GENERAL CONDITIONS OF SALE
§ 1GENERAL - SCOPE OF VALIDITY
- Our conditions of sale shall apply exclusively; we do not recognise any conflicting conditions of the customer or any which deviate from our conditions of sale unless we have expressly agreed their validity in writing. Our conditions of sale shall also apply if, in awareness of conflicting conditions of the customer or any which deviate from our conditions of sale, we carry out the delivery to the customer without reservation.
- All agreements which are concluded between us and the customer for the purpose of executing this contract are laid down in writing in this contract. Any conditions which are agreed verbally, as well as any subsequent additions, shall require our written confirmation in order to be legally valid.
- Our conditions of sale shall only apply to traders pursuant to Sec. 14 German Civil Code (BGB), legal persons under public law and special funds under public law.
- Our conditions of sale shall also apply to all future transactions with the customer.
- Should the customer wish to assign rights and obligations arising from the purchase agreement to a third party, this shall only be possible with our written consent.
- Intellectual property rights of third parties are to be observed when using the goods.
§ 2OFFER – OFFER DOCUMENTS
- Our offers are subject to change without notice. They shall only be binding upon us in so far as we confirm them or comply with them by sending the goods.
- We reserve rights of ownership and copyrights in illustrations, drawings, calculations and any other documentation. This shall also apply to any written documents which are marked "confidential”. The customer shall require our express written consent prior to passing them on to third parties.
§ 3PRICES – PAYMENT TERMS
- (1) In so far as nothing to the contrary emerges from the order confirmation, our prices shall be “ex works”, exclusive of packaging; the latter will be invoiced separately.
- The prices shall be fixed in Euros. Deliveries may only be made in exchange for a different currency following written agreement.
- The statutory VAT is not included in our prices; the statutory amount of it will be shown in the invoice separately on the date of invoicing.
- We reserve the right to amend our prices appropriately if prices drop or rise after concluding the agreement, especially due to alterations in the price of materials.
- Any deduction for early payment requires to be specially agreed in writing.
- In so far as nothing to the contrary emerges from the order confirmation, the purchase price is due for payment net (without deduction) within 30 days of the invoice date. The statutory rules concerning the consequences of late payment shall apply.
- The customer shall only be entitled to offset payment if its counterclaims have been determined with legal validity or are undisputed or recognised by us. In addition, it shall be authorised to exercise a right of retention to the extent that its counterclaim is based on the same contractual relationship.
§ 4DELIVERY DATE
- Our delivery dates are, in principle, only approximate and non-binding. Any deviating agreements in this respect must expressly be made in writing. Any unforeseen events which are not our fault shall reasonably extend the delivery date. Should we not be able to deliver due to these events, even after a reasonable extension, both we and the customer shall be entitled to withdraw from the contract and any claims for compensation for damage on the part of the customer shall be excluded.
- The commencement of the delivery period specified by us assumes that all technical matters have been clarified. Further, adherence to our delivery obligation assumes that the customer fulfils its obligations in good time and in proper form. The defence of the agreement not having been fulfilled shall remain reserved.
- Should the customer delay in acceptance or culpably infringe any other obligations to co-operate we shall be entitled to request compensation for the damage incurred to us in that respect, including any additional expenditure incurred. We reserve the right to assert any further claims.
- In so far as the prerequisites of Clause (3) exist, the risk of any accidental destruction or any deterioration in the item purchased shall pass to the customer as at the date on which the latter has fallen behind in acceptance or is in default.
- We shall be liable in accordance with the statutory provisions in so far as the underlying purchase agreement is a firm deal within the meaning of Sec. 286(2) No. 4 German Civil Code (BGB) or Sec. 376 German Commercial Code (HGB). We shall also be liable in accordance with the statutory provisions in so far as, in consequence of a delay in delivery which is our fault, the customer is entitled to assert that its interest in further fulfilment of the contract has lapsed.
- We shall further be liable in accordance with the statutory provisions in so far as the delay in delivery is based on an intentional or grossly negligent contractual infringement for which we are responsible; culpability on the part of our representatives or vicarious agents shall be attributable to us. In so far as the delay in delivery is based on a grossly negligent contractual infringement for which we are responsible, our liability to pay compensation for damage shall be limited to the foreseeable damage typically occurring.
- We shall also be liable in accordance with the statutory provisions in so far as the delay in delivery for which we are responsible is based on the culpable infringement of a significant contractual obligation; however, in this case, the liability to pay compensation for damage shall be limited to the foreseeable damage typically occurring.
- Otherwise we shall be liable in the event of delay in delivery, to pay a flat-rate compensation payment for the delay in the amount of 0.5% of the value of goods to be delivered for each complete week of delay, however a maximum of no more than 5% of the value of goods to be delivered.
- Any further statutory claims and rights of the customer shall be reserved.
§ 5PASSING OF RISK – PACKAGING COSTS
- In so far as nothing to the contrary emerges from the order confirmation, delivery is agreed “ex works”.
- The route and mode of shipment shall be determined by us.
- Our packaging conditions shall apply in regard to the packaging.
- If the customer expressly instructs us to do so in writing, we shall take out transport insurance cover for delivery; any costs incurred in this respect shall be borne by the customer.
§ 6LIABILITY FOR DEFECTS
- Any claims by the customer in regard to defects shall assume that the customer has complied with its obligation to examine the goods and notify any defects pursuant to Sec. 377 German Commercial Code (HGB).
- The customer is required to notify any defects in writing.
