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General Conditions of Sales and Delivery

Version 02/2018 

I. Scope of Validity, Form

1. These General Conditions of Sales and Delivery apply exclusively for all contracts concluded with us for supplies and miscellaneous services. We do not recognise conditions deviating from these terms or in conflict therewith unless we have specifically agreed to them in writing.

2. These conditions of sale shall also apply for all future business transactions between the parties, even if we are aware of deviating or conflicting conditions and nevertheless deliver the goods.

3. Our General Conditions of Sales and Delivery shall only apply vis á vis entrepreneurs, governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB (German Civil Code).

4. Individual agreements made on a case-by-case basis with the customer (including ancillary agreements, supplements and modifications) in all cases take precedence over the provisions of these General Conditions of Sales and Delivery. In the absence of evidence to the contrary, a written Contract or our written confirmation shall be authoritative regarding the content of such agreements. This applies equally to ancillary agreements and to guarantees and undertakings given by our own sales personnel.

5. Legally relevant statements and notifications by the customer relating to our General Conditions of Sales and Delivery and other contracts (for instance setting deadlines, notice of defects, withdrawal or claim for reduction of purchase price) rmust be in writing i. e. in written or text form (e. g. letter, e-mail, fax)(to be effective. Legal form requirements and further evidence, in particular in the case of uncertainty as to the authorisation of the person making the claim remain unaffected by this provision.

II. Conclusion of Contract and Delivery 

1. Our quotations are subject to confirmation and are not binding. Technical descriptions (such as data sheets, drawings, plans, calculations, references to DIN standards) and other product details given in quotations, brochures and on the Internet in our e-shop and on which we reserve title and copyright rights are also non-binding, unless they have been contractually agreed as a specific quality specifications.

2. The order for the goods placed by the customer is deemed a binding offer to enter into a contract. We are entitled to accept the customer’s order within 14 days of our receiving it. Acceptance is confirmed by separate e-mail sent by us to the e-mail address given by the customer in his registration details. Acceptance may be declared either in writing or by e-mail (e.g., in the form of an order confirmation) or by unconditional delivery of the goods to the customer. 

3. With the representation and advertising of articles in our e-shop we make no binding offer as to the sale of certain goods. When sending off an order in the e-shop by clicking on the button „Order“ („Bestellen“ “), the customer submits a legally-binding order. With regard to the time limit of the commitment to this order the statutory provision (§ 147 BGB [German Civil Code]) applies . We will confirm receipt of your order placed through our online shop by e-mail without delay. Such an e-mail does not indicate binding acceptance of the order unless such acceptance is stated alongside confirmation of its receipt. A contract only comes into being when we confirm acceptance of your order, when our services are invoiced to the customer or by the physical delivery of the articles ordered. 

4. The scope of our delivery obligation is shown in our acceptance of the order. Alterations to design, type and colour due to technological improvements or legislative requirements are 
reserved, provided such alterations are not intrinsic in nature or otherwise unreasonable for the customer to accept. 

5. In the case of pre-packed goods sold by quantity, the average number delivered is determined by a sampling method and represents at least the nominal quantity. Deliveries of pre-packed goods in quantities exceeding contents of 100 are subject to possible variations of +/- 4 %.

6. We are entitled to make partial deliveries in cases when 

  • the partial delivery can be used by the customer within the scope of the contractual agreed purpose,
  • delivery of the remaining goods ordered is assured and
  • the customer is not caused significant additional expenditure  or costs (unless we agree to cover any such costs ourselves).

7. If the customer is in default of acceptance, fails to cooperate or if the delivery is delayed for any other reason for which the customer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses (e. g. storage costs).

 

III. Delivery Schedule and Delays in Delivery

1. The delivery schedule will normally be individually agreed or quoted by us on acceptance of the order. Where this is not the case, delivery will be made in approximately three weeks from conclusion of the Contract.

2. When, for reasons outside our control, we are unable to meet a binding delivery date, (service / goods is / are not available “non-availability of service /performance”), we will notify the customer accordingly without delay and at the same time advise the anticipated revised delivery date. If the delivery is still not available at the revised delivery date, we are entitled to withdraw totally or partially from the Contract, and we will reimburse any counter-performance of the customer without delay. A case of non-availability of service /performance in this sense is deemed to be failure of our suppliers to deliver to us on time when we have concluded an appropriate supply contract, when neither we nor our suppliers are at fault, or when in individual cases we are not responsible for resourcing. 
3. Our default in delivery is determined in accordance with the statutory provisions. In every case however, a reminder by the customer is required, specifying a further deadline, normally of at least 14 days. 

