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Terms and Conditions
1 Scope of application, special conditions
All our deliveries and services are subject to the following terms and conditions.
2. deviating agreements, written form, partial invalidity
Deviations from these terms and conditions - in particular the buyer's terms and conditions of purchase - require our written confirmation in order to be valid. The invalidity of one or part of a clause shall not affect the other part of the clause(s).
3. offer, price
Our offers are subject to change.
4. reservation of self-supply
The seller is entitled to withdraw from the contract if he does not receive the delivery item through no fault of his own despite the prior conclusion of a corresponding purchase contract, taking due commercial care. The Seller shall inform the Buyer without delay that the delivery item is not available on time and, if it therefore wishes to withdraw from the contract, shall exercise its right of withdrawal without delay. The Buyer shall also have a right of withdrawal as a result of the Seller's information. In the event of withdrawal, the Seller shall reimburse the Buyer for the consideration without delay, irrespective of by whom.
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5 Delivery, unloading
We are entitled to make partial deliveries. We reserve the right to fully utilize the loading weight or loading capacity of the respective means of transport. In the case of drop shipments (i.e. deliveries that do not affect our area/operation), delivery dates shall be deemed to have been met if the goods leave the supplying plant in good time so that the delivery arrives at the recipient on time, assuming normal transportation times. Unloading - even in the case of delivery “carriage paid” - is to be carried out immediately and properly by the buyer after the goods have been delivered. Waiting times will be charged separately. Insofar as our employees (e.g. the driver) assist with unloading or storage, they act at the risk of the buyer and not as our vicarious agents.
6. force majeure
Force majeure (e.g. public unrest, etc.), operational disruptions for which we are not responsible (e.g. strikes, lockouts, etc.) and other circumstances for which we are not responsible (such as faulty or delayed self-supply, failure of the upstream supplier - e.g. due to bankruptcy, composition or other cessation of production, traffic disruptions, etc.) as well as all unavoidable events occurring at our premises or those of our suppliers shall entitle us to suspend or postpone delivery in whole or in part to the extent and for the duration of the hindrance.
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7 Place of performance, transfer of risk
The place of performance - also in the case of delivery “free place of destination” etc. - is the respective loading point. The risk shall pass to the Buyer upon acceptance for loading into the respective means of transportation or, in the case of self-collection, upon provision for loading.
8 Default, offsetting, assignment
Payments shall be set off against the oldest claim; in the event of default, interest of 2% above the respective rate of the major banks for overdraft facilities plus any other damage caused by default (e.g. reminder costs, etc.) shall be charged. Offsetting is excluded unless the counterclaim is recognized by us or has been legally established. Any assignment of claims shall require our prior written consent.
9. packaging
We are not obliged to check containers etc. provided by the buyer for suitability - in particular cleanliness. We shall not be liable for damage or defects resulting from defective or otherwise inadequate containers. Containers provided by us or third parties (returnable containers, pallets, etc.) may not be exchanged, used as storage containers or given to third parties and must be returned to us or the location designated by us without delay. In the event of late return, rental costs may be charged at the customary commercial rate.
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10 Notice of defects, warranty and liability
(a) The Buyer shall inspect the goods and their packaging immediately upon delivery. The Buyer shall notify us in writing of all obvious defects, shortages or incorrect deliveries within 5 working days of delivery and in any case before resale, processing, mixing, consumption or installation. Hidden defects must be reported by the Buyer in writing immediately after their discovery - at the latest within six months of delivery. If the Buyer fails to comply with the aforementioned obligations, the goods shall be deemed to have been approved. Transport damage must be reported to the seller immediately in writing. In the case of delivery by rail, by commercial local or long-distance transport vehicles or by other carriers, the Buyer must comply with the necessary formalities vis-à-vis the carrier. Customary breakage, shrinkage, etc. shall be taken into account in the invoice and cannot be objected to, insofar as this is reasonable.
