§ 1 – Validity
- Our conditions shall only apply for businesspersons in the sense of § 310 of the German Civil Code (BGB).
- The following terms and conditions of sale and delivery shall apply to all our contracts, deliveries and other performances insofar as they have not been modified or excluded with our express written consent. They shall also particularly apply when we carry out the delivery/performance unreservedly, although being aware of our customer having other conditions. The general terms and conditions of our customers shall only apply when we confirm them in writing.
- Our conditions shall also apply to all future contracts, deliveries and performances even though they are not sent again in text form to our contractual partner with our offer or our order confirmation.
§ 2 – Offer and closing
- Our offers are without engagement. Contracts and other agreements shall only become binding with our written confirmation or with our delivery/performance.
- All agreements between us and our customers shall need to be in writing when the contract is closed. Agreements between our staff or representatives and our contractual partner on closing or after the closing shall require our written confirmation to be effective; the power of attorney of our staff and representatives is insofar limited.
- Official confirmation letters from our contractual partner shall not mean that a contract with a different content to our offer, our order confirmation or any other of our written declarations comes into being, even although we do not object to them.
- Insofar as the written form is stipulated in the conditions on hand, it shall be deemed as observed when corresponding declarations are transmitted by fax or email. A written agreement shall also be deemed as having materialised when we and our contractual partner each provide declarations with identical content in writing.
§ 3 – Prices, price increases and payment
- Unless agreed to the contrary, our prices are stated in euro and our contractual partner shall effect payment in euro. All prices quoted are net prices. The statutory level of VAT shall be added to the amount. Our prices are quoted ex works including packaging for the domestic market, but without freight charges, tax, insurance, transportation, letters of credit or other documents necessary for the fulfilment of the contract unless agreed to the contrary. Orders below € 50.00 net (foreign: €100.00 net) shall be subject to a minimum quantity surcharge of €15.00 net. Orders above €350.00 net shall be effected free domicile within the Federal Republic of Germany; foreign orders above €1,000.00 shall be delivered free German border or German sea port or airport (including packing).
- Should, on orders that are to be executed later than six weeks after closing, our purchase prices and/or the wage or salary tariffs applicable for us increase between closing the contract and execution of the order, we shall be entitled to demand a correspondingly pro rata higher price to the one agreed to reflect the proportional percentage increase in the purchase price and/or the wage costs.
- We reserve the right to only supply pari passu against payment of the agreed price. Furthermore, unless agreed to the contrary or stated otherwise in our offer or our order confirmation, our invoices are to be paid within 8 days of invoice date with 2 % discount or within 30 days of invoice date without any deductions (in the case of deliveries abroad: immediately upon receipt of the goods with 2 % discount or within 30 days of invoice date without any deductions). Invoice amounts below €100.00 net are anyway to be paid within 30 days of invoice date without any deductions. We shall only accept cheques or bills of exchange as conditional payments; they may be returned at any time. They shall only be deemed as payment when they have been honoured and irrevocably credited to our account. All costs and expenses incurred in connection with cheques and negotiating bills of exchange shall be borne by our customer. Should our customer be in arrears with any kind of payment obligation towards us, irrespective of the type, all existing claims against our customer shall for due for immediate payment.
- Payments are to be rendered in euro at all times unless another currency has been expressly agreed.
- We shall be entitled to interest in an amount of eight percentage points above the respective base interest rate from maturity without the need for any further reminders. More far reaching claims particularly arising from a default on the part of our contractual partner shall remain unaffected by this.
§ 4 – Place of fulfilment
The place of fulfilment for deliveries, performances and payments shall always be Mettmann.
§ 5 – Offsetting, retention
Offsetting with counter-claims that we contest or have not been legally established shall be impermissible. The assertion of a right of retention resulting from claims that do not ensue from the same contractual relationship shall be excluded unless we have acknowledged such claims or such have been legally established.
§ 6 – Deterioration in the financial situation, payment default of our contractual partner
- Should one of the below-mentioned events occur or should we become aware of such an event – that already prevailed at the closing of contract – after the closing of the contract, we can demand advance payment from our contractual partner for the amount of the agreed price and moreover revoke the agreed or granted credit periods, return pending bills of exchange and insist upon immediate payment. This shall apply to the following events:
- Our contractual partner files for the opening of court or out-of-court insolvency or settlement proceedings or court or out-of-court insolvency or settlement proceedings are opened against the assets of our contractual partner or the opening of such proceedings is rejected on account of a lack of assets.
- A written credit report from a bank or credit agency is at hand from which the credit unworthiness of our contractual partner or a considerable deterioration in same’s financial circumstances can be derived or a cheque or bill of exchange that we have accepted from our contractual partner is not honoured or is subject to protest.
- Our contractual partner is in default with payment within the scope of another business transaction.
- Should our contractual partner not satisfy our justified demands for advance payment within a reasonable period of grace set by us, even though we have informed same that upon expiry of the deadline we shall reject the acceptance of any further performance on same’s part, we shall be entitled to withdraw from the contract or to insist on compensation instead of the performance, but this only in respect of that part of the contract that we have not as of then fulfilled.
§ 7 – Despatch and transfer of risk, insurance, disposal
- The risk shall automatically transfer to our customer with the despatch of the goods – irrespective of the location of shipment – and this even in cases where freight paid delivery or free buyer’s warehouse have been agreed.