IV. Prices and Terms of Payment

1. Except as otherwise agreed in individual cases, the prices applicable are those valid at the time the contract is concluded which are ex warehouse Illerrieden, plus the legal rate of VAT. Ancillary charges such as packaging, carriage, installation, import and export customs duty, insurance, taxes, charges for calibration or approval procedures ordered by the authorities or the customer etc. and other public fees and charges are invoiced separately.

2. In case of sale by delivery to a place other than the place of performance at the purchaser’s request, the customer bears the costs of transport ex warehouse and the costs of transport insurance if the customer requires this. Customs charges, fees, taxes and other miscellaneous public fees are also borne by the customer. Transport and all other packing is non-returnable, in accordance with the Packaging Ordinance but becomes the property of the customer, with the exception of pallets.

3. We raise a surcharge of € 15 for handling orders with a net material value of less than € 100. This charge does not apply in our e-shop.

4. We reserve the right to make price adjustments when market conditions or rates of exchange alter significantly. The prices quoted are only binding when and to the extent that the customer has notified us of a corresponding binding deadline. 

5. Except where otherwise agreed, the purchase price is due and payable within 30 days of the invoice issue date and delivery or acceptance of the goods.

6. We are entitled to make or provide outstanding deliveries or services only against payment in advance or collateral security when after conclusion of the contract circumstances come to our notice which are likely to significantly reduce the creditworthiness of the customer and impair the customer’s ability to settle our accounts still outstanding in regard to the respective contract relationship (including those for other individual orders to which the same framework agreement applies). If the customer is not in a position to make payment in advance, we are entitled after giving a further time limit to withdraw from the Contract.

7. With the expiry of the time limit given in section 5 above, the customer is in default. The purchase price will have interest applied during the period of default at the legally stipulated rate of interest on arrears. We reserve the right to make further claims for loss due to default. Our claim for commercial maturity interest after due date against merchants (Paragraph 353 HGB - German Commercial Code) remains unaffected.

V. Offsetting, Retention

1. The customer is only entitled to offset to the extent that his counter-claim is undisputed, has been legally established, or has been recognised by us. The customer is only entitled to claim rights of retention in respect of counter-claims arising from the same contractual relationship.
2. If after the Contract is concluded there is evidence (e.g., due to an application being made to open insolvency proceedings) that our claim to the purchase price of the goods is at risk due to the customer’s ability to pay, in accordance with legal provisions we are entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the Contract (see Paragraph 321 BGB). Where contracts for the manufacture of non-fungible goods (custom-made products, individual productions), we are entitled immediately to notify our withdrawal; legal regulations regarding the dispensability of setting a deadline remain unaffected.

VI. Transfer of Risk

The risk of accidental destruction and accidental deterioration of the goods is transferred to the customer at the latest on handover. In the case of sale by delivery to a place other than the place of performance at the purchaser’s request, the risks of accidental destruction or deterioration and delay in delivery are transferred on handover to the forwarding agent, carrier or other person or agent to which the carriage is delegated or at the latest on dispatch by any other means. Except as otherwise specified in writing by the customer, we select the mode of dispatch at our discretion. Carriage and handling charges are not laid out by us and are invoiced to the customer directly by the carrier.
Before accepting the goods, the customer must make a claim to the carrier regarding any damage in transit and after acceptance notify them in accordance with the legally laid down requirements and time limits.

VII. Retention of Title to Ownership 

1. We retain title to all goods delivered until settlement of all our receivables, including future accounts arising from this business relationship. The insertion of individual accounts in a current account or striking of a balance and acknowledging it as a debt does not invalidate retention of title to ownership.

2. Before the complete settlement of secured debts, goods subject to retention of title to ownership must not be pledged to third parties nor assigned by way of security. The customer must notify us immediately in writing if an application is made to open insolvency proceedings or in the event of access or seizures by third parties (such as in the shape of attachment) to the goods to which we hold title.

3. Should the customer violate the terms of the contract, in particular by failing to pay the due purchase price, we are entitled, in accordance with legal provisions, to withdraw from the Contract and / or to demand the return of the goods subject to retention of title. The demand to return the goods does not at the same time imply a statement of our intention to withdraw from the Contract; we are indeed entitled to demand return of the goods and to reserve our position on withdrawal. If the customer fails to pay the purchase price due, we may only claim these rights when we have unsuccessfully allowed the customer a reasonable period of grace to make payment or when granting such a period of grace is dispensable according to legal regulations.

