1. scope of application

1.1 Our deliveries, services and offers are made exclusively on the basis of these terms and conditions. These shall therefore also apply to future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods/delivery. Counter-confirmations of our customer and the reference to his general terms and conditions are hereby contradicted.

1.2 Deviations from these terms and conditions shall only be effective if we expressly confirm them in writing.

1.3 These terms and conditions shall apply exclusively to entrepreneurs, legal entities under public law or special funds under public law within the meaning of § 310 para. 1 BGB (German Civil Code).

2. offer and conclusion of contract

2.1 Our offers are subject to change without notice. If the order qualifies as an offer according to § 145 BGB, we can accept it within 4 weeks.

2.2 Agreements made between our employees or representatives and our customers during or after conclusion of the contract require our confirmation in order to be valid; the power of representation of our employees or representatives is limited in this respect.

2.3 Drawings, illustrations, dimensions, weights or other performance data are approximate values customary in the industry so that deviations customary in the trade are permissible. We also reserve the right to make technical changes as well as changes in shape, colour, quality and/or weight within reasonable limits. This shall also apply if samples or specimens have been provided to the customer. Such information is not to be understood as quality guarantees.

3. prices, price increase, payment

3.1 All prices are quoted net ex warehouse or factory without value added tax, packaging, insurance and other ancillary costs. All additional costs (e.g. freight, insurance, export, transit, import and other permits as well as notarizations) including packaging shall be borne by the customer. Our customer shall also bear all types of taxes, levies, fees, customs duties and the like levied in connection with the contract or refund them to us against corresponding proof if we have become liable to pay. In particular, the customer shall pay the value added tax applicable on the day of delivery.

3.2 Price changes shall be permissible if there are more than 6 weeks between the conclusion of the contract and the agreed delivery date or if, for reasons for which the customer is responsible, delivery can only take place after the expiry of the 6 weeks. If wages, material costs or market cost prices increase thereafter until completion of the delivery, we shall be entitled to increase the agreed price appropriately in line with the increase in costs. In the event of an increase, our customer shall only be entitled to withdraw from the contract if the price increase significantly exceeds the increase in the general cost of living between conclusion of the contract and delivery.

3.3 Unless expressly agreed otherwise, the invoice amount is due immediately and payable as follows:

a) 14 days after the invoice date with a 2% discount on the value of the goods, i.e. not on repair and assembly costs.

b) 30 days after date of invoice without any deduction.

3.4 If the customer is in default of payment, we shall be entitled to assert the rights arising from § 288 BGB (German Civil Code).

3.5 Our customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. Furthermore, he is only entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.

3.6 If we are aware of circumstances which call the creditworthiness of our contractual partner into question, we shall be entitled to demand down payments or security without prejudice to further legal claims.

3.7 Cheques and bills of exchange, which we reserve the right to accept, shall not be deemed payment until they have been honoured. Any discount and bank charges shall be borne by our customer.

3.8 The goods shall be delivered subject to retention of title in accordance with these terms and conditions. Insofar as we agree with the customer payment of the purchase price debt on the basis of the cheque/bill of exchange procedure, the reservation shall also extend to the redemption of the bill of exchange accepted by us by the customer and shall not expire by crediting the cheque received to us.

4 Transfer of risk, packaging

4.1 Unless otherwise agreed, delivery is agreed from our registered office. The risk shall pass to our customer as soon as the consignment has been handed over to the person carrying out the transport or has left our warehouse for the purpose of dispatch; this shall also apply if we carry out the transport ourselves.

4.2 If dispatch becomes impossible through no fault of our own, the risk shall pass to the customer upon notification of readiness for dispatch.

4.3 If requested by our customer, we shall cover the delivery by transport insurance, the costs incurred in this respect shall be borne by the customer.

