General Terms & Conditions
SALE AND DELIVERY
§ 1 VALIDITY
(1) All deliveries, services and offers on the part of the seller shall be provided only on the basis of these General Terms and Conditions of Sale and Delivery. They are a part of all agreements made between the seller and the seller’s contractual parties (hereafter called “customers” as well), concerning deliveries or services provided by the seller. They shall also apply to all future deliveries, services or offers for the customer, even if there is no separate agreement concerning them.
(2) General Terms and Conditions of the customer’s or any third parties shall not apply, even if the seller does not dispute their validity separately in individual cases.
§ 2 QUOTE AND CONCLUSION OF AGREEMENTS
(1) All offers made by the seller shall be subject to confirmation and non-binding as far as price, quantity, delivery time and availability are concerned, unless they have been explicitly marked as binding.
(2) Legal relationships between the seller and the customer shall be governed exclusively by the purchase agreement made in writing, including these General Terms and Conditions of Sale and Delivery. This agreement shall be a complete representation of all agreements between the parties concerning the subject matter of the agreement. Oral promises made by the seller before the conclusion of the contract shall not be legally binding, and any oral agreements between the contractual parties shall be replaced by the written agreement, unless it was expressed explicitly that they shall continue to be binding. Any additions and amendments of the agreements made, including these General Terms and Conditions of Delivery, shall have to be in writing to be effective. With the exception of managers or authorized signatories, none of the seller’s employees shall be entitled to make any oral agreements that deviate from this. To comply with the written form, a transmission by telecommunication, in particular by fax or e-mail, shall be sufficient, if a copy of the signed declaration is transmitted.
§ 3 PRICES AND PAYMENT
(1) Prices shall apply to the scope of services and delivery quoted in order confirmations, plus the statutory value added tax as valid at the time. Additional or special services shall be charged separately. Price are quoted in EURO, ex works, plus packaging, insurance, shipping costs and – for export deliveries – customs as well as fees and other public dues.
(2) Where prices agreed on are based on the seller’s price lists and deliveries are not to be made until more than four months after the conclusion of the agreement, the seller‘s price lists valid at the time of delivery shall apply.
(3) Invoices shall be due within twenty days without any deductions, unless something else has been agreed on in writing. The date on which the payment is received by the seller shall be the relevant date of payment. The seller shall grant a 2 % discount on payments made within 8 days after the date of the invoice.
(4) Any offsetting with counterclaims on the part of the customer or any retention of payments because of such counterclaims shall only be permissible if such counterclaims are uncontested or if they have been ascertained as legally binding.
(5) The seller shall be entitled to perform any deliveries or services due against an advance payment or security only, if – upon conclusion of an agreement - the seller becomes aware of any circumstances that are of such a nature that they reduce the customer’s credit worthiness substantially and which jeopardize the payment of the outstanding debts due to the seller from the customer from the contractual relationship concerned (including other individual orders under the same master agreement).
(6) A surcharge shall be charged for small orders. It shall be shown n the sales price list.
(7) The seller is entitled to invoice the provided services electronically.
§ 4 DELIVERY AND DELIVERY TIME
(1) Deliveries shall be ex works.
(2) Any time limits and deadlines envisaged for deliveries and services by the seller, shall only be approximations, unless a fixed time limit or fixed deadline has explicitly agreed on in writing. If a shipment was agreed on, the delivery times and delivery deadlines shall refer to the time of handing-over to the shipping company, carrier or other third parties assigned to carry out the transport.
(3) Without prejudice to his rights from any default on the part of the customer – the seller may demand an extension of delivery times and delivery deadlines or a postponement of delivery times and delivery deadlines for the period of time during which the customer does not meet the customer‘s contractual obligations with respect to the seller.
(4) The seller shall not be liable for any impossibility of delivery or for delays of delivery, where such delays have been caused by force majeure or any other events that could not be foreseen at the time the agreement was made (such as disruptions of business operations, difficulties in procuring materials or energy, transport delays, strikes, legitimate lockouts, shortage of workforce, energy or raw materials, difficulties in procuring official permits, official measures or any non-deliveries, improper deliveries or late deliveries from suppliers), for which the seller is not responsible. Where such events significantly impair a delivery or service on the part of the seller or render such delivery or service impossible, such impairment not being merely of a temporary nature, the seller shall be entitled to rescind the agreement. In the event of impediments of a temporary nature, delivery times or deadlines shall be extended or postponed by the duration of the impediment, plus an appropriate warm-up period. Where the customer cannot be expected to accept the delivery or service, due to the delay, the customer may rescind the agreement by way of an immediate written declaration provided to the seller.