- Should there be any missing despatch instructions from our contractual partner or should a modification to such seem necessary, we shall despatch to the best of our knowledge without any obligation as to it being the cheapest or fastest shipping option. It is only at the request of our contractual partner and at same’s expense that we shall insure the delivery items against any insurable risks desired by our contractual partner, in particular against theft and transportation damage. Any cases of transportation damage shall be reported to us immediately. Moreover, upon delivery, the recipient shall ensure that the corresponding claims and misgivings are reported to the carrier.
- Should the despatch be delayed at the request of our contractual partner or for reasons for which the contractual partner is responsible, the goods shall be stored at the cost and risk of our contractual partner.
- Insofar as we are obliged to take back packaging, our contractual partner shall bear the costs for the return transportation of the packaging used.
- Our customer undertakes to properly dispose of the goods supplied at own expense and in line with legal requirements upon discontinuance of use. Same shall exempt us from any take-back obligation as manufacturer and from all other obligations associated with this.
§ 8 – Delivery periods, call orders, delay, impossibility of delivery
- Delivery periods and dates shall only be deemed as binding when we have confirmed them in writing.
- A deadline period determined solely by its length shall begin with the expiry of that day on which agreement is found on all the details of the content of the order, at the earliest with our acceptance of the order, but not before all the documents, approvals and clearances to be obtained by orderer have been furnished and not before receipt of a down-payment that may need to be rendered by orderer. Agreed deadlines and dates as well as a delivery date/delivery period valid without any such agreement shall be correspondingly put back in the case of any delay in the creation of the above-mentioned preconditions. Our contractual partner shall bear the onus of proof that the necessary preconditions were satisfied and that the required documents, plans and information had been made available.
- Delays in delivery as a consequence of acts of God, war, riots, strikes, lockouts, machine breakdowns, material shortages or similar circumstances beyond our control shall release us from delivery obligations entered into for the period of the disruption and entitle us to withdraw from the contract at our own discretion, but without the orderer being entitled to withdraw; any claims of orderer on account of delayed delivery, irrespective of the reason, shall be excluded. Insofar as delays for the above-mentioned reasons last for more than three months, our contractual partner shall be entitled to withdraw from the contract – to the exclusion of any further claims – after setting another extension period of time for performance of at least four weeks. The right to withdrawal shall be limited to that part of the contract that has not as of then be fulfilled unless our contractual partner no longer has any interest in the fulfilled part of the contract.
- Our performance shall be deemed as rendered when the goods – as per contract – are ready for despatch in our works and this readiness has been communicated to the orderer; moreover, when they leave our works in accordance with the contract. Should the delivery be delayed for reasons the orderer is responsible for, the delivery period shall be deemed as observed with the notification of readiness for despatch. Agreed deadlines and dates as well as a delivery date/ delivery period valid without any such agreement shall be extended or put back by that period in which our contractual partner is in default with its obligations from the current business relationship or even from other contracts.
- Partial deliveries shall be permissible for us insofar as they can be deemed reasonable for our contractual partner. The contractual partner may not insist on such unless something to the contrary has been expressly agreed.
- Should we be in delay with our delivery or if our performance obligation pursuant to § 275 BGB is excluded, we shall only be liable for damages under the circumstances and to the extent described in § 11, however with the following additional stipulations:
- Should we be in delay with our delivery and it is merely a case of slight negligence on our part, the claims of our contractual partner to compensation shall be limited to a lump-sum delay compensation amount of 0.2 % of the delivery value for each completed week of the delay, however maximum 5 % of the delivery value, whereby we reserve the right to prove that no or only a lower degree of damage was incurred as a consequence of the delay in delivery. Any claims of our contractual partner going beyond this shall only exist when the performance failure can be attributed to intent or gross negligence on our part.
- In the event of our delay, our contractual partner shall only be entitled to compensation instead of performance when same has previously set us a reasonable, at least 4-week extension period for delivery, whereby same may grant us a reasonable deadline of less than four weeks insofar as in some individual cases an extension period of at least four weeks is unreasonable for our contractual partner.
- Any right of our contractual partner to withdraw from the contract and any claims of our contractual partner 8 181 General Terms and Conditions As of: 1 Dez. 2014 Managing Directors: Dirk Willing Reinhold Linke Commercial Register No.: 18750 Court of Registration: Wuppertal to compensation shall be fundamentally limited to the not yet performed part of the contract unless our contractual partner, reasonably-enough, no longer has any interest in the fulfilled part of the contract.
- Claims for compensation made against us for delays in delivery or for exclusion of the performance obligation pursuant to § 275 BGB shall lapse after one year from the start of the statutory limitation period.
- The above-mentioned provisions shall not apply when it is a case of compensation for injury to the life, body or health of our contractual partner or the damage is attributable to an intentional or grossly negligent breach of duty on our part, by one of our legal representatives or agents; moreover, not in the case of a delay in delivery when a transaction has been agreed where time is of the essence.
- Orders on call shall only be taken on with acceptance periods. Should the acceptance period not be exactly defined, it shall expire 12 months after the closing of the contract. In this context, the goods are to be called up in approximately equal monthly quantities. Should acceptance not be concluded within the agreed time period, we shall be entitled to supply the completed deliveries without any further notification or to store them at acceptor’s expense. Further, we shall be entitled to set our customer an extension period for acceptance, associated with the threat that we shall reject the acceptance of the goods in the event of the futile expiry of this period. Should the extension period then expire fruitlessly, we shall be entitled to withdraw either wholly or partially from the contract after terminating our delivery obligation or after rejecting the delivery to demand compensation for non-fulfilment.