- In so far as there is a defect in the item purchased, we shall, at our option, be entitled to carry out subsequent fulfilment in the form of either remedying the defect or delivering a new item, free of defects. In the event of remedying the defect, we shall only bear the necessary expenditure up to the amount of the purchase price, and only in so far as this is not increased by the item purchased having been brought to a different place from the place of fulfilment.
- Should the attempt to remedy the defect be unsuccessful, the customer shall, at its option, be entitled to withdraw from the contract or demand a reduction in price.
- We shall be liable in accordance with the statutory provisions in so far as the customer asserts claims for compensation for damage based on intent or gross negligence, including intent or gross negligence on the part of our representatives or vicarious agents. In so far as we are not accused of any wilful contractual infringement, the liability to pay compensation for damage shall be limited to the foreseeable damage typically occurring.
- We shall be liable in accordance with the statutory provisions in so far as we culpably infringe a significant contractual obligation; also in this case, however, the liability for compensation for damage shall be restricted to the foreseeable damage typically occurring.
- Liability due to culpable injury to life, the body or health shall remain unaffected thereby; this shall also apply to the mandatory liability in accordance with the Product Liability Act.
- In so far as the matter has not been regulated to the contrary above, any liability shall be excluded.
- The period of limitation for claims concerning defects shall amount to 12 months, reckoned from the passing of risk.
§ 7OVERALL LIABILITY
- Any liability to pay compensation for damage extending beyond what is stipulated in Clause 6 above shall be excluded – without taking into consideration the legal nature of the claim asserted. This shall particularly apply to any claims for compensation for damage arising from fault upon concluding the agreement (culpa in contrahendo), due to any other infringements of obligations or due to any tortious claims for compensation for material damage pursuant to Sec. 823 German Civil Code (BGB).
- The limitation in accordance with Clause 1 shall also apply in so far as the customer instead of asserting a claim to compensation for damage, demands payment of compensation for futile expenditure in lieu of performance.
- In so far as the liability on our part to pay compensation for damage is excluded or limited, this shall also apply in regard to the personal liability on the part of our staff, employees, personnel, representatives and vicarious agents to pay compensation for damages.
§ 8RESERVATION OF OWNERSHIP
- We reserve our ownership in the item purchased until all payments arising from the business connection with the customer have been received. In the event of the customer engaging in any conduct which is contrary to the agreement, in particular in the case of payment arrears, we shall be entitled to take back the item purchased. By taking back the item purchased we are withdrawing from the contract. After taking back the item purchased we shall be entitled to realise its value, and the proceeds of sale shall be offset against the customer’s liabilities – less the reasonable expenses of sale.
- The customer shall be obliged to handle the item purchased with due care; in particular, it is to adequately insure it against damage caused by fire, water and theft at its value as new, at its own expense. In so far as any maintenance and inspection works are necessary, the customer shall be required to carry these out in good time at its own expense.
- The customer is required to notify us without delay and in writing in the event of levy of execution or any other interventions by third parties, so that we can file the action pursuant to Sec. 771 German Code on Civil Procedure (ZPO). In so far as the third party is not in a position to reimburse us the judicial and extrajudicial expenses of an action pursuant to Sec. 771 German Code on Civil Procedure (ZPO), the customer shall be liable for the losses incurred to us.
- The customer shall be entitled to sell on the item purchased within the course of regular business; however, it already now assigns to us all receivables which are due to it by its customers or third parties from the resale in the amount of the final sum of our claim invoiced (including VAT), and in fact independently of whether the item purchased has been sold on without or following further processing. The customer shall continue to be authorised to collect these receivables following the assignment. Our entitlement to collect the receivables ourselves shall remain unaffected thereby. We undertake, however, not to collect the accounts receivable as long the customer complies with its payment obligations arising from the sales revenues collected, does not fall into arrears with payment and in particular no request for the institution of settlement or insolvency proceedings has been filed and payment has not been ceased. Should this, however, be the case, we may require the customer to disclose the receivables assigned and their debtors, provide all details necessary for their collection, hand over the associated documentation and notify the debtors (third parties) of the assignment.
- The processing or alteration of the item purchased by the customer shall always be carried out on our behalf. Should the item purchased be processed together with other items, not belonging to us, we shall acquire co-ownership in the new item in the proportion of the value of the item purchased (final amount of invoice including VAT) to the other items processed at the time of processing. In addition, the same as to the item purchased supplied subject to reservation shall apply to the item which emerges due to the processing.
- Should the item purchased be inseparably mixed with items not belonging to us, we shall acquire co-ownership in the new item in the proportion of the value of the item purchased (final amount of invoice including VAT) to the other items mixed with it at the time of processing. Should the mixing be carried in such a way that the customer's item is to be deemed the main item, it shall be deemed to have been agreed that the customer assigns us proportionate co-ownership. The customer shall keep the sole property or jointly owned property which has occurred as a result safe for us.
- To secure our claims against it, the customer shall also assign to us the accounts receivable by it from a third party which have accrued through connecting the item purchased with real property.
- We undertake to release the securities to which we are entitled, at the customer’s request, in so far as the realisable value of our securities exceeds the accounts receivable to be secured by over 10%; we shall be free to choose the securities to be released.
§ 9PLACE OF JURISDICTION – PLACE OF FULFILMENT
- In so far as the customer is a trader, legal person under public law or special funds under public law, Wuppertal shall be the place of jurisdiction. We shall also be entitled to sue the customer at the Court where the customer has its general place of jurisdiction.
- The law of the Federal Republic of Germany shall apply, under exclusion of the UN Convention on Contracts for the International Sale of Goods.
- In so far as nothing to the contrary emerges from the order confirmation, our place of business shall be the place of fulfilment.