(5) The seller shall only be entitled to provide part-deliveries if
• such part deliveries can be used by the customer in the framework of their contractual purpose,
• the delivery of the remaining goods ordered is assured, and
• the customer does not incur any significant extra or additional expenditures or costs (unless the seller declares his willingness to pay for such costs).
(6) If the seller is in default with a delivery or service or if it becomes impossible for the seller to provide the delivery or service – for whatever reason – the seller’s liability for any damage claims shall be limited acc. to § 7 of these General Terms and Conditions of Delivery.
(7) If the seller seeks a compensation for damages – for whatever legal reason – such compensation shall amount to 20 % of the purchase price (excluding VAT). Legal VAT shall be added to this. The seller shall be entitled to present evidence of a higher damage and to claim a compensation for such damage. On the other hand the customer shall be entitled to present evidence to the seller that no damage has been incurred or that there was significantly less damage.
§ 5 PLACE OF PERFORMANCE, SHIPPING, PACKAGING, TRANSFER OF RISK
(1) Iserlohn shall be the place of performance for all obligations derived from the contractual relationship, unless something else has been agreed on.
(2) The mode of shipment and packaging shall be subject to the proper discretion of the seller.
(3) The risk shall be transferred to the customer at the time of handing over of the delivery item to the shipping company, the carrier or other third party assigned to carry out the shipment (the start of the loading process being the relevant time). This shall also apply in the case of part-deliveries. If the shipping or handing over is delayed by circumstances for which the customer is responsible, the risk will be transferred to the customer on the day the delivery item is ready for shipping and the seller has notified the customer of such readiness.
(4) After the passing of risk, storage expenses shall be borne by the customer. If delivery items are stored by the seller, storage costs shall amount to 0.50 % of the invoice amount of the delivery items stored, for each week that has passed. The seller shall reserve the right to claim and provide evidence of additional or lower storage costs. The seller’s liability shall be restricted to the careful choice of the storage provider.
(5) The shipment shall be insured by the seller against theft, breakage, transport, fire or water damages and other insurable risks, at the customer‘s expense.
§ 6 WARRANTY, MATERIAL DEFECTS
(1) The warranty period shall be one year from the date of delivery. The statutory warranty period acc. to sec. 438 subs. I No. 3 BGB (German Civil Code) shall apply to electrical devices.
(2) The items delivered are to be inspected carefully upon delivery to the customer or any third party appointed by the customer. They shall be deemed approved by the customer as far as obvious defects or other defects are concerned that would have been recognizable at the time of an immediate careful inspection, unless a written complaint is provided to the seller within seven workdays upon their delivery. As far as other defects are concerned, the delivery items shall be deemed approved by the customer, if the complaint is not provided to the seller within seven workdays after the time the defect became obvious. If the defect was recognizable for the customer at an earlier time during normal usage, such an earlier time shall be relevant for the start of the notice period. Upon the seller’s demand, a faulty delivery item is to be returned to the seller carriage paid. If the complaint was justified, the seller shall remunerate the costs of the least expensive shipping mode. This shall not apply where costs are increased because the delivery item is at a different location than the location of its intended use.
(3) In the event of material damages of the items delivered, the seller shall initially be obligated and entitled to repair the defect or deliver a replacement within an appropriate period of time, at the seller‘s discretion. If the rework or replacement delivery fails, i.e. if it is impossible, unreasonable, if it is refused or inappropriately delayed, the customer may rescind the agreement or reduce the purchase price appropriately.
(4) If the seller is responsible for a defect, the customer may demand a compensation under the conditions listed in § 7.
§ 7 LIABILITY FOR COMPENSATION IN CASE OF DEFAULT
(1) The seller’s liability for compensation, for whatever legal reason, especially for impossibility, delay, faulty or wrong delivery, violation of an agreement, violation of contractual duties and unlawful acts, shall be restricted according to this § 8, insofar as a fault is involved.
(2) The seller shall not be liable in cases of simple negligence on the part of the seller’s management, legal representatives, employees or other agents, insofar as this does not concern a violation of significant contractual duties. Essential contractual duties include the obligation of a timely delivery and installation of the delivery item, its freedom from any defects that impair its functionality or usability more than in any insignificant ways, as well as any duties of consultation, protection and care, which are to enable the customer to use the delivery item according to contract or that serve the purpose of protecting life, limbs and health of the customer‘s staff or protecting the customer‘s property from any substantial damage.
