General Terms and Conditions
- only for our business partners -
We shall supply based exclusively on the conditions below, unless otherwise agreed in writing in individual cases or based on terms of supply agreed upon between the contracting parties.
Contractual conditions of the buyer contradicting our General Terms and Conditions shall have no validity.
1. Our prices are always exclusive of value added tax at the legislated rate. Prices are always in Euro, unless another currency is designated, and prices are per item.
2. Our prices are non-binding. We reserve the right to make reasonable price changes due to changes in the cost of wages, materials and distribution for deliveries scheduled 3 months or later after conclusion of contract, unless fixed prices are agreed.
3. Our prices are ex works excluding packaging. Any packaging will be charged separately. Discounts or pricing terms shown in price lists apply for the period of validity of such price lists.
Any special conditions granted such as discounts, bonuses and compensations of any type shall be null and void should the buyer become insolvent or default on payment, including any associated settlement pursuant to § 284 BGB [German Civil Code] before or out of court
These same legal consequences shall enter into effect on the day after an invoice becomes overdue.
4. Our order confirmation is the base for pricing and delivery information.
1. Our deliveries shall be strictly ex works.
Any undertaking for delivery free house, free German border or free harbour or airport shall only be valid provided we have assured the buyer of this individually for every delivery in writing.
2. Any delivery commitments towards the buyer shall be deemed honoured from the time the goods leave our works or an external warehouse administrated by us or from the time the goods are handed over to a forwarding agent.
III. Time of delivery
1. Our specified dates and terms of delivery are not binding unless expressly agreed otherwise in writing.
2. We shall not be in default with delivery to the buyer should deliveries by our suppliers be delayed, unless we may be held responsible for such non-delivery or default in delivery by our suppliers. We shall be entitled to withdraw from the contract if it is proven that the goods ordered by us were not delivered for reasons for which we cannot be held responsible.
3. The buyer shall be entitled to claim not only delivery but also for damages caused by default if such default was due to intent or gross negligence on our part. In the case of minor negligence, our liability shall be limited to typical damages predictable under the contract, but limited to 10% of the agreed purchase price of that part of the goods in respect of which we are in default of delivery.
4. We are entitled to partial deliveries and to invoicing the buyer in an amount reasonable to him.
IV. Methods of payment, default of payment, retention of goods/set-off, cession
1. Our invoices are due on delivery of the goods and are payable net and without deductions within ten days after delivery and receipt of invoice. Any deviating terms of payment shall be in writing.
2. Payment by cheque or by bill of exchange shall require our prior agreement in writing. We shall accept cheques and bills of exchange only on account of performance and upon condition that they are discountable. The buyer shall bear bank and discount charges and collection fees as well as any taxes due.
3. Should we not have regular business transactions with the buyer or the buyer does not have an account with our company, we shall be entitled to make delivery to the buyer against cash on delivery or advance payment or only after direct debit authorisation. This applies mutatis mutandis in case of repeated and/or constant default in payment.
4. In the event of a default in payment, the outstanding amount shall bear interest at the rate of 8% above the current base lending rate. We reserve the right to claim higher damages.
5. If it becomes apparent after conclusion of the contract that our right to consideration is jeopardised by the inability of the buyer to fulfil payment obligations, we shall be entitled to refuse the performance incumbent upon us until such time as he provides consideration or furnishes collateral for such consideration. We shall be entitled to set a reasonable deadline by which the buyer shall quid pro quo provide consideration or furnish collateral at his choice. We shall be entitled after expiry of the deadline to withdraw from the contract and/or demand compensation for reimbursement for expenses as provided for by law.
6. The buyer may only assert a right of retention against our demands provided this is based on uncontested or res judicata claims under the same contractual relationship. Set-off shall be excluded unless the counterclaim is res judicata or uncontested.
