Terms and Conditions - Customer Order
The following terms and conditions apply to all offers and agreements including any future business relationship with the customer. We will take issue with divergent terms and conditions of the customer.
2. Offer and contract conclusion
Our offers are without obligation and are non-binding. The contract comes about by our written confirmation of an order and its contents. Measures, weights, illustrations, drawings or other data and details are only binding if this has been expressly agreed in writing.
The prices named in our order confirmation apply. The prices include packaging and are ex factory or salesroom according to our choice. Our prices are based on the cost factors applying at the time of contract. Should a major change occur with regard to these cost factors before the agreed delivery time, such as basic or auxiliary materials, wages, freight or energy costs, we are entitled to make relevant adjustments to the price which will be based on the effect on the final price of the percentage increase in the relevant cost factor. In the event of an adjustment, the customer is entitled to demand a written statement from us with regard to the type and extent of the cost increase.
Our invoices are payable with 2 % discount within 14 days of invoicing or within 30 days without deductions. In the case of special commodities created and manufactured at the behest of the customer, payments are due as follows: one third of the total price named in the contract note to be paid upon receipt of the contract note, a further third upon delivery, the rest 30 days after invoicing, in each case free of deductions. Payment, especially the presentation of checks or bills of exchange neither of which we are obliged to accept, will only be regarded as having taken place when the sum has been completely credited. If the customer is in default or if deferment of payment has been agreed, we will be entitled to demand a rate of interest which is 3 % more than the prevailing discount rate payable from the time of default or deferment. This has no effect on any further claims for damages caused by the default. If the customer is in default, especially if unable to settle an account within 30 days after the due date and receipt of the invoice, we are entitled to demand an interest rate which is more than 8 percent of the prevailing base lending rate payable from the time of default or deferment. This has no effect on any further claims for damages caused by the default. The customer may only offset these demands with undisputed or legally determined counter claims. This also applies to the assertion of the right to retention or to withhold performance on the part of the customer.
5. Delivery and performance
The times and delivery schedules named by us will be regarded as approximate if these have not been expressly described as binding. The delivery date will be regarded as observed if the delivery item has left the factory before this date has expired or if we have reported that the item is ready for shipment. The right to punctual and self-delivery is reserved. We cannot be held responsible for delays to delivery and performance due to acts of God or based on events which make it difficult or impossible for us to deliver the goods, e.g. procurement difficulties which may subsequently occur, equipment failures of any kind, breakdowns in the means of transport, official directives etc. This also applies if these difficulties have been incurred by our supplier even if the delivery schedules have been agreed as binding. We will then be entitled to make a reasonable extension of the delivery or performance deadline appropriate to the impediment. The difficulties will be reported to the customer. If the duration of the problem exceeds three months and if a satisfactory follow-up deadline has been agreed, the customer will be entitled to cancel the contract on the grounds of non-fulfilment of part of the contract. If we are responsible for noncompliance with agreed and binding times and delivery schedules or if we are in default, the customer may demand compensation for delayed performance of _% of the net price of the delayed delivery for each complete week of delay, however not more in total than 5% of the net invoice price of the delayed delivery or performance. Claims going beyond this are excluded with the exception of wilful negligence. We are entitled to make partial deliveries and performances. Documents, plans, drawings etc. which have been sent to the customer for approval must be returned to us immediately with the signature of approval. We are entitled to delay the execution of delivery or performance until these documents or on account payments according to section 3 clause 2 have been received.
6. Transfer of risk
With the handover of the goods to the person responsible for transportation or upon shipment from the factory, the risk is transferred to the customer. If required by the customer, the consignment will be insured by us at the customer’s expense against desired risks such as damage due to theft, breakage, transportation, fire and water. If shipment has been delayed or rendered impossible through no fault of ours, the risk is transferred to the customer when the goods have been reported as ready for shipment. The customer hereby agrees to the insurance of the goods by us and at his expense against all risks that may reasonably occur.
7. Notice of defect
Complaints by the customer must be made to us immediately in writing at the latest within one week after receipt of the delivery item. Defects that cannot be detected immediately despite careful checking are to reported to us in writing within eight days of discovery.
