1. General Provisions and Scope of Application
1.1. The following General Terms and Conditions shall apply to all our business relations with our customers unless otherwise expressly agreed. Our General Terms and Conditions shall only be applicable to entrepreneurs within the meaning of Art. 14 of the German Civil Code. Business dealings with legal entities of public law and special assets under public law are to be treated the same as business dealings with entrepreneurs.
1.2. Our General Terms and Conditions shall apply where and in so far as the customer’s terms and conditions have not been explicitly approved by us in writing. This shall also apply where we carry out the delivery being aware of the customer’s conflicting or deviating terms and conditions. Even where we make reference or refer to documents which include the customer’s or a third party’s general terms and conditions, this shall not be construed as having approved applicability of such terms and conditions.
1.3. Our General Terms and Conditions shall also apply to any future business dealings with the customer without the necessity to specifically make reference to them in each individual case.
2. Information and Advice; Documents
Information and advice given on our products are based on previous experience. Data given in this context, in particular with regard to possible applications of our goods are only average figures and do not constitute statements on the condition/quality of the goods. We cannot assume any responsibility to adhere exactly to the data and possible use. Should the customer nevertheless be entitled to damages, No. 6 of the present General Terms and Conditions shall apply.
3. Conclusion and Content of the Delivery Contract
3.1. All our offers are subject to change and are non-binding unless we state a period of validity which is binding for us or a certain term of acceptance. A delivery contract shall not come into effect until we expressly confirm the customer’s order in writing. Our order confirmation shall be decisive for the content of the delivery contract. Verbal declarations or promises made prior to contract conclusion are always without commitment and shall be replaced by the written contract.
3.2. All the details concerning our products, in particular the illustrations, drawings, indications of quality, quantity, weight, measurements and performance included in our offers and printed matter, only represent approximations and do not constitute statements on the condition/quality. In so far as no limitations for permissible deviations have been established in the order confirmation and there are no explicitly approved customer specifications, deviations that are customary in the industry shall always be admissible. The nature, suitability, qualification and function as well the intended use of our goods shall be governed solely by our performance specifications and technical qualifications. Any public statements, recommendations or advertising by ourselves or third parties shall not constitute any indication of the condition/quality of the goods.
4. Prices / Terms of Payment
4.1. Our prices do not include the statutory Value Added Tax, the statutory amount of which will be displayed separately in the invoice. Our prices include standard packaging. We cannot accept the return of packaging included in the sales price and customary packaging.
4.2. Our prices are ”ex works” (FCA Verden, in accordance with the Incoterms 2020), unless otherwise provided for in the order confirmation. Shipping costs are to be borne entirely by the customer, unless otherwise agreed in writing. The freight and customs rates as well as any other fees associated with the dispatch which are valid on the day of dispatch shall be decisive.
4.3. The deduction of any early settlement discount shall require an explicit agreement in writing.
4.4. We reserve the right to change our prices accordingly where reductions or increases in costs occur after contract conclusion, especially on account of changes in production costs, material costs, etc. This shall apply, among other things, to the introduction of and/or increase in government levies (customs duties or taxes), an increase in transport and/or insurance costs, surcharges due to high or low water etc. We will provide evidence of these costs at the customer’s request.
4.5. The customer shall only have set-off rights or rights of retention, in so far as the counterclaim or the right of retention has become res judicata, is undisputed or has been recognised by us in writing.
4.6. The purchase price is to be paid within thirty (30) days of the date of invoice unless otherwise agreed in writing. When this period expires, the customer is regarded as being in default of payment.
4.7. In accordance with Art. 247 of the German Civil Code, we will charge interest of 8 percent above the respective base interest rate of the European Central Bank p.a. where payment is not made in due time. The right to provide evidence of a higher amount of damage shall remain unaffected.
