Our general terms and conditions have exclusive validity; we do not recognize any conditions of business that conflict with or deviate from our sales conditions unless we expressly agree to their validity beforehand. Our sales conditions also apply if we effect the delivery to the ordering party without reservation with knowledge of conflicting or deviating conditions on the part of the ordering party. Our general terms and conditions only apply to companies as defined in § 310 Paragraph 1 BGB and for all future transactions between the contract parties.
Our quotations are non-binding; our contractual obligation comes into force only when our written order confirmation is received.
Our prices are ex works and do not include packaging. Packaging will be invoiced separately. Our prices as stated in quotations and order confirmations are net prices. Should taxes or fees pertaining to goods traffic (for example, customs duty, transportation charges, or duties) be increased or reduced following the conclusion of the contract, we are entitled to make the required price modifications if the cost changes could not be foreseen at the time when the contract was concluded. This also applies to unpredictable increases in agreed salaries and unpredictable price changes for goods from upstream suppliers that are imposed following the conclusion of the contract.
Our invoices are due within 30 days of the invoice date, net and without deduction. If the ordering party defaults upon payment, we are entitled to demand interest on late payments at a rate of 8% above the relevant base lending rate. With appropriate documented evidence, we are also entitled to assert our claim to damages caused by delay that are greater than this amount. Payment using bills of exchange is only permitted by express agreement. Bills of exchange and cheques are only accepted on account of performance. If payment is made by cheque or bill of exchange, the ordering party must pay the note/discount charges. The ordering party is only entitled to set-off claims if the counterclaims of the ordering party are determined to be legally binding, are undisputed, or are recognized by us. The ordering party is only entitled to exercise right of retention in cases where the counterclaim of the ordering party relates to the same contractual relationship. We are entitled to settle against receivables owed to us from the ordering party even if our receivables are not yet due. In such cases, we will compensate the ordering party by paying an interest margin of 5% per year. Different types of payment (in cash by one party and by bill of exchange by the other party) do not preclude the entitlement to set-off. In the case of payment default or if there are justified doubts about the solvency or credit standing of the purchaser we – without prejudice to our other rights – are entitled to demand securities or advance payments for outstanding payments and to enforce the immediate maturity of all receivables resulting from the business relationship. Should the purchaser refuse to provide security or not make advance payment following the issue of a warning, we are entitled to decide whether to withdraw from the contract or demand damages for non-fulfillment of the contract by the purchaser.
5. Delivery term
Delivery dates are stated in weeks. The delivery term is considered to have been met if, by the time of expiration of the term, we have communicated readiness for shipment or if the delivery items have left our plant. If samples or the like are required to enable the execution of the contract, the delivery term begins when we receive them. The delivery term shall be extended in the case of industrial action – particularly if there is a strike or lockout – and if unforeseeable obstacles that are outside our sphere of influence occur, including shutdowns or delays in the delivery of important materials where such obstacles can be proven to have a significant influence on our ability to deliver the delivery items. The delivery period shall be extended in accordance with the duration of the measures and obstacles. Should delays resulting from such events exceed six weeks, both parties are entitled to withdraw from the contract with regard to the affected delivery items. There is no entitlement to further claims. We are not obliged to deliver if the purchaser is in arrears with regard to an account payable. The ordering party is entitled to demand flat-rate compensation for damages caused by delay to the value of 1% of the value of the agreed price and to a maximum of 5% of the agreed price from the fourth week of a delay caused by us. The supplier reserves the right to prove to the ordering party that no – or only negligible – damages have been incurred as a result of failure to deliver on time. Should the ordering party – after we have fallen behind on the delivery schedule – set an appropriate period for delivery with a threat of rejection of the items should this period not be observed, the ordering party is entitled to withdraw from the contract should this period of grace expire without delivery of the items. Should the ordering party be in default of acceptance or otherwise infringe upon his obligation to co-operate, we are entitled to demand compensation for damages incurred, including any additional expenditure. In this case, the risk of accidental loss or the accidental deterioration in the state of the objects of sale passes to the ordering party at the point at which the ordering party becomes in default of acceptance.
6. Scope of supply
The scope of supply is determined by our written order confirmation. We reserve the right to over- or under-deliver to the amount of 10% of the ordered quantity.
