Status: January 2018
TERMS OF DELIVERY AND PAYMENT
1. Scope of Application
All deliveries and services within the scope of our current and future business relationships with our customers (“Buyer”) shall be made exclusively on the basis of our following terms and conditions, unless otherwise agreed in individual cases. The following terms and conditions shall only apply if the Buyer is an entrepreneur within the meaning of Section 310 (1) of the German Civil Code (“BGB”). We do not recognize any deviating, conflicting or supplementary general terms and conditions of the Buyer unless we have expressly agreed to their validity in writing. This consent requirement shall apply in any case, for example even if we carry out the delivery to the Buyer without reservation in knowledge of the Buyer’s General Terms and Conditions or if we refer to a letter that contains or refers to the General Terms and Conditions of the Buyer or a third party.
2. Conclusion of Contract
a) Our offers are subject to change without notice and are non-binding, unless otherwise stated in the sales offers.
b) The order of the goods by the buyer is considered a binding offer of contract. We can accept orders and contracts within 14 days after receipt.
The prices are net prices without value added tax ex works. The statutory value added tax will be shown separately in the invoice on the day of invoicing. Any customs duties, fees, taxes and other public charges shall be borne by the Buyer. If the agreed prices are based on our list prices, the list prices valid at the time of delivery shall apply.
a) Delivery shall be ex works. Unless otherwise agreed, we shall be entitled to determine the type of shipment (in particular transport company, shipping route, packaging) ourselves. Transport costs and costs for special forms of shipment or for transport insurance shall in any case be borne by the Buyer. The place of performance shall be Neuss.
b) Deadlines and dates for deliveries and services promised by us shall always be approximate unless a fixed deadline or date has been expressly promised or agreed in writing. If shipment has been agreed, the delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third party commissioned with the transport. This also applies if we carry out the transport ourselves.
c) We shall not be liable for the impossibility of delivery or delays in delivery attributable to Acts of God or other events beyond our control that were not foreseeable upon conclusion of the contract (e.g. operational interruptions of any kind, difficulties of material or energy supply, delays in transport, strikes, legitimate lockouts, shortage of workforce, energy or raw materials, difficulties in obtaining necessary permissions from authorities, measures imposed by regulatory authorities, non-delivery, incorrect or untimely delivery by our suppliers) and which we are not responsible for. This provision also applies, if our subcontractors face such events. If such events make it very difficult or even impossible for us to effect delivery or to provide a service and if such hindrance continues for more than three months, we shall be entitled to withdraw from the contract. In case of a temporary hindrance delivery periods or delivery dates shall be extended or postponed by the period of such hindrance plus a reasonable starting period. If due to such delay Buyer cannot reasonably be expected to accept a delivery or service, Buyer can withdraw from the contract by immediately making a written statement.
d) A delay in delivery on our part occurs subject to the statutory provisions. In any case, however, a reminder by Buyer is required.
e) In case of a delay in delivery Buyer shall grant us an appropriate grace period. If due to circumstances we are responsible for we are unable to comply with the grace period, Buyer may withdraw from the contract. If we are not responsible for being behind schedule, Buyer shall not be entitled to withdraw from the contract. Buyer may claim damages only as provided for by these provisions. If we are liable for damages due to delay and if we have only slight negligence on our part, the claim shall be limited in amount to 0.5% for each full week of delay, in total to a maximum of 5% of the invoice value of the deliveries affected by the delay. Buyer’s rights pursuant to § 9 of our Terms of Delivery and Payment and our statutory rights (exclusion of obligation to effect performance e.g. caused by an impossibility or unreasonableness of performance and/or subsequent performance, in particular) remain unaffected.
f) We can only effect part deliveries, if a part delivery can be used by Buyer within the scope of the contractual purpose, if the residual goods ordered can be delivered and if Buyer does not incur any significant extra effort and expense (unless we agree to bear the costs).
5. Risk bearing
The risk shall pass to Buyer at the latest upon transfer of the object of delivery to the forwarder, carrier or a third party engaged in transport (beginning of loading process is critical). This provision also applies in case of part deliveries or if we also provide other services (e.g. dis-patch). If dispatch or transfer are delayed by circumstances Buyer is responsible for, the risk shall pass to Buyer from the date at which the object of delivery is ready for dispatch and if we have notified Buyer thereof.
Storage costs after passing of the risk shall be borne by Buyer in the customary manner. Claiming and proving additional or lower storage costs remains reserved.
a) Unless otherwise provided for in the acknowledgment of order amounts invoiced shall be due and payable without any deduction within 14 days from the date of invoice and delivery and/or acceptance.
