1.1 The following terms and conditions are valid for all our offers, sales, deliveries and services and become part of the contract. They do not apply if our contractual partner is a private person and does not act professionally or commercially. They shall also apply to all future business relations, even if they are not expressly agreed again.
1.2 We hereby expressly object to any deviating or supplementary general terms and conditions of the Buyer. They shall not apply even if the Buyer has based his order or other declaration on them.
§2 Offers and orders
2.1 Our offers are subject to change unless they are designated as binding in a written form. An effective contract shall therefore only be concluded by our order confirmation or the delivery of the goods.
2.2 Dimensions, weights, illustrations, drawings as well as other documents which are part of our non-binding offers remain our property and are only approximate measurements. They can only become a binding part of the contract if expressly confirmed by us in a written form.
§3 Doubtful solvency
3.1 If, after conclusion of the contract, we become aware of circumstances that give rise to doubts about the Buyer's solvency, we may make further deliveries conditional on advance payment for the goods by the Buyer. We may set the Buyer a reasonable deadline for the advance payment of the goods and withdraw from the contract if the advance payment is not received by us within the deadline; the Buyer may provide security in the form of a bank guarantee instead of the advance payment. If we have already delivered the goods, the purchase price shall be due immediately without deduction, irrespective of any agreed payment periods.
3.2 Doubts as to the Buyer's ability to pay shall be justified, inter alia, if an application for the opening of insolvency proceedings against his assets has been filed or if he fails to make payments to us or third parties on time.
4.1 Our prices shall apply "ex works" unless otherwise agreed with the Buyer.
4.2 Statutory value added tax is not included in our prices and shall be shown separately on the invoice at the rate applicable by law on the date of invoicing.
§5 Delivery time
5.1 All delivery dates stated are non-binding and shall be deemed to have been agreed only approximately, unless they have been expressly designated by us as binding. In the case of non-binding delivery dates, a delivery within 14 days of the stated delivery time shall in any case still be deemed to be on time.
5.2 If we are culpably unable to meet an expressly agreed deadline or are in default for other reasons, the Buyer shall grant us a reasonable grace period. After fruitless expiry of this grace period, the Buyer shall be entitled to withdraw from the contract.
5.3 Before the expiry of the delivery period or performance period extended in accordance with paragraph 3, the Buyer shall not be entitled to withdraw from the contract or to claim damages. If the impediment to performance lasts longer than 8 weeks, both the purchaser and we shall be entitled to withdraw from the contract insofar as the contract has not yet been performed. If the Buyer is entitled to withdraw from the contract by contract or by law (e.g. due to loss of interest) without setting a grace period, this right shall remain unaffected.
5.4 In the event of any delay in delivery, insofar as it is not due to intent or gross negligence, claims for damages of any kind shall be excluded.
6.1 Shipment shall be made for the account of the Buyer. The risk shall pass to him upon loading of the goods, even if carriage paid delivery has been agreed and/or the shipment is made with our own vehicles. We are not obliged to provide transport insurance.
6.2 Unless expressly agreed otherwise in a written form, we shall be entitled to make partial deliveries to a reasonable extent, which shall be invoiced individually.
6.3 We shall not assume any warranty for damage occurring during transport. We must be notified of any complaints within 2 days of receipt of the goods, otherwise they shall be disregarded.
7.1 Our invoices shall be payable without deduction within 30 days from the date of invoice, unless another payment term has been agreed to.
7.2 The Buyer shall be in default even without a reminder from us if he does not pay the purchase price within 7 days after the due date and receipt of the invoice or an equivalent payment schedule.
7.3 If the Buyer defaults on a payment, all his payment obligations arising from the business relationship with us - including those for which bills of exchange have been given - shall become due immediately. In this case, we shall be entitled to demand interest from the relevant point in time at the legally stipulated rate. The Seller reserves the right to prove higher damages.
7.4 Bills of exchange shall only be accepted on account of performance after prior agreement and in case of discountability without granting a discount. Payments by check/bill of exchange shall also only be accepted on account of performance. The purchase price claim expires only after complete redemption of the bill of exchange. Bill of exchange and discount charges shall be charged separately and shall be payable immediately without deduction.
7.5 The Buyer shall only be entitled to set-off, even if notices of defects or counterclaims are asserted, if the counterclaims have been legally established, recognized by the Seller or are undisputed. The Buyer shall only be entitled to exercise a right of retention if its counterclaim is based on the same purchase contract.
