General Terms and Conditions of Sale and Delivery
Our offers are without obligation. We expressly reject different conditions of the customer. If the customer places an order on the basis of different general terms and conditions, they will only be applicable if and to the extent that we will have given our express, written consent in respect of each individual agreement.
The ineffectiveness of individual stipulations of the agreement does not render the whole of the agreement ineffective.
Our prior written consent is required for the customer to cede any rights emanating from the contractual relationship to third parties.
- If the parties to the agreement are merchants, the place of fulfilment will be Senden-Bösensell.
- If the parties to the agreement are merchants, jurisdiction is vested in the courts at Münster.
This arrangement is also applicable in respect of cheques and bills of exchange. If the parties to the agreement are merchants, the competence mentioned above will also be applicable in cases of cancellation and withdrawal.
- German law applies with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The German version of these conditions will always prevail.
We retain ownership of cost estimates, drawings and other records, even after dispatch. We retain title to all intellectual property rights that are vested in them. Without our prior written consent, it is forbidden to multiply the documentation or to make it available to third parties.
Except where expressly otherwise agreed, the documentation of our offers and/or of our corder confirmations only contains approximations, especially in respect of images, scope of performance and weights.
If, after the order has been confirmed and before the goods have been dispatched, wages and other manufacturing costs are increased, including our procurement costs from secondary suppliers, we will have the right of increasing the original purchase price with the amount of the increased costs. Agreed fixed prices are exempt.
The delivery period commences upon our dispatching of the order confirmation, though not before all permits and documents that are required for fulfilling the order are available and all concomitant essential matters have been cleared. The delivery period is considered to have been complied with if the ordered goods have been dispatched in good time. The delivery period will be held in suspension for the period that the customer has not honoured his obligations, particularly in respect of making agreed advance payments. The occurrence of unforeseeable hindrances, such as operational interruptions for any reason, difficulties in procuring materials, provided that they are not the result of wilfulness or gross negligence on our part, and events of force majeure will give us the right, at our discretion, of extending the delivery period for an appropriate period or to withdraw from the agreement, if those hindrances make it difficult to fulfil the agreement or make it even partly impossible. The customer may withdraw from the agreement if fulfilment become impossible or if we get into arrears, provided that we cannot even fulfil the order within a reasonable grace period of at least ten working days, under threat of rejection. The withdrawal must be advised in writing, immediately upon the grounds for withdrawal arising. Claims for compensation for damages as a result of delayed delivery or non-fulfilment are not accepted, except if we are guilty of wilfulness or gross. Liability for damages on account of delay if restricted to 50 % of the damage that has been incurred, with a maximum of twice the value of the relevant goods. The limitations on liability as mentioned above do not apply, if the customer can prove that interest in fulfilment of the agreement has fallen away, on account of a delay that we are responsible for.
If dispatch of the ordered goods is delayed for reasons that we are not responsible for, we will have the right of charging storage fees in the amount of 0.5 % of the amount of invoice in respect of every commenced month, starting with the month during which readiness for dispatch has been advised, unless the customer can prove that the actual cost is lower. That applies particularly to circumstances that have been brought about by the customer. Further claims are not affected by this.
We reserve the right of increasing or reducing delivered quantities by up to 10 %.
The ordered goods will be dispatched at the expense of the customer, in the manner as agreed (Incoterm codes 2010: EXW, FOB, CIF, etc.). We accept no responsibility for selecting the cheapest method of dispatch. The cost of packaging is for account of the customer, as is the cost of any transport insurance that he may have requested. Boxes and crates are charged at actual cost and will not be taken back.
If the customer is a merchant, the risk of accidental loss and accidental impairment of the goods passes to the customer upon handover, or in the case of transportation, upon handover of the goods to the forwarder, the haulier or to any other person or establishment charged with the transportation. Handover will be considered to have taken place, whether or not the customer has formally accepted the goods.