4.8. Regardless of the maturity date of bills of exchange which have been accepted on account of performance, our claims shall be due immediately where contractual obligations are not fulfilled by the customer. In cases of default in payment, protest of a bill or suspension of payment by the customer we may demand immediate payment of the total claim (including any possible claims from bills in circulation) regardless of the agreed due date. This shall also apply where we become aware of circumstances which give rise to reasonable and serious doubts as to the customer’s solvency or creditworthiness, including in situations where these circumstances were already existent when the goods were ordered but were unknown to us or we did not have to be aware of them. In any of the cases mentioned, we shall also be entitled to carry out outstanding deliveries exclusively against payment in advance or collateral security. We reserve the right to withdraw from the contract without setting a new deadline where the advance payment is not made or the security is not provided within two weeks. Further claims shall remain unaffected.
4.9. The customer shall not be entitled to assign any claims arising from this contract to third parties without our prior written consent.
5. Delivery and Transfer of Risk
5.1. With delivery periods and dates which are not explicitly designated as binding in the order confirmation but are only approximations, the customer may set an adequate deadline for delivery two weeks after expiry of these delivery periods and dates. We will only be regarded as being in default upon expiry of the period of grace.
5.2. In cases of force majeure, e.g. operational disruptions, delays in transit, measures taken within the framework of industrial action, especially strikes and lockout, as well as non-delivery, incorrect or delayed delivery by our supplier regardless of the reason (reservation concerning failure of suppliers to honour obligations) and any other impediment to performance beyond our control, we may postpone delivery for the duration of the impediment plus a reasonable start-up period.
5.3. If the impediment is expected to be permanent, we reserve the right to refuse delivery of the goods wholly or in part. We shall inform the customer in writing in the event of such occurrence. In such a case, the customer shall not be entitled to any claims for damages against us. They shall be exempted from paying the due consideration. If and in so far as the consideration has already been rendered, a refund shall be made.
5.4. We reserve the right to make partial deliveries where partial deliveries can be used by the customer within the framework of the contractually agreed purpose, delivery of the remaining goods is guaranteed and the customer does not incur any major additional effort or costs unless we declare to be willing to assume these costs. The place of fulfilment shall always be Verden.
5.5. Where delivery on call has been agreed, the calls have to be made within three months after conclusion of the contract unless otherwise agreed in writing. No. 5.7 of these General Terms and Conditions shall apply accordingly in the event of calls not being made in a timely manner.
5.6. All sales are ”ex works” (FCA Verden, in accordance with the Incoterms 2020). Dispatch and transport shall always be at the customer’s risk, unless otherwise agreed in writing. The risk shall, in any case, including with partial deliveries, pass to the customer as soon as the consignment has been handed over to the person carrying out the transport, regardless of whether this person belongs to our company or is an external person – or as soon as it has left our factory for the purpose of dispatch, unless the provisions laid down in No. 5.7 of the present General Terms and Conditions apply.
5.7. Where the customer declines acceptance of the goods or dispatch of the consignment is delayed for other reasons incumbent on the customer, the risk shall pass on the date when acceptance default commences. Storage costs after the passing of risk are to be borne by the customer. We reserve the right to charge a lump sum of storage costs amounting to 0.5% of the invoice price for each month or the actual damage unless the customer proves that the actual damage was lower. We may also set the customer a further deadline of seven (7) days and withdraw from the contract upon unsuccessful expiry of the deadline or demand compensation in lieu of performance.
6. Warranty and Liability
6.1. The customer is obliged to carefully examine the goods delivered immediately upon their arrival at the place of destination even if samples or specimen were sent previously, especially carry out examinations as to the condition/quality of the goods. Where cases, cardboard boxes or other containers are delivered, random samples are to be taken. The delivery shall be deemed to have been approved if we have not received any written notice of defects within one (1) week after arrival of the goods at the place of destination, or, where the defect was such that it could not be detected upon examination, within one (1) week after detection of the defect. An exact description of the defect must be included in the written notice.
6.2. The above obligation to notify us shall also apply in the event of deliveries in excess, incomplete deliveries or any possible incorrect deliveries.
6.3. Any transport damage is to be reported to the freight forwarder without delay; in that respect the notification requirements of the German Freight Forwarders’ Standard Terms and Conditions shall apply.
6.4. Where a defect occurs and is reported in good time, we shall remedy deficiencies within a reasonable period of time at our discretion either by rectification of the defect or delivery of a replacement free from