4. The customer is legally obliged to store the goods purchased from us and subject to our retention of title separately from any third-party goods to which he holds title. If contrary to this obligation goods subject to retention of title are mixed or blended with third party goods so that they can no longer be separated from the third-party goods, we become co-owners of these goods in accordance with the statutory legal provisions. If due to the combining the customer acquires sole or joint ownership, he assigns joint ownership to us in the proportion of the value of our goods subject to retention to the value of the third-party goods at the time of the mixing / combining. The value of our goods is determined in accordance with our list price, taking into account a reasonable rebate for usage. In such cases, the customer must look after the goods in our ownership or part-ownership, as the case may be, which are also deemed to be goods subject to reservation of title to ownership, free of charge.
 

5. In accordance with (c) below, the customer is authorised to resell and / or to re-process the goods subject to retention of title in the normal course of business. In this case, the following additional regulations apply.

a) The retention of title extends to the full value of the new products created by processing, mixing or combining our goods, whereby we are deemed to be the manufacturer. If in processing, mixing or combining with third party goods, the latter’s retention of title prevails, we acquire co-ownership in proportion of the invoiced value of the processed, mixed or combined goods. In addition, the same applies to the product created as for the goods supplied subject to retention of title. The value of our goods is determined in accordance with our list price, taking into account a reasonable rebate for usage.

b) The customer assigns all receivables or an amount thereof corresponding approximately with the value of our co-ownership proportion created against third parties arising from the selling on of the goods or product in accordance with the section above by way of a collateral security. We accept this assignment. The customer’s obligations listed in section 2 also apply in view of the liabilities assigned.

c) The customer retains authority to collect payment, alongside ourselves. We undertake not to collect the payment as long as the customer fulfils his payment obligations to us, there is no question as to the quality of his performance and we have not had to make use of our right to claim reservation of title in accordance with Section 3. Should we have had to do so however, we may require that the customer reveals to us the debts owed and the debtors, gives us all details necessary for us to collect the receivables, hands over all the relevant documentation to us and advises the debtors (third parties) of the assignment. We are also entitled to notify the debtors of the assignment ourselves. In addition, in this case we are also entitled to rescind the customer’s authority to continue to sell or to process the goods subject to retention of title. 

d) If the realisable value of the securities exceeds our receivables by more than 10 %, we will release securities at our option at the customer’s request. 

 

6. The customer must notify us without delay concerning execution measures instituted by third parties affecting the goods subject to retention of title or the assigned outstanding accounts and hand over all necessary documents to enable an objection to be lodged.

7. On payments being stopped, application being made to open insolvency proceedings (rights of the administrator as per the Insolvency Ordinance [InsO]) or out-of-court composition proceedings, the rights to continue to resell, use or install the goods subject to retention of title and the authority to collect the assigned debts lapse.

8. Should the customer not co-operate in this segregation, we shall be entitled to undertake it ourselves, with the assistance of an expert.

VIII. Warranties

1. For the rights of the customer in case of defects as to quality and defects of title (including incorrect and short deliveries as well as incompetent installation or faulty fitting instructions) the legal provisions apply, except as otherwise provided in the following.

2. The customer’s claims for defect presupposes compliance with the statutory duty of prior examination and to give notice of defects as per Paragraphs 377, 381 HGB. If on inspection or later a defect is revealed, we are to be notified in writing without delay. The notification is deemed to have been made without delay when it is sent off within seven calendar days, the date of dispatch being decisive for meeting the deadline. Independent of the examination and defect notification obligation, the customer must notify obvious defects, such as incorrect and short deliveries, in writing within two weeks of delivery; here again, the date of dispatch is decisive for meeting the deadline. If the customer fails to perform a regular inspection and / or notify us of defects in respect of the defect(s), our liability for the defect not notified or not properly notified is excluded.

3. If the goods delivered prove to be defective, we are obliged to provide subsequent performance and are entitled to do so. Subsequent performance will be, at our option, either by rectification or replacement delivery. We are entitled to make the subsequent performance which is due dependent on the customer paying the relevant purchase price. The customer is entitled to retain a reasonable proportion of the purchase price, reflecting the defect in the goods delivered.