Defects and warranty
If the customer is an entrepreneur, we will initially honour our guaranty by remedying the deficiencies or replacing the goods, at our discretion. If the remedial work is not successful, the customer may, essentially at his choice, demand a decrease (reduction) in the price to be paid or dissolution of (withdrawal from) the agreement. However, the customer has no right of withdrawal in cases of only minor infringement of the terms of the agreement or if the deficiencies are only minor in nature. Entrepreneurs must notify us in writing within two weeks from receipt of the goods of any apparent deficiencies; beyond that period, all claims in respect of deficiencies will be rejected. Dispatch in good time is sufficient for meeting the deadline. The full burden of proof rests upon the entrepreneur as precondition for honouring any claims under guaranty, especially in respect of the deficiencies themselves, the time of detecting the deficiency and the timeliness of lodging the complaint. If the customer exercises his right of withdrawing from the agreement on account of failed remediation of a legal or material deficiency, he will not also be entitled to lodging claims in respect of compensation for damage. If, after failed remediation, the customer opts for compensation for damage, the goods will remain with the customer, if leaving them there is not unreasonable. The amount of compensation for damage is restricted to the difference between the purchase price and the value of the defective item. This does not apply in the event that the infringement of the agreement has been caused by us in a fraudulent manner. For entrepreneurs, the validity period of the guaranty is one year from delivery of the goods. In respect of the quality of the goods, only the product description of the manufacturer will be serve as having been agreed. Public statements, recommendations or advertisements by the manufacturer do not amount to statements in respect of the quality of the products for the purpose of the agreement. Should the customer receive a deficient installation manual, we will merely be obliged to provide him with a correct installation manual, and only in the case that the deficient installation manual should render proper installation impossible. The customer will receive legally required guaranties from us. They do not affect manufacturers’ guaranties. In case of slightly negligent violations of obligations, our liability will be limited to the average damage that can typically be foreseen for the type of goods that are the subject of the agreement. That also applies in case of slightly negligent violations of obligations by our legal representatives or fulfilment agents. Damage and errors that are the result of natural wear and tear, incorrect installation or commissioning by the customer, improper use and operating errors are not covered by our guaranty. If the customer does lodge any claims in respect of deficiencies, the burden of proof with regard to proper use and correct installation rests upon him. The guaranty is also void if spare parts or consumables are used that do not conform to the original specification. We are not liable towards entrepreneurs in respect of slightly negligent infraction of insignificant contractual obligations. This does not apply in the event of infraction of significant contractual obligations (cardinal obligations) that are essential for being able to properly implement the agreement to begin with and in respect of which the customer does and may normally rely upon them being complied with. The limitations on liability mentioned above do not affect claims by the customer under product liability. The limitations do not apply either in the event of injuries to the body and health of the customer and in the event of mortal injuries, if the responsibility for those is attributable to us. With regard to claims for compensation for damage on account of a deficiency, there is a period of limitation of one year from the date of delivery of the goods. This does not apply if we are guilty of malice aforethought.
In case of justified complaints, we will have the right, at our discretion, of either remedying the deficiencies, of taking the goods back against issuing a credit note in the amount that has been charged, or of replacing the item, free of charge, within a suitable period. We will have the right of refusing to remedy deficiencies, for as long as the customer has not honoured his obligations towards us to the full legal extent. Claims of the customer for consequential damage, especially to compensation of damage that has not occurred on the supplied item itself, are rejected, if legally permissible.
In respect of branded products, not only our General terms and Conditions apply, but also any additional conditions of the relevant manufacturer for the sale of branded products. Those additional conditions form an integral part of these General Terms and Conditions. Every stockist has the obligation of becoming acquainted with the special terms and conditions of the manufacturers of branded products. They are always available for perusal on our premises and may also be obtained from us.
If nothing else has been agreed, the sale price must be paid within ten days from invoice date (dispatch date) with a discount of 10 %, or within 30 days from invoice date (dispatch date) without discount, either in cash or by bank transfer to one of our accounts. Invoices for repair and installation work are payable at once, without discounts. Offsetting against our claims for payment or against any right of retention in favour of the customer is rejected, unless they are not disputed and legal enforceability has been established. If, after concluding the agreement, we become aware of an unfavourable financial position of the customer, we will have the right, without recourse to any earlier agreements, of demanding the immediate payment in full of the purchase price or the provision of adequate collateral or, if the customer does not accede to our request, of demanding compensation for damage or of withdrawing from the agreement.
Reservation of title
We reserve title of ownership in respect of all supplied goods, until all claims against the customer emanating from the business relationship or having arisen on any other legal basis, have been redeemed in full. We remain the proprietors of the supplied goods, regardless of the processing stage or the form they happen to be in. Should there be any linking or mixing of goods of us with goods of the customer, the customer does already now, in advance, cede to us the rights of ownership or of partial ownership to the linked items and will hold them in safe custody on our behalf. In the case of linking or mixing with goods of third parties, only the legal stipulations apply.
The customer has the obligation of taking out insurance against fire and theft in respect of the items that belong to us by virtue of Point 16.
If a matter that is subject to reservation of title of ownership become a significant component of a building, compensation for damage must be paid in accordance with Article 951, Paragraph 1, BGB (Bürgerliches Gesetzbuch [Civil Code]).
If we take back any goods to which we have retained title of ownership, the taking back only amounts to withdrawing from the agreement, if we notify the customer in writing.
The customer may only sell items that are our property, within the normal course of business. The customer does already now cede to us by way of collateral the receivables that the customer becomes entitled on account of on-selling or for any other legal reason and which concern those items, in the amount of the price at the time of delivery, increased by a surcharge of 20 %. The customer will have the authority of deducting the amounts of the claims that he has ceded, as long as he honours his payment obligations in accordance with the agreement. We undertake to release the collateral in the amount that exceeds the value of our claims by 20 % or more.
The customer has the obligation of informing us forthwith of any access of third parties to the goods under reservation of title or to the ceded claims.
If, in the country of the customer, particular preconditions or formalities govern the transfer of ownership of the supplied items or of the collateral, the customer must ensure that those conditions will be met and the formalities will be complied with, at his expense.