Terms and Conditions

1. General

1. These sales and delivery conditions apply to all business relations between us and our customers. They also apply to all future business relations, even if they are not expressly agreed again. At the latest upon receipt of our goods or services, these terms and conditions shall be deemed accepted, unless otherwise agreed. Counter-confirmations of our customers with reference to their terms and conditions or conditions of purchase are hereby expressly contradicted. They will not be accepted even if we do not expressly object to them again after receipt.

2. Deviating agreements are only binding if they are confirmed by us in writing.

3. The customer's rights from the contract are not transferable.

4. The invalidity of individual contractual provisions shall not affect the validity of the contract.

5. We store personal data required within the scope of the business relationship in accordance with § 26 of the Federal Data Protection Act.

 

2. Offers

1. Our offers are subject to change and are non-binding. Declarations of acceptance and all orders require our written, telex or fax confirmation to be legally effective.

2. Prices for individual items of an offer are only valid if the total order for this offer is placed.

 

3. Order confirmation

1. Orders, agreements, assurances etc. including those of our employees require our written confirmation to be legally effective. Our employees are not authorised to make verbal collateral agreements or to give verbal assurances that go beyond the content of the written contract. Warranted characteristics in the sense of § 459 BGB (German Civil Code) are only present if they are expressly marked as such.

2. In the event of price and cost increases between the conclusion of the contract and the agreed delivery date, we shall be entitled to make a corresponding appropriate price adjustment if there is a period of more than 4 months between the conclusion of the contract and the agreed delivery date. If the prices at the time of delivery exceed the initially agreed prices by more than 10%, the customer is entitled to withdraw from the contract.

 

4. Delivery

1. Delivery is effected at the expense and risk of the customer. If free delivery has been agreed, the risk shall pass to the customer upon arrival of the vehicle in front of the delivery address on the ground or at the place which can reasonably be expected to be occupied by the vehicle.

2. Partial deliveries are permitted within the framework of the legal provisions. They shall be considered as independent deliveries. We reserve the right to choose the transport route and the means of transport.

3. The delivery must be checked immediately upon receipt for completeness and damage, and for freedom from defects.

4. Delivery dates and delivery periods, which can be agreed as binding or non-binding, must be in writing.

5. Events of force majeure entitle us to postpone delivery for the duration of the hindrance and a reasonable start-up time.

   Strike, lockout, mobilisation, war, blockade, export and import bans, shortage of raw materials and energy, fire, traffic blocks, disruptions to operations or transport and other circumstances for which we are not responsible are deemed equivalent to force majeure, regardless of whether they occur at our company, or an upstream or downstream  supplier.

   If delivery becomes impossible or unreasonable due to the aforementioned events, we are entitled to withdraw from the contract. Our customer may demand a declaration from us as to whether we intend to deliver within a reasonable period or to withdraw from the contract. If we do not make such a declaration within a reasonable period of time, the customer may for their part withdraw from the contract with regard to the part of the delivery not fulfilled.

6. We are entitled to take out transport and breakage insurance at the customer's expense. Notifications of damage must be made immediately upon receipt of the goods and must be confirmed in writing without delay, and in a way that is conclusive in terms of type and scope. Goods delivered by us will only be taken back in perfect condition and after prior agreement with us, if returned freight paid. Voluntarily taken back goods will be credited, depending on their condition, less at least 15% share of costs. The credit note is issued as soon as we receive the manufacturer's credit note. The return of custom-made products or goods specially procured at the customer's request is excluded.

7. The regulations of AGNB-E 620 § 6 apply to loading and unloading from the truck.

   Loading times:
   Mondays-Thursdays 6.00 - 21.00 hours
   Fridays 6.00 - 18.00

 

5. Warranty and liability

1. Our liability is exclusively based on the following provisions.

2. Obvious defects must be reported to us in writing without delay, but at the latest within two weeks of delivery. The defective delivery items are to be kept ready for inspection by us in the condition in which they were at the time the defect was discovered or sent to us on request. Notification of defects which cannot be discovered within this period even with careful inspection must be sent in writing immediately after discovery.

   A breach of the above obligations shall exclude any warranty claims against us after the expiry of the statutory warranty period.

3. Negotiations regarding complaints do not waive our right to object that the customer's complaint was not made in time or was not sufficient.

4. Unless a longer warranty period is agreed upon in individual cases, the warranty period shall be six months and shall begin on the date of delivery.

5. If the delivery item is defective or lacks warranted characteristics and becomes defective within the warranty period due to manufacturing or material defects, we shall, at our discretion, deliver a replacement, or remedy the defect at our expense, excluding other warranty claims of the customer.

   Multiple rectifications of defects are permissible. If the rectification or replacement fails, the customer may, at their discretion, demand a reduction of the purchase price or cancellation of the contract.

6. Beyond this, there are basically no further claims against us, in particular no claims for damages due to direct or indirect damages, unless otherwise agreed below.

