Scope of Application
The present sales terms will apply exclusively to all businessmen. Any terms by the customer contrary to or deviating from our sales terms will only be acknowledged by us if we expressly approve their validity. The present sales terms will also apply to all future business with the customer.
Conclusion of Contract
Our offers for goods and prices within the order procedure are subject to change and non-binding. Purchase contracts will not be formed before written order confirmation has been given to the purchaser or before the goods are shipped to the purchaser. Up to this time we will specifically have the right to cancel the delivery of the goods offered if they are not available.
The express right to changes of the make as well as the correction of errors and printing errors in the price lists, prospectuses and offers is reserved.
Terms of Payment
Value added tax applicable on the day of invoicing will be due additionally on all prices.
Unless otherwise agreed the purchase price will be due immediately upon confirmation of the order. The purchaser will be automatically regarded as being in arrears with payment if he fails to pay within 30 days after receipt of an invoice. If the date of the invoice is uncertain, the purchaser will be regarded as being in arrears with payment by the latest 30 days after the payment is due and after receipt of the counterperformance. Default interest of 8% p.a. above the respective basic interest rate. will be charged. After default has been established we will charge a dunning fee of 10.00 EUR per payment reminder. Greater or lesser default damage may be claimed by either party.
We reserve the right to request payment per a letter of credit from a bank. After the purchaser has been warned twice because of a claim future shipments will only be made in return for advance payment.
Please be advised that shipments for new customers outside of the Federal Republic of Germany will only be made in return for advance payment. We reserve the right to perform a credit check.
The customer will only have the right of set off if his counterclaims are res judicata or uncontested. The customer is only authorized to exercise a right of retention where his counterclaim is based on the same contract.
Unless otherwise agreed delivery will be ex warehouse to the delivery address specified by the customer. The specified delivery deadlines are non-binding unless the delivery date was guaranteed in writing.
We reserve the right to reduce the order value in the case of items that are not in stock or to ship the ordered goods in several partial shipments.
The mode of shipping, shipping route and shipping agent will be determined by us.
The customer must bear the shipping costs.
Where the goods are sent to the customer at the latter’s request the risk of accidental loss or accidental deterioration of the goods will pass to the customer by the latest upon handover to the shipping company. This will apply regardless of whether the goods were shipped from the place of performance or who is to bear the shipping costs.
The purchaser must report obvious defects as well as defects of the shipment packaging detected in the individual case and externally visible defects to the shipping agent/carrier. Liability will only be accepted for goods and packages which the customer receives in damaged form if the shipment bears a notice, “Damaged goods, goods accepted subject to reservations” or a similar notice is on the shipping agent’s delivery paper.
For overseas shipments the shipping costs will be borne by the recipient in every case. Deliveries will only be made on the basis of advance payment.
Retention of Title
The delivered goods will remain our property until full payment of all obligations arising from the delivery contract. The same will apply to all future deliveries even if we do not expressly invoke them. We will also have the right to demand release of the goods subject to retention of title where the purchaser breaches the contractual duties (in particular duty of payment).
The purchaser has the right to resale of the goods subject to retention of title in the course of regular business. The purchaser hereby assigns the claims against the customer from the resale to us to the amount of the agreed final invoice amount (including VAT). The purchaser is authorized to collect the assigned debts until revocation. The purchaser will forward the payments made on the assigned debts to us immediately up to the amount of the secured claim. In the case of the existence of a relevant ground (e.g. delayed payment, instatement of insolvency proceedings) we will have the right to revoke the purchaser’s collection authorization. In this case the purchaser will be obligated to provide us with or release to us the necessary documents and information for legal assertion of the assigned claims.
The prerequisite for the purchaser’s guarantee rights is that he has duly complied with the inspection and defect reporting duties as set out in § 377 HGB (Commercial Code). An adequate period is 5 days.
Guarantee claims will expire 12 months after delivery. Our consent must be obtained prior to the return of the goods.
Where the goods have a defect which already existed at the time of passing of the risk despite exercise of due care we will opt to either rectify the defect or provide a replacement provided that the defect report has been made on time.
Where rectification fails the purchaser will have the right to rescission of the contract or a price reduction. Rectification will be regarded as having failed after the second fruitless attempt.
There is no entitlement to claims based on defects where there is only a minor deviation from the agreed features, where there is only a minor impairment of usefulness, in the case of natural wear and tear as well as in the case of damage incurred after the passing of risk due to defective or negligent treatment, overstrain, unsuitable tools or due to special external factors. Where inappropriate changes are made by the purchaser or by third parties the latter will not be entitled to any claims for defects or on grounds of consequences arising from the defects.
Claims by the purchaser for expenditure necessary for rectification, in particular transport, haulage, work and material costs are excluded where the expenditure is increased due to the fact that the delivered goods were subsequently transferred to a place other than the purchaser’s subsidiary unless the transfer was in accordance with the designated purpose of use.
The customer only has recourse claims against us to the extent that the customer has not concluded any agreements going beyond the statutory defect claims.
We will be liable in cases of willfulness or gross negligence, also by representatives or vicarious agents in accordance with the statutory provisions. In other respects we will also be liable according to the Product Liability Act, on grounds of injury to life, limb or health or on grounds of culpable breach of cardinal contractual duties. Liability for the breach of cardinal contractual duties is however limited to typical, foreseeable damage. Liability for the willful concealment of a defect or the assumption of a guarantee for the features of the delivery product will remain unaffected.
The provisions of the above paragraph will apply to all damage compensation claims regardless of their legal grounds, in particular on grounds of the breach of duties from the debt relationship or from illegal acts. It will also apply to claims to reimbursement of wasted expenditure.
The data recorded within the framework of the conclusion of the contract are recorded, processed and used by us in accordance with the Federal Data Protection Act and the Telecommunication Services Data Protection Act for fulfillment of the contractual duty. This data can also be disclosed to carefully selected companies for credit checks in accordance with § 11 Federal Data Protection Act.
The present contract and the parties’ entire legal relations are subject to the laws of the Federal Republic of Germany excluding the UN Sales Convention (CISG).
Should individual terms of the present contract be or become invalid or should there be a gap the statutory provisions will apply; the remaining terms will remain unaffected.