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General Conditions of Use
I. General - scope
1. The following Terms and Conditions apply to all future and commercial relationships, supplies and services.
2. Terms of business that deviate, contradict or supplement these shall not – even if known - constitute an integral component of the contract, including if we do not expressly object to said terms once more upon receipt.
II. Offers, conclusion of a contract
1. Our offers are non-binding. Offers do not become binding upon us until the offer in the order is accepted by us upon receipt.
2. We reserve the right to make technical modifications as well as modifications in form, color and/or weight within reasonable bounds.
3. Conclusion of a contract is subject to the timely delivery of the appropriate goods by our suppliers, unless we are responsible for the non-delivery.
4. Verbal side agreements shall apply only if confirmed by us in writing.
III. Prices
Prices quoted by us are in euros plus value-added tax. Prices are ex store or ex works, plus packing, freight and other shipping costs.
IV. Delivery, delivery period
1. Delivery periods quoted by us are non-binding unless otherwise agreed. If a fixed delivery period is agreed to in deviation from this, in the event of delay in delivery the Purchaser shall set a reasonable grace period of generally four weeks.
2. The delivery period begins on the day all technical and other details of the order have been resolved, any necessary documents have been provided and any agreed down payment has been rendered. The delivery period shall be extended by any period for which the Purchaser is in default with respect to its contractual obligations - including from other contracts within an ongoing commercial relationship.
3. Partial performance and partial deliveries are permissible within a reasonable scope. We may invoice progress payments within a reasonable scope.
4. Delivery shall be subject to punctual delivery of the appropriate goods by Vendor’s own suppliers.
5. The date of delivery is deemed to be the date on which the goods leave the works or a store, and if this date cannot be determined, the date on which they are made available to the Purchaser.
6. The performance and/or delivery period shall be appropriately extended – including if currently in default - upon the occurrence of a force majeure event, strike or lockout and the delivery delays resulting therefrom. We shall immediately inform the Purchaser of the start and end dates of such impediments.
V. Shipping, transfer of risk, packing
1. The shipping route and means of shipment shall be at our discretion. Goods will not be individually packed, but rather solely with regard to transport, product-relevant and environmental considerations.
2. Shipments are made ex store or ex works. Risk shall transfer to the Purchaser upon transfer of the goods to the carrier, regardless of whether the carrier was commissioned by the Purchaser, the manufacturer or by us. In the event of delivery with our own vehicles, risk shall transfer to the Purchaser upon the goods being made available at the location indicated by the Purchaser.
3. If shipment is delayed at the request or through the fault of the Purchaser, the goods shall be stored at the cost and risk of the Purchaser. In this case, the advice of readiness for shipment shall be equated with shipment. The invoice for the goods shall be due for payment immediately upon placement into storage.
4. If our staff assist with delivery of the goods, they act at the sole risk of the Purchaser and not as our agents. Assistance with unloading (including unloading equipment), onward transport, etc. will be invoiced additionally at cost.
5. The preceding provisions apply accordingly to delivery by third-party carriers insofar as liability on the part of the Vendor can be derived from their behavior. The liability of third parties remains unaffected.
6. If no special agreements on deposits have been made, multiple-use packing materials are provided to the Purchaser solely on a loan basis. These shall be returned emptied and in undamaged condition. The Purchaser shall provide us within two weeks with written notification of the return of packing units and make the packing available to us. If this is not done, we are entitled beginning with the third week to charge a rental fee of 20 % of the acquisition price per week (up to the full acquisition price) or to invoice the value of the packing, with said invoice payable upon receipt. No markings applied to the packing may be removed. Returnable packing may not be substituted, nor may it be filled with other goods. The Purchaser shall be liable regardless of fault for decreases of value, substitution or loss. The determining factor is the condition upon receipt at our premises. Use of the packing as storage containers or their distribution to third parties is prohibited unless otherwise agreed.
VI. Payment
1. The purchase price is due upon delivery, with discounts by agreement only. Payments shall always be used to settle the oldest receivables due plus interest in the following sequence: costs, interest, principal.
2. Payment shall not be deemed to have been effected until the amount has been cleared into one of Vendor’s accounts. The acceptance of bills of exchange does not constitute recognition of payment.
3. If the Purchaser falls into arrears , fails to redeem a bill when due or if circumstances arise that would justify doubt as to the creditworthiness or solvency of the Purchaser, we are entitled to take back the goods, if necessary entering the premises of the Purchaser and removing the goods. Taking back the goods does not constitute rescission of the contract.