8.1 The Buyer shall inspect the goods received for completeness, transport damage, obvious defects, condition and their properties. Obvious defects shall be notified to us by the Buyer in a written form within 2 weeks from delivery of the subject matter of the contract.
8.2 We shall not be obliged to provide a warranty if the Buyer has not notified us in a written form of an obvious defect in due time. Insofar as there is a defect in the goods for which we are responsible and which has been notified by the Buyer in a written form in good time, we shall be obliged - to the exclusion of the Buyer's rights to withdraw from the contract or to reduce the purchase price - to provide subsequent performance, unless we are entitled to refuse subsequent performance on the basis of the statutory provision. The Buyer shall grant us a reasonable period of time for subsequent performance for each individual defect.
8.3 Subsequent performance may be effected, at the Buyer's option, by removal of the
defect or delivery of new goods. We shall be entitled to refuse the type of subsequent performance chosen by the Buyer if it is only associated with disproportionate costs. During the subsequent performance, the reduction of the purchase price or the withdrawal from the contract by the buyer shall be excluded. A subsequent improvement shall be deemed to have failed after the second unsuccessful attempt. If the supplementary performance has failed or if the Seller has refused the supplementary performance as a whole, the Buyer may, at its option, demand a reduction of the purchase price or declare its withdrawal from the contract.
8.4 The Buyer may only assert claims for damages under the following conditions due to the defect if the subsequent performance has failed or if we refuse subsequent performance. The Buyer's right to assert further claims for damages under the following conditions shall remain unaffected.
8.5 We shall be liable without limitation in accordance with the statutory provisions for intentional or grossly negligent breaches of duty and for damage resulting from injury to life, limb or health. Otherwise, we shall only be liable if the breached contractual obligation is recognizably essential for achieving the purpose of the contract, and only limited to the amount of the typically foreseeable damage.
8.6 The limitation of liability according to paragraph 5 shall apply accordingly to claims for damages other than contractual claims, in particular claims in tort, with the exception of claims under the Product Liability Act. It shall also apply in favor of our employees, workers, representatives and vicarious agents.
8.7 Insofar as we have given a quality and/or durability guarantee with regard to the goods or parts thereof, we shall also be liable within the scope of this guarantee. However, we shall only be liable for damage based on the absence of the guaranteed quality or durability, but which does not occur directly to the goods, if the risk of such damage is obviously covered by the guarantee of quality and durability.
8.8 We shall also be liable for damages caused by simple negligence, insofar as such negligence relates to the breach of such contractual obligations, compliance with which is of particular importance for the achievement of the purpose of the contract (cardinal obligations). However, we shall only be liable to the extent that the damage is typically associated with the contract and is foreseeable. Otherwise, we shall not be liable for simple negligent breaches of ancillary obligations that are not essential to the contract. The limitations of liability contained in §7 shall also apply insofar as the liability for the legal representatives, executive employees and other vicarious agents of the Seller is concerned.
8.9 Any further liability shall be excluded irrespective of the legal nature of the asserted claim. Insofar as the Seller's liability is excluded or limited, this shall also apply to the personal liability of its employees, workers, staff, representatives and vicarious agents.
§9 Retention of title
9.1 We retain title to the goods (goods subject to retention of title) until receipt of all payments under the purchase contract. The delivered goods shall not become the property of the Buyer until the Buyer has fulfilled all his obligations arising from the business relationship, including ancillary claims, claims for damages and encashment of checks and bills of exchange. In the case of the check/bill of exchange procedure, the retention of title in all its forms listed here shall not expire with the payment of the check, but only with the redemption of the bill of exchange.
9.2 The Buyer shall notify us in written form without delay of all third party seizures, in particular of compulsory execution measures and other impairments of its property. The Buyer shall compensate us for all damages and costs arising from a breach of this obligation and from necessary measures to protect against access by third parties.
9.3 If the Buyer fails to meet his payment obligation despite a reminder from us, we may demand the surrender of the reserved goods still owned by him without setting a deadline in advance. The transport costs incurred in this connection shall be borne by the Buyer. The seizure of the reserved goods by us shall always constitute a withdrawal from the contract. After retention of the goods subject to retention of title, we shall be entitled to realize them. The proceeds of the sale shall be set off against our outstanding claims.
