1. General
These General Terms and Conditions of Delivery and Payment shall apply to all our - also future - contracts, offers, deliveries, and other services. Deviating conditions of the buyer are expressly contradicted. They shall not become part of the contract under any circumstances. Our offers are subject to change. The price commitment stated in our offer shall apply. A contract is only concluded by our written order confirmation. Amendments, verbal subsidiary agreements, etc. must be made in writing, including any waiver of the written form requirement. Should provisions in these terms of delivery and payment or in the contract be or become ineffective, the contract shall generally remain effective. They shall be replaced by a provision that comes closest to the economic purpose. In addition, the Incoterms of the version applicable at the time of the conclusion of the contract shall apply.
2. Prices
The prices stated in the order confirmation shall apply plus VAT. In the case of deliveries that are not to be made until 3 months after the conclusion of the contract or which cannot be made until 3 months later due to a delay for which the purchaser is responsible, we shall be entitled to adjust the prices accordingly if price increases have taken place after the conclusion of the contract (e.g. of raw prices, wages, freight costs or similar).
3. Payment
Payments shall be due without deduction on the due date stated in the invoice or, in the absence of such, 14 days after the invoice date. Payment shall be deemed to have been made upon receipt of funds or unconditional credit to our account. In the event of a default of payment by the purchaser, we shall be entitled to charge interest at a rate of 8% above the respective base interest rate. The assertion of further damages as well as further legal rights shall remain unaffected. If several claims are open for payment, § 366 para. 2 BGB (German Civil Code) shall apply, even if the Buyer makes a payment provision.
4. Offsetting, retention, and assignment prohibition
The Buyer shall have no right of set-off or retention unless the claims are undisputed or have become res judicata and arise from the same contractual relationship with us. The assignment of claims against us is excluded.
5. Delivery
A prerequisite for the obligation to deliver is the unconditional creditworthiness of the purchaser. Doubts in this respect, in particular futile reminders, cessation of payments, or refusal of security by trade credit insurance, etc., shall entitle us to demand advance payments or securities or to withdraw from the contract. Our delivery obligation is subject to correct and timely delivery to us unless the non-delivery or delay in delivery is our fault. In the event of incorrect and timely self-delivery, we shall assign the claims against our supplier to the purchaser, provided that we are released from liability by the purchaser. Delivery dates and delivery periods stated by us refer to the time of readiness for dispatch from the supplying plant. No fixed dates shall be deemed to have been agreed upon for delivery to the Buyer. If a delivery time is communicated by us, we commit ourselves only to the delivery on the agreed day. The assumption of provision costs (e.g. equipment, personnel) on the delivery day is thus excluded. If we are not able to meet the specified delivery date, we will notify the buyer immediately. Agreed delivery periods shall commence on the date of our order confirmation, but in no case before complete clarification of all details of the order, in particular the availability of the specification/parts list and the provision of any necessary domestic and foreign certificates. The purchaser must base his call-off orders on the production dates notified to him; the parts lists must be received by us at least 14 days before the scheduled production date. Events of force majeure and other circumstances for which we are not responsible and which make delivery impossible or excessively difficult shall entitle us to postpone delivery by the duration of the hindrance, even within the period of delay. If the aforementioned events lead to a not merely temporary hindrance or aggravation of performance or if the performance of the contract becomes unreasonable for us as a result of the aforementioned events, we may withdraw from the contract in whole or in part with regard to the part not yet performed. Goods that have been reported ready for dispatch in accordance with the contract must be called off by the Buyer without delay, otherwise, we shall be entitled, without prejudice to further rights, to store or dispatch the goods at the expense and risk of the Buyer and to invoice the goods. Unless otherwise agreed, we shall deliver the goods with the usual factory packaging. We are not obliged to take back the packaging, which the buyer must dispose of at his own expense. In the case of elements supplied with a protective film, care must be taken during storage so that the elements are not exposed to direct sunlight and that the protective film is removed within 28 days. The protective film must always be removed immediately after installation.