4. The customer is obliged to allow us the time and opportunity to provide the subsequent performance which is due and in particular to hand over the defective goods for the purpose of testing them. In the case of a replacement delivery, the customer must return the defective goods to us in accordance with legal provisions. In the event that a demand by the customer for correction of a defect turns out to be unjustified, we can demand reimbursement of the costs arising from this (in particular inspection and transport costs) from the customer unless the lack of a defect could not have been detected by the customer.

5. When the subsequent performance turns out to be unsuccessful or a reasonable deadline to be set by the customer expires without result or is dispensable in accordance with legal regulations, the customer may withdraw from the purchasing contract or claim a reduction in the purchase price. However, there is no right of rescission if the defect is insignificant.

6. Customer claims for compensation or for reimbursement in respect of frustrated expenditure may only be made as per Paragraph IX and are otherwise excluded.

7. When considering the amount of a claim to be met by us, our economic circumstances, type, extent and duration of the business relationship, any contributory causation and/or fault theon the part of the customer in accordance with Paragraph 254 of the BGB and a particularly unfavourable installation situation of the part supplied are to be reasonably taken into account to our benefit. In particular, the compensation, costs and expenses we are expected to bear must be in reasonable proportion to the value of the part delivered.

8. The guarantee lapses completely or partially 

  • if without our agreement the customer alters the item delivered or has it altered by a third party and the correction of a defect is thereby made impossible or unreasonably difficult; in any event, the customer must bear the additional costs for correcting the defect which are occasioned by such an alteration;
  • in the event of unsuitable or improper handling of the goods, incorrect setting up or commissioning by the customer or third parties, fair wear-and-tear, wrong or careless handling, inadequate servicing, unsuitable operating supplies, defective structures, unsuitable building land, chemical, electro-chemical or electrical influence where these would not be reasonably expected by us; 
  • on inadequate or inexpert repair by the customer or third parties or unauthorised alterations to the goods.

IX. Liability 

1. Except as otherwise provided in these General Conditions of Sales and Delivery, including the following conditions, we shall be liable for a breach of contractual and/or non-contractual obligations in accordance with the relevant statutory provisions..

2. We are liable to the customer in accordance with the legal provisions for expenditure necessarily incurred for subsequent performance, provided the customer has in good faith installed a defective purchased part of a type which should have been suitable for the purpose or has fitted the said defective purchased part to another unit. When considering the amount of expenditure to be reimbursed by us in respect of subsequent performance, the overall commercial situation between the two parties and the significance of the defect for the business transaction in question must be reasonably taken into account. The costs and expenses connected with subsequent performance are to be set in relation to the purchased goods. Where these costs and expenses exceed the value of the purchased goods and we are not responsible for having delivered the defective goods, our reimbursement of subsequent performance is limited to 100 % of the value of the defective purchased goods. If it can be demonstrated in contrast that we were responsible for delivery of the defective goods, our reimbursement of subsequent performance is limited to a maximum of 150 % of the value of the defective goods. If the reimbursement to be made by us is disproportionate, the legal regulations shall apply. There shall be no reduction to a “reasonable amount” or to the proportions quoted previously. 

3. We are liable for compensation in the event of intent or gross negligence, irrespective of legal grounds. In the event of simple negligence, we are liable, subject to a milder measure of liability in accordance with legal provisions (e.g., for care in attending to our own affairs) only

  • for damage or injury to life, body or health,
  • for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which makes the proper performance of the contract possible in the first place and on
  • whose observance the contractual partner regularly relies and may rely) is limited to compensation for the foreseeable, typically occurring damage. 

4. The restrictions on liability derived from section 2 do not apply in the event that we have fraudulently concealed a defector have undertaken a guarantee concerning the quality of the goods. The same applies in the case of the customer making a claim under the provisions of the Product Liability Act.

5. The customer may only withdraw from or give notice to terminate the contract on account of an infringement of obligation which does not relate to a defect when we are responsible for the infringement. A free right of termination of the customer (in particular in accordance with Paragraphs 651, 649 BGB) is excluded. Otherwise, the legal provisions and consequences apply.

X. Statute-barring

1. Warranty claims become statute-barred within twelve months of transfer of risk. Provided an acceptance has been agreed, the limitation period commences with the acceptance.