§10 Force majeure
10.1 "Force Majeure" means the occurrence of an event or circumstance ("Force Majeure Event") which prevents a Party from performing one or more of its contractual obligations under the Contract, if and to the extent that the Party affected by the hindrance ("Affected Party") proves that:
(a) such impediment is beyond its reasonable control; and
(b) it could not reasonably have been foreseen at the time of entering into the Agreement; and
(c) the effects of the impediment could not reasonably have been avoided or overcome by the affected party.
10.2 If a Party fails to perform one or more of its obligations under the Contract due to the failure of a third party to whom it has entrusted the performance of the whole or part of the Contract, that Party may invoke force majeure only to the extent that the requirements for presuming the existence of force majeure, as defined in paragraph 1 of this clause, apply not only to the Party but also to the third party.
apply not only to the contracting party but also to the third party.
10.3 Until proven otherwise, the following events affecting a party shall be presumed to meet the requirements for the presumption of force majeure under paragraph 1 lit. (a) and lit. (b). In this case, the party concerned only has to prove that the condition under paragraph 1 lit. (c) is actually fulfilled: Presumed events of force majeure are generally referred to as force majeure.
a) War (declared or undeclared), hostilities, attack, acts of foreign enemies, large-scale military mobilization;
(b) Civil war, riot, rebellion and revolution, military or other seizure of power, insurrection, acts of terrorism, sabotage, or piracy;
(c) Monetary and trade restrictions, embargo, sanctions;
(d) Lawful or unlawful official acts, compliance with laws or government orders, expropriation, seizure of works, requisition, nationalization;
(e) Plague, epidemic, natural disaster or extreme natural event;
(f) explosion, fire, destruction of equipment, prolonged failure of transportation, telecommunications, information systems or power;
g) general labor unrest such as boycotts, strikes and lockouts, slowdowns, occupation of factories and buildings.
10.4 The affected party shall immediately notify the other party of the event.
10.5 A party successfully invoking this clause shall be released from the obligation to perform its contractual obligations and from any liability for damages or any other contractual remedy for breach of contract; but only if it gives immediate notice thereof. However, if the notice is not given without undue delay, the release shall take effect only from the time the notice reaches the other party. The other party may suspend the performance of its obligations, if force majeure is indeed to be assumed, as of the date of such notification.
10.6 If the effect of the asserted impediment or event is temporary, the consequences set forth in paragraph 5 shall apply only as long as the asserted impediment prevents the performance of the contractual obligations by the affected party. The affected party shall notify the other party as soon as the impediment no longer prevents the performance of its contractual obligations.
10.7 The affected party shall be obliged to take all reasonable measures to limit the effects of the event relied upon in the performance of the contract.
10.8 If the duration of the obstacle invoked has the effect of substantially depriving the contracting parties of what they could reasonably expect by virtue of the contract, the respective party shall have the right to terminate the affected contract by notifying the other party within a reasonable period of time. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party if the duration of the impediment has exceeded 120 days.
10.9 If paragraph 8 is applicable and a Party has gained an advantage through an act of another Party in the performance of the Contract prior to termination of the Contract, it shall pay to the other Party an amount of money equal to the value of the advantage.
§11 Place of performance
The place of performance for payments is Mönchengladbach, for our deliveries of goods the place of dispatch.
§12 Data processing
The Buyer agrees that we may process, in particular store or transmit to a credit protection organization, the data about the Buyer received in connection with the business relationship in compliance with the Federal Data Protection Act for the fulfillment of our own business purposes, provided that this is done within the scope of the purpose of the contract or is necessary to protect our legitimate interests and there is no reason to assume that the Buyer's interest worthy of protection in the exclusion of the processing, in particular the transmission, of this data prevails.
§13 Place of jurisdiction and applicable law
13.1 The contractual relationship between the Buyer and us shall be governed exclusively by the laws of the Federal Republic of Germany, even if the Buyer has his place of residence or business abroad. The application of the Uniform Law on the International Sale of Goods and the Law on the Formation of Contracts for the International Sale of Goods shall be excluded.
13.2 The Buyer shall not be entitled to assign claims arising from the purchase contract without the Seller's consent.
13.3 If the Buyer is a merchant, a legal entity under public law or a special fund under public law, the place of jurisdiction for both parties - also for actions on bills of exchange and checks - shall be Mönchengladbach. However, we shall also be entitled to sue the Buyer at its general place of jurisdiction.