I. General, scope of application
1. Our terms and conditions of delivery and payment (hereinafter also referred to as "our terms and conditions") shall apply exclusively. We do not recognise any terms and conditions of the Purchaser that conflict with or deviate from our terms and conditions unless we have expressly agreed to their validity. Our terms and conditions shall also apply if we carry out the deliveries/services to the Purchaser without reservation in the knowledge of terms and conditions of the Purchaser that conflict with or deviate from our terms and conditions.
2. Our terms and conditions shall also apply to all future transactions with the Purchaser.
3. All agreements and arrangements made between us and the Purchaser for the purpose of executing this contract are set out in writing in this contract.
II. Conclusion of contract
1. Our offers are subject to change. The data stated by us and the documents belonging to the offer,
such as illustrations, drawings, plans, calculation tables and weight specifications,
are only approximately authoritative. In particular, we reserve the right to make technical changes within the scope
of what is reasonable. We reserve the ownership and copyright of all offer documents; they may not be made accessible to third parties and must be returned upon request. The Purchaser shall not be entitled to construction drawings unless otherwise agreed.
2. By ordering the goods, the Purchaser bindingly declares that he wishes to purchase the ordered goods. The contractual offer contained in the order shall only be accepted by our written confirmation. We reserve the right to an acceptance period of four weeks.
3. In the event of a contract being concluded in electronic business transactions, we expressly exclude the application of § 312 e para. 1 sentence 1 nos. 1-3 BGB (German Civil Code).
4. The conclusion of the contract is subject to correct and timely delivery to us by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery, in particular if a congruent covering transaction has been concluded with our supplier. We will inform the Purchaser immediately about the non-availability of the service.
III. Prices and payments
1. In the absence of a special agreement, the prices are ex works, excluding packaging, freight and installation. The prices quoted are exclusive of VAT at the respective statutory rate.
2. Any packaging required shall become the property of the Purchaser and will not be taken back by us.
3. Deviations in cost factors such as material, wages, salaries, etc. compared to the reference date stated in the offer shall be taken into account within the framework of a price escalation clause customary in the industry, unless a fixed price has been expressly agreed.
4. In the absence of a special agreement, payment shall be made in cash without any deduction, free of charge to our paying agent. Any payment deadlines shall be agreed separately in writing.
Bills of exchange – which are only accepted on the basis of a special agreement and on account of payment –, cheques and bank transfers will be credited subject to receipt with the value date of the day,
on which we can finally dispose of the countervalue.
5. We are entitled to charge interest at a rate of eight percentage points above the base rate (§ 247 BGB (German Civil Code)) if agreed payment dates are exceeded.
6. Withholding of payments or offsetting on account of any counterclaims of the Purchaser disputed by us shall not be admissible.
7. If the Purchaser fails to meet his payment obligations in whole or in part or if circumstances become known after conclusion of the contract which are likely to impair the creditworthiness of the Purchaser, all our claims shall become due immediately. Such circumstances shall also entitle us to perform outstanding services only against advance payment or provision of security or without requiring a grace period to withdraw from the contract or to claim damages in the event of non-performance.
IV. Delivery periods
1. The delivery period shall commence with our dispatch of the order confirmation, but not before the provision of the documents, approvals, releases to be procured by the Purchaser and before receipt of the agreed down payment.
2. The delivery period shall be deemed to have been complied with if the delivery item has left the factory or notification of readiness for dispatch has been given by the time the delivery period expires.
3. If the Purchaser fails to fulfil his contractual obligations in due time, the delivery period shall be extended accordingly.
Furthermore, the delivery period shall be extended in the event of measures within the scope of industrial disputes, in particular strikes and lock-outs, as well as in the event of the occurrence of unforeseen obstacles which are beyond our control, insofar as such obstacles demonstrably affect the completion or delivery of the delivery item. This also applies if the circumstances occur with subcontractors.
We shall not be responsible for such circumstances even if they arise during an already existing delay. The beginning and end of such obstacles will be communicated to the Purchaser as soon as possible in important cases.
4. If the Purchaser suffers damage due to a delay caused by our fault, he shall be entitled to claim compensation for the delay to the exclusion of any further claims. This shall amount to up to 0.2% of the contract price of the overdue delivery for each full week of the delay, but in total not more than 3% of the part of the total delivery which cannot be used on time or in accordance with the contract as a result of the delay.