2. However, if the goods take the form of a building or is something which according to its usual purpose is used for a building and has caused its defectiveness (building material), the limitation period according to legal provisions is five years from the date of delivery (Paragraph 438 Section 1 clause 2 BGB).
3. The above limitation periods in sale of goods law also apply to contractual and non-contractual compensation claims made by the customer in respect of defect in goods, unless applying the normal legal limitation (Paragraphs 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, customers’ compensation claims as per Paragraph IX Section.3 and also according to the Product Liability Act lapse exclusively in accordance with the legal provisions

XI. Final Provisions

1. This Contract is governed by the laws of the Federal Republic of Germany, and the UN CISG is expressly excluded.

2. For all claims and disputes arising from this Contract or in connection with these General Conditions of Sales and Delivery, it is agreed that the court with exclusive jurisdiction shall be that responsible at our headquarters. We are nevertheless entitled to take action against the customer at the court responsible for his own place of business.  
3. The original language of the Contract is German.
 

II. Conclusion of Contract and Delivery 

1. Our quotations are subject to confirmation and are not binding. Technical descriptions (such as data sheets, drawings, plans, calculations, references to DIN standards) and other product details given in quotations, brochures and on the Internet in our e-shop and on which we reserve title and copyright rights are also non-binding, unless they have been contractually agreed as a specific quality specifications.

2. The order for the goods placed by the customer is deemed a binding offer to enter into a contract. We are entitled to accept the customer’s order within 14 days of our receiving it. Acceptance is confirmed by separate e-mail sent by us to the e-mail address given by the customer in his registration details. Acceptance may be declared either in writing or by e-mail (e.g., in the form of an order confirmation) or by unconditional delivery of the goods to the customer. 

3. With the representation and advertising of articles in our e-shop we make no binding offer as to the sale of certain goods. When sending off an order in the e-shop by clicking on the button „Order“ („Bestellen“ “), the customer submits a legally-binding order. With regard to the time limit of the commitment to this order the statutory provision (§ 147 BGB [German Civil Code]) applies . We will confirm receipt of your order placed through our online shop by e-mail without delay. Such an e-mail does not indicate binding acceptance of the order unless such acceptance is stated alongside confirmation of its receipt. A contract only comes into being when we confirm acceptance of your order, when our services are invoiced to the customer or by the physical delivery of the articles ordered. 

4. The scope of our delivery obligation is shown in our acceptance of the order. Alterations to design, type and colour due to technological improvements or legislative requirements are 
reserved, provided such alterations are not intrinsic in nature or otherwise unreasonable for the customer to accept. 

5. In the case of pre-packed goods sold by quantity, the average number delivered is determined by a sampling method and represents at least the nominal quantity. Deliveries of pre-packed goods in quantities exceeding contents of 100 are subject to possible variations of +/- 4 %.

6. We are entitled to make partial deliveries in cases when 

  • the partial delivery can be used by the customer within the scope of the contractual agreed purpose,
  • delivery of the remaining goods ordered is assured and
  • the customer is not caused significant additional expenditure  or costs (unless we agree to cover any such costs ourselves).

7. If the customer is in default of acceptance, fails to cooperate or if the delivery is delayed for any other reason for which the customer is responsible, we are entitled to demand compensation for the resulting damage including additional expenses (e. g. storage costs).

 

III. Delivery Schedule and Delays in Delivery

1. The delivery schedule will normally be individually agreed or quoted by us on acceptance of the order. Where this is not the case, delivery will be made in approximately three weeks from conclusion of the Contract.

2. When, for reasons outside our control, we are unable to meet a binding delivery date, (service / goods is / are not available “non-availability of service /performance”), we will notify the customer accordingly without delay and at the same time advise the anticipated revised delivery date. If the delivery is still not available at the revised delivery date, we are entitled to withdraw totally or partially from the Contract, and we will reimburse any counter-performance of the customer without delay. A case of non-availability of service /performance in this sense is deemed to be failure of our suppliers to deliver to us on time when we have concluded an appropriate supply contract, when neither we nor our suppliers are at fault, or when in individual cases we are not responsible for resourcing. 
3. Our default in delivery is determined in accordance with the statutory provisions. In every case however, a reminder by the customer is required, specifying a further deadline, normally of at least 14 days. 

IV. Prices and Terms of Payment

1. Except as otherwise agreed in individual cases, the prices applicable are those valid at the time the contract is concluded which are ex warehouse Illerrieden, plus the legal rate of VAT. Ancillary charges such as packaging, carriage, installation, import and export customs duty, insurance, taxes, charges for calibration or approval procedures ordered by the authorities or the customer etc. and other public fees and charges are invoiced separately.

2. In case of sale by delivery to a place other than the place of performance at the purchaser’s request, the customer bears the costs of transport ex warehouse and the costs of transport insurance if the customer requires this. Customs charges, fees, taxes and other miscellaneous public fees are also borne by the customer. Transport and all other packing is non-returnable, in accordance with the Packaging Ordinance but becomes the property of the customer, with the exception of pallets.

