- The following terms apply exclusively to all our quotations, sales and deliveries. We do not accept purchasers' terms of business which conflict with or differ from our Terms and Conditions unless we have expressly agreed to them in writing. Differing arrangements apply only to a specific contract and not to subsequent contracts, save where expressly otherwise agreed.
- All agreements, subsidiary agreements and contractual amendments must be made in writing. This applies equally to any revocation of this clause governing written form. To be effective, verbal or written agreements deviating from our contractual conditions and/or the order confirmation must be approved by the proper number of directors or authorised officers. Our office staff or field staff are not authorised to make differing agreements or grant special conditions.
II. Information, advice
Information and advice given on our products are based on our previous experience. The figures quoted are average values found. Information and advice do not obviate the need for acceptance tests on goods supplied or compliance with processing instructions. Information given verbally is not binding.
III. Quotation, contract signature
- Our quotations are made without engagement. A supply contract or other contract becomes binding on us only when we have confirmed the customer's order or other order in writing or have delivered the goods.
- Samples and specimens are supplied without engagement for inspection purposes. A purchase according to sample and/or specimen is subject to commercially acceptable deviations or those falling within normal manufacturing tolerances. Unless expressly specified in the order confirmation, the supply of patterns or samples does not constitute a guarantee of quality or service life.
- Samples and specimens must be returned to us in perfect condition within 4 weeks. If they are not returned within this period we shall be entitled to charge the list purchase price. Price lists are available on request at any time.
- Save where expressly otherwise agreed, the information provided by us in text or illustrated form (e.g. descriptions, illustrations or drawings) in catalogues, brochures or other publications conclusively define the quality of the goods we supply and their potential applications. The information we provide is not a guarantee of service life or quality and corresponds to our current state of knowledge. We accept no liability for successful use.
- The prices charged are the prices stated in our binding price list applicable on the date of delivery, save when a fixed price has expressly been agreed in writing.
- All prices are net exclusive of VAT, which the purchaser must pay at the relevant statutory rate.
- A minimum quantity surcharge of € 5,00 will be made on orders with a net merchandise value of under €50,00.
- If there is any increase in our sundry material procurement costs, energy costs or labour costs/incidental wage costs between the date of order confirmation and the date of delivery, we shall be entitled to adjust an agreed fixed price accordingly. The purchaser will be entitled to cancel the contract if the price rise exceeds 5 %.
- The delivery periods will begin on the date of our order confirmation, but not before any agreed down payment has been received and not before all the order details have been finally clarified, the requisite certificates procured and/or all necessary documents provided. The delivery period is deemed to have been met if the subject goods have left our factory or warehouse before this period has expired, or have been notified as ready for delivery if the goods cannot be forwarded on time for reasons beyond our control. Delivery dates are deemed to be approximate where there is no provision to the contrary.
- When a delivery date not expressly designated as "fixed" in the order confirmation is overrun, the purchaser may set a reasonable extension period for delivery. We can only be in default on expiry of this extension period.
- Without prejudice to our rights arising from delays in payment by the purchaser, delivery dates will be extended by the period of time that the purchaser fails to honour his obligations towards us.
- We reserve the right to make proper and timely self -supply if irregular self-supply is beyond our control.
- Unforeseen, exceptional circumstances beyond our control such as industrial action, operational breakdown, government action, transport disruption or other instances of force majeure, irrespective of whether we or our suppliers are affected by such circumstances, will exempt us from the obligation under the relevant contract, although hindrances of a temporary nature shall do so only for the duration of the hindrance in addition to a reasonable start-up period. The above circumstances are also beyond our control if they arise during a delay which has already occurred. Should delivery subsequently become impossible or unreasonable for one party as a result, either party will be entitled to terminate the contract.
- Our liability for loss due to delay arising from slightly negligent breach of duty is excluded, save where the breach of duty results in damage to life, limb or health. A change in the burden of proof to the disadvantage of the purchaser has no connection with this provision.
- Should liability for loss due to delay arise not only from slightly negligent breach of duty, the purchaser shall, subject to the exclusion of further claims, be entitled only to claim compensation amounting to 0.5% for each full week of delay, up to a maximum of 5 % in total, of the value of that part of the total delivery which owing to the delay could not be used on time or for its contractual purpose.
- We shall be entitled to make part deliveries where acceptable to the purchaser. Part deliveries may be invoiced separately.
VI. Forwarding, passage of risk
- Delivery will be ex works (Iserlohn) unless otherwise agreed. If Incoterms have been agreed as delivery terms, the version applicable on the date of contract signature shall apply.
- If at the purchaser's request the goods have been forwarded to a place other than the place of performance, the purchaser will meet all the costs thereby incurred. The choice of transit route and carrier will be at our discretion. We and the carrier must be notified in writing by the purchaser of the type and extent of any transit damage immediately on receipt of the goods. Goods will only be insured against damage, loss or breakage in transit at the purchaser's express request and at his expense.