7. The buyer shall not be entitled to cede any claims against us without our written consent.
V. Passing of risk
Unless otherwise agreed, deliveries shall be at the risk of the buyer. The risk of accidental destruction or deterioration of the goods shall pass to the buyer when the goods are handed over to the forwarder. This shall apply irrespective of whether the goods are delivered from the place of performance and independently of which party bears the freight charges.
Should the delivery be delayed for reasons for we cannot be held responsible or should the buyer not accept the goods in time even though he was offered such goods, then the risk shall pass to the buyer on receipt of the notice of completion.
VI. Reservation of proprietary rights
1. Any goods delivered by us shall remain in our ownership as goods subject to retention of title (overall retention of title) until all outstanding receivables under the contractual relationship and other receivables we may have against the buyer for any reason whatsoever now or in future - including all current account balances - have been paid. This shall also apply should the payments have been made in respect of specifically designated receivables. In the case of a current account, the goods subject to retention of title shall serve as security for our outstanding balance claim. The outstanding balance claim shall lapse only after all receivables still open and falling under this outstanding balance claim at the time of the payment have been settled.
2. The buyer is entitled to sell the goods subject to retention of title only in the course of his normal business transactions under his normal terms and conditions. He shall not be entitled to other rights of disposal of the goods subject to retention of title. For such cases, the buyer shall at this point in time already assign to us all receivables arising from selling of the goods subject to retention of title and all collateral he may hold for such receivables as security for all our claims under the business relationship; we hereby accept such assignment in advance. For as long as we are the owners of the goods subject to retention of title we shall be entitled to rescind, after submission of reasonable and objective justification, the permission to sell such goods.
Should the buyer sell the goods subject to retention of title together with other goods which were not sold by us, then his receivables from such transaction shall be assigned to us pro rata of the invoice value of the goods subject to retention of title to that of the other goods sold. Should the buyer use such goods subject to retention of title in the fulfilment of a service contract, then the receivables under the service contract shall be assigned to us in that amount.
3. The buyer is revocably authorised to collect the assigned receivable. This shall not prejudice our own right to collect such receivables; however, we undertake not to collect the receivables provided the buyer does not default on his payment obligations.
We shall only invoke our right of rescission should it become apparent after conclusion of the contract that our claims for payment under this or other contracts with the buyer are jeopardised by a lack of solvency of the buyer. Should the buyer fail to meet his payment obligations and should we therefore be entitled to collect his receivables, the buyer shall at our request be obliged to inform his customers of such assignment and also to provide us with the information we need to enforce his rights in terms of the assigned receivables and his debtors, including all the necessary documentation.
4. The buyer shall be obligated at his own cost to insure the goods subject to retention of title against fire and other material damage at replacement value and to maintain such cover. The buyer shall forthwith assign to us any claims against his insurer or the injuring party to which he would be entitled in the event of the occurrence of such loss or damage, to the extent that they affect our property; we accept this assignment.
5. The buyer shall be obligated to treat the goods subject to retention of title with due care. For as long as the reservation of proprietary rights exists, the goods subject to retention of title shall not be pledged, transferred by way of security, leased, ceded or changed to the detriment of our security, without our prior written consent. The right of the buyer to sell the goods in the course of a proper business transaction and subject to the abovementioned conditions shall remain unaffected. The buyer shall inform us immediately and in writing should a third party apply for foreclosure proceedings and shall inform such third party of our reservation of proprietary rights.
6. Should the buyer permanently cease payment, apply for insolvency proceedings over his assets or should insolvency proceedings be instituted over his assets, he shall be obligated at our request to immediately surrender the goods subject to retention of title still in his possession. We shall in this case be entitled to recover the goods subject to proprietary rights and if necessary to access the premises of the buyer for this purpose and to sell said goods as best possible, setting this off against the purchase price. We shall also be entitled, should the buyer violate contractual conditions, especially by defaulting on payments, to demand that the buyer return goods subject to retention of title. Repossession of goods in which we have retained title shall only imply cancellation of the contract if we explicitly state this.
