Terms of sale, delivery and payment The following terms and conditions shall apply to all - including future - deliveries and services, unless otherwise agreed in writing between the contracting parties.
1 Conclusion of contract
Orders shall only become binding for the Seller upon written order confirmation or upon issuance of an invoice. The buyer's general terms and conditions of contract are hereby rejected. They shall not be recognised even if they are not objected to again after receipt by the Seller. General or individual terms and conditions which contradict or supplement these terms and conditions shall only be binding if they are included in the contract or accepted by the Seller in writing.
2. place of jurisdiction and place of performance - law
The place of performance and jurisdiction is Mülheim a. d. Ruhr. The agreement on the place of jurisdiction shall also apply to the cases of § 38 para.3 ZPO (German Code of Civil Procedure). The law of the Federal Republic of Germany shall apply exclusively. The shipping risk from the place of performance shall be borne by the buyer, even if delivery carriage paid or free German station has been agreed. For all other obligations arising from the contract with regard to the place of performance, in particular for the delivery and handover of the goods by the seller as well as the inspection of the goods by the buyer in accordance with § 377 HGB (German Commercial Code), the place of performance shall be the European port of arrival for non-European goods which are delivered to the buyer from this port of arrival and not via Mülheim an der Ruhr. If the goods are purchased by the Seller from European-continental upstream suppliers, the place of performance for delivery and acceptance shall be the agreed place of destination.
3. licences and permits
The contract is concluded subject to the final and timely issue of the necessary export and import licences and/or other official permits required for the execution of this transaction. Force majeure and other circumstances beyond the Seller's control which make delivery difficult or impossible shall release the Seller from the performance of this contract. Claims for damages are excluded. In such cases, the Seller shall be entitled to postpone delivery until the expiry of a reasonable period of time after the impossibility or inability has been remedied, or to release itself from its delivery obligations. If the buyer disputes the existence of these conditions, he shall be obliged to provide evidence. In all other respects, any compensation for damages due to non-performance or delay shall be excluded. If delivery becomes impossible for reasons as stated above, both parties shall be entitled to withdraw from the contract 3 months after the original delivery date has been exceeded. However, if the buyer is in default of acceptance or if the risk has already passed to him, the buyer remains obliged to counter-performance. In this case, the buyer shall not be entitled to withdraw from the contract.
4. goods - quality - quantity - type
The goods must be of perfect and customary quality according to the description. The seller does not guarantee that the goods are suitable for the use for which they are intended or used. Nor is he liable for hidden defects, defects inherent in the nature of the goods or other defects which appear after the goods have been worked in, or for damage resulting from use during processing. In the event of quality differences, the buyer shall neither be entitled to claim damages nor to demand replacement delivery or rescission. However, he may demand compensation for the reduced value, unless the seller agrees to take back the goods, in which latter case the transaction shall be deemed cancelled to the exclusion of all mutual claims for damages. The buyer shall then keep the goods at the seller's disposal at the place of destination and hand them over there. Complaints which are not received by the seller within 7 days - outside the Federal Republic of Germany 14 days - after delivery of the goods at the place of destination are late and void. Complaints are also only valid if they are made in writing within the specified time and the goods are still in their original condition. A complaint does not release the buyer from the payment of the purchase price. Dimensional complaints will only be accepted if the difference demonstrably exceeds a tolerance of 3% downwards or upwards. In order to comply with the time limits specified in the terms and conditions, it is sufficient to submit the written complaint within the time limits at a post office, whereby the date of the postmark is decisive, or by sending a telex.
5 Transfer of risk
The risk shall pass to the purchaser or buyer upon dispatch of the delivery parts, even if only partial deliveries are made. If the dispatch of the goods provided is delayed at the request of the buyer or as a result of other circumstances for which the seller is not responsible, the risk shall pass to the buyer upon notification that the goods are ready for dispatch.
In the absence of specific shipping instructions, the Seller shall ship the goods to the best of its knowledge. In any case, the buyer is obliged to accept the delivered goods. Delivery shall be free to the station of departure at the expense and risk of the consignee. The seller is entitled to make partial deliveries without obtaining the buyer's consent. Each partial delivery shall be deemed to be a separate transaction with regard to payment.