However, we are entitled (also in the course of a current business relationship) at any time to effect delivery in full or in part only against prepayment. We declare a corresponding reservation at the latest with the order confirmation.
b) We are under no obligation to accept cheques or bills of exchange. An acceptance thereof requires a corresponding prior agreement. Cheques and bills of exchange are only accepted on account of performance, and collection charges and discount charges will be imposed. In case of cheques payment is deemed to have been effected only if the cheque is honoured. Notwithstanding other provisions of Buyer payments shall be credited first against costs, then against interest on costs, then against interest on the principal claim and finally against the principal claim. In the case of several main claims, payments shall not be offset against the goods delivered under retention of title until the end.
c) After occurrence of the due date Buyer shall be in default without a reminder having to be sent. The purchasing price shall bear interest during the period of delay at the applicable statutory default interest rate. We reserve the right to claim additional damage caused by default. As regards merchants the claim for commercial maturity inter-est (Section 353 HGB (German Commercial Code)) remains unaffected.
d) We are entitled to effect outstanding deliveries and perform out-standing services only against advance payment or security if after conclusion of the contract there are circumstances that are of a nature to considerably reduce Buyer’s creditworthiness and that would compromise the payment of outstanding claims arising from the respective contractual relationship (and other individual orders based on the same framework contract). In addition, we are entitled to refuse performance in accordance with the statutory provisions and – if applicable, after setting a deadline – to withdraw from the contract (Section 321, German Civil Code).
e) Buyer shall only be entitled to rights of set-off and retention insofar as his claim is legally established or undisputed. In case of defects of a delivery Buyer’s counterclaims (par. 8 of these Terms of Delivery and Payment, in particular) remain unaffected.
7. Reservation of title
Goods are delivered and documents are handed over subject to a reservation of title pursuant to Section 449 BGB (German Civil Code) including the following extensions:
a) Until complete payment of all our present and future claims arising from the purchase contract and a current business relationship (secured claims) we reserve the right of ownership of the sold goods and documents.
b) As long as we have title to goods supplied Buyer shall at its expense adequately insure them against loss and impairment, fire, theft and transport risks as well as water damage at replacement value. Buyer hereby assigns to us in advance the claim against the insurer arising from an event of damage up to the amount of the sales claim, in order to secure our claims.
c) Prior to payment of secured receivables goods to which title is reserved shall not be pledged to third parties or assigned as collateral security. Buyer shall notify us immediately in writing if there is a petition for institution of insolvency proceedings or if third parties seize the goods belonging to us (e.g. by way of attachment). In case of an attachment Buyer must immediately send us the seizure report and a statutory declaration saying that the objects attached are identical with the goods supplied by us. If assigned receivables are attached, Buyer shall forthwith send us the respective attachment order and transfer order immediately.d) If Buyer acts in breach of contract (failure to pay purchase price, in particular), we are entitled to demand a return of the goods. Such claim for return also includes the declaration of withdrawal. We can utilize the goods returned. The revenue of such utilization less reasonable utiliza-tion costs shall be credited towards Buyer’s liabilities.
e) Until further notice Buyer shall be entitled to resell and/or process the goods to which title is reserved in the ordinary course of business (see cc). In such case the following terms shall apply in addition:
(aa) The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are deemed to be the manufacturer.
If in case of processing, mixing or a combination with third party goods their ownership right continues to exist, we shall acquire co-ownership in proportion of the invoice values of the processed, mixed or combined goods. If a Buyer’s object is considered to be the main object it is agreed that Buyer shall transfer proportional ownership therein to us. If our object is considered to be the main object, we shall acquire sole ownership. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
(bb) The claims against third parties arising from the resale of the goods or the product are hereby assigned to us by Buyer as security either in their entirety or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept the assignment. The obligations of the Buyer mentioned under lit. c) also apply in consideration of the assigned claims.
(cc) In addition to us, Buyer shall remain authorised to collect the claim. However, we undertake not to collect a claim as long as Buyer effects payment to us, has not defaulted payment and, in particular, has not filed an insolvency petition or has not stopped payment. If this is the case, however, we can demand that Buyer informs us of the assigned claims and their debtors, provides us with all information necessary for collection, hands over the associated documents and informs the debtors (third parties) of the assignment. In such case we are also entitled to revoke Buyer’s permission to resell and process goods to which title is reserved. Buyer is under an obligation to transfer all amounts collected to us to the extent our secured claims are due.
(dd) A bill of exchange received by Buyer for goods to which title is reserved shall be accepted by Buyer in its capacity as our agent subject to the proviso that we shall become the direct holder of the bill of exchange and that Buyer shall only have it for us as custodian.
(ee) If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at Buyer’s request.
f) Reservation of title as provided for herein shall continue to exist, if we incorporate individual claims in current account and a balance is stricken and accepted. Buyer undertakes not to incorporate claims against its customers that are subject to our extended reservation of title in its current account.