7. We shall be obligated at the request of the buyer and at our discretion to waive the reservation of proprietary rights, i.e. to release collateral from transfers by way of security and advance assignments once the buyer has satisfied all the claims pertaining to the purchased object or once the realisable total value of securities granted to us from reservation of proprietary rights, transfers by way of security and advance assignment exceeds the total amount of claims against the buyer by more than 10%.
VII. Notice of defects, liability for defects
Insofar as the cause of the defect existed already before the passing of risk as per Section IV, we accept liability for defects conditional upon the following provisions:
1. Obvious defects shall be reported to us immediately in writing, but no later than within 8 days of receipt of the goods. Significant, easily visible damage to the goods shall be deemed obvious defects. This furthermore includes instances where wrong goods or inadequate quantities were delivered.
Concealed defects shall also be reported to us immediately in writing, but no later than within 8 days of becoming aware of the defect. In the absence of such notification, a delivery shall be deemed without defects and approved. The user shall notify the supplier of defects, of which he becomes aware only later, within four weeks of noticing such defects.
2. If the buyer reports a defect in good time, he shall be entitled at our discretion to rectification of the defect or delivery of goods without defect (supplementary performance) free of charge. In the event of a breach of the duty to examine the goods and complain, the goods shall be deemed accepted in awareness of such defect.
3. Should supplementary performance as per Section VII. 2. fail, the buyer is entitled at his discretion to withdraw from the contract or reduce payment. The buyer has no further claim to damages due to a defect should he choose to withdraw from the contract following such defect.
4. The buyer shall have no right to claims based on the costs of supplementary performance (e.g. cost of transport, travel, labour and materials) should such costs have increased because the purchased goods were transported to a location other than the head office or commercial location of the buyer after delivery, unless such relocation is part of the designated use of the goods.
5. Claims for defects shall not be recognised should the properties of the delivered goods deviate insignificantly from those agreed upon, should the usability be impaired only insignificantly, in case of natural wear and tear, or should they be due to improper or negligent handling by the buyer after the passing of risk (e.g. unsuitable or improper storage or treatment, excessive stress).
6. Claims for defect shall lapse 12 months after delivery of the goods.
7. The buyer shall only be entitled to claim for damages based on defects to the extent that our liability is not excluded or limited pursuant to the Section “Liability” of these General Terms and Conditions. Any claims based on defects other than or over and above those stipulated in the Section “Liability” shall be excluded.
We accept liability for intent and gross negligence and in case of violation of a cardinal duty under the contract. We exclude liability for minor negligent breaches of our duties unless these are related to cardinal duties under the contract, injury to life and limb or to health or guarantees or claims under the Product Liability Act. The same shall apply to breach of duty by our vicarious agents. Liability for fraudulent concealment of defects or when assuming a warranty of properties as well as liability for claims under the Product Liability Act and for bodily injury remains unaffected. This does not imply a change to the burden of proof to the detriment of the buyer.
IX. Applicable law, place of performance, place of jurisdiction, partial nullity
1. German law shall exclusively apply to all legal relations between ourselves and the buyer, in exclusion of the UN Convention on Contracts for the International Sale of Goods.
2. Should the buyer be a merchant or a body corporate under public law, the place of performance shall be our warehouse for all delivery obligations and Münster, Westphalia, for all payment obligations.
3. Should the buyer be a merchant or a body corporate under public law, the exclusive place of jurisdiction for all disputes directly or indirectly arising from the contractual relationship shall be Münster in Westphalia. We shall be entitled, however, to also take the buyer to court at any other legal place of jurisdiction.
4. Should a provision under these General Terms and Conditions or a provision within the framework of other agreements be or become ineffective, this shall not affect the validity of any other provisions or agreements. Should individual provisions be or become invalid or contain a gap, the remaining provisions shall remain in effect. The parties undertake to substitute the ineffective provision with a legal provision which approximates the commercial purpose of the invalid provision as closely as possible or which fills such a gap.