General terms and conditions
§ 1 Application
(1) All deliveries, performances and offers of the seller are carried out on the basis of these general terms of delivery. These are part of all contracts the seller is concluding with his contractual partners (consecutively called “client”) about the offered deliveries and performances. They are valid for all future deliveries and performances of offers for the client, too, even if they are not separately agreed once more.
(2) Terms and conditions of the client or third parties do not find applications, even if the seller does not contradict them in full detail. Even if the seller is referring to a writing that contains the terms and conditions of the client of a third party or relegates to them, this doesn’t assent with those terms and conditions.
§ 2 Offer and conclusion of contract
(1) All offers of the seller are without obligation, unless they are marked as obliging or containing a set term of acceptance. Orders or duties can be accepted by the seller within two weeks after receipt.
(2) Solely leading for the privity of contract between seller and client is the written contract, including these terms of delivery. The contract renders the agreements between the two parties about the object of agreement. Oral consents of the seller in the fore of this contract are judicial unbinding and oral agreements between the contracting parties are replaced by the contract in writing, as long as it doesn´t explicitly arise from the oral agreements, that they stay obliging. Additions and modifications of the made agreement, including these terms and conditions, must be in written form for efficiency. Except for the manager and the authorized representative, the staff of the seller is not allowed to make differing oral agreements. The transmission via mail or fax is enough for the protection of the written form.
(3) Details of the seller regarding the item of delivery or performance (e.g. weights, measurements, serviceability’s, capacitance, remedies and technical data) as well as our illustrations of those(e.g. drawings and figures) are only approximated relevant, as long as the applicability for the contractually intended scope doesn´t suppose the exact congruence. They are no guaranteed characteristics of state but descriptions or designations of the delivery and performance. Customary variations and variations that are effected due to judicial regulations or depicting technical innovations as well as the replacement of parts by equal parts are permitted, as long as it doesn´t affect the usability for the contractual purpose.
(4) The seller reserves the property or copy right to all given offers or estimations as well as all drawings, figures, calculations, prospects, catalogues, models, tools and other data and help provided to the client. The client mustn’t publish those items as whole, none with regards to contents to third parties or use or duplicate for himself or third parties without the explicit permission of the seller. The client must hand all items back to the seller on request completely and destroy all copies that eventually were made, if they aren´t needed for the normal course of business or if negotiations don´t end with signing a contract.
§ 3 Prices and payment
(1) The prices are valid for the volume of delivery and performance mentioned in the acknowledgement. Extra and special services are calculated separately. The prices are quoted in EUR ex works plus wrapping, the legal VAT, for exports customs as well as duties and other public charges.
(2) If the agreed prices are based on the list prices of the seller and the delivery shall be made more than 4 months after conclusion of the contract, the bases for the delivery are the valid list prices of the seller (respectively minus an agreed discount in percent or fixed).
(3) Invoice totals have to be paid within 14 days ex invoice date in full, if not agreed otherwise in written form. Relevant for the date of payment is the receipt at the seller. Does the client not make the payment to the date of expiry, the remaining amounts are interest-bearing with 5% p.a.; the assertion of higher interests and further harms in case of a delay stay untouched.
(4) The compensation with counter claims of the client or the retention of payments of those claims are only permitted, if the counter claims are undisputed or established as final and absolute.
(5) The seller is allowed to proceed or fulfill outstanding deliveries or performances against prepayment or way of security, if he emerges circumstances after the conclusion of the contract, which are able to reduce the creditworthiness of the client substantially and by which the payment of the seller ´s outstanding claims of the depending contract (including other individual orders applying to the same outline contract) by the client is at risk.
§ 4 Delivery and time of delivery
(1) Deliveries are made ex works.
(2) Periods and dates announced by the seller are always considered as approximate, unless a fixed period or a fixed date is expressively assured or agreed. If forwarding is agreed, the periods of delivery and dates of delivery are referring to the moment of handing over to the forwarder, the hauler or any third party tasked with the transport.
(3) The seller may –regardless of his rights of the clients delay – demand an extension of periods for delivery and performance or an adjustment of dates of delivery and performance about that period during which the client doesn´t keep to his contractual duties to the seller.
(4) The seller isn´t responsible for impossibility of delivery or delay in delivery as far as they are caused by vis major or other events that were unpredictable at the conclusion of the contract (e.g. all kind of disruption of operations, difficulties at the procurement of materials or energy, delays in transportation, strikes, legal lockouts, labor shortage or shortage of raw material, difficulties in obtaining the needed official approvals, official actions or the held off, incorrect or delayed supply by suppliers) that the seller hasn´t to answer for. If such events should make the delivery considerably complicated or impossible and should the obstacle not be temporary, the seller may withdraw from the contract. With basis of temporary duration the period of delivery and performance extends or the dates of delivery and performance are deferred about the time of the obstacle plus an adequate start-up period. As far as the purchasing of the delivery or performance can´t reasonably be expected by the client, he may withdraw from the contract by immediate written statement.
