Terms of Business
General business terms and conditions (as amended on 18.12.2009)
§ 1 General
1.1
Our general terms of business apply exclusively; we shall not acknowledge conditions to the contrary or conditions of the buyer deviating from our terms and conditions of business, unless their validity is approved in writing.
Our terms of business shall also apply in cases where we are aware of the buyer’s contrary or deviating terms and conditions and unreservedly perform our supply commitment to said buyer.
1.2
Our sales conditions apply only with respect to buyers in the legal sense and corporate bodies in public law and special funds under public law.
1.3
The goods are supplied exclusively in the designs, packaging units and/or minimum quantities specified in our respectively current catalogues or brochures. Where goods are not cited in the current catalogue or brochure, the minimum quantity is the call-off quantity and/or packaging unit specified by our supplier.
1.4
We take back transport packaging from inland buyers. However the precondition for this is that packaging is undamaged and clean and is returned to us free of charge.
1.5
Make and hold orders shall be called off within one year.
1.6
Our general terms of business also apply for all future transactions with the buyer. The following terms of business have primacy over the buyer's deviating terms. The potential waiving of the buyer of the validity of its own terms of business is not invalidated by our silence or our performances. Any deviation from the following conditions requires our written consent in each case.
§ 2 Conclusion of the contract
2.1
The illustration of our range in our respectively current catalogues or brochures does not represent a binding offer. The order of the customer represents a binding offer. Such offers exclusively require our written confirmation for the contract to take effect.
2.2.
Should it transpire that ordered goods are unavailable we reserve the right to withdraw from the contract. We shall notify the buyer immediately of the non-availability and shall refund immediately any considerations already made by the buyer. 2.3. Offers which we produce at the buyer's request are binding only in written form. The binding deadline for said offer is four weeks from the date of its production.
§ 3 Supply and costs
3.1
All delivery periods are non-binding. Events of force majeur and operational interruptions within our operation or in those of our suppliers, transport difficulties and any or all circumstances which hinder the prompt and proper delivery without our culpability shall extend any delivery periods appropriately and entitle us to withdraw from the contract.
3.2
Partial deliveries are admissible. The risk, in the absence of a special agreement, transfers with the dispatch of the delivery parts to the buyer, even in the case of partial deliveries or if the supplier has undertaken to perform further services. At the request of the buyer and at its own costs the shipment shall be insured by the supplier for desired, insurable risks.
Should the shipment be delayed due to circumstances for which the buyer was previously responsible, the risk shall transfer to the buyer from the day of the readiness for shipment while the supplier is nevertheless obliged to obtain corresponding insurances at the request and costs of the buyer.
In the case of buyers abroad the delivery periods shall not commence before the opening of the commercial letter of credit and the presence of any necessary required import licences or certifications.
Supplies abroad shall always take place at the cost and risk of the buyer.
3.3
The minimum order value is 50.00 euros net. Orders below 500.00 euros net shall be subject to a minimum order surcharge of 15 %.
3.4
The shipping costs and the costs of packaging shall be invoiced separately.
3.5
Deliveries shall be in full packaging units in the case of standard products. In the case of custom-made goods, deliveries shall be in the order quantity plus/minus 15 %. The weight tolerances in the case of bales up to 15 grams bale-weight are plus/minus 10 %, over 15 grams plus/minus 5 %.
3.6
We may choose the method of delivery and transport routes wherein we are committed to heeding the clearly-understood interests of the buyer.
§ 4 Prices/payment
4.1.
In principle all prices are in euros. In the case of inland buyers, prices are subject to the respectively prevailing statutory VAT. Buyers in other European countries who do not have a valid TVA number shall also be charged the respectively valid VAT in Germany.
4.2.
Goods deliveries are due for payment at least on the due date given in the invoice with no discount. Should payment be made via bank transfer, payment shall be considered on time only when the amount declared in the invoice is credited to one of our accounts on the due date. 2 % discount is guaranteed for prepayment or net cash or payment within 8 days of the invoice date.
4.3.
We accept payment by cheque. Credit notes for cheques are regarded with value date on the day on which we can dispose of the equivalent value. The buyer shall pay the bank expenses.
4.4.
In the event that payment deadlines are exceeded we are entitled to charge interest on arrears of 1.5 % once a month. Each part of the contract is entitled to demonstrate a different interest rate disadvantage. Additional claims in the event of a default are unaffected.
4.5.
All our claims – including those from other contracts with the buyer – are due immediately in the case of payment arrears or the cessation of payment by the buyer and due to other circumstances occurring or becoming known to us subsequently which give rise to justified and serious doubts as to the solvency of the buyer. This shall not affect farther-reaching claims.
4.6
The buyer shall be entitled to offset only if its counterclaims have been legally established or are undisputed or officially recognised by us. Nor is the buyer entitled to rights of retention due to disputed counterclaims. The assertion of the right of retention is also excluded in cases where the claims depend on different contract relationships.
§ 5 Transfer of risk, dispatch, risk bearing
5.1.
Unless otherwise agreed in writing, dispatch inland is insured by us at our risk. We may choose the transport route and the means of transport. In the case of buyers abroad, the risk transfers at the time the delivery leaves our premises. If the shipment of the delivery is delayed for reasons for which the buyer is responsible the risk is transferred to the buyer with notification of the readiness for shipment, expenses for storage after transfer of the risk shall be borne by the buyer.
