General conditions of sales, services and delivery
Our deliveries are subject to the following conditions. They override any conditions of sale that have different terms and provisions regardless of whether those conditions state that they cannot be overridden. By the unique inclusion of our conditions in a contract they are valid for all further contracts even if there is no additional information about our conditions in the contract.
1. Conclusion of contract, scope of supply
1.1 Our offers are non-binding, unless they are expressly obligatory. Contracts, other agreements, subsidiary and supplemental agreements are only concluded upon our written confirmation of order.
1.2 The scope of supply is determined by our written confirmation of order. Orders that do not comply with DIN-provisions and provisions of authorisation are made at the sole risk of the purchaser. Data and weights as well as other characters of our products and services in our folders, designs, in other illustrations or public expressions are only approximately relevant in the case they are not designated expressively as obligatory. We reserve the right of changes of the form, execution and colour.
Prices are calculated ex works net and do not include packaging. VAT of the respective amount determined by law will be added to the prices. Cost of dispatch are to be carried by the orderer. These costs also include taxes, tariffs, etc.
3.1 The transport is carried out ex works or delivery location and always on behalf and at the risk of the customer unless agreed otherwise.Particular another agreement, with regards to our order confirmations, price lists such as catalogues can arise, if it is clearly pointed out, that the transportation cost is already considered according to the total price. Also in this case the transport is carried out at our expense, but at customer’s risk.
3.2 Unless otherwise agreed in terms of free delivery, freight and stock costs will be charged to the customer directly. Possible shortages and / or other damages has to be complaint in writing by the customer, before handing over according to the legal requirements and periods.
If the customer undersign the shipping documents, the goods shall be regarded as having been delivered properly and completely.
3.3 Unless otherwise agreed in terms of free delivery, we will be entitled to engage our own freight forwarding company to usual market prices, on behalf at customer’s risk and expense, after consultation the customer.
3.4 The customer make sure an appropriate and immediate unload of the goods.
If he fails to meet this obligation, he has to cover the total additional costs arising in this matter (e.g. fees and demurrage such as unloading and collection costs).
4. Delivery Time, Delay in Delivery
4.1 The times for delivery are only approximative reference times, unless they are expressively stated as obligatory in our confirmation. In the case of strikes or the occurrence of other unexpected impediments which are outside the control of the supplier, the times for delivery will extend for a reasonable period, provided that such impediments are directly linked to the delay of completion or dispatch of the article of sale.
Timely delivery is deemed to have occurred when either the risk is passed (according 4.3) or the supplier has informed the purchaser of the readiness for dispatch. If times of delivery are not expressively agreed as obligatory upon we have a delay in delivery at the earliest 4 weeks at expiration of the delivery period.
4.2 Claims owing to delay of delivery due to slight negligences are impossible. In all other respects the claim for compensation of the orderer according to § 280 Abs. 1,2 and § 286 BGB is limited to 0,5 per cent of the purchase price for each full week of the delay. The total amount of the compensation which can be paid is limited to 5 per cent of the total price of the products with whose supply we are in delay if the actually damage is not under its worth.
4.3 In the case of a on call order a call is not made or scheduled, we are entitled to specify a time period and upon it’s expiry to deliver the goods or to cancel the non-executed part of the contract.
5. Dispatch and Passing of Risk
5.1 Goods announced ready for dispatch are to be accepted immediately.
5.2 In default of special agreement we have discretion to choose the means and route of transportation. Delivery requires that the purchaser prepares the depository or building site for delivery and provides a safe access.
5.3 With the handing over of the goods to the rail carriage service, the carrier or the haulier or at the latest when the goods leave our work or store, the risk is transferred to the purchaser. The same applies in case of pickup by the purchaser one week after the dispatch of the declaration of readiness to dispatch the goods.
6. Terms of Payment
6.1 In default of other agreements our invoices are to be paid within 10 days with 2 % discount or within 30 days net.
6.2 The purchaser is only entitled to retain payments or to charge up against other claims, if there are undisputed or legally binding pecuniary claims.
6.3 If the goods have not been paid for within 30 days after the receipt of the invoice, the purchaser is in default of payment, without a reminder being necessary. In this case default interest amounting to 5 % above the respective current base rate is payable. This is without prejudice to claims in regards to exceeding damage caused by the delay.
7. Notices of defect, warranty
7.1 Goods are determined to be defective or not at the time of the passing of risk. The purchaser is obliged to notify in writing any obvious defects immediately at the acceptance or at the latest within 7 business days and any subsurface defects at the latest 7 day after the discovery of the defect. We have to be granted an opportunity to ascertain the alleged defect. These provisions also apply if goods different from the ones specified in the contract have been delivered.
7.2 In the case of a legitimate notification of defect, we can either rectify the defect, and deliver a substitute or take back the goods in exchange for a credit note. If the rectification or the delivery of a substitute are not successful, the purchaser is after the expiry of an adequate period of grace entitled to reduce the price or to cancel the contract.
7.3 In case of a return to status quo ante of a contract the orderer has to pay for the period of usage of the material a remuneration at a value of 2% per month of the list price of the contractual items for the period of the using.
7.4 If used material is contractual item, any warranty for defects is excluded if bad-cunning behaviour can not be charged to us.