(b) In the event of timely, justified notification of defects in defective goods within the meaning of § 459 (1) of the German Civil Code, we shall, at our discretion and to the exclusion of other warranty claims - see below for claims for damages - make a replacement delivery or rectify the defect at our expense. If the replacement delivery or rectification of defects fails, the buyer may, at his discretion, demand a reduction in payment or rescission of the contract. If a characteristic within the meaning of § 459 para. 2 of the German Civil Code is warranted, claims for damages under §§ 463, 480 para. 2 of the German Civil Code are not excluded. Warranted characteristics must be expressly agreed as such. Properties of samples and specimens shall not be deemed warranted (§ 494 BGB is excluded). A reference to DIN standards etc. only contains a more detailed description of the goods and also does not constitute a warranty, unless the warranty has been expressly agreed Returns can only be made with the prior consent of the seller.
(c) With the exception of claims for damages due to warranted characteristics, all claims for damages by the Buyer (e.g. arising from delay, impossibility, culpa in contrahendo, warranties, positive breach of contract, tort) against us as well as against our legal representatives, executives and vicarious agents are excluded, unless they are based on intent or gross negligence on the part of the aforementioned persons. In the event of default and impossibility, we shall also be liable for negligence, but only to the extent of the additional expenses for a covering purchase or substitute performance.
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11 Retention of title, securities
(a) We shall retain title to delivered goods (goods subject to retention of title) until the purchase price including other claims arising from this legal transaction have been paid in full, irrespective of the legal grounds on which they are based. This applies to the acceptance of bills of exchange/cheques until they are honored. In the case of a current account, the reserved goods shall also serve as security for our balance claim.
(b) The Buyer shall store our reserved goods separately or mark them clearly. Resale or consumption as well as processing, combining or mixing may only take place in the regular course of business and only as long as the buyer has met his payment obligations. Pledging and transfer by way of security is not permitted. The repossession of goods subject to retention of title shall only be deemed a withdrawal if this has been expressly communicated to the buyer.
(c) If our goods subject to retention of title are sold, processed, mixed, combined or consumed, the Buyer hereby assigns to us his (co-)ownership of the newly created item (ownership by way of security) in proportion to its value (invoice value) in order to secure our claims, with the simultaneous agreement that he will store this item for us free of charge. The buyer hereby assigns to us all claims arising from the processing, mixing, consumption or sale of our goods subject to retention of title or the security property replacing the goods subject to retention of title in the amount of the remaining purchase price claim with all ancillary rights to secure our claim. If goods in which we have co-ownership are sold, the assignment shall be limited to the first-ranking part of the claim corresponding to our co-ownership share.
(d) At our request, the Buyer shall be obliged to provide us with individual proof of its claims against third parties arising from resale and to notify the subsequent purchasers of the assignment made, requesting payment to us. We are entitled at any time to inform the subsequent purchasers of the assignment and to collect the claim ourselves. The buyer is not authorized to assign the claim to any other party. He is entitled to collect this claim as long as he also fulfills his payment obligations to third parties. The Buyer must inform us immediately of any seizure or other access by third parties which affects our goods or rights.
(e) We shall be entitled to demand securities in a sufficient amount and in a form that is satisfactory to us (e.g. pledge) for the proper fulfillment of the Buyer's obligation.
(f) If the value of the securities granted to us on the basis of the above paragraphs exceeds the claim to be secured by more than 10%, we shall, at the buyer's request, release securities to this extent at our discretion or arrange for their release.
12. representatives
The acceptance of orders and receipt of payments by our representatives or employees working in the field and any promises made by them require written confirmation in order to be valid.
13. place of jurisdiction
The place of jurisdiction, also in matters relating to bills of exchange and checks, is the registered office of our company if the buyer is a registered trader or the other requirements of § 38 ZPO are met.
14. choice of law
Any disputes arising from the contract shall be governed by the law of the Federal Republic of Germany. The application of the UN Convention on Contracts for the International Sale of Goods of 11.4.1980 is excluded.
15. data protection
Personal data collected in the course of our business relationship will be stored by us and by our suppliers.
16. infringement of exclusive rights
In the event of infringement of exclusive rights of third parties and associated sales bans, claims for damages by the buyer against the seller are excluded.