled to use the recovered goods following the withdrawal from the contract. After deducting a reasonable amount for the recovery costs, the proceeds of the sale of the goods will be used to offset the sums owed to us by the customer.
2. The customer shall handle the goods subject to reservation with care and insure them at his own expense against fire, water damage and theft equal to value as new. Necessary maintenance and inspection work must be carried out in good time by the customer at his own expense.
3. The customer is entitled to sell the reserved goods properly in the business and/or use them as long as he is not in default of payment. Pledging or granting of security interests is not allowed. This right will end with our cancellation of the contract, especially in the case of the sustained deterioration of the assets of the customer, but no later than on suspension of payment or applying for or opening of insolvency proceedings with respect to the customer's assets.
4. Any receivables resulting from the resale or any other legal reason (insurance, tort) relating to the goods under reservation (including all balance demands from the current account), must be safeguarded to the fullest extent by the customer for us. We hereby accept the assignment. We revocably authorize the customer to collect the receivables assigned to us for an account in his own name, as long as it duly meets its payment obligations. The direct debit authorization expires upon the withdrawal, at the latest in the event of a payment delay by the customer or a substantial deterioration in his financial circumstances. In this case we are entitled and empowered by the customer to notify consumers of the assignment and to collect the debt ourselves.
5. Any processing or transformation of the reserved goods by the customer shall be made in any case for us. If the reserved goods are processed with other goods not owned by us, we will acquire ownership of the new goods in proportion to the value of our reserved goods (final invoice amount including VAT) with respect to the other processed goods at the time of processing. The same conditions apply to the new goods created by processing as to the reserved goods. In the event of an inseparable mixture of the reserved goods with other goods that are not our property, we will acquire ownership of the new goods in proportion to the value of our reserved goods (final invoice amount including VAT) with respect to the other processed goods at the time of mixing. If the goods of the customer resulting from the mixing are considered to be the principle goods, the customer and we agree that the customer will assign proportional joint ownership of these goods to us. We hereby accept the assignment. Our solely owned or joint property thus created will be held on our behalf by the customer.
6. In the case of access by third parties to the reserved goods, in particular seizure, the customer shall refer to our ownership and inform us immediately so that we can enforce our proprietary rights. If the third party is not in a position to reimburse us the judicial or extrajudicial expenses incurred in this context, the customer shall be liable for them.
7. We are obliged to release the realizable value of our securities to the extent that it exceeds the secured claims by more than 10 %. It is incumbent upon us to choose the securities.
IX. Moulds (tools)
1. The costs of producing the moulds are borne by the customer, unless otherwise agreed in writing. Moulds made by us must be immediately paid for net without any deduction of discount after receiving the reference sample.
2. We are and will remain fundamentally the owners of the moulds produced for the customer by ourselves or a third party commissioned by us. The moulds must only be used only for contracts of the customer as long as the customer respects his payment and purchase commitments. We keep the moulds for re-orders carefully and maintain them. We are not liable for damages that occur despite proper care. Our commitment to keep the moulds expires two years after the last supply of parts made from the mould and following prior notice to the customer.
3. If the customer makes the moulds available to us on loan, our liability is limited with respect to storage and maintenance as for our own equipment. The costs for maintenance and, if desired, the insurance are borne by the customer. Our commitment to this expires, if, after completion of the order and corresponding notification, the customer does not collect the moulds within a reasonable time.
4. If we provided goods in accordance with drawings, models, samples or parts supplied by the customer, the customer must ensure that the intellectual property rights of third parties in the countries of destination of the goods are not violated. The customer shall indemnify us for third party claims and pay compensation for any resulting damage. If we are prohibited from supplying or production by a third party due to intellectual property rights belonging to him, we are entitled - without checking the legal situation - to stop all work until the legal clarification by the customer and the third party has been made. Should we reasonably expect not to be able to complete the order due to the delay, we shall be entitled to withdraw.
5. Drawings and patterns provided to us that have not led to an order will be returned upon request, otherwise we are entitled to destroy them three months after submission of the offer. This obligation applies correspondingly to the customer. The other contracting party will be informed in good time of the intention to destroy the drawings or patterns.
6. Any copyright and intellectual property rights, in particular, all property and patent rights of our own or any models, moulds and fixtures, designs and drawings produced on our behalf by third parties belong to us.
X. Place of performance, jurisdiction, applicable law
1. Our headquarters (Marl/Westphalia) is the place of performance and jurisdiction for deliveries and payments (including cheques and bills of exchange) and all claims arising from disputes between ourselves and the customer as a result of our legal relationships. However, we are also entitled to sue the customer at his residence and/or place of business.
2. The relationship between the parties to the contract is governed exclusively by the laws of the Federal Republic of Germany. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.