General terms of trade
§ 1 Scope of Validity
The following terms and conditions of delivery are shall be valid for all contracts, deliveries and other work and services, including the provision of advice, unless amended or concluded with the express agreement of the Seller. Anything agreed which is not in conformity with these general terms and conditions shall only be valid if confirmed by the Seller. We shall not be bound by general terms and conditions of business and purchase of the Buyer even if they are not expressly rejected by us. We shall only be bound by such terms and conditions of the Buyer if expressly accepted by us in writing on a case-by-case basis. Even in such case, they shall only be valid insofar as they are not in contradiction with our general terms and conditions of business. Should any of the provisions of these general terms and conditions be invalid, the other clauses shall nevertheless remain in full force and effect.
§ 2 Offers and Conclusion of Contracts
1. All offers shall be without engagement unless declared firm by the Seller in writing. Contracts and other agreements shall only become binding on being confirmed in writing by the Seller or on delivery being made by the Seller. Insofar as sales personnel or sales representatives make any subsidiary oral agreements or give any warranties which go beyond those stated in the written sales contract, such agreements or warranties shall only be valid if confirmed in writing by the Seller.
2. Descriptions, drawings or illustrations of the products offered by us as well as price lists, printed matter, catalogs or our own data carriers are correct to the best of our knowledge and belief. Particulars stated in them are without engagement except insofar as certain properties may be warranted in them in writing as being so. We claim copyright and right of title thereto. Except with our written consent, such documents may not be made available to third parties or reproduced. Any breach hereof shall give rise to claims for damages. Where deliveries are made by us on the basis of drawings or other particulars provided by the Buyer and such deliveries violate the proprietary rights of third parties, the Buyer shall indemnify us from all claims of the owner of such proprietary rights. If so requested by us, the Buyer shall have a duty to pay us a reasonable advance for any legal costs.
3. Our prices are payable in the currency stated in the invoice. They are quoted ex-warehouse and are subject to the addition of value-added tax (VAT) at the statutory rate. Our prices are based on current calculation factors. If for reasons for which we are not responsible any changes should occur in the costs e.g. for wages, materials, exchange rate fluctuations and/or energy etc., we shall have the right to adjust the price accordingly. On the announcement of price changes, all previously stated prices shall cease to be valid. Packaging and transport costs will be charged for additionally.
4. The minimum amount per order placed shall be a net goods value of EUR 500,00. Sample shipments are, of course, except this. In the case of orders with a value of less than EUR 500,00, we shall charge a low-order surcharge of EUR 20,00.
§ 3 Delivery and Transfer of Risk
1. Delivery dates and delivery periods shall only be deemed firm if expressly confirmed by the Seller in writing. Delivery periods shall not begin until all details relating to an order have been clarified. Where amendments are made to contracts after these have already been concluded, a new delivery date shall be agreed. Deliveries delayed by major force or unforeseen events such as shortage of energy or raw materials, strike or lockout, late delivery or failure to deliver by sub-suppliers, shall not be deemed to be in arrears. In any such case, the Buyer shall have the right to cancel the order if the delivery date is exceeded by more than two months.
2. The Buyer may only claim damages for delay if the Seller is to blame for deliberate intent or gross negligence or has failed to deliver within a period of additional time allowed. The Seller shall have the right to make part-deliveries within a reasonable scope. All other claims, and especially claims for damages of any kind, shall be barred.
3. The Seller shall during the period of delivery have the right to make changes to the technical design, form or color of the item of delivery provided such changes do not change the function of the item of delivery and the change does not go beyond what is reasonable for the Buyer. Changes for purposes of technical progress may be made at any time without prior notice.
4. Except as expressly confirmed otherwise by us in writing, all deliveries shall be made ex-warehouse in Lüdenscheid and shall be subject to the addition of transport costs.
5. The risk shall pass to the customer on delivery of the goods to the forwarder, carrier or another transport firm.
§ 4 Claims and Complaints
1. Claims on grounds of incomplete or incorrect delivery must be made in written form within 8 working days of arrival of the goods at the place of destination.
2. Claims for overt defects must be made in written form within 14 days. On any defect manifesting itself, all further processing must be ceased immediately. For calculating the time period, the time of delivery at the place of destination and the day of receipt of the notice of the defect shall be authoritative.
3. Failure to give timely written notice of defects will cause all warranty claims to lapse.
4. Claims for defects shall lapse at the latest 6 months after the passing of risk and all other claims at the latest after one year, except where shorter limitation periods are provided for by law.
5. As the item of delivery is in most cases a complex technical product, it is assumed that the Buyer possesses all the necessary knowledge. Incompatibility with similar components and equipment of other manufacturers which are already in use by the Buyer shall therefore not be deemed a ground for claims. Beyond the data sheet provided by the manufacturer, we shall not have a duty to provide any other information on the item of delivery, even if we should exceptionally have done so in the case of former purchase contracts.