5. delivery periods

Delivery periods and dates shall only be deemed binding if confirmed by us in writing. A performance period determined only in terms of duration shall commence at the end of the day on which agreement has been reached on all details of the contents of the order, at the earliest with the acceptance of the order by us, but not before the provision of all documents, approvals, releases to be procured by the customer and not before receipt of any down payment to be made by the customer. A delivery period or delivery date shall be deemed to have been met if the goods or, in cases in which the goods cannot or should not be dispatched, our notification of our readiness to deliver has been dispatched by us by the end of the period. Delivery periods shall be reasonably extended – even within a delay – in the event of force majeure and unforeseen obstacles occurring after conclusion of the contract for which we are not responsible, insofar as such obstacles demonstrably have a considerable influence on the delivery of the object sold. In any case, strikes and lockouts shall also be deemed to be an action for which we are not responsible within the meaning of this paragraph. The above provisions shall also apply if the delaying circumstances occur at our suppliers or their sub-suppliers. If delivery delays caused in this way last longer than 6 weeks, our contractual partner shall be entitled to withdraw from the contract to the exclusion of any further claims. Delivery periods shall be extended by the period in which the customer is in default with his obligations – within a current business relationship also from their contracts – or does not create the prerequisites for the commencement or continuation of the work to be carried out by him, in particular if he does not provide necessary documents, plans or other specifications. The proof that he has created the necessary prerequisites and provided the necessary documents, plans or specifications shall be furnished by our contractual partner.

6. delay, exclusion of the obligation to perform

If we are in default with the delivery or if our obligation to perform is excluded according to § 275 BGB, we shall only be liable for damages under the preconditions and to the extent of Clause 9, but with the following additional provisions: If we are in default with the delivery and if there is only a case of slight negligence on our part, our customer’s claims for damages shall be limited to a lump-sum compensation for default amounting to 1 % of the delivery value for each completed week of default, but no more than 15 % of the delivery value, whereby we reserve the right to prove that no damage at all or only minor damage occurred as a result of the default in delivery. In the event of our default, our customer shall only be entitled to claim damages instead of performance if he has previously granted us a reasonable period of grace of at least four weeks for delivery, whereby he reserves the right to grant us a reasonable period of grace of less than four weeks if in individual cases a period of grace of at least four weeks for delivery is unreasonable for him. A right of withdrawal to which the customer is entitled and a claim for damages to which the customer is entitled shall in principle be limited to the part of the contract not yet fulfilled. Claims for damages directed against us due to delay or exclusion of the obligation to perform according to § 275 BGB (German Civil Code) shall become statute-barred one year after the beginning of the statutory limitation period. The above provisions shall not apply in the event of damage resulting from injury to life, limb or health of our contractual partner or if the damage is due to an intentional or grossly negligent breach of duty by us, one of our legal representatives or vicarious agents, or in the event of default if a fixed date transaction has been agreed. This does not imply a change in the burden of proof to the disadvantage of the customer.

7. default of acceptance of our contractual partner

If our contractual partner defaults on the acceptance of our services in whole or in part, we shall be entitled, after the fruitless expiry of a reasonable grace period set by us, to either withdraw from the contract or demand damages instead of performance, but only with regard to the part of the contract not yet fulfilled by us, with the threat that we will refuse acceptance of our services by the customer in the event that the grace period expires. Our statutory rights in the event of default of acceptance on the part of our customer shall remain unaffected. The customer shall reimburse us for our storage costs, storage rent and insurance costs for goods due for acceptance but not yet accepted. However, we are under no obligation to insure stored goods. If the delivery of the goods is delayed at the customer’s request or if the customer is in default of acceptance, we may charge storage charges amounting to 1% of the invoice amount for each month or part thereof of the delay after one month has elapsed since the notification of our readiness to deliver was sent, whereby we reserve the right to assert an actually incurred higher damage. Our customer reserves the right to prove that the storage fee did not arise or did not arise in the required minimum amount.

8. cancellation of orders, return of goods, compensation in lieu of performance

If, at the request of our customer, we agree to the cancellation of a partial order or if we take back goods delivered by us for reasons for which we are not responsible, releasing the customer from his obligation to accept and pay, or if we are entitled to a claim for damages instead of performance, we may demand 20 % of the contract price share corresponding to the affected part of the delivery item as compensation without proof. Our customer reserves the right to prove that no damage or only minor damage has been incurred. Our right to assert an actually incurred higher damage remains unaffected.

9. liability for defects and damages

9.1 Claims of our customer due to defects of the goods presuppose that he has duly complied with his obligations to inspect and give notice of defects as stipulated in §§ 377 and 378 HGB (German Commercial Code), whereby the notice of defects must be made in writing. If our customer fails to give proper and timely notice of defects, he may no longer assert claims based on the circumstances to be notified, unless we have acted fraudulently.