6. Obligation to inspect and give notice of defects
The delivery is to be checked for possible transport damage. Complaints must be entered in the carrier's transport documents and notified to us immediately. For insurance reasons, any other form of notification is ineffective. The buyer has to examine the goods immediately after receipt and assert recognizable defects immediately, at the latest 5 days after receipt in writing under the concrete designation of the defects. Non-detectable defects must also be reported in the same form no later than 5 days after discovery. The date of receipt of the notice of defects by us shall be decisive. The deadlines for giving notice of defects are preclusive deadlines. If the purchaser violates the aforementioned obligation to inspect and give notice of defects, he shall be excluded from asserting claims in this regard. In the event of the occurrence of a defect, any processing or treatment shall be stopped. The buyer must inform us immediately and give us the opportunity to inspect the goods. If the goods are processed, assembled, mixed, or sold by the buyer on his own responsibility without our consent, complaints and resulting claims for compensation are excluded. The handling and processing shall be carried out at the risk of the purchaser. Any elaborations made by us for the purchaser are provided without establishing any liability so that we do not assume any liability and the purchaser has to check them carefully.
7. Warranty/Compensation/Limitation of Liability/Limitation of Actions
Grades, dimensions, weights, and tolerances shall be determined in accordance with the relevant DIN standards (e.g. DIN 18807) or material sheets and the quality assurance RAL-RG 617. If no DIN standards or material sheets exist, the relevant EURO standards (e.g. DIN EN 10143, DIN EN 10147) or factory standards shall apply; in the absence of such standards, the commercial practice shall apply. References to standards, material sheets, or works test certificates do not constitute a guarantee of properties. If our deliveries and services are based on customer specifications and customer drawings, we shall not assume any liability for the correctness of the values and dimensions taken from them. In the absence of written agreements to the contrary in individual cases, we are not obliged to check the information. In the case of properly raised and justified notices of defect, we may, at our discretion, repair or replace the defective goods. If the Buyer has incorporated the defective goods into another item or attached them to another item in accordance with their nature and intended use, we shall be obliged, within the scope of subsequent performance, to reimburse the Buyer for the necessary expenses incurred in removing the defective goods and installing or attaching the repaired or delivered non-defective goods, provided that we are responsible for the defect due to intent or gross negligence. If rectification and/or replacement fail or are economically unreasonable for us, the purchaser may reduce the purchase price or withdraw from the contract. We shall only be liable for claims arising from tort, damages due to breach of contractual or non-contractual obligations, or during the initiation of the contract in the event of intent or gross negligence. Our liability is always limited to twice the net delivery value. This applies to our employees and legal representatives as well as to our vicarious agents. We shall be liable for personal injury in accordance with the statutory provisions. I.ü. liability is excluded. Warranty claims and claims for damages due to a defect are subject to a limitation period of one year from the handover of the delivery item. This does not apply in the case of intent or fraudulent concealment of a defect or in the case of the normal use of the item for a building and the defectiveness of the building was caused by this. The statutory limitation period shall apply to other claims.
8. Reservation of title
8.1
All goods delivered by us (goods subject to retention of title) shall remain our property until all our claims against the Buyer arising from the business relationship, including claims arising in the future, have been satisfied. In the case of a current account, the retention of the title shall serve as security for our respective balance claims. This shall also apply if payments are made by the Buyer on specific claims.
8.2
The processing or transformation of the goods subject to retention of title shall always be carried out on our behalf without this giving rise to any liability on our part. In the event of processing or transformation of the reserved goods with other goods not supplied by us, we shall be entitled to co-ownership of the new item in the ratio of the final invoice amount (including VAT) attributable to the reserved goods to the value of the other processed or transformed goods at the time of processing or transformation. In the event that goods subject to retention of title are combined, mixed, or blended with movable items of the Buyer in such a way that the Buyer's item is to be regarded as the main item, the Buyer hereby assigns to us his title to the overall item in the ratio of the final invoice amount (including VAT) attributable to the goods subject to retention of title to the value of the other combined, mixed or blended items. The new item created by processing, transformation, mixing, or blending or the (co-)ownership rights to the new item to which we are entitled or which are to be transferred shall serve as security for our claims in the same way as the reserved goods themselves pursuant to Section 8.1.