3. We raise a surcharge of € 15 for handling orders with a net material value of less than € 100. This charge does not apply in our e-shop.

4. We reserve the right to make price adjustments when market conditions or rates of exchange alter significantly. The prices quoted are only binding when and to the extent that the customer has notified us of a corresponding binding deadline. 

5. Except where otherwise agreed, the purchase price is due and payable within 30 days of the invoice issue date and delivery or acceptance of the goods.

6. We are entitled to make or provide outstanding deliveries or services only against payment in advance or collateral security when after conclusion of the contract circumstances come to our notice which are likely to significantly reduce the creditworthiness of the customer and impair the customer’s ability to settle our accounts still outstanding in regard to the respective contract relationship (including those for other individual orders to which the same framework agreement applies). If the customer is not in a position to make payment in advance, we are entitled after giving a further time limit to withdraw from the Contract.

7. With the expiry of the time limit given in section 5 above, the customer is in default. The purchase price will have interest applied during the period of default at the legally stipulated rate of interest on arrears. We reserve the right to make further claims for loss due to default. Our claim for commercial maturity interest after due date against merchants (Paragraph 353 HGB - German Commercial Code) remains unaffected.

V. Offsetting, Retention

1. The customer is only entitled to offset to the extent that his counter-claim is undisputed, has been legally established, or has been recognised by us. The customer is only entitled to claim rights of retention in respect of counter-claims arising from the same contractual relationship.
2. If after the Contract is concluded there is evidence (e.g., due to an application being made to open insolvency proceedings) that our claim to the purchase price of the goods is at risk due to the customer’s ability to pay, in accordance with legal provisions we are entitled to refuse performance and – if necessary after setting a deadline – to withdraw from the Contract (see Paragraph 321 BGB). Where contracts for the manufacture of non-fungible goods (custom-made products, individual productions), we are entitled immediately to notify our withdrawal; legal regulations regarding the dispensability of setting a deadline remain unaffected.

VI. Transfer of Risk

The risk of accidental destruction and accidental deterioration of the goods is transferred to the customer at the latest on handover. In the case of sale by delivery to a place other than the place of performance at the purchaser’s request, the risks of accidental destruction or deterioration and delay in delivery are transferred on handover to the forwarding agent, carrier or other person or agent to which the carriage is delegated or at the latest on dispatch by any other means. Except as otherwise specified in writing by the customer, we select the mode of dispatch at our discretion. Carriage and handling charges are not laid out by us and are invoiced to the customer directly by the carrier.
Before accepting the goods, the customer must make a claim to the carrier regarding any damage in transit and after acceptance notify them in accordance with the legally laid down requirements and time limits.

VII. Retention of Title to Ownership 

1. We retain title to all goods delivered until settlement of all our receivables, including future accounts arising from this business relationship. The insertion of individual accounts in a current account or striking of a balance and acknowledging it as a debt does not invalidate retention of title to ownership.

2. Before the complete settlement of secured debts, goods subject to retention of title to ownership must not be pledged to third parties nor assigned by way of security. The customer must notify us immediately in writing if an application is made to open insolvency proceedings or in the event of access or seizures by third parties (such as in the shape of attachment) to the goods to which we hold title.

3. Should the customer violate the terms of the contract, in particular by failing to pay the due purchase price, we are entitled, in accordance with legal provisions, to withdraw from the Contract and / or to demand the return of the goods subject to retention of title. The demand to return the goods does not at the same time imply a statement of our intention to withdraw from the Contract; we are indeed entitled to demand return of the goods and to reserve our position on withdrawal. If the customer fails to pay the purchase price due, we may only claim these rights when we have unsuccessfully allowed the customer a reasonable period of grace to make payment or when granting such a period of grace is dispensable according to legal regulations.

4. The customer is legally obliged to store the goods purchased from us and subject to our retention of title separately from any third-party goods to which he holds title. If contrary to this obligation goods subject to retention of title are mixed or blended with third party goods so that they can no longer be separated from the third-party goods, we become co-owners of these goods in accordance with the statutory legal provisions. If due to the combining the customer acquires sole or joint ownership, he assigns joint ownership to us in the proportion of the value of our goods subject to retention to the value of the third-party goods at the time of the mixing / combining. The value of our goods is determined in accordance with our list price, taking into account a reasonable rebate for usage. In such cases, the customer must look after the goods in our ownership or part-ownership, as the case may be, which are also deemed to be goods subject to reservation of title to ownership, free of charge.
 