7. Passing of risks
Unless otherwise stipulated in the order confirmation, delivery is ex works. This is also the case if we take care of transport.
8. Retention of title
The delivered goods remain our property until complete payment of all receivables – including receivables that come into being in the future and for whatever legal ground – is made in full. This is also the case if individual or all receivables are included in a current account and the balance is drawn on and accepted. The purchaser is entitled to resell the goods subject to retention of title during the proper course of business. This entitlement can be withdrawn should the ordering party fail to fulfil his contractual obligations. In this case – and in particular in the case of default of payment – we are entitled to take back the goods following a warning and the ordering party is obliged to release them to us. We shall be considered to have verbalized our intention to take back the goods if payment is suspended or if an application is made to start insolvency or bankruptcy proceedings with regard to the assets of the purchaser. The assertion of retention of title and the seizure of the delivery items by us do not constitute withdrawal from the contract unless we expressly state our withdrawal from the contract in writing. In the case that the goods have been resold, however, the ordering party shall cede all receivables to the amount of the purchase price agreed between us and the ordering party, including VAT, that the ordering party has accrued through the resale regardless of whether the delivery items were sold with or without further processing. The ordering party remains authorized to collect receivables until the authorization to do so is withdrawn. This does not affect our entitlement to collect the receivables ourselves. However, we undertake not to collect receivables unless the ordering party is in default of payment. If, however, the ordering party is in default of payment, we can demand that the ordering party provides a list of accrued receivables and debtors as well as all information required to collect the receivables and that the ordering party provides all corresponding documentation and informs debtors (third parties) of the cession of receivables. At the request of the purchaser, we will release security interests of our choice if and to the extent to which securities exceed our receivables by 20%.
9. Warranty, limitation of liability
The ordering party loses the right to assert any warranty claim if he fails to fulfil his obligations to inspect the delivered items and make an objection if appropriate. Any detectable defects must be communicated within six days of the receipt of the goods. Any concealed defects must be communicated within eight days of discovery. The warranty is invalidated in the case of unsuitable or improper use, incorrect assembly, improper commissioning of the delivery items by the ordering party or by third parties, normal wear and tear, excessive operational demands, the use of unsuitable operating resources, replacement tools, or other influences that can cause damage and for which we do not carry the blame. The warranty period is one year from the passing of risks. Should the objects of sale have a defect caused by us, the ordering party shall assert his rights by setting a period by the end of which we are to render supplementary performance. We are entitled to decide whether to rectify the defect or make a replacement delivery. If we decide to rectify the defect, we shall bear the material, transport and labour costs and half of the installation and assembly costs. If we are unwilling or unable to render the required supplementary performance – and in particular if there is a delay in supplementary performance for reasons for which we are responsible – or if we fail in any other way to rectify the defect or make a replacement delivery, the ordering party is entitled to the right to withdraw from the contract or reduce the price. Claims against us for damages relating to defects on the delivery items or impermissible activity are excluded regardless of the type of neglect of duty unless we have behaved in a grossly negligent manner or if the culpable infringement of a fundamental contractual obligation (cardinal obligation) has been caused in a way that endangers the aim of the contract from being fulfilled. If fundamental contractual obligations are infringed upon, we are liable for all negligence but only to the value of the foreseeable damages and to the value of the contract in question. Claims relating to lost profit, losses, and saved expenditure as well as claims for damages for third parties and claims for any other direct or indirect damages may in no case be asserted and are excluded. The liability restrictions and exclusions above do not apply to claims relating to malicious behaviour on our part or in the case of liability for claims in accordance with Product Liability Law or damages due to death, bodily injury, or damage to health. Where our liability is excluded or limited, so is the liability of our employees, workers, agents, and assistants. The statutory period of limitation stipulated in § 9 Clause 5 applies except for claims resulting from Product Liability Law.
10. Place of execution and jurisdiction
Unless otherwise stipulated in our order confirmation, the place of execution is Dortmund. The place of jurisdiction is also Dortmund. We are also entitled at any time to bring an action against the ordering party in the court of the ordering party's domicile.
11. Applicable law
German law shall apply exclusively to all legal relationships with the ordering party with the exclusion of laws governing the international sale of goods even if the ordering party's head office is based abroad.