(5) The seller is allowed for partial deliveries if
a. The partial delivery may be used within the contractual purpose
b. The delivery of the remaining goods is secured and
c. There is no additional work and expense for the client (unless the seller agrees to take these costs)
(6) Does the seller fall behind with the delivery or performance or does the delivery or performance become impossible no matter for what reason, the responsibility for indemnification of the seller is restricted according to § 8 of these terms and conditions.
§ 5 Place of execution, shipping, wrapping, transfer of perils, acceptance
(1) Place of execution for all duties of the content of the contract is Rheine, unless agreed otherwise. If the seller is in debt of the installation, too, the place of execution is where the installation shall be made.
(2) The way of shipping and the wrapping are subordinate to the seller’s best judgment.
(3) The perils are transferred the latest with handing over of the delivery item (at which the start of lading is relevant) to the forwarder, the hauler or any other third party tasked with the transport to the client. This is valid, too, if partial deliveries are done or if the seller has taken other performances (e.g. shipping or installation). If there is a delay in shipping or in handing over as a result of circumstances whose cause is at the client’s side, the perils are transferred to the client from the day the seller is ready for shipment and has indicated this to the client.
(4) Storage costs after transfer of perils are borne by the client. For storage by the seller, the storage costs are 0.25% of the invoice total of the stored delivery items per expired week. The assertion and proof of further or lesser storage costs stay reserved.
(5) The consignment is going to be insured against theft and pilferage, breakage, damages in transit, fire damages and water damages or other damages that can be insured by the seller on explicit wish of the client.
(6) As far as an acceptance has to take place, the sales item is classified as accepted if
a. The delivery and, if the seller is in debt of the installation, the installation are finished
b. The seller has informed the client about this with reference to this §5 (6) and requested limits for acceptance
c. 12 workdays have passed since the delivery or installation or the client has started the use of the sales item (e.g. has put the delivered installation into operation) and in this case 6 workdays have passed since the delivery or installation and
d. The client has omitted the acceptance within this period for another reason than a deficiency notified to the seller that makes the use of the sales item impossible or essentially derogated.
§ 6 Warranty
(1) The period of warranty is one year from the delivery or if an acceptance is required, from the acceptance.
(2) The delivered goods have to be accurately examined promptly after delivery to the client or to a third party appointed by the client. They are considered as approved, if the seller doesn’t receive a notice of defect with regard to apparent defects or other defects that were in evidence at a prompt, accurate examination within seven days after delivery of the delivery item or otherwise within seven days after detection of the defect or from the point in time when the defect has become obvious for the client at normal use of the delivery item without closer investigation according to the form dictated in § 2(2) Phrase 6. On request of the seller, the rejected delivery item has to be resend carriage paid to the seller. At legitimate notice of defect, the seller pays the costs for the best dispatch way; this does not apply, if the costs rise because the delivery item is at another place that the place of the intended use.
(3) At defects of the items the seller is bound and entitled for remedy or replacement of his own choice within an appropriate period. In case of the failure, that means impossibility, unreasonableness, refusal or inappropriate delay of the remedy or replacement, the client may withdraw from the contract or reduce the purchasing price appropriately.
(4) Is the defect due to the fault of the seller, the client may request compensation according to the requirements specified in §8.
(5) For defects of parts of other manufacturers, that can´t be corrected by the seller for licensing or actual reasons the seller may choose to claim his warranty claims against the manufacturer and supplier for account of the client or cede them to the client.
Warranty claims against the seller for such defects only exist under other requirements and according to the measure of these general terms of delivery if the legal enforcement of the previously mentioned claims against the manufacturer or supplier was ineffective or is e.g. unpromising due to bankruptcy. During the duration of a lawsuit, the limitation concerning the warranty claims of the client against the seller is inhibited.
(6) The warranty is not applied if the client changes or lets the delivery item be changed by a third party without the permission of the seller and the remedy of defects hereby is becoming impossible or unacceptably hampered. In each case, the client has to pay the extra costs of the remedy of defects arising from the changes.
(7) An on individual basis agreed delivery of used items will be carried out excluding any warranty.
§ 7 Property rights
(1) According to the measure of this § 7, the seller is responsible that the delivery item is free of industrial property rights or copy rights of third parties. Each contracting party is going to inform the other contracting party in written form, if claims on the infringement of such rights were made to him.
(2) In case the delivery item infringes an industrial property right or copy right of a third party, the seller will change or replace the delivery item after his choice and on his costs in that way, that rights of third parties are no longer infringed but the delivery item still fulfills the contractual functions or he will provide the client the easement by conclusions of a license agreement. If the seller doesn´t manage this within an appropriate period, the client is allowed to withdraw from the contract or to reduce the purchase price appropriately. Possible claims of a client are subjected to the limitations of § 8 of these general terms of delivery.
(3) At infringement of rights by goods of other manufacturers delivered by the seller, the seller may choose to claim his warranty claims against the manufacturers and suppliers for account of the client or cede them to the client. Claims against the seller are only existing according to this § 7, if the legal enforcement of the previously mentioned claims against the manufacturer or supplier was ineffective or is e.g. unpromising due to bankruptcy.