It is our responsibility to delivery goods that are free from defects in quality and title. Guarantees of any kind will only be accepted if these have been expressly agreed in writing and have been designated as such. The period of limitation for warranty claims is 2 years calculated from the day of delivery. Warranty will not be given for goods which, due to their nature or use, are subject to premature wear and tear. We also do not accept responsibility for natural wear and tear, excessive strain, chemical or electrical influences, the effects of weather and other natural influences. Liability for defects is excluded if our operating and maintenance instructions have not been observed, if changes have been made to the goods, if parts have been exchanged or if expendable items that do not correspond to our specifications have been used or if the customer has culpably made subsequent improvements to the goods. Liability will not be accepted for the reaction to hardening or processing of goods which have been sent in for finishing, reconditioning or conversion even if these items have been manufactured by us. Damage to material during processing will not affect costs incurred prior to this occurrence. In the case of special commodities, we only accept liability for finishing which corresponds to the diagrams if the item has been manufactured according to the customer’s design documents. Otherwise we only accept liability for culpable faulty construction and defective design and in the case of material defects only if the material has been provided by us. If the solution of structural problems has been left to us, we are only obliged to accept liability if the customer proves culpability in the sense that the item does not correspond to state of the art technology. We do not in any way accept liability for the intention on the part of the customer to attain specific results, properties or other objectives through the use of our goods or by means of appliances and machines employed by the customer except in cases where these results, properties or other objectives have been expressly agreed in writing and the customer can show that the objective of the agreement cannot be met due to a defect in our goods. The customer guarantees the correctness and completeness of drawings, data and other details including information with regard to type, extent and location of deployment of our goods. If we accept liability for defects, the customer may choose one of the following demands as part of the subsequent fulfilment:
a) the damaged item will be sent to us for the removal of the defect and we will decide whether the item should berepaired (subsequent improvement) or if a new part should be sent to the customer
b) the customer will retain the damaged item and we will send a technician to the place of delivery named in theagreement to carry out the improvement or redelivery. If the customer demands that the work involved in removing the defect be carried out at a location of his own choice, we will be obliged to meet these requirements if in his request the customer makes a binding statement in writing to reimburse at a reasonable and standard rate the working and travel costs incurred by a technician in so far as these costs exceed those which would have been incurred at the location of delivery. This obligation no longer applies if we can show that there is no technician available for a trip of this nature and extent or that the defect is not of significant importance to justify such efforts.
In this case our liability for defects according to point a) applies.
Should subsequent fulfilment fail despite the fixing of a reasonable later deadline by the customer, the customer may chose either to demand a payment reduction or cancellation of the agreement. Costs incurred through unjustified complaints must be met by the customer. Assignment of claims arising from a defect is excluded. The hereinabove determined provisions regulate conclusively our liability for defects and exclude other claims of any kind on the part of the customer in particular claims for damages. This does not apply in cases of § 444 2. Hs. BGB (German Civil Code).
9. Limitation of liability
Our liability for any legally-based customer claims which are not the subject of liability for defects according to section 8 of these standard conditions of sale is excluded to the extent that the claim does not involve deliberate or wilful negligence.
10. Ownership reservation
The delivery item remains our property until all claims upon the customer have been completely satisfied. These claims include accounts receivable arising from the business relationship with the customer and customerassociated companies at a future date as well as all balance claims from the current account. Processing or reshaping may take place for us as manufacturers without, however, any obligation on our part. In the case of processing, connecting, blending or mixing with other items to form a uniform object, it is hereby agreed that the co(-)ownership of the customer of the uniform object will be transferred to us at invoice value and that the customer will take the object into safekeeping on our behalf. If not in default the customer may process and sell our reserved goods in the normal business manner. The purchase price, compensation for work or other claims of the customer arising from the resale or other legal reasons (insurance, unlawful conduct) of our reserved goods, shall herewith be completely assigned to us as security. The customer is entitled with the right of revocation, to collect the assigned receivables in his own name. The proceeds to which we are entitled are to be transferred to us immediately upon receipt. This does not affect our right to collect the receivables ourselves but we are obliged, however, not to collect the receivables as long as the customer has been correctly meeting his financial obligations. We can demand that the customer makes the assigned receivables and the debtor known to us, gives all the required details with regard to the collection, hands over the appertaining documents and informs the liable party of the assignment. We are obliged to release to the customer the hereinabove agreed securities upon request and at the choice of the customer if the lasting value of these securities exceeds that of the secured receivables by more than 20%. The right of the customer to ownership of the reserved goods expires with our withdrawal according to § 323 BGB (German Civil Code).
11. Documentation and industrial trademark rights
The technical knowledge contained in the diagrams, drawings, patterns etc. conveyed by us in connection with our deliveries and performances remains our intellectual property. It is not allowed to make copies or imitations of these documents or to pass these on to third parties. The plans, drawings, patterns etc. conveyed by the customer become our property. The customer takes sole responsibility for their accuracy. The customer guarantees that the documents which he has conveyed do not affect the patent rights of third parties. We are not obliged to carry out checks ourselves. If claims by third parties are made to us with regard to the violation of property rights including know-how, the customer must exempt us from such claims. If claims with regard to violation of proprietary rights are made by third parties to the customer or to his customer, we will be obliged to grant exemption unless the customer is responsible for the construction of the delivery item. This indemnity obligation is limited to the purchase price of the delivery item concerned. We are entitled to exempt ourselves from the indemnity obligation by the following:
a) procuring the required licence with respect to the supposed violated proprietary rights
b) providing the customer with a changed delivery item or the parts of the delivery item concerned which are notsubject to the claimed violation of proprietary rights.
12. Place of performance, place of jurisdiction and safeguarding clause
The location of our factory is the place of performance for the obligations of both parties arising from the agreement. The place of performance for payment, however, is Düsseldorf. Düsseldorf is the place of jurisdiction for all disputes arising from the business relationship, including summary bill and check enforcement proceedings, if the customer is a registered trader, a legal entity under pubic law or special assets under public law. German law applies. Should one of the provisions of these terms and conditions or a provision of the other agreements with the customer become completely or partially invalid, this will not influence the effectiveness of the remaining provisions or agreements.