5. In accordance with (c) below, the customer is authorised to resell and / or to re-process the goods subject to retention of title in the normal course of business. In this case, the following additional regulations apply.

a) The retention of title extends to the full value of the new products created by processing, mixing or combining our goods, whereby we are deemed to be the manufacturer. If in processing, mixing or combining with third party goods, the latter’s retention of title prevails, we acquire co-ownership in proportion of the invoiced value of the processed, mixed or combined goods. In addition, the same applies to the product created as for the goods supplied subject to retention of title. The value of our goods is determined in accordance with our list price, taking into account a reasonable rebate for usage.

b) The customer assigns all receivables or an amount thereof corresponding approximately with the value of our co-ownership proportion created against third parties arising from the selling on of the goods or product in accordance with the section above by way of a collateral security. We accept this assignment. The customer’s obligations listed in section 2 also apply in view of the liabilities assigned.

c) The customer retains authority to collect payment, alongside ourselves. We undertake not to collect the payment as long as the customer fulfils his payment obligations to us, there is no question as to the quality of his performance and we have not had to make use of our right to claim reservation of title in accordance with Section 3. Should we have had to do so however, we may require that the customer reveals to us the debts owed and the debtors, gives us all details necessary for us to collect the receivables, hands over all the relevant documentation to us and advises the debtors (third parties) of the assignment. We are also entitled to notify the debtors of the assignment ourselves. In addition, in this case we are also entitled to rescind the customer’s authority to continue to sell or to process the goods subject to retention of title. 

d) If the realisable value of the securities exceeds our receivables by more than 10 %, we will release securities at our option at the customer’s request. 

 

6. The customer must notify us without delay concerning execution measures instituted by third parties affecting the goods subject to retention of title or the assigned outstanding accounts and hand over all necessary documents to enable an objection to be lodged.

7. On payments being stopped, application being made to open insolvency proceedings (rights of the administrator as per the Insolvency Ordinance [InsO]) or out-of-court composition proceedings, the rights to continue to resell, use or install the goods subject to retention of title and the authority to collect the assigned debts lapse.

8. Should the customer not co-operate in this segregation, we shall be entitled to undertake it ourselves, with the assistance of an expert.

VIII. Warranties

1. For the rights of the customer in case of defects as to quality and defects of title (including incorrect and short deliveries as well as incompetent installation or faulty fitting instructions) the legal provisions apply, except as otherwise provided in the following.

2. The customer’s claims for defect presupposes compliance with the statutory duty of prior examination and to give notice of defects as per Paragraphs 377, 381 HGB. If on inspection or later a defect is revealed, we are to be notified in writing without delay. The notification is deemed to have been made without delay when it is sent off within seven calendar days, the date of dispatch being decisive for meeting the deadline. Independent of the examination and defect notification obligation, the customer must notify obvious defects, such as incorrect and short deliveries, in writing within two weeks of delivery; here again, the date of dispatch is decisive for meeting the deadline. If the customer fails to perform a regular inspection and / or notify us of defects in respect of the defect(s), our liability for the defect not notified or not properly notified is excluded.

3. If the goods delivered prove to be defective, we are obliged to provide subsequent performance and are entitled to do so. Subsequent performance will be, at our option, either by rectification or replacement delivery. We are entitled to make the subsequent performance which is due dependent on the customer paying the relevant purchase price. The customer is entitled to retain a reasonable proportion of the purchase price, reflecting the defect in the goods delivered.

4. The customer is obliged to allow us the time and opportunity to provide the subsequent performance which is due and in particular to hand over the defective goods for the purpose of testing them. In the case of a replacement delivery, the customer must return the defective goods to us in accordance with legal provisions. In the event that a demand by the customer for correction of a defect turns out to be unjustified, we can demand reimbursement of the costs arising from this (in particular inspection and transport costs) from the customer unless the lack of a defect could not have been detected by the customer.

5. When the subsequent performance turns out to be unsuccessful or a reasonable deadline to be set by the customer expires without result or is dispensable in accordance with legal regulations, the customer may withdraw from the purchasing contract or claim a reduction in the purchase price. However, there is no right of rescission if the defect is insignificant.

6. Customer claims for compensation or for reimbursement in respect of frustrated expenditure may only be made as per Paragraph IX and are otherwise excluded.