7.5 Any other claims of the purchaser regardless of nature or legal ground are excluded as far as this can be lawfully done.
8. Retention of Title
8.1 Goods purchased will remain under our ownership until all our claims against the purchaser have been fulfilled. In the case of running account the retention of title is security for the outstanding sums on the account balance. The purchaser is obliged to treat the goods with reasonable care. He is obliged to insure them sufficiently on the basis of the replacement value at his own cost for our benefit against loss caused by fire, water or theft.
The purchaser is obliged to give upon our request at any time extensive information on the whereabouts of the goods. He is obliged to have lists of his building sites and depositories, to keep these always up to date and upon our request to produce them within 3 days.
8.2 The purchaser is only permitted to resell goods with our consent and within his usual business under the condition that he agrees on a retention of title with his purchasers corresponding to the one under clause 7.1. The purchaser is not entitled to make any other disposals, he is in particular not permitted to pledge goods or to transfer them by way of security.
8.3 The purchaser shall protect our claims and rights when reselling goods covered by the retention of title. In the event that the retention of title is automatically terminated by a disposal of the purchaser, it is agreed that our retention of title will continue on the goods or monies that the purchaser has acquired by the disposal.
In the event of resale or lease of the goods purchased, the purchaser assigns to us at the time of the conclusion of the contract for the future any rights and claims from this resale or lease, including claims for restitution, towards his clients or other third parties together with all ancillary rights. We accept this assignment.
The purchaser is – subject to revocation at any time - entitled to collect the assigned claims. He is to accept the monies in a fiduciary capacity and to surrender them to us to fulfil our claims.
Upon our request the purchaser is obliged to produce and hand over all information and documents, that are necessary for the assertion of our rights and claims, in particular the leasehold and license agreements with detailed identification and addresses of the clients. We are entitled to disclose the ownership structure to the clients of the purchaser.
8.4 Processing and converting of the goods by the purchaser is done on our account under exclusion of the acquirement of ownership according to § 950 BGB. We remain owner of the end product, which is subject to the retention of title under clause 7.1 as a security for our claims.
8.5 In the case of the purchaser processing (connecting/ co-mingling) the goods with other goods that are not under our ownership §§ 947, 948 BGB apply to the result, such that our co-ownership on the new goods created is now subject to the retention of title under clause 7.1.
8.6 If the value of the existing securities exceeds the total of the secured claims by more than 20 % we will release securities of our choice upon request.
8.7 We have to be notified immediately of any distraint or confiscation of goods under retention of title. Costs of intervention have to be paid by the purchaser.
8.8 If the due payments of the purchaser are delayed and if he has been requested to pay and given a time limit for payment (§ 326 BGB), the whole remaining amount is due immediately. In the case of the expiry of the given time limit or in the case of an endangerment of our ownership of the goods by negligent conduct of the purchaser we are entitled, even before the contract has been terminated, to demand the surrender of the goods under retention of title and to collect these at the purchaser (minimisation of damages).
8.9 In the aforesaid case and in the case of the termination of the contract due to negligent conduct of the purchaser, the purchaser has to pay the cost for the disassembly – unless he conducts it himself – and the transport of the goods under retention of title to our closest store. The amount of the costs caused will be proven by us by way of our own and external invoices.
8.10 If the sale price is financed by a third party, the aforesaid obligations apply accordingly, and they apply until the ownership of the goods have passed to the purchaser and the goods are free of all encumbrances. A passage of the ownership to the orderer does not take place as long as we are exposed to potential claims from the financing party that could result from joint commitment liability for the orderer.
9. Fortune degradation of the buyer, termination of the contract
Does the buyer become insolvent after conclusion of a contract, will there be a request for opening an insolvency procedure over his fortune or if there are circumstances after the conclusion of contract which substantially impair the credit-worthiness of the orderer, we can refuse our service as long as the payment is not fulfilled or no adequate guarantee is provided.
10.1 Any documents or diagrams submitted to the purchaser as well demonstrations of technical expertise and proposals for design and manufacturing of the parts are subject to the law of property and copyright. The purchaser may only use them for the designated purpose. He is not allowed to make them accessible for third parties or publish them without our consent.
10.2 The purchaser bears responsibility that by reason of his statements industrial property rights and other rights of third parties are not infringed.
11. Technical modifications
11.1 The manufacturer reserves the right to make changes to the technical specifications.
Unless there are no substantial restrictions on the use, the buyer has no right for compensation according to deviations with regards to deliberations, measurements and weight of the goods across from stated details in our catalogues and / or other sales documents according to contained information and in opposite to early deliveries.
11.2 In particular for new designs or special constructions, we reserve the right for the final execution.
11.3 We are entitled to deliver equivalent delivered parts with neutral labeling.
12. Place of Performance and Jurisdiction
12.1 The place of performance is Plettenberg.
12.2 The Place of jurisdiction for disputes with traders, public law corporate bodies and separate estates under public law is at our option either our principal office or the registered office of the purchaser. This does also apply to actions under the special rules for actions regarding certificates, bills of exchange and cheques.
German law applies exclusively.
12.3 German law applies exclusively.
13. Nullity of Single Terms
If single terms of these conditions of sale are or become invalid, this shall be of ne effect to the validity of the other terms.
Stated August 2013