9.2 Warranty claims shall not exist in case of insignificant deviation from the agreed quality, in case of insignificant impairment of usability, in case of natural wear and tear or in case of damage arising after the transfer of risk as a result of faulty or negligent handling, excessive strain, unsuitable operating resources and/or due to special external influences and/or which are not assumed according to the contract.

9.3 Our customer’s claims due to defects in the goods delivered by us shall become statute-barred one year after delivery of the goods, unless longer periods are prescribed by law. For claims for damages and reimbursement of expenses pursuant to § 437 No. 3 BGB (German Civil Code), however, the statutory period shall remain in effect if the damage relates to injury to life, limb and health of our contractual partner or to damage based on an intentional or grossly negligent breach of duty by us, one of our legal representatives or vicarious agents.

9.4 The rights of our customer due to defects of the item shall be determined in accordance with the statutory provisions with the proviso that our customer shall grant us a reasonable period of grace of at least 4 weeks for subsequent performance, whereby he shall reserve the right to grant us a reasonable period of grace of less than 4 weeks in individual cases if a period of grace of at least 4 weeks for subsequent performance is demonstrably unreasonable for him. The period for subsequent performance shall in no case begin before the time at which our customer has returned the defective goods to us, whereby we shall bear the costs of the return. If only a part of the goods delivered by us is defective, the right of our contractual partner to demand cancellation of the contract or compensation instead of performance shall be limited to the defective part of the delivery, unless this limitation is impossible or unreasonable for our contractual partner. Our liability for damages resulting from injury to life, body or health of our contractual partner which are based on a culpable breach of duty is neither excluded nor limited. We shall only be liable for other damages of our contractual partner if they are based on an intentional or grossly negligent breach of duty by us, one of our legal representatives or vicarious agents. If we have caused the damage only by slight negligence, we shall only be liable if it is a matter of breach of essential contractual obligations, limited to the damage typical for the contract and reasonably foreseeable. Otherwise, claims for damages by our contractual partner due to breach of duty, tort or other legal grounds are excluded. The above limitations of liability shall not apply in the absence of warranted characteristics if and to the extent that the purpose of the warranty was to protect the partner from damage which did not occur to the delivered goods themselves. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, co-workers and vicarious agents. The above exclusions of liability shall also apply in any case to consequential damages. However, the above exclusions of liability do not apply to claims under the Product Liability Act.

 

10. producer liability

Our contractual partner shall indemnify us against all claims for damages asserted against us by third parties on the basis of the provisions governing tortious acts, product liability or by virtue of other provisions due to defects or deficiencies in the goods manufactured or delivered by us or by our contractual partner, insofar as such claims would also be justified against our contractual partner or are no longer justified merely on account of the statute of limitations which has meanwhile occurred. Under these conditions, our contractual partner shall also indemnify us against the costs of legal disputes brought against us on account of such claims. If the claims asserted against us are also substantiated or are no longer substantiated merely because the statute of limitations has meanwhile expired, we shall have a pro rata claim for indemnification against our contractual partner, the scope and amount of which shall be governed by § 254 BGB (German Civil Code). Our claims for indemnification and damages pursuant to §§ 437, 440, 478 BGB and for other legal reasons shall remain unaffected by the above provisions.

 

11. retention of title

11.1 Until all claims to which we are entitled against our customers now or in the future have been settled, our customer shall grant us the following securities, which we shall release at our discretion upon request if their nominal value exceeds our claims by more than 20%. Delivered goods remain our property. Processing or transformation shall always take place for us as manufacturer, but without any obligation on our part. If goods delivered by us are processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the invoice value of the goods delivered by us to the invoice value of the other goods used at the time of processing. If our goods are combined with other movable objects to form a uniform object and if the other object is to be regarded as the main object, our customer shall transfer co-ownership to us pro rata insofar as this main object belongs to him. Any transfer of ownership or co-ownership which may be necessary for us to acquire shall be replaced by the agreement already made now that our customer shall keep the item for us as a borrower or, insofar as he does not own the item himself, shall already now replace the transfer by assigning to us the claim for return against the owner. Items to which we are entitled to (co-)ownership in accordance with the above provisions are hereinafter referred to as reserved goods.

