CONDITIONS OF DELIVERY AND PAYMENT
§ 1 – General provisions
Our general terms and conditions of business apply exclusively. We shall not acknowledge the buyer’s conflicting conditions or conditions to the contrary unless we had expressly approved the validity of such conditions in writing.
Variations from these terms and conditions of business shall only be deemed valid if they have been confirmed by us in writing. Our terms and conditions of business also apply to all future business relations with the buyer, including if they are not repeatedly and expressly agreed upon.
§ 2 – Offer and entering into the contract
Our offers are subject to change without notice, and are non-binding. We reserve the right to provide delivery options and prior sales in all cases.
§ 3 – Prices and payment conditions
Prices shall be calculated in accordance with our respective, valid price list.
All prices are to be understood plus the statutory value added tax, which is to be stated separately on the invoice in the statutory amount on the invoice date, and plus shipping costs and transport insurance.
Our invoices shall fall due for payment according to the period for payment stated on the invoice. Reductions and discounts shall only be granted if the payment period is adhered to. In the case of cash payment within 10 days we shall grant a trade discount of 3%. A trade discount cannot be granted for alloys. Payments shall only be deemed made once we can freely dispose of funds. If the buyer defaults in payment, we shall be entitled to demand interest on delinquent accounts of 5% above the respective base lending rate of the European Central Bank. If we are in a position to furnish proof of greater damage caused by default, we shall be entitled to assert such a claim.
The buyer shall only enjoy setting off rights if its counter-claims have become res judicata or have been acknowledged by us. The buyer may only exercise a right of retention if its counter-claim is based on the same contractual relationship.
§ 4 – Delivery time
Delivery periods are non-binding.
Delivery delays as a result of force majeure and due to events that hamper or render the delivery impossible for us – including if such events affect our suppliers or the sub-contractors – shall not be our responsibility. Such delays that are not our responsibility shall entitle us to postpone the delivery by the duration of the obstruction plus a reasonable start-up period or to wit
hdraw from the contract in full or in part due to the part that has not yet been honoured.Honouring our delivery obligation is conditional on the fact that the buyer honours its obligations in good time and properly. We are entitled to provide partial deliveries at any time.
§ 5 – Passing of risk
Risk shall pass to the buyer as soon as the consignment has been handed over to the person performing the transport operation, or has left our warehouse for shipping. If shipping is delayed at the buyer’s request, risk shall pass to the buyer upon notification of readiness to dispatch.
§ 6 – Warranty
We shall provide warranty for faulty services – including variations from the agreed quality – as follows:
The buyer undertakes to inspect our services within 8 days following acceptance and to provide written notification of identified defects without delay.
The notification of defects is to be included with the documents and information required to reconstruct the defect. The services shall be deemed authorised in the case of violating of an obligation to inspect and provide notification of defects.
If the services prove to be faulty at the time of the passing of risk, the buyer shall be entitled to subsequent performance. The claim for subsequent performance shall be honoured at our discretion by way of rectifying defects or replacement delivery. If we decide in favour of rectifying defects, the buyer shall support us in a manner that is reasonable and acceptable, and shall give us, in particular, time and the opportunity to rectify the defect.
Should a notification of defects prove to be unjustified, we shall be entitled to request that the buyer compensate us for the costs incurred as a result of the failed attempts, including documentation.
If the rectification of defects or replacement delivery has failed, the buyer shall be entitled, following expiry in vain of a reasonable period it has set, at its own discretion to reduce the remuneration accordingly (abatement) or rescind the contract (withdrawal).
The period of limitations for claims involving defects is 1 year.
Defects that are attributable to inappropriate operating, inadequate maintenance, alterations that have not been harmonised with us, inappropriate intervention by the buyer or third-parties, shall not be included in the warranty.
Furthermore, the buyer’s right shall not be affected in the event of variations from the agreed quality instead of requesting withdrawal or abatement, claims for damages instead of the performance or the compensation of expenses incurred in vain. This shall not affect the provisions of the following paragraph.
