I. Applicability
The following Conditions of Delivery and Payment govern every delivery to be carried out by us. Oral arrangements must be confirmed in writing by us. Deviations from these Conditions of Delivery and Payment, in particular the validity of the purchasing conditions of the purchaser, must be expressly acknowledged by us in writing.
II. Purchases
Our offers are non-binding. Orders are only binding for us if we confirm them in writing or fulfil them by shipping the goods. This also applies to orders taken by company representatives or commercial travellers. The information, drawings or illustrations contained in catalogues and price lists are approximate values customary in the trade unless they are expressly designated as binding when an order is placed.
III. Delivery Period
1. The delivery period begins on the day the order is accepted or, if some matters still require clarification, after these have been clarified. The delivery period is to be regarded as approximate and without obligation and applies on an ex-works basis. In cases where the goods cannot be sent on time for reasons beyond our control, delivery periods and dates will be deemed to have been adhered to after notification that the goods are ready for shipping has been made. Regardless of our rights arising from the purchaser's arrears, the agreed delivery period will be extended by the period in which the purchaser is in arrears with its obligations arising from this or another agreement. In the case of later amendments to the agreement by the purchaser, the delivery period will be extended by an appropriate period, even if no express written agreement concerning the alteration to the delivery period has been reached.
2. Partial deliveries are permitted. In exceptional cases, they are not permitted if the purchaser has no interest in partial fulfilment.
3. Even if a delivery period based on a calendar period has been agreed on, this will not constitute a fixed-date trade (B-2-B) transaction within the meaning of Section 376, Sub-Section 1 of the German Commercial Code (HGB). This also requires the partners to agree that, in the case of seasonal goods or advertising activities, for example, the agreement may be cancelled without further notice if the delivery period is not adhered to.
4. We will not be responsible for delays to delivery and the supply of goods and services due to Acts of God or to events which make delivery difficult or impossible for us; in particular, this includes industrial action, official measures and the failure of our suppliers to deliver etc., including where delivery periods and dates have been agreed to as binding. Such delays entitle us to postpone delivery or performance for the duration of the hindrance plus an appropriate re-start period or to cancel the agreement partially or entirely due to an unfulfilled part without the purchaser being able to assert damages claims. If the above-mentioned hindrances occur at the purchaser's premises, the same legal consequences will apply to its purchasing obligation. If the purchaser does not purchase the full quantity of goods as stipulated in the agreement, we will be entitled to charge a minimum purchase surcharge..
IV. Shipment
1. Shipment is made at the risk of the consignee, including where delivery is made by our vehicles. In cases where shipment is delayed by actions of the purchaser, risk transfers when the customer is notified that the goods are ready for shipment.
2. We will make efforts to accommodate the wishes and interests of the purchaser concerning the method and route of shipping. Resulting additional costs, including simplified, freight-free delivery, will be at the expense of the purchaser. If requested in writing by the purchaser, the goods will be insured at its expense against breakage, transport and fire damage.
V. Guarantee
1. Unless otherwise agreed, the guarantee will conform to legal requirements and begins at the time the goods arrive at the purchaser's premises.
2. The purchaser is required to notify obvious defects immediately the goods have been received at the point of destination within three days at the latest; concealed defects must be notified in writing immediately within six days at the latest following delivery and discovery.
3. Where defects are notified on time, we will, at our option, repair the defective goods, deliver replacement goods which are free of defects or credit the customer with the corresponding value of the goods.
4. If we fail to fulfil our guarantee obligations or fail to do so within an appropriate period as provided in the agreement, the purchaser may set us a final deadline in writing within which we will be required to fulfil our obligations. After this deadline has expired without success, the purchaser may demand a reduction in the purchase price or cancel the agreement. |
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VI. Terms of payment
1. Unless otherwise agreed, our invoices are payable on delivery net cash.
2. If payment by direct debit is agreed on, we will grant a three percent discount off the value of the order.
3. In the case of late payment, arrears interest will be due without any further warning pursuant to Section 284, Sub-Section 3, P. 1 of the German Civil Code (BGB) in the amount of five percent above the current lending rate pursuant to Section 1 of the Discount Rate Transition Act dated 9 June 1998 and pursuant to Section 288 Sub-Section 3, P. 1 of the German Civil Code (BGB).
4. In the case of delayed payment we may, after informing the purchaser in writing, suspend fulfilment of our obligations until payment has been received.
5. If the purchaser engages a central invoicing company, settlement of the invoice, which will have the effect of discharging the debt, will come into force only after the payment has been credited to our bank account.
VII. Reservation of title
1. The goods sold remain our property until full payment of our claims from the business association with the purchaser has been made. The purchaser is authorised to dispose of the goods purchased in the normal course of business as long as it fulfils its obligations with us in a timely fashion. Reservation of title also extends to the products resulting from the processing, mixing or amalgamation of our goods; in such cases we will be deemed to be the manufacturer. If in processing, mixing or amalgamation with goods belonging to third parties, these third parties retain the right of ownership, we will acquire joint ownership in proportion to the invoice value of these processed goods. In such cases the purchaser is deemed to be the custodian of the goods.
2. The purchaser immediately assigns to us claims against third parties arising from the resale totalling and to the value of respectively the proportional share of any joint ownership of ours (c.f. VII, No. 1) as a surety. It is authorised to collect these claims on our account until its payments to us have been cancelled or have ceased.
3. The purchaser may not pledge the retained goods or transfer them as a guarantee.
4. The purchaser is obliged to inform us immediately about seizure or other impairment of our rights by third parties.
5. In case of arrears of payment, insolvency, indebtedness or similar worsening in the financial position of the purchaser, we are entitled to demand the immediate surrender of the retained goods. Limited claims are due immediately; deposited bills of exchange are to be redeemed one-for-one for cash regardless of the due date.
6. Only undisputed or legally established claims entitle the purchaser to offset or withhold payment.
7. If the realisable value of the sureties exceeds the value of our claims by more than 20%, we will, on request, provide sureties in the corresponding amount.
VIII. Limitation of liability
1. Unless otherwise provided below, we will not recognise other and further claims of the purchaser against us. This applies in particular to damages claims arising from arrears, impossibility of performance, injurious breach of ancillary contractual obligations, culpability at the time the agreement is concluded or prohibited actions. We are therefore not liable for damage that has not occurred to the delivered goods themselves. In particular, we are not liable for loss of profits of or other financial damage to the purchaser.
2. The above liability limitations do not apply if we have caused the damage deliberately or through gross negligence or if we have breached essential contractual obligations or in the case of damage resulting from death, physical injury or harm to human health caused by a negligent breach of duty on the part of the user or a deliberate or negligent breach of duty on the part of a legal representative or vicarious agent of the user. If we have breached an essential contractual obligation, we will only be liable for the reasonably foreseeable damage typical for contracts of this nature.
3. If we are not liable or if our liability is limited, this will also apply to the personal liability of our legal representatives and vicarious agents.
IX. Place of fulfilment, place of jurisdiction, applicable law
The place of fulfilment for all obligations arising from this agreement is Muenster, Germany. It is agreed that Muenster, Germany, is the place of jurisdiction. In placing an order the purchaser acknowledges that any contracts concluded with us will be governed solely by these conditions of delivery and payment. Should individual provisions of these Conditions of Delivery and Payment be wholly or partially ineffective, the remaining conditions remain fully valid.
Muenster, Germany, 1 July 2010 |