11.2 The customer is entitled to sell the reserved goods in the ordinary course of business and to combine them with other goods. The customer hereby assigns to us any claims arising from the sale, combination or any other legal basis with regard to the reserved goods in whole or in part in the proportion in which we are entitled to (co-)ownership of the sold or processed object. We accept the assignment. If such claims are included in current invoices, this assignment shall also include all balance claims. The assignment shall take precedence over the remainder. Subject to revocation, we authorise the customer to collect the assigned claims. The customer must immediately transfer the collected amounts to us as far as and as soon as our claims are due. Insofar as our claims are not yet due, the amounts collected shall be recorded separately by the customer. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claims as long as our customer meets his payment obligations from the collected proceeds, is not in default of payment and, in particular, as long as no petition for the opening of insolvency or composition proceedings has been filed or payments have been suspended. If, however, this is the case, our customer is obliged to inform us of the assigned claims and their debtors, to hand over the associated documents to us and to provide us with all information necessary for collection and to notify the third debtors of the assignment, whereby we are entitled to notify the debtor of the assignment ourselves. In the event of suspension of payments, application for or opening of insolvency proceedings, judicial or extrajudicial composition proceedings, the rights of our customer to resell, process, mix or install the reserved goods and the authorisation to collect the assigned claim shall be deleted even without our revocation.

11.3 Our goods delivered under retention of title shall be stored separately. The customer shall notify us immediately of any third party access to the reserved goods and to the assigned claims. Any costs of interventions or their defence shall be borne by the customer. The customer is obliged to treat the reserved goods with care, in particular to insure them sufficiently at replacement value against fire, water and theft at his own expense.

11.4 In the event of conduct by the customer in breach of contract – in particular default in payment – we shall be entitled to take back the reserved goods at the customer’s expense or to demand assignment of the customer’s claims for surrender against third parties. Our taking back or seizure of the reserved goods shall not constitute a withdrawal from the contract unless we have expressly declared this in writing. Should our retention of title lose its validity for deliveries abroad or for other reasons or should we lose ownership of the goods subject to retention of title for reasons of any kind, our customer shall be obliged to immediately provide us with another security for the goods subject to retention of title or another security for our claim which is effective according to the law applicable at the registered office of the customer and comes as close as possible to the retention of title according to German law.

 

12. ownership of documents, passing them on

We reserve ownership rights and copyrights to illustrations, drawings, calculations, data and other documents created by us; they may not be made accessible to third parties. This applies in particular to such information, above all written documents, which are designated as confidential, before they are passed on to third parties, the customer requires our express written consent.

13. industrial property rights

If the goods are to be manufactured according to drawings, samples or other information provided by the contractual partner, the contractual partner shall be responsible for ensuring that no third-party rights, in particular patents, design or utility models or other industrial property rights and copyrights, are infringed as a result. The customer shall indemnify us against any claims by third parties arising from any infringement of such rights. In addition, our contractual partner shall bear all costs incurred by us as a result of third parties asserting the infringement of such rights and we defend ourselves against it. Should results, solutions or techniques arise in the course of our development work which are in any way patentable, we alone are the owner of the resulting property rights, copyrights and rights of use, and we reserve the right to file the corresponding patent applications in our own name and for our account.

14 Applicable Law, Jurisdiction, Partial Invalidity

14.1 The exclusive place of jurisdiction for all present and future claims arising from the business relationship with companies, legal entities under public law and special funds under public law, including claims based on bills of exchange and cheques, shall be the registered office of our company in Herford. However, we shall also be entitled to sue the customer at another place of jurisdiction applicable to him in accordance with §§ 12.

14.2 Unless otherwise stated in the order confirmation, our place of business in Herford shall be the place of performance.

14.3 The law of the Federal Republic of Germany shall apply exclusively to these terms and conditions and all legal relationships between us and our customer. The application of the UN Convention on Contracts for the International Sale of Goods (United Nations Convention of 11.04.1980 on Contracts for the International Sale of Goods BGBl 1989 II S 588, b.e.r. 1990 II, 1699) as well as other international agreements for the standardization of the sales law is excluded.

14.4 Should any provision of these Terms and Conditions of Sale, Delivery and Payment be or become invalid in whole or in part or should it contain a loophole, this shall not affect the validity of the remaining provisions. The contracting parties shall replace this provision by a new provision which comes as close as possible to its legal and economic meaning and purpose.