4. The Purchaser is deemed to be in arrears not later than 14 days after delivery and/or receipt of the invoice.
5. Right of retention by the Purchaser is excluded. The Purchaser may only offset undisputed or res judicata claims.
VII. Retention of title
1. Title to the goods shall not pass to the Purchaser until all liabilities arising from the Purchaser’s business relationship with the Vendor have been fulfilled.
2. The Vendor is entitled to demand that the Purchaser surrender the goods to which title is retained without the granting of a grace period and without rescission of the contract if the Purchaser is in default with regard to fulfillment of its obligations to the Vendor. Repossession of the retained goods shall only constitute rescission of the contract if the Vendor expressly declares this in writing. The Vendor is entitled to enter the premises of the Purchaser, if necessary, to repossess the goods.
3. The Vendor's retention of title shall extend to any products resulting from processing. If the retained goods are processed together with goods owned by third parties, or if the retained goods are blended with or joined to such third party goods, the Vendor shall acquire joint title to the resulting products. The value of this joint title is derived from the ratio of the invoice value of the goods retained by the Vendor to the total invoice value of the goods owned by third parties. If the retained goods are blended with or joined to a principal product of the Purchaser, the Purchaser at this point assigns its property rights to the new object to the Vendor.
4. As long as the Purchaser duly satisfies its liabilities to the Vendor, the Purchaser shall be entitled to dispose freely of the retained goods in the normal course of business. This shall not apply, however, if and insofar as an agreement prohibiting the assignment of the purchase price claim is concluded between the Purchaser and its customers. The Purchaser is not authorized to pledge, transfer ownership by way of security or otherwise to encumber the goods to which Vendor retains title. When reselling the goods, the Purchaser shall make transfer of title contingent upon payment in full for the goods by its customers. In the event of a discontinuation of payments, a petition to open or the initiation of insolvency or judicial or extrajudicial composition proceedings, the right to resell the goods or to employ or install the retained goods lapses, together with the authority to collect debts that have been assigned; in the case of check or bills, the right of collection likewise lapses. This does not affect the rights of the trustee in bankruptcy.
5. To secure all claims on the part of the Vendor against the Purchaser arising from the commercial relationship, the Purchaser hereby assigns in advance to the Vendor - and the Vendor accepts – all claims arising from the resale of the retained goods, together with all incidental rights and security interests including bills and checks. If goods to which Vendor retains title are sold together with other goods at an overall price, the assignment shall be limited to the pro-rated amount in the Vendor’s invoice for the retained goods that are included in the sale. If goods to which the Vendor has joint title pursuant to VIII 3 are sold, the assignment shall be limited to the portion of the claim that corresponds to Vendor’s co-ownership share. If the Vendor [sic – Translator’s note: The original German document uses the word “Verkäufer” here where context suggests that “Käufer” (Purchaser) was intended.] uses goods to which the Vendor retains title to process goods that are the property of third parties in return for payment, the Purchaser shall assign in advance o the Vendor – and the Vendor accepts – all claims to remuneration from such third party for the purposes of security outlined above. As long as the Purchaser satisfies its payment obligations to the Vendor on time, the Purchaser itself may collect claims from a resale or from contract processing. The Purchaser shall not have the right to enter into any assignments or pledges of any kind.
6. If it appears to the Vendor that the enforcement of any claim is in jeopardy, the Purchaser shall, upon request by the Vendor, inform its customers of the assignment and furnish the Vendor with all required information and documents. The Vendor is also entitled to disclose the assignment in this case. The Purchaser shall inform the Vendor immediately of any third-party attachments on the retained goods and any assigned claims.
7. If the value of the security provided by the Purchaser exceeds the value of claims to be secured by more than 20 %, the Vendor shall be obliged to release securities at the request of the Purchaser. The choice of such security shall be left to the Vendor.
VIII. Notices of defects
1. Complaints shall only be considered if they are submitted without delay in writing, no later than fourteen days after arrival of the goods, with submission of supporting documents, samples, packing slips and details of the invoice number and the markings shown on the packing. The burden of proof for all qualifying conditions for a claim rests with the Purchaser.
2. Goods forming the subject of a complaint may only be returned with the express consent of the Vendor.
3. If the Purchaser identifies defects in the goods, Purchaser may not freely dispose of the goods until agreement has been reached regarding the handling of the complaint.