§ 6 Retention of title
6.1
We reserve title in the purchased goods until receipt of all payments from the transaction bond with the buyer. Insofar as we agree with the buyer to payment based on the check/bill of exchange procedure, this reservation also extends to the encashment by the buyer of the bill of exchange accepted by us and does not expire by with the credit note of a cheque received by us. In the event of a breach of contract by the buyer, especially a default in payment, we are entitled to take back the goods. The taking back of the item by us is accompanied by a withdrawal from the contract. We are authorised to sell the purchased goods at their sale value and the proceeds of such a sale will be credited to the purchaser's liabilities minus reasonable sales costs.
6.2
The buyer is entitled to resell the purchased goods in the proper course of business but shall now assign to us all claims to the amount of the purchase price (including VAT) to which the buyer is entitled from resale to customers or third parties, and this independent of whether the purchased goods were resold without or after processing.
The buyer remains authorised for collection of this claim even after assignment. Our authority to collect the claim ourselves remains unaffected by this. We are, however, obliged not to extract the claim as long as the buyer complies with its payment duties from the received proceeds of sale, does not enter into payment arrears and, in particular, has not been issued a petition for the opening of settlement or solvency proceedings or filed for bankruptcy. Should this be the case we can insist that the buyer disclose the assigned claims and its debtors, provide all necessary details for collection, hand over the associated documents and immediately inform the debtors (third parties) of the assignment. The claim assigned by us in advance shall also relate to the recognised balance as well as to the existing balance in the case of insolvency of the purchaser.
6.3
Processing or alterations to the goods made by the supplier shall be carried out for us. If the purchased goods are processed jointly with other items not being our property, then we acquire co-ownership in the new items in relation of the value of the purchased goods (purchase price plus VAT) to the other objects processed at the time of processing. Otherwise,
the same applies to the item created by processing as applies to the purchased goods delivered under reservation of title.
6.4
If the purchased goods are inseparably combined with other objects which do not belong to us, we obtain co-ownership of the new item in relation to the value of the purchased goods (purchase price plus VAT) to the other processed items at the time of mixing. If the mixing takes place in such a manner that the item of the buyer is to be viewed as the main thing, it is agreed upon that the buyer transfers ownership to us proportionately. The buyer shall treat our sole or co-owned property with care.
6.5
As security against our claims against the buyer, the buyer shall also assign to us claims acquired vis-à-vis third parties as a result of the connection of the delivered goods to a property.
6.6
We undertake to release the security owed to us at the buyer’s request to the extent that the value of our security exceeds the claim to be secured by more than 10%; the selection of the type of security to be released shall be incumbent upon us.
§ 7 Notice of defects and claims for defects
7.1.
The buyer is required to examine the consignment without delay upon delivery even if patterns or samples have been sent previously. The buyer shall inform us about obvious defects within a period of 2 weeks starting from the receipt of the goods otherwise the assertion of the warranty is excluded. Punctual dispatch suffices for observance of the deadline; the burden of proof lies with the customer. The goods shall be checked immediately on delivery for freedom from defects and completeness and any defects discovered reported to us without delay. If the buyer fails to perform said inspection or notification of defects in due time, the goods delivered shall be deemed to have been approved except where the defect was not apparent during the inspection. Defects discovered later must be reported to us immediately otherwise, the goods shall be deemed as accepted with regard to these defects.
7.2.
The notification of defects shall be in writing and the defects shall be described in detail. Otherwise §§ 377 f. HGB applies accordingly
7.3.
Should the buyer detect damage to packaging on receipt of goods the customer shall obtain written confirmation of the same from the transport company on acceptance of the goods. Damage in transit that is not ascertained until after the goods have been unpacked shall be notified to us in writing within 5 days of receipt.
7.4.
Claims for warranty and damages shall come under the statute of limitations 1 year after delivery of the goods.
7.5. If the defect is verified we shall accept liability for proven material or production defects in a manner excluding any payment obligation such that we shall repair faulty parts or replace them with new parts at our discretion. Should the repair or replacement fail, the buyer may then choose to request a reduction of the purchase price or rescission of the contract.
7.6.
Liability for defects arising from natural wear and tear or damage occurring after the transfer of risk due to defective or negligent handling, excessive loading, unsuitable operating resources or other misuse is excluded. General user manuals for our products are available from us at any time on request.
§ 8 Liability
8.1.
Subject to the following regulations we are not liable – on whatever legal grounds – for slightly negligent dereliction of duties on our part or on the part of our statutory representatives or vicarious agents. In the case of slightly negligent dereliction of cardinal duties our liability is limited to the amount of the typically foreseeable claim. We are not liable for dereliction of duties caused by negligence such as default or impossibility of performance or for dereliction of duties of care caused by slight negligence.
8.2.
In each case – except in the case of deliberate damage – any duty of replacement on our part is limited to such damage which might be foreseeable as a consequence of the handling required for replacement.
8.3.
The present liability exclusions and restrictions do not apply cases of liability irrespective of culpability, particularly according to the production liability law, or in the case of damage to health and limb or loss of life where there is culpability.
8.4.
Buyer's claims against us – for whatever legal reason – fall under the prescription of claims at least 1 year after the transfer of the risk to the buyer if we have acted negligently or are liable irrespective of culpability. In the case of intent the limitation period is 3 years. Any shorter statutory limitation periods have primacy.
§ 9 Final provisions
9.1.
Subject to the law of the Federal Republic of Germany. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
9.2.
If the Customer is a merchant, a corporate body in public law or a special fund under public law, the exclusive place of jurisdiction for all disputes from this contract is Hemer. The same applies if the Customer has no general place of jurisdiction in Germany.
9.3.
Should individual provisions of the contract between us and the customer, including these general terms of business, be or become wholly or partly void or should a loophole appear herein, this shall not affect the validity of the remaining provisions.
9.4.
Reference is made to the fact that the customer data is stored separately as inventory data and accounting data in the context of the current data protection regulations.