(3) Inasmuch as the seller is in principle liable for damages acc. to § 7 (2), such liability shall be limited to damages the seller has foreseen as a possible consequence of a violation of the agreement at the time the agreement was made or that the seller should have foreseen when applying due care. Besides, incidental or indirect damages that are due to defects of delivered items shall only be eligible for replacement where such damages may typically be expected during the intended use of the delivered items.
(4) In the event of liability for simple negligence the seller’s obligation to make a compensation for material damages and any additional financial losses resulting therefrom shall be limited to 50 % even if a violation of essential contractual duties is involved.
(5) The aforementioned exclusions and limitations of liability shall equally apply to the favor of the management, legal representatives, employees and other agents of the seller’s.
(6) Insofar as the seller provides any technical information or acts as an advisor and such information or advice is not part of the contractual scope of services owed by the seller, this shall happen without any remuneration and with the exclusion of any liability.
(7) The limitations of this § 7 shall not apply to the seller‘s liability for any intentional behavior, for any guaranteed characteristics, for any violations of life, body or health or acc. to the Product Liability Act.
§ 8 RETENTION OF TITLE
(1) The seller shall retain ownership of the delivered goods until all payment claims from present and future business connections with the customer have been fulfilled completely. The customer may process and sell the goods in the course of ordinary business operations. In the case of sales on credit, however, this may only be done with reservation of title. Pledging and chattel mortgages are not permissible.
(2) When products have been processed, the seller shall be considered to be the manufacturer of the new product. If any products are combined or mixed with products of the customer’s and the customer’s products must be considered to be the main components of the new products, the seller shall acquire the appropriate joint ownership in such main products.
(3) If the customer is in default with the payment or any other obligation, the customer may only dispose of any goods subject to reservation or process them with the written consent of the seller. Besides, the customer shall always have to allow the seller access to the products delivered by the seller and to hand them over to the seller on demand, even without the exercise of the right of cancellation of the agreement. The same shall apply to such cases where products have already been put to use, if the seller rescinds the agreement because of a default of payment.
(4) Even now, the customer shall assign all claims from the disposal of products delivered by the seller to the seller, for security purposes. The customer shall always, revocably, be entitled to collect any receivables assigned, whereupon the customer shall transfer such proceeds to the seller immediately. Upon the seller’s demand, the customer shall have to inform the customer’s buyers about the assignment and to inform the seller about the existence of claims assigned and goods that are subject to reservation.
(5) If any goods that are subject to reservation are claimed by any third parties, the customer must inform such third parties of the reservation and inform the seller without delay. This latter point shall also apply to any third party access to claims assigned to the seller. The customer shall pay any intervention costs incurred.
(6) If the value of any of the seller‘s securities exceeds the seller‘s claims by more than 50 %, the seller shall release any securities exceeding this, at the seller’s own choice, upon the customer’s demand.
§ 9 FINAL PROVISIONS
(1) If the customer is a trader, a legal entity under public law or federal special funds under public law, or if the customer does not have a general place of jurisdiction in the Federal Republic of Germany, Iserlohn or the customer’s registered office shall be the place of jurisdiction for any disputes arising from the business relationship between the seller and the customer, at the seller’s choice. Any mandatory legal provisions concerning exclusive places of jurisdiction shall remain untouched by this provision.
(2) Relations between the seller and the customer shall exclusively be subject to the laws of the Federal Republic of Germany. The United Nations Convention on Contracts on the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) Insofar as the agreement or these General Terms and Conditions of Delivery contain any loopholes, those legally effective provisions shall be considered to have been agreed on that would have been agreed on by the contracting partners according to the economic purposes of the agreement and the purpose of these General Terms and Conditions of Delivery, if they had been aware of such loopholes.
The Terms and Conditions of Sale and Delivery document the implementation status of 03.2017.
Any previous Terms and Conditions of Sale and Delivery shall hereby lose their validity.
The customer acknowledges the fact that the seller shall save date from the contractual relationship acc. to § 28 Federal Data Protection Act for the purpose of data processing, retaining the right to transmit such data to third parties (e.g. insurances) to the extent necessary for the fulfillment of the agreement.
REV2 / 28_20