7. When considering the amount of a claim to be met by us, our economic circumstances, type, extent and duration of the business relationship, any contributory causation and/or fault theon the part of the customer in accordance with Paragraph 254 of the BGB and a particularly unfavourable installation situation of the part supplied are to be reasonably taken into account to our benefit. In particular, the compensation, costs and expenses we are expected to bear must be in reasonable proportion to the value of the part delivered.

8. The guarantee lapses completely or partially 

  • if without our agreement the customer alters the item delivered or has it altered by a third party and the correction of a defect is thereby made impossible or unreasonably difficult; in any event, the customer must bear the additional costs for correcting the defect which are occasioned by such an alteration;
  • in the event of unsuitable or improper handling of the goods, incorrect setting up or commissioning by the customer or third parties, fair wear-and-tear, wrong or careless handling, inadequate servicing, unsuitable operating supplies, defective structures, unsuitable building land, chemical, electro-chemical or electrical influence where these would not be reasonably expected by us; 
  • on inadequate or inexpert repair by the customer or third parties or unauthorised alterations to the goods.

IX. Liability 

1. Except as otherwise provided in these General Conditions of Sales and Delivery, including the following conditions, we shall be liable for a breach of contractual and/or non-contractual obligations in accordance with the relevant statutory provisions..

2. We are liable to the customer in accordance with the legal provisions for expenditure necessarily incurred for subsequent performance, provided the customer has in good faith installed a defective purchased part of a type which should have been suitable for the purpose or has fitted the said defective purchased part to another unit. When considering the amount of expenditure to be reimbursed by us in respect of subsequent performance, the overall commercial situation between the two parties and the significance of the defect for the business transaction in question must be reasonably taken into account. The costs and expenses connected with subsequent performance are to be set in relation to the purchased goods. Where these costs and expenses exceed the value of the purchased goods and we are not responsible for having delivered the defective goods, our reimbursement of subsequent performance is limited to 100 % of the value of the defective purchased goods. If it can be demonstrated in contrast that we were responsible for delivery of the defective goods, our reimbursement of subsequent performance is limited to a maximum of 150 % of the value of the defective goods. If the reimbursement to be made by us is disproportionate, the legal regulations shall apply. There shall be no reduction to a “reasonable amount” or to the proportions quoted previously. 

3. We are liable for compensation in the event of intent or gross negligence, irrespective of legal grounds. In the event of simple negligence, we are liable, subject to a milder measure of liability in accordance with legal provisions (e.g., for care in attending to our own affairs) only

  • for damage or injury to life, body or health,
  • for damages resulting from the breach of an essential contractual obligation (obligation, the fulfilment of which makes the proper performance of the contract possible in the first place and on
  • whose observance the contractual partner regularly relies and may rely) is limited to compensation for the foreseeable, typically occurring damage. 

4. The restrictions on liability derived from section 2 do not apply in the event that we have fraudulently concealed a defector have undertaken a guarantee concerning the quality of the goods. The same applies in the case of the customer making a claim under the provisions of the Product Liability Act.

5. The customer may only withdraw from or give notice to terminate the contract on account of an infringement of obligation which does not relate to a defect when we are responsible for the infringement. A free right of termination of the customer (in particular in accordance with Paragraphs 651, 649 BGB) is excluded. Otherwise, the legal provisions and consequences apply.

X. Statute-barring

1. Warranty claims become statute-barred within twelve months of transfer of risk. Provided an acceptance has been agreed, the limitation period commences with the acceptance.

2. However, if the goods take the form of a building or is something which according to its usual purpose is used for a building and has caused its defectiveness (building material), the limitation period according to legal provisions is five years from the date of delivery (Paragraph 438 Section 1 clause 2 BGB).
3. The above limitation periods in sale of goods law also apply to contractual and non-contractual compensation claims made by the customer in respect of defect in goods, unless applying the normal legal limitation (Paragraphs 195, 199 BGB) would lead to a shorter limitation period in the individual case. However, customers’ compensation claims as per Paragraph IX Section.3 and also according to the Product Liability Act lapse exclusively in accordance with the legal provisions

XI. Final Provisions

1. This Contract is governed by the laws of the Federal Republic of Germany, and the UN CISG is expressly excluded.

2. For all claims and disputes arising from this Contract or in connection with these General Conditions of Sales and Delivery, it is agreed that the court with exclusive jurisdiction shall be that responsible at our headquarters. We are nevertheless entitled to take action against the customer at the court responsible for his own place of business.  
3. The original language of the Contract is German.
 
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