7. prices and payment
Unless another currency has been agreed, prices shall always be in euros. Payments shall be made in the invoiced currency. If other types of money and means of payment are accepted by the Seller, the Seller is hereby instructed to procure the invoiced means of payment. The Buyer shall pay any currency differences immediately upon request. All increases in freight rates occurring during the term of the contract, foreign currency transactions, insurance rates, customs duties, taxes or other increases in levies of any kind as well as import, export or import, export and customs regulations shall be borne by the Buyer. Invoices are payable net within 30 days in cash without loss. An open target may not exceed 30 days after the start of the payment period. Furthermore, an energy cost surcharge of 3.5% per service will be charged. If the payment target is exceeded or if the payment date of the agreed payment is not met, default occurs without reminder. From the day of default, interest on arrears shall be payable at a rate of 5% above the respective discount rate of the Deutsche Bundesbank. We reserve the right to charge a higher interest rate as damage caused by default. Instructions, bills of exchange or checks shall only be accepted on account of performance. Collection and discount charges as well as bill of exchange stamp fees shall be borne by the purchaser. Passing on and prolongation do not mean fulfillment. The acceptance of bills of exchange shall also not constitute a deferral of the purchase price claim. The seller may assert his rights under the purchase contract at any time. The purchase price shall be deemed to have been paid if recourse against the seller under the bills of exchange presented is excluded and they are fully honored. However, a bill of exchange settlement must be made within 10 days after the beginning of the payment period. The day of payment shall be the day on which the Buyer has demonstrably sent the payment.
8. retention of title
The goods delivered shall remain the property of the seller until full payment of the purchase price of all deliveries of goods within the business relationship, including all ancillary claims - thus in the case of payment by cheque or bill of exchange until the cheque or bill of exchange has been honoured. Payments made against a bill of exchange issued by the seller and accepted by the buyer shall not be deemed to have been made until the bill of exchange has been honoured by the buyer and the seller has thus been released from liability under the bill of exchange, so that the agreed retention of title (without prejudice to further agreements) and the other rights of retention shall remain in favour of the seller at least until the bill of exchange has been honoured.
Until then, the buyer is not entitled to pledge the goods to third parties or to assign them as security. Insofar as the buyer processes or transforms them, the seller shall be deemed to be the manufacturer within the meaning of § 950 BGB (German Civil Code) and shall acquire ownership of the intermediate or final products. The buyer is then only the custodian. The buyer shall be entitled to sell the goods and the product made therefrom in the ordinary course of business. The buyer hereby assigns all claims against third parties arising from the resale or any other legal reason to the seller as security, also to the extent that the goods have been processed. As long as the buyer duly fulfils his payment obligations to the seller, he is authorised to collect these claims for the seller's account.
However, the seller shall be entitled to notify the purchasers to be named to him on request of the transfer and to issue instructions. The buyer shall notify the seller immediately of any seizure by third parties of the goods delivered under retention of title or of the assigned claims. The right of ownership shall also apply to the carrier to whom the goods are handed over at the request of the buyer or at the instigation of the seller The goods subject to retention of title shall be handled with care and insured against fire and water damage.
Insurance claims arising in the event of damage shall take the place of the reserved property and the claims for proceeds assigned in advance. If the security provided by the retention of title exceeds the claim to be secured by 25%, the seller shall release the paid delivery at his discretion. If, after the conclusion of the contract, the financial situation of the buyer deteriorates considerably or if the buyer declares that he is not in a position to fulfil his obligation in due time, the seller shall be free to demand advance payments in cash in an amount to be assessed by him or to assert his statutory rights (withdrawal, damages, etc.). In this case, the buyer shall pay the seller all expenses and damages as well as lost profit. The buyer shall be obliged to render accounts and provide information to the seller at any time upon request within the scope of this agreement, in particular regarding the whereabouts of the goods and the proceeds.
9. Rights in the event of default and defects; liability
Insofar as the delivered item does not have the quality agreed between the buyer and the seller or the item is not suitable for the use presupposed according to the buyer's contract or the use in general or the item does not have the properties which the seller could expect according to public statements of the seller, the seller shall be obliged to remedy the defect. This shall not apply if the Seller is entitled to refuse subsequent performance on the basis of the statutory provision. Subsequent performance shall be effected by remedying the defect (rectification) or delivery of new goods. In doing so, the buyer must grant the seller a reasonable period of time for subsequent performance. The buyer is not entitled to reduce the purchase price or withdraw from the contract during the supplementary performance. If the seller has unsuccessfully attempted to remedy the defect twice, the remedy shall be deemed to have failed. If the subsequent performance has failed, the buyer is entitled to reduce the purchase price or to withdraw from the contract.