5. If dispatch is delayed for reasons for which the Purchaser is responsible or at the Purchaser's request, the Purchaser shall be charged for the costs incurred by storage, starting 1 week after notification of readiness for dispatch, but at least 0.5% of the invoice amount for each month in the case of storage in our works. We are entitled to dispose otherwise of the delivery item after setting and fruitless expiry of a reasonable deadline and to supply the Purchaser with a reasonably extended deadline.
Partial deliveries are permissible.
6. Compliance with the delivery period shall be subject to the fulfilment of the contractual obligations of the Purchaser.
V. Shipping and transfer of risk
1. The risk shall pass to the Purchaser at the latest upon dispatch of the delivery parts, even if partial deliveries are made or the Supplier has assumed other services, e.g. the shipping costs or delivery and installation. If dispatch is delayed as a result of circumstances for which the Purchaser is responsible, the risk shall pass to the Purchaser from the date of readiness for dispatch. Delivered items shall be accepted by the Purchaser, even if they have insignificant defects, without prejudice to the rights under Section VII.
VI. Retention of title
1. The goods remain our property until full payment of all claims, including ancillary claims, claims for damages and cashing of cheques and bills of exchange. The retention of title shall also remain in force if individual claims are included by us in a current invoice and the balance has been struck and recognised.
The Purchaser shall be entitled to process and sell the goods subject to the following provisions:
a) The Purchaser's authority to process goods subject to retention of title in the ordinary course of business shall end with the suspension of payments or with the application for or opening of bankruptcy or settlement proceedings.
b) By processing the goods subject to retention of title, the Purchaser does not acquire ownership of the new item in accordance with § 950 BGB (German Civil Code). The processing shall be carried out for us without any liabilities arising for us. If the goods are processed, mixed or blended with other items, we shall acquire co-ownership of the new item in the ratio of the value of our goods subject to retention of title to the total value of the goods.
c) The Purchaser hereby assigns to us the claim with all ancillary rights arising from the resale of the goods subject to retention of title, including pro rata to the extent that the goods have been processed, mixed or blended and we have acquired co-ownership to the amount of our invoice value. In the latter case, we shall be entitled to a fractional share of the respective purchase price claim in proportion to the invoice value of the reserved goods to the invoice value of the item. If the Purchaser has sold the claim within the scope of genuine factoring, he shall assign to us the claim against the factor taking its place.
d) We will not collect the assigned claims as long as the Purchaser meets his payment obligations. The direct debit authorisation shall expire in the event of default of payment by the Purchaser. In this case, we are authorised by the Purchaser to inform the customers of the assignment and to collect the claims ourselves. The Purchaser is obliged to provide us, upon request, with a precise list of the claims to which we are entitled, including the names and addresses of the buyers, the amount of the individual claims, the invoice date, etc., and to provide us with all information necessary for the assertion of the assigned claims and to allow us to verify this information. The Purchaser is entitled to collect the claims himself as long as we do not instruct him otherwise.
e) We undertake to release the securities to which we are entitled insofar as their value exceeds the claims to be secured by more than 20%.
f) Pledging or transfer by way of security of the reserved goods or the assigned claims is not permitted. We are to be informed immediately of any seizures, stating the pledgee.
g) If we take back the delivery item on the basis of the retention of title, this shall not be deemed a withdrawal from the contract. We may freely satisfy ourselves from the goods subject to retention of title which have been taken back.
h) The Purchaser shall store the goods subject to retention of title for us free of charge. He shall insure them against usual risks such as fire, theft and water to the usual extent. The Purchaser hereby assigns to us his claims for compensation to which he is entitled against insurance companies or other parties obliged to pay compensation as a result of damage of the type mentioned above, to the amount of his claims.
i) All claims as well as the rights arising from the retention of title to all special forms stipulated in these terms and conditions shall remain in force until full release from contingent liabilities which we have entered into in the interest of the Purchaser.
VII. Rights in the event of defects
1. We are obliged to remedy all defects, the cause of which can be proven to lie before the transfer of risk, free of charge by way of subsequent performance. Expenses arising from the fact that the subsequent performance has to be rendered at a place other than the agreed place of performance shall be borne by the Purchaser. The Purchaser shall grant us the necessary time and opportunity for subsequent performance; any parts replaced in the process shall become our property.