IX. Purchaser's rights in the case of defects
1. The Purchaser’s claims in the case of defects are restricted to the right of subsequent fulfillment. The Purchaser shall grant the Vendor two opportunities to replace the goods or rectify the defects. Claims for compensation under Section X shall remain unaffected by the above. The Purchaser's claims for the costs incurred for the purposes of subsequent fulfillment, in particular transport, travel, labor and material costs, shall be excluded in so far as such expenses are increased by the fact that the item was subsequently transported to a location other than the premises of the party placing the order, unless the goods were supplied to this location in line with their intended use.
2. If the Purchaser elects to withdraw from the contract following failed subsequent performance because of a legal or material defect or deficiency, the Purchaser shall not additionally be entitled to any damages because of the defect.
3. Claims are excluded in cases falling under § 478 BGB (German Civil Code). The Vendor can at its discretion elect subsequent fulfillment, replacement or reduction of the purchase price. Rights of recourse in the context of § 478 BGB become statute-barred two months after satisfaction of the consumer claims.
4. If the warranty represents recourse by the Purchaser following a successful enforcement of a claim against the Purchaser under of the provisions of consumer goods purchase, claims for recourse on the basis of the regulations governing consumer goods purchases shall remain unaffected.
5. Statutory claims by the Purchaser for recourse against the Vendor only exist in so far as the Purchaser has not entered into any agreements with its customers extending beyond statutory warranty claims.
X. Damages, limitation of liability
1. Claims for damages by the Purchaser - including those of a non-contractual nature – are excluded in the case of minor negligent breaches of duty by the Vendor, its managerial staff or other agents, unless such breach concerns a duty of major importance for achieving the object of the contract.
2. The Vendor shall only be liable for indirect damages and damages that were not foreseeable at the time of conclusion of the contract if there is gross negligence on the part of the Vendor itself or one of its managerial employees.
3. The above limitations shall not apply to damages resulting from death, injury or damage to health. However, this shall not affect the applicability of compelling statutory liability regulations such as, for example, liability for the assumption of a guarantee or the (German) Product Liability Law.
4. In the case of claims for recourse in the supply chain (§ 478 BGB), the Vendor shall reimburse costs only in the amount of the costs incurred by the Purchaser without the Purchaser’s mark-up and profit margin.
XI. Period of limitations
1. In cases that fall under § 438, paragraph 1, no. 3 of the German Civil Code (BGB), claims based on defects shall become statute-barred one year after commencement of the statutory period of limitations. In cases that fall under § 438, paragraph 1, no. 2 of the German Civil Code (BGB), they shall become statute-barred two years after the commencement of the statutory period of limitations. Compulsory statutory regulations governing periods of limitations and liability shall remain unaffected.
2. Provided that such claims are not excluded, the period of limitations for any claims for compensation associated with the negotiation of the contract or the breach of ancillary obligations begins with the transfer of the item sold, provided that the purchaser reported the defect in a timely manner in accordance with Section VIII.
XII. Properties of the goods, technical advice, use and processing
1. As a general rule, only the properties as stated in the product descriptions, specifications and labeling of the Vendor shall be considered properties of the goods. Public statements, product promotion or advertising shall not be classed as information on the properties of the item for sale.
2. Technical advice provided by the Vendor verbally, in writing or by way of trials is given in good faith but without warranty, including with respect to proprietary rights of third parties, and does not release the Purchaser from the obligation to test the products supplied by the Vendor as to their suitability for the intended processes and purposes. Application, use and processing of the products are beyond Vendor’s control and therefore entirely the responsibility of the Purchaser.
XIII. Place of performance, venue, applicable law
1. The law of the Federal Republic of Germany shall apply. The uniform laws on the international sale of movable property and on the conclusion of international sales contracts for movable property - both dated July 17, 1973 - and the UN Convention on Contracts for the International Sale of Goods shall not apply.
2. Customary commercial terms shall be interpreted in accordance with the Incoterms effective at the time.
3. The place of performance and exclusive jurisdiction for deliveries and payments (including legal actions based on checks and bills and exchange) and any disputes that may arise is 26125 Oldenburg. We are entitled, however, to bring actions against the Purchaser in the jurisdiction in which the Purchaser falls.
4. If one or more of the provisions of the contract, including these General Terms and Conditions, prove unenforceable in whole or in part, the remaining provisions shall be unaffected thereby.
5. Amendments or supplements to the contract and these provisions, including waiver of the clause requiring the written form, are only valid and enforceable if made in writing.