- Forwarding and transportation are always at the purchaser's risk when goods are supplied ex works. This is also applicable if we make delivery to a third party (drop shipment deliveries) and when goods or empties (reusable packaging) are returned. Even when part deliveries are made, the risk will pass to the purchaser as soon as the consignment has been transferred to the carrier or has left our warehouse for forwarding or, in the case of delivery ex works, has left our plant.
- For drop shipment deliveries we add a surcharge of 10% on the net value of the goods.
- If forwarding is delayed due to circumstances for which the purchaser is responsible, or if the purchaser himself is arranging transportation, the risk will pass to the purchaser on notification that the goods are ready for dispatch. The purchaser must meet storage charges incurred after the passage of risk. The monthly storage charge for goods stored to our factory or warehouse will be 0.5 % of the invoiced amount. We reserve the right to make higher storage charges subject to proof. Once a reasonable period of time has elapsed to no effect, we shall be entitled to otherwise dispose of the goods and to supply the purchaser within a reasonably extended period.
- Payment must be made in euros (€) and must be free of charges and postage. It must be remitted only to the bank indicated by us. Checks will only be valid as payment after encashment and are accepted without obligation for due presentation and protestation.
- Unless expressly otherwise agreed, invoices must be paid within 10 days of the invoice date at a 2 % discount and within 30 days of the invoice date with no deduction. There will be no discount entitlement if previous outstanding invoices remain unpaid.
- When the period allowed for payment has been exceeded we shall be entitled to charge interest at 8 % p.a. above the basic interest rate (Section 247 of the German Civil Code [BGB]). All our outstanding accounts will also become due immediately.
- The offsetting of any counter-claims by the purchaser is permissible only if such counter-claims are undisputed or established in law. The purchaser may at most withhold a sum amounting to three times the cost of subsequent performance due to deficiency. When exercising his right of retention the purchaser agrees to pay us security of our choice to the amount of the unpaid portion by bank guarantee or by depositing it with a notary of his choosing, whichever we choose.
VIII. Reservation of title
- All goods delivered shall remain our property (reserved-title goods) pending settlement of all outstanding accounts on any legal grounds whatsoever, including all future and conditional claims arising from contracts signed simultaneously or subsequently. The same shall apply if payments are made on specially designated accounts outstanding. Should there be evidence indicating that a purchaser is unable to pay or that such inability is impending, we shall be entitled to terminate the contract without notice and to demand restitution of the goods.
- Reserved-title goods are manufactured and processed on our behalf as manufacturers in accordance with Section 950 BGB without incurring any obligation on our part. Processed goods are deemed to be reserved-title goods as defined in para. 8.1. If the reserved-title goods are processed, interconnected, mingled or mixed with supplied goods by the purchaser, we shall be entitled to co-ownership of the new goods to the ratio of the invoice value of the reserved-title goods. Should our title cease as a result of the combination or inclusion, the purchaser agrees with immediate effect to assign to us his title or expectant rights in the new goods or object to the extent of the invoice value of the reserved-title goods and to retain same on our behalf at no charge. The co-ownership rights at issue shall be deemed to be reserved-title goods as defined in para. 8.1.
- The purchaser may sell on, process or combine the reserved-title goods with other items or otherwise install them (resale) only as part of his normal business operations and as long as he is not in default. He shall not be entitled to dispose of the reserved-title goods in any other manner. We must be informed immediately of any third party seizure or other access to the reserved-title goods.
- The purchaser agrees with immediate effect to assign to us his claims arising from the resale of the reserved-title goods. These rights shall be considered as security to the same extent as the reserved-title goods. The purchaser will only be entitled and authorised to resell on the assurance that the claims thereby owed him are transferred to us.
- If the reserved-title goods are sold by the purchaser at an inclusive price together with third-party goods, the claims arising from the sale shall be assigned to us in the same ratio as the invoice value of our reserved-title goods sold in each case.
- If the claim assigned is included in a current account, the purchaser hereby assigns to us a part of the balance correspond-ing to the amount of this claim inclusive of the final balance from the current account.
- The purchaser will be entitled to collect the claim assigned us until such time as we revoke. We shall be entitled to revoke if the purchaser fails to meet his payment obligations arising from the business transactions with us or if we become aware of circumstances likely to substantially lessen the purchaser's credit worthiness. If the conditions are such that we wish to exercise our right to revoke, the purchaser must on request inform us forthwith of the claims assigned and the debtors thereof, provide all the information necessary to collect the debt, hand over the associated documents to us and notify the debtor of the assignment.The buyer is not authorised to assign any claims, not even on the basis of our direct debit authorisation.
- Should the realizable value (invoice amount of goods or nominal amount of the receivables) exceed 50% of the securities existing for us, we are obliged to release securities of our own choice upon the Buyer's demand.