8. Rights in case of defects
a) Buyer’s rights in case of defects of quality and defects of title (including incorrect deliveries or short deliveries) are subject to the respective statutory provisions unless otherwise specified below.
In all cases, the statutory special provisions remain unaffected in case of final delivery of the goods to a consumer (supplier’s recourse accord-ing to Sections 478, 445b BGB (German Civil Code)) remain unaffected.
b) Buyer’s claims for defects presuppose that he has complied with his statutory inspection and notification obligations (Section 377 and Section 381 HGB, German Commercial Code).
c) If an object supplied is defective, we can opt for a subsequent performance by remedying the defect (subsequent improvement) or for delivery of a non-defective object (replacement). Our right to refuse a subsequent performance as provided for by law remains unaffected.
d) We are entitled to make a subsequent performance contingent upon Buyer’s payment of the purchase price due. However, Buyer is entitled to retain a portion of the purchase price that is in reasonable proportion to the defect.
e) Buyer shall give us the time and opportunity to perform the subsequent performance owed, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, Buyer shall return the defective item to us in accordance with the statutory provisions.
f) Expenses involved in inspection and subsequent performance (transport costs, road costs, labour costs and material costs, in particular) shall be borne by us, if there is an actual defect. Otherwise, we are entitled to demand that Buyer refund the costs incurred by us as a result of the unjustified request to rectify the defect (in particular inspection and transport costs), unless the absence of a defect was not recognizable for Buyer. Insofar as the expenses required for the purpose of subsequent performance increase because Buyer has subsequently taken the goods to a place other than the agreed destination, Buyer shall bear the increased expenses himself.
g) If a subsequent performance has failed or if a reasonable period of time needed for a subsequent performance has expired without results or is unnecessary according to legal regulations, Buyer may withdraw from the contract or reduce the purchase price. In case of a minor defect there is no right of withdrawal.
h) Buyer’s claims for damages and/or a compensation for futile expenses only exist in accordance with § 9 of these Terms and Condi-tions of Delivery and Payment, even in the case of defects, and shall be excluded in all other respects.
9. Limitation of liability
a) Unless otherwise provided for by these Terms of Delivery and Pay-ment including the following stipulations we shall be liable as provided for by law in case of a violation of contractual and non-contractual obligations.
b) Whatever cause in law may exist we shall be liable for damages within the scope of liability for culpability in the event of wilful intent and gross negligence. In the case of simple negligence, we shall only be liable subject to a milder standard of liability in accordance with statutory provisions (e. g. for care in our own affairs):
aa) for damage arising from an injury to life, body or health,
bb) for damage resulting from the not inconsiderable breach of a material contractual obligation (obligation, the fulfilment of which makes the proper execution of the contract possible in the first place and on whose compliance the contractual partner regularly relies and may trust); in this case, however, our liability is limited to the replacement of the foreseeable, typically occurring damage.
c) The limitations of liability defined in b) also apply to a breach of duty by and/or in favour of persons the fault of which we are responsible for as provided for by law. This shall not apply, if we have maliciously concealed a defect or made a guarantee for the quality of goods. Furthermore, this shall not apply to Buyer’s claims pursuant to the Product Liability Act.
d) Buyer can only withdraw from the contract on grounds of a breach of duty not constituting a defect if we are responsible for such breach of duty.
10. Statute of limitations
a) In derogation of Section 438, para. 1, subpara. 3, BGB (German Civil Code), the statute of limitations regarding defects of quality and defects of title shall be one year from delivery and/or acceptance of the goods.
b) Special statutory provisions on the statute of limitations (Section 438, para. 1, subpara. 1, para. 3, Section 444, Section 445b BGB (German Civil Code), in particular) remain unaffected.
c) Aforementioned limitation periods under purchase law also apply to contractual and non-contractual claims for damages asserted by Buyer that are based on a defect of the goods unless the application of the regular statutory statute of limitations (Section 195, Section 199 BGB (German Civil Code)) results in a reduced statute of limitations. Buyer’s claims for damages according to § 9 of these Terms of Delivery and Payment and under the Product Liability Act become statute-barred only after the statutory periods of limitation.
11. Applicable law, venue
a) Place of fulfilment for both parties shall be our registered office in Neuss. These Terms of Delivery and Payment and the contractual relationship between us and Buyer shall be governed by the laws of the Federal Republic of Germany to the exclusion of international uniform law (UN sales law, in particular) and German international private law.
b) Exclusive – also international – venue for all disputes directly or indirectly arising from this contractual relationship shall be our regis-tered office in Neuss. In all cases, however, we shall also be entitled to institute legal proceedings at Buyer’s general place of jurisdiction. Priority statutory provisions, in particular with regard to exclusive responsibilities, shall remain unaffected.