8.3
The Buyer shall be authorized to resell the reserved goods or the new item in the ordinary course of business subject to reservation of title as long as it punctually meets its payment obligations towards us. The admissibility of revocation of the resale authorization pursuant to Section 8.7 shall remain unaffected. The Buyer shall be obliged to ensure that the claims arising from such resale transactions can be transferred to us in accordance with Clauses 8.4 and 8.5.
8.4
The Buyer's claims arising from a resale of the reserved goods are hereby assigned to us. They shall serve as security for us to the same extent as the reserved goods. If the Buyer sells the goods subject to retention of title together with other goods not supplied by us, the assignment of the claim shall only apply to the invoice amount resulting from the resale of our goods subject to retention of title. In the event of the sale of goods that are subject to retention of title pursuant to sec. 8.2 or the statutory provisions on the combination, mixing, and blending of items co-owned by us, the assignment of the claim shall apply in the amount of our co-ownership share.
8.5
If the Buyer includes claims from the resale of goods subject to retention of title in a current account relationship existing with its customers, it shall already now assign to us any recognized or closing balance in its favor in the amount corresponding to the total amount of the claims from the resale of our goods subject to retention of title included in the current account relationship. Clause 8.4 sentence 4 shall apply accordingly.
8.6
The Buyer is authorized to collect the claims assigned to us from the resale of the reserved goods or new items. An assignment of claims from the resale to third parties, including within the framework of a genuine factoring agreement, is not permitted.
8.7
We may at any time revoke the authorization to resell the goods subject to retention of title or the new item pursuant to Clause 8.3 and the authorization to collect the receivables assigned to us pursuant to Clause 8.6 in the event of default in payment, cessation of payment, transfer of the Buyer's business operations to third parties, impaired creditworthiness, and trustworthiness or the Buyer's application for the opening of insolvency proceedings as well as in the event of a breach of the Seller's contractual obligations pursuant to Clause 8.3 that is not merely minor. In the event of revocation of the authorization to resell or collect the goods, the Buyer shall be obliged to inform its customers immediately of the assignment of the claim to us and to provide us with all information and documents required for collection. In addition, in this case, he shall be obliged to surrender or transfer to us any securities to which he is entitled to resale claims.
8.8
If the realizable value of the securities existing for us exceeds our secured claims by more than 50%, we shall be obliged, at the Buyer's request, to release securities to this extent at our discretion.
8.9
The Buyer shall be obliged to notify us without undue delay of any seizure or other legal or actual impairment or endangerment of the reserved goods or other securities existing for us.
8.10
The Buyer undertakes to insure the reserved goods adequately against fire, water, and theft at replacement value. He already now assigns his claims from the insurance contracts to us.
8.11
In the event of default in payment and in the event of rescission of the purchase contract, the Buyer hereby declares its consent to our taking away or having taken away the goods subject to retention of title located at the Buyer's premises or, if we are the sole owner thereof, the new item within the meaning of Section 8.2. Such removal shall only constitute a rescission of the contract if we expressly declare such rescission. The Buyer shall grant us or persons commissioned by us access at any time for the purpose of carrying out these measures as well as for a general inspection of the reserved goods or new items.
8.12
After a prior warning, we shall be entitled to realize the goods subject to retention of title that have been taken away; the realization proceeds less reasonable realization costs shall be credited against the Buyer's liability. To secure all present and future claims arising from the business relationship, the Buyer shall grant us a lien on the material provided to us for the execution of the order.
9. Place of performance and jurisdiction
The place of performance for all obligations arising from contracts with us is Wesel. If the Buyer is a merchant or a legal entity under public law or a special fund under public law, Wesel is agreed as the exclusive place of jurisdiction. This shall also apply to actions in summary proceedings, bills of exchange, and cheque proceedings. We may sue the buyer at his general place of jurisdiction. The law of the Federal Republic of Germany shall apply to the exclusion of the provisions of the United Nations Convention on Contracts for the International Sale of Goods.