2. If the subsequent performance fails to remedy a defect, the Purchaser may, without prejudice to any claims for damages, withdraw from the contract or demand a reduction in price.
3. The warranty period begins with acceptance or delivery or handover to the carrier.
4. Our warranty is excluded,
a) if we have not been notified immediately in writing of any defect discovered,
b) insofar as defects have arisen due to improper operation of the delivery item, due to non-compliance with the operating instructions, operating conditions and maintenance and care intervals, due to natural wear and tear or the use of improper operating materials or replacement materials or
c) if changes or repairs are made to the delivery item without our consent or if spare parts not supplied by us are used or
d) if our delivery items have not been set up or put into operation by our personnel in the absence of a written agreement to the contrary or if it cannot be proven that there are defects in the material, design and workmanship.
5. As long as the Purchaser is in default with the fulfilment of his contractual obligations towards us, we are entitled to refuse the fulfilment of warranty claims. An extension of the warranty period is excluded in this case.
VIII. Liability
1. If, due to our fault, the delivered item cannot be used by the Purchaser in accordance with the contract as a result of omitted or faulty execution of suggestions and consultations prior to or after conclusion of the contract as well as other contractual collateral obligations – in particular instructions for operation and maintenance of the delivery item – the provisions under Section VII above shall apply accordingly to the exclusion of further claims of the Purchaser.
2. We shall only be liable for our own faults as well as the faults of our executive employees and our vicarious agents due to the breach of duties arising from the contractual obligation as well as due to tortious acts in cases of intent and gross negligence. However, this shall not apply if and to the extent that liability is mandatory under the statutory provisions, namely to the extent that liability exists under the Product Liability Act for personal injury and property damage to privately used objects, due to injury to life, limb or health or due to the breach of material contractual obligations. In the latter case, however, our liability is limited to the foreseeable damage typical for the contract, unless there is intent or gross negligence or injury to life, body or health.
3. The Purchaser shall be solely responsible for the suitability of the rooms, buildings and installations for the assembly and operation of our delivery items (environmental conditions); we shall not be liable for this.
IX. Withdrawal
1. The Purchaser may withdraw from the contract if the entire performance becomes finally impossible for us before the transfer of risk. The same shall apply in the event of the Supplier's inability to perform.
2. If the impossibility occurs during the delay in acceptance or through the fault of the Purchaser, the Purchaser shall remain obliged to counterperformance.
3. The Purchaser shall have the right to withdraw from the contract if a reasonable period of grace granted to us for the rectification of a defect for which we are responsible within the meaning of the terms and conditions of delivery expires fruitlessly due to our fault. The Purchaser's right of withdrawal shall also exist in the event of impossibility or inability of rectification or replacement delivery by us.
4. Excluded are, as far as legally permissible, all other further claims of the Purchaser for compensation of damages of any kind, including such damages which have not occurred to the delivery item itself.
5. In the case of unforeseen events, insofar as they significantly change the economic significance or the content of the performance or have a significant effect on our operations, and in the case of the possibility of performance subsequently becoming apparent, the contract shall be adjusted appropriately. Insofar as this is not economically justifiable, we shall be entitled to withdraw from the contract in whole or in part. Claims for damages by the Purchaser due to such a withdrawal do not exist. If we wish to make use of the right of withdrawal, we shall notify the Purchaser thereof without undue delay after realising the consequences of the event, even if an extension of the delivery period was initially agreed with the Purchaser.
X. Place of performance and jurisdiction
Leer/Ostfriesland is agreed as the place of performance for deliveries and services and payments as well as the place of jurisdiction for legal disputes between us and the Purchaser also for actions in bill of exchange and cheque proceedings. We are also entitled to file a lawsuit at the headquarters of the Purchaser.
XI. General provisions and choice of law
1. The contract is subject to German law. The provisions of the Vienna UNCITRAL Convention on Contracts for the International Sale of Goods shall not apply.
2. Amendments and/or supplements to the contract, including these regulations and the annexes to this contract, must be made in writing.
3. Should any provision of this contract be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. In this case, a valid provision shall apply which comes as close as possible in economic terms to the invalid or unenforceable provision.
Dated: 10/ 08/ 201