§ 8 Liability for compensation due to default
(1) The liability of the seller for compensation, to whatever cause in law, especially of impossibility, delay, faulty or incorrect delivery, breach of contract, infringement of duties at contract negotiations and tortious act, insofar as it respectively depends on a default, is restricted according to measure of this § 8.
(2) The seller isn´t liable
a. In case of simple negligence of his institutions, attorneys, employees or other vicarious agents
b. In case of culpable negligence of his non-executive staff or other vicarious agents
as far as it isn´t an infringement of essential contractual obligations. Essentially contractual are the duty of punctual, satisfactory delivery and installation as well as advisory-, protective- and custody liabilities that shall enable the client the contractual use of the delivery item or intend the protection of life or limbs of the clients or a third parties staff or the property of the client of considerable damages.
(3) As far as the seller is liable for compensation according to § 8 (2), the liability is restricted to damages that were anticipated by the seller as a possible result of a breach of contract or in due consideration of the circumstances that he knew or that he should have known in anticipation of application of due diligence. Indirect damages and subsequent damages that are results of faults of the delivery item are moreover only indemnifiable as far as such damages typically have to be expected at normal use of the delivery item.
(4) In case of liability for simple negligence, the indemnifiability of the seller for material damages or personal injuries is restricted to an amount of ten million Euro per claim (according to the current coverage of his product liability or casualty insurance) even if it concerns an infringement of essential contractual obligations.
(5) The previous disclaimers and liability limitations are valid in the same scope for the institutions, attorneys, employees or other vicarious agents of the seller.
(6) As far as the seller gives technical information or operates advisory and those information or consultancy doesn´t belong to the debted scope of delivery stipulated by contract, this happens without consideration and to the exclusion of any liability.
(7) The restrictions of this § 8 do not apply for the liability of the seller concerning willful performance for guaranteed characteristics of state, concerning infringement of life, body or health or according to the law on product liability.
§ 9 Secret lien
(1) The following agreed secret lien serves as security of all respectively existing actual and future claims of the seller towards the client of the existing supply relationship (including balance demands from a current account relation restricted to this supply relationship)
(2) The goods delivered to the client by the seller remain property of the seller until full payment of all secured debts. The goods as well as the goods superseding according to this clause are called conditional goods in following.
(3) The client keeps the goods for the seller without consideration.
(4) The client is allowed to work and to sell the conditional goods within the ordinary course of business until occurrence of the liquidation (paragraph 9). Pledges and security assignments are illegitimate.
(5) If the conditional goods are worked by the client, it is agreed that the work is done on behalf and on account of the seller as producer and that the seller receives the property or – if the working is made of several materials of several proprietors or the value of the worked object is higher than the value of the conditional goods – the co-ownership (severalty) to the newly-created object. In case that no such acquisition of ownership occurs for the seller, the client transfers his future property or – in the previous proportion – co-ownership of the newly-created object to the seller as security. If the conditional good is combined with other objects to a homogenous object or mixed inseparably and if one of the other objects has to be seen as main, the seller transfers, as far as the main object is of his property, the co-ownership for the homogenous object proportionately to the proportion mentioned in sentence 1.
(6) In case of resale of the conditional goods, the client cedes the arising claims towards the buyer – at co-ownership of the seller of the conditional goods proportionally corresponding to the co-ownership – to the seller for security. The same is valid for other claims, superseding the conditional goods or arising otherwise concerning the conditional goods like e.g. insurance claims and claims from tortious acts at loss or deletion. The seller authorizes the client revocable to collect the claims ceded to the seller on behalf and on account of the seller. The seller may only revoke this authorization of collection in case of liquidation.
(7) If third parties access the conditional good, especially by garnishment, the client is going to allude to the property of the seller promptly and to inform the seller on this to enable him with the enforcement of his property rights. As far as the third party isn´t able to reimburse the arising non-legal and legal costs to the seller, the client is liable to the seller.
(8) The seller will deallocate the conditional goods and the superseding objects and claims on request to his choice, as far as their value exceeds the amount of the secured debts of more than 50%.
(9) If the seller withdraws from the contract due to behavior contrary the contract – especially delay in payment (liquidation) he is allowed to demand the conditional goods.
§ 10 Final clauses
(1) Place of jurisdiction for all possible disputes from the business relationship between the seller and the client is according to our choice (Rheine) or the base of the client. For actions against the seller, Rheine is the exclusive jurisdiction. Mandatory provisions of the exclusive jurisdiction remain unaffected.
(2) The relations between seller and buyer are solely subjected to the law of the Federal Republic of Germany. The agreement of the United Nations regarding contracts for the international purchase of April 11th, 1980 (CISG) is valid.
(3) As far as the contract or these general terms and conditions contain any gaps or omissions, those legally effective regulations are understood as correct which would have been agreed between the contractual partners according to the economic objectives of the contract and the purpose of these general terms of delivery if they had known the gap or omission.
The client notes that the seller retains data from the contractual relationship according to § 28 Federal Data Protection Act for purposes of data handling and keeps the right to communicate the data to third parties (e.g. insurances) as far as this is necessary for the execution of the contract.