7. Claims for damages arising from delay, impossibility of performance, non-performance, positive violation of claims, culpa in contrahendo, and/or tort, are excluded both against us and against our vicarious agents and persons employed in performing our obligations, unless the damage was caused intentionally or by gross negligence or, in the case of main contractual obligations, was caused by negligence.

   This does not apply to claims for damages arising from warranted characteristics, which are intended to protect the customer against the risk of consequential damage caused by defects.

   In any case, our liability for damages shall be limited to the proven damage, though to a maximum of 10% of the invoice value of the goods delivered by us, unless there has been intent or gross negligence.

8. We shall not be obliged to provide warranty as long as the customer has not paid the part of the purchase price owed taking into account a defect.

9. Goods which are sold as inferior quality or used goods will be sold to the exclusion of any warranty.

 

6. Payment

a) Terms of payment

1. Unless otherwise agreed, our deliveries are payable 30 days after date of invoice without deduction.

2. If a discount is granted, the prerequisite is that all previous invoices have been settled by that date. The net invoice amount after deduction of rebates, freight, etc. is decisive for the discount invoice.

3. We are not obliged to accept bills of exchange or cheques. We accept bills of exchange only subject to the possibility of discounting. Cheques and bills of exchange shall only be credited after they have been cashed, and assignments of claims only after payment. The claim and its maturity remain unaffected until then. We do not assume any guarantee of timely encashment or protest. Discount, protest and collection charges shall be borne by the customer.

4. We are entitled, despite any provisions of the customer to the contrary, to set off payments first against the customer's older debts and will inform the customer of the type of set-off made. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the main claim.

5. Offsetting is excluded, unless offsetting is made against an undisputed or legally established claim.

6. The assertion of rights of retention is excluded insofar as these rights of retention are not based on the same contractual relationship.

 

b) Late payment and creditworthiness

If the agreed payment deadlines are exceeded and our customer acts in breach of contract in any other way, we shall be entitled to the following rights after default:

1. To withdraw from all contracts and to claim damages for non-performance, to assert our reservation of title, to take possession of delivered goods, to demand securities, to realise securities provided, to declare all outstanding payments due and to execute outstanding deliveries only against advance payment.

2. To charge interest on arrears from the due date of at least 3% above the Bundesbank discount.

3. To claim further damages caused by delay.

 

c) Changes in ownership,

in the company form or other circumstances affecting the economic circumstances as well as changes of address must be notified to us in writing without delay. Such changes in the person or the economic circumstances of the customer entitle us to make changes at our discretion:

1. to claim payment or security as a result of due or deferred claims from all existing contracts; this also applies to accepted bills of exchange, to refuse to fulfil existing contracts until advance payment or security has been received.

 

d) Our customers shall always be entitled to furnish proof

that we have not incurred any damage or a considerably lower damage.

 

7. Retention of title

1. Until the fulfilment of all claims (including balance claims from current account) to which we are entitled against our customer now or in the future for any legal reason, we are granted the following securities, which we will release on request and at our discretion, if their value exceeds our claims by more than 20%.

2. The goods remain our property.

   Processing or assembly is always carried out for us as the manufacturer, but without any obligation for us. If our (co-)ownership expires due to combination or mixing, it is hereby agreed that the customer's (co-)ownership of the uniform object shall pass to us in proportion to its value (invoice value).

   The customer shall maintain our (co-)ownership free of charge. Goods to which we are entitled to (co-)ownership are hereinafter referred to as reserved goods.

3. Our customer is entitled to process and sell the reserved goods in the ordinary course of business as long as the customer is not in default.

   Pledging or transfer by way of security as well as the agreement of assignment prohibitions are not permitted.

   The customer hereby assigns to us in full all claims (including all current account balance claims) arising from the resale, processing or any other legal reason (insurance, tort) in respect of the reserved goods.

   All of our rights of retention of title (simple, extended, prolonged and current account retention) shall not expire even if goods originating from us are acquired by a buyer as long as the buyer has not paid us for the goods.

   This applies in particular to sales within the framework of affiliated companies. We irrevocably authorise the customer to collect the claims assigned to us for our account in the customer’s own name.

   This collection authorization can only be revoked if the customer does not properly meet their payment obligations.

4. In the event of access by third parties to the reserved goods, the customer shall draw attention to our ownership and notify us immediately.

5. If the customer acts in breach of contract - in particular default of payment - we are entitled to take back the goods subject to retention of title and, if necessary, to demand the assignment of our customer's claims for return against third parties.

   The taking back as well as the seizure of the reserved goods by us does not constitute a withdrawal from the contract, unless the instalment law is applicable.

 

8. Place of performance and jurisdiction

1. The place of performance for the delivery is the respective place of dispatch of the goods; the place of performance for all obligations of the customer is the registered office of our company.

2. If the customer is a registered trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Moers shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from our legal relations with our customer.

3. The law of the Federal Republic of Germany applies to these terms and conditions of business and the entire legal relationship between us and our customers. The application of the uniform law on the international purchase of movable goods is excluded.