Terms of delivery and payment
§ 1 Validity of the terms
- The deliveries, performances and offers of the seller shall be performed exclusively on the basis of these terms and conditions. They shall thus also apply for all future business relations even if they were not expressly agreed upon once more.
- Deviations from these terms and conditions on the part of the purchaser whilst referring to his own terms and conditions or purchasing conditions shall thus be herewith rejected.
§ 2 Conclusion of contract
- The seller’s offers are subject to change and non-binding.
- Additional agreements, modifications and supplements shall only be valid if the seller confirms them in writing. The same shall also apply for the assurance of properties.
- The drawings and specifications stipulated upon the conclusion of the contract are the present state of the art. The seller shall expressly reserve the right to make changes under this contract provided that such changes are not of a fundamental nature and do not considerably impede the purpose of the contract.
§ 3 Prices
- All prices are net exclusive of VAT. The purchaser must pay the amounts at the respective statutory rate.
§ 4 Delivery times
- The dates and time limits specified by the seller shall be non-binding provided nothing else was expressly agreed upon in writing.
- The seller shall not be responsible for delays in delivery due to force majeure and due to events which make it considerably more difficult or impossible for the seller to perform the delivery (in particular material procurement difficulties, interruptions of operations, strikes, lockout, manpower shortages, a lack of means of transportation, regulatory actions even if they arise at the premises of the seller’s suppliers or their sub-suppliers) even if the dates and time limits were bindingly agreed. They entitle the seller to prolong the term for the delivery by the duration of the disruption plus an appropriate start-up time, or to cancel the contract wholly, or in part, in respect of the part of the contract not yet performed.
- If the disruption is of more than 6 weeks duration the purchaser shall be entitled to cancel the contract in respect of the part of the contract not yet performed following an appropriate period of grace.
- Compensation due to non-fulfilment can only be demanded by the purchaser if the seller or its vicarious agents has caused the damage with intent or in a grossly negligent manner.
- The seller shall be entitled to make part deliveries and render partial performances at any time.
§ 5 Warranty and liability
- If the object of delivery is defective or lacks assured properties, or if it becomes defective within the warranty period due to production or material defects, the seller shall at its choice supply a replacement or make subsequent improvements at the exclusion of any other warranty claims on the part of the purchaser - in particular at the exclusion of any consequential damages of the purchaser. Multiple repairs shall be permitted.
- The purchaser is obliged to immediately inspect the goods following their arrival. The seller shall be immediately notified in writing of evident defects immediately following the delivery, but at the latest within a period of 2 weeks following delivery. The defective items shall be kept available in the condition in which they were at the point in time at which the defect was discovered, for inspection by the seller. A violation of the aforementioned obligations shall rule out any warranty claims against the seller.
- The purchaser can demand a reduction of the remuneration or the cancellation of the contract at its choice if the subsequent improvement or the replacement delivery is unsuccessful following an appropriate period of grace.
- Claims for damages due to the impossibility of performance, non-fulfilment, due to a positive violation of claim, due to culpa in contrahendo and due to a tortuous act, are out of the question against both the seller and also against its vicarious agents or assistants if the damage was not caused by intent or in a grossly negligent manner.
§ 6 Reservation of title
- The seller retains the title of the goods delivered (conditional commodity) until all the demands (including outstanding balances), which the seller is entitled to now, or in the future, due to any legal grounds from the purchaser, have been met.
- In the event of conduct on the part of the purchaser that is in breach of the contract, in particular in the event of a default in payment, the seller is entitled to take the conditional commodity back at its expense. The taking back of the conditional commodity of the seller does not constitute a cancellation of the contract.
- The purchaser is entitled to resell the conditional commodity in the ordinary course of business while retaining the title to them. However, he now already assigns his accounts receivable from this resale to the seller irrespective of whether the delivery is resold without processing or if it is connected or not with a piece of land or a movable object. The purchaser is entitled to collect the assigned accounts receivables itself in the ordinary course of business. The seller is also authorised to collect the accounts receivable itself, but shall undertake to only do this for such time as the purchaser fulfils its payment commitments vis-à-vis the seller in an orderly manner. However, the purchaser may not pledge the goods, not assign them as a security, or dispose of the goods in a way other than the ways permitted here.
§ 7 Payment
- The seller's invoices shall be payable as agreed. If no agreement is present, the invoices shall be immediately paid net cash.
- The seller expressly reserves the right to reject cheques or bills of exchange. They shall only be accepted in lieu of payment. Discounting and bill of exchange charges shall be borne by the purchaser and are immediately due for payment.
- If the purchaser is in default of payment the seller is entitled to charge interest corresponding to the rate of interest charged by commercial banks for unpaid current account overdrafts , but at least 8% above the respective base rate of interest of the European Central Bank. The interest shall be payable immediately.
- If the customer does not meet its payment obligations, in particular if a cheque or bill of exchange is not honoured or he ceases making his payments, or if the seller becomes aware of other circumstances, the seller is entitled to declare the entire remaining debts are due for payment, even if it has accepted bills of exchange or cheques. In this case the seller is additionally entitled to demand prepayments or the provision of a security for all contracts, and to cancel these contracts after an appropriate period of grace, or demand compensation due to non-fulfilment.
- The purchaser is only entitled to set-off, if the counter-claim is uncontested or has been finally established in court. If the purchaser is a registered trader rights of retention shall be excluded.
§ 8 Place of jurisdiction and partial ineffectiveness
- The place of performance is Wilnsdorf. If the purchaser is a not a registered trader, Siegen shall be agreed upon as the place of jurisdiction for any disputes from the contracts and legal relationships linked with them.
- If one or several of the above provisions should be, or become, ineffective then this shall not affect the effectiveness of the remaining provisions. The ineffective provision shall be replaced by an effective provision which comes as close as possible to realising the economic purpose pursued by it.
Stand: October 2014