Apart from cases of fraudulent intent and in the event of providing a guarantee for the quality, in other respects – and thereupon in accordance with the provisions of the following paragraphs – any warranty for defects is excluded.
Goods must be returned to us free of shipping costs. Returns sent carriage forward shall not be processed.
§ 7 – General limitations on liability
Liability attributable to compensatory damages is excluded irrespective on whichever legal grounds it is based, in particular resulting from delay, impossibility, unlawful acts, warranty for material defects and compensatory damages regarding the violation of an obligation. This exemption from liability does not apply
In the case of intent,
In the case of gross negligent conduct by us, our executive staff members or vicarious agents.
In the case of culpable violation of a key contractual obligation, the adherence to which is of particular importance for achieving the contractual purpose.
In the case of the loss of life, physical injury or detrimental effects on health.
To claims in accordance with ProdHaftG (German Product Liability Act).
In other respects, liability in the case of minor negligence shall be limited to the compensation of damage that is foreseeable and which must be expected as part of such a contract. The above provision is not associated with amending the burden of proof to the detriment of the buyer.
§ 8 – Reservation of title
We reserve ownership to the delivery item up until receipt of all payments resulting from the contract. In the case of seizure or other intervention by third-parties, the buyer shall be required to inform us in writing without delay so that we can bring an action in accordance with Section 771 ZPO (German Code of Civil Procedure).
The buyer is entitled to sell the delivery item during the course of normal business activities. However, it assigns to us at this point in time all claims in the sum of the final invoice amount, including value added tax, to which it is entitled via the sale from its customers or third-parties, irrespective of whether the delivery item was sold without or following processing. The buyer is further authorised to collect such claims, once these have been assigned. This does not affect our authority to collect the claim. However, we undertake not to collect the claim as long as the buyer properly honours its payment obligations, and has not defaulted in payment. However, if this is the case, we may request that the buyer informs us of the assigned claims and their debtors, provides us with all the details required to collect the claim, hands over the appertaining documents and informs the debtors of the assignment accordingly.
We undertake to release the securities to which we are entitled at the buyer’s request insofar as the value of our securities exceeds the claim that is to be secured by more than 10%.
In dealings with entrepreneurs, we reserve the right to ownership of the delivery item up until receipt of all payments resulting from the business association with the buyer. The reservation of title shall then apply to the recognised balance insofar as we book claims against the buyer in the current invoice (extended reservation of title).
In dealings with entrepreneurs, during the period of reservation of title goods owned by us are to be insured by the buyer against damage by fire, water, theft and theft by means of breaking and entering. The rights to such insurance policies shall be assigned to us. We accept these assignments.
§ 9 – Payment
We are entitled, irrespective of the buyer’s provisions to the contrary, to initially count payments towards the buyer’s older debts, and shall inform the buyer of the type of offsetting that has been applied. If costs and interest have been incurred, we shall be entitled to initially count the payments towards the costs, then to the interest and finally to the principal claim.
Payment shall only be deemed made once we can dispose of the amount. We expressly reserve the right to reject cheques and bills of exchange. These shall be accepted at all times on account of payment. Expenses for discounts and bills of exchange shall be borne by the buyer, and shall immediately fall due for payment. The buyer shall only be entitled to set off if the counter-claim is undisputed or has become res judicata.
§ 10 – Place of jurisdiction/place of performance
Hagen is deemed the place of jurisdiction for all legal disputes, including actions for asserting claims concerning payment via bills of exchange or cheques. We are entitled to bring an action against the buyer at the court with jurisdiction for its general place of jurisdiction.
Breckerfeld is deemed the place of performance for us and for the buyer’s obligation to pay.
§ 11 – Applicable law
The law of the Federal Republic of Germany applies exclusively to all legal relations between us and the buyer by way of exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
§ 12 – Partial invalidity
Should individual contractual provisions prove to be invalid, this shall not affect the validity of the other provisions.