§ 5 Warranty
1. In the case of justified complaints, the Seller shall, at his option, either effect repair or supply a replacement item.
2. If a reasonable additional time is granted to the Seller to remedy a defect and the Seller fails to effect remedy within that time, the Buyer shall have the right, at his option, to cancel the contract or to claim a reduction in the purchase price.
3. In the event of changes or repair being effected improperly by the Buyer or any third party, the Seller shall have no liability for the consequences arising therefrom.
4. The Buyer shall be responsible for complying with construction or safety regulations of all kinds (VDE, CE, TÜV, employers' liability insurance, etc.
§ 6 Terms of Payment
1. Except as expressly agreed otherwise in writing, all payments shall be due immediately on receipt of delivery, without any deduction. We reserve the right, at our discretion, to make delivery on the basis of COD or to demand payment in advance. Where delivery is requested on open account, we shall require time to carry out a creditworthiness check. Should the Buyer fail to meet his payment obligations or circumstances become known to us which cast doubt on his creditworthiness, all claims against the Buyer shall become due and payable forthwith.
2. The legal provisions shall apply to the charging of interest on arrears from the due date of an invoice. We also reserve the right to claim damages for delay.
3. The Seller shall have no obligation to accept bills of exchange or cheques. Payment by cheque will only be deemed to have been made on the day the amount is credited to the Seller's account and is at the disposal of the Seller.
4. The Seller shall have the right to assign his claims arising from this business relationship to third parties and in particular to a factoring company.
§ 7 Reservation of Title
1. Title shall only pass to the Buyer when he has paid all his debts arising from the business relationship. This shall also apply when the purchase price for certain deliveries of goods as designated by the Buyer has been paid. In the case of deliveries on the current account, the reserved title shall be deemed security for the balance owing from time to time. Where bills of exchange or cheques are given in payment, payment shall only be deemed made on the bill of exchange or cheque being honored. Should the Buyer fall into arrears with payment or otherwise fail to meet his obligations under the reservation of title, the Seller may demand restitution by the Buyer of the item of delivery. Except where the German Hire-Purchase Act applies, recovery or attachment by the Seller of reserved items shall not be deemed cancellation of the contract unless expressly declared as such by the Seller. In the case of attachment or other intervention by third parties, the Buyer shall notify the Seller in writing by sending him a copy of the attachment record. The Buyer shall have the right to resell the goods in the normal course of business provided that the claim arising from resale passes to the Seller as follows.
2. The Buyer hereby already assigns to the Seller all claims together with all subsidiary rights occurring to the Buyer against his customer or any third party as a result of the resale, regardless of whether the reserved goods are sold before or after further processing. Even after making this assignment, the Buyer shall have the right to collect such claims. This shall be without prejudice to the right of the Seller to collect the claims himself; however, the Seller undertakes not to collect such claims as long as the Buyer duly meets his payment obligations. The Seller may require that the Buyer notify him of assigned claims and the debtor thereof, provide him with all information necessary for collection, release all appurtenant documents to him and inform the debtor of the assignment. Where the goods are resold together with other goods not belonging to the Seller, the claim of the Buyer against his customer shall be deemed assigned in the amount of the delivery price agreed between the Seller and Buyer. 3. We agree to release securities which exceed the secured claim by an amount of 20%.
§ 8 Return Deliveries
1. Return deliveries shall be subject to our general terms and conditions for return deliveries. All return deliveries made with our prior consent shall be dispatches at the cost and risk of the sender. Such shipments must reach us free of all transport and transport insurance costs and any other costs. Return deliveries sent carriage unpaid or COD will not be accepted. Goods returned to us without justification will be sent back to the Buyer and a handling charge of EUR 25.00 will be made.
2. Should we subject goods for which a claim is made against us on grounds of being defective to technical inspection and testing and thereby find that they are in fully functioning order, we shall charge for the technical inspection and testing on the basis of time at a rate of currently DM 90.00 per technician's working hour and shall also have the right to invoice the Buyer for the costs of returning the goods which are in perfect condition.
§ 9 General Limitation of Liability
Claims for damages by the Buyer on grounds of negligence in contracting, breach of secondary contractual duties and tort shall be barred unless they are due to deliberate intent or gross negligence on the part of the Seller or one of his vicarious agents. Such claims shall lapse six months after receipt of the goods by the Buyer if the damage is directly discernible to the Buyer.
§ 10 Place of Performance, Legal Venue, Applicable Law
German law only shall apply. The place of performance and legal venue shall be Lüdenscheid or, in the case of assigned claims, the place where the company concerned has its registered domicile.