§ 1 General
(1) All our offers and contracts are based exclusively on our General Terms and Conditions below. We accept no Buyer’s terms and conditions that contradict or deviate from our Terms and Conditions of Sale unless expressly confirmed by us in writing.
(2) These Terms and Conditions of Sale shall also apply to all future sales transactions with the Buyer or possibly his legal successor.
(3) Unless expressly otherwise stipulated in individual contracts, we will reserve all proprietary rights and copyrights to all samples, cost estimates, drawings etc. These shall not be disclosed to third parties unless with our written consent.
§ 2 Terms and conditions of contract and delivery
(1) Our offers will be subject to change. Prices shall be deemed agreed upon only after our confirmation of order.
(2) Shipment and transport shall be at the expense and risk of the recipient. This shall also apply should we have taken over the dispatch / installation.
(3) We reserve the right to make partial deliveries to the extent reasonable.
(4) All prices will be ex works excluding packaging and transport.
(5) Deliveries shall be to a location as agreed.
(6) No quoted delivery times shall be binding unless expressly agreed upon as binding.
(7) We accept no liability for delays beyond our control. Delays in delivery due to force majeure, in particular war, riots, industrial disputes and other circumstances for which we cannot be held responsible, such as delayed delivery by upstream suppliers, shall be deemed beyond our control.
§ 3 Terms of payment, consequences of infringement
(1) Unless otherwise agreed, payments shall be made within 30 days and without deductions.
(2) All payments shall be made in euros and at no postage and other costs to us.
(3) No cash discounts shall be allowed unless expressly agreed.
(4) Bills of exchange and cheques shall be accepted exclusively on account of performance.
(5) We will, in the event of payment default, charge reminder fees and interest in accordance with statutory provisions which shall for commercial transactions be set at a minimum of 8 percentage points above prime. We shall, should the Buyer be in default with payment of an invoice, be entitled to the return of all unpaid goods and their utilisation. The proceeds of such utilisation will be set off against the Buyer’s liabilities – less reasonable costs of utilisation.
(6) We shall, should a Buyer unjustifiably withdraw from a placed order, be entitled to 10% of the selling price to cover the cost of order processing and lost profit, without prejudice to claims for higher damages that may have in fact occurred. The Buyer’s right to submit evidence of less damage shall be reserved.
§ 4 Set-off, retention
(1) The Buyer shall have no right to set off his counterclaims unless these are res judicata or uncontested. No assertion of rights of retention shall be permissible unless counterclaims are based on the same contractual relationship.
§ 5 Reservation of proprietary rights
(1) The delivered goods shall remain our property until all payments due under the business relationship with the Buyer existing at the time of conclusion of the contract have been satisfied.
(2) The Buyer shall be entitled to sell the goods in the normal course of business, provided he is not in default or in financial difficulty. Should the Buyer sell goods under our reserve of title, then claims arising from such sales, limited to the amount of our purchase price claim, shall hereby be assigned to us; no express confirmation of sale shall be required.
(3) We shall, should the delivered goods be combined with other items not belonging to us to thereby create a unitary object, acquire co-ownership of such new object pro rata the value of the delivered goods to the value of other processed items at the time of their combination. The conditions applying to the object created by combination shall for the rest be the same as those applying to goods delivered under retention of title.
(4) The Buyer shall immediately notify us in the event of attachment or other actions by third parties, in writing.
(5) We undertake, on request of the Buyer, should the value of our securities exceed the secured receivables by more than 10%, to release securities ceded to us; the choice of securities to release shall be at our discretion.
§ 6 Liability for defects
(1) We shall at our discretion either repair or resupply delivered goods showing defects at the time of transfer of risk under our warranty. The Buyer shall not, provided we fulfil our obligations to successfully remedy the defects, be entitled to cancel the contract or demand a discount.
(2) Should we not be prepared or able to remedy the defects or replace the defective goods, or should remediation or replacement be unreasonably delayed for reasons for which we may be held responsible, or should remediation or replacement fail for other reasons, then the Buyer shall be entitled at his discretion to demand a discount (reduction in price) or cancellation of contract (rescission). The Buyer shall not be entitled to additional compensation should he choose to cancel the contract.
(3) The Buyer shall not, however, be entitled to withdraw from the contract in cases of minor breach of contract, in particular minor defects.
(4) The essential characteristics of the goods shall be defined solely by the product description under the contract. Public statements, promotions, advertisements and illustrations in catalogues or brochures shall not be deemed contractual descriptions of the quality of the goods.
(5) Claims for defects shall presuppose that Buyers who are merchants have met their obligations to inspect and give notice of defects pursuant to §377 HGB.
§ 7 Limitation of liability
(1) We shall be liable without limitation for damage caused by intent or gross negligence. We shall furthermore be liable for breach of cardinal obligations due to slight negligence (i.e. an obligation whose fulfilment is a prerequisite for enabling the proper fulfilment of the contract in the first place or whose violation may endanger the purpose of the contract and on whose fulfilment the customer may generally rely). We shall, however, in such cases be liable only for foreseeable damage typical under the contract. We shall furthermore also not be liable for breach of obligations other than those addressed above, due to slight negligence.
The above limitations of liability shall not apply in the event of injury to life, limb or health, for defects after the assumption of a guarantee for the quality of the goods and for fraudulent concealments of defects. The exclusion or limitation of liability shall also apply to the personal liability of our staff, workers, collaborators, representatives and vicarious agents.
(2) The above provisions shall not apply to claims under the Product Liability Act.
§ 8 Statute of limitations
The statutory period of limitation for contractual claims shall be 1 year from delivery.
§ 9 Data protection
The Buyer herewith agrees that the data required for processing of the contract will be electronically stored and processed for the purpose of the business relationship, in accordance with statutory provisions.
§ 10 Place of performance and jurisdiction
(1) The place of performance shall be Mechernich.
(2) The place of jurisdiction for all legal disputes arising from this contract shall, if the Buyer is a merchant, be our registered office; we shall also be entitled to sue the Buyer at his place of residence or registered offices.
§ 11 Applicable law
(1) The laws of the Federal Republic of Germany shall exclusively apply; the UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
§ 12 Severability clause
(1) Should individual provisions in these Terms and Conditions be or become void, ineffective or contestable, no other provisions or agreements shall thereby be affected.
(2) It shall be agreed that ineffective provisions will be replaced by valid provisions that as closely as possible approach the original intentions under the contract. This shall also accordingly apply to any loopholes requiring supplementary text.