- Our assertion of reservation of title shall not constitute revocation of the contract unless we expressly state this in writing. The purchaser's right to own the reserved-title goods shall lapse if he fails to perform his obligations under this or any other contract.
IX. Liability for faulty goods
- 1. We do not accept liability for unsuitable or improper use, particularly excessive loading, faulty assembly or faulty operation by the purchaser or third parties, natural wear and tear, faulty or negligent usage or handling, particularly by untrained staff.
- The purchaser agrees to inspect deliveries carefully for completeness and adequacy immediately on receipt - even if patterns or samples were previously supplied. The delivery is deemed to have been accepted if a deficiency has not been reported by letter, telex or fax within 10 working days of the goods arriving at their destination, or, if the deficiency could not be found during proper inspection, within 10 working days of discovering same. This also applies to multiple deliveries. A multiple delivery is deemed to have been accepted if no complaint is lodged within 10 days of the goods arriving at their destination. Our field staff are not authorised to acknowledge quantity or deficiency complaints.
- A purchaser accepting faulty goods knowing them to be defective shall only be entitled to the claims and rights in respect of deficiencies if he reserves the right to these by reason of deficiency on acceptance.
- We guarantee to meet the purchaser's claims for defective goods for a period of two years, starting with the date of each delivery. This will not affect liability for defects in title under statutory regulations. The liability for losses contingent on defects shall be governed by para. 10.
- Where there are grounds for complaint, the purchaser will initially only have a claim to subsequent performance which we may effect as we deem fit, either by repair or by supplying a defect-free item. If subsequent performance fails or is unacceptable or dispensable to the purchaser (Section 440 BGB), the purchaser will immediately have the right to reduce the purchase price or, if he so chooses, to revoke the contract or to demand damages in place of performance or reimbursement of wasted expenditure in accordance with para. 10 because
a. we finally refuse subsequent performance,
b. we do not effect subsequent performance on a contractually agreed date or within a specific period and in the contract the purchaser has bound the continuance of his interest in performance to the timely delivery of performance,
c. there are special circumstances which justify immediate cancellation on a consideration of the interests of both parties (Section 323 para. 2 BGB).
- Where we deem it necessary to effect repairs or replacement deliveries, the purchaser shall allow us sufficient time and opportunity for such repairs or replacement deliveries, otherwise our liability for the deficiency shall be deemed to have been discharged. Only in urgent cases of risk to operating safety or to avert considerable damage, in which case we must be informed immediately, or when we are late in rectifying the defect shall the purchaser have the right to remedy the defect himself or have it remedied by a third party and to demand compensation of the requisite cost from us.
X. Liability for damages
- We accept liability for damages arising from injury to life, limb or health in accordance with statutory provisions.
- Our liability for breach of duty and our noncontractual liability shall, moreover, be limited to malicious intent and gross negligence. Liability for gross negligence by our employees, staff and vicarious agents is hereby excluded.
- The breach of duties material to contract (cardinal duties) is excluded from para. 10.2. In this case, even in the event of slight negligence, we shall be liable for our own negligence and that of our employees, staff or vicarious agents.
- Liability is restricted to the typical contractual losses which we could have expected at contract signature based on the circumstances known to us the time
- Any further liability is excluded, irrespective of the legal grounds thereof. In particular we will not accept liability for lack of commercial success, loss of profits, consequential loss, loss contingent on defects or loss arising from third party claims.
- The above limitations on liability apply equally to claims for the reimbursement of wasted expenditure (Section 284 BGB).
- Claims against us for damages on any legal grounds whatsoever shall become statute-barred within two years of the statutory commencement of the limitation period, but no later than the delivery date of the item.
- A shift in the burden of proof to the disadvantage of the purchaser is not connected with the above provisions.
- Claims for compensation under the Product Liability Act remain unaffected.
XI. Returned goods
The reconsignment of goods sold or the reversal of the contract are only admissible in exceptional cases and upon our explicit prior consent, except in case of No. 4.4, No. 9 and No. 10. Goods sent back without our consent will be rejected, respectively returned to the Buyer freight forward. Reconsigned goods as described above always go at the Buyer's risk and account. When reimbursing the value of reconsigned goods, we will charge handling expenses amounting to 25 % of the net value of the goods and make deductions according to the usability of the goods.
XII. Place of performance, court of jurisdiction, applicable law
- The place of performance for the obligations of either party under this contract shall be Iserlohn.
- Any disputes involving registered merchants shall exclusively be settled before a competent court of law having jurisdiction for our headquarters. We shall, however, be entitled to bring an action against the purchaser at another legal place of jurisdiction.
- The relationship between ourselves and the purchaser shall be governed by German law with the exception of the United Nations Convention on the International Sale of Goods (CISG) and the provisions of international patent law.
- Should subsequent circumstances cause individual provisions of these Terms and Conditions to be or become invalid, this shall not affect the validity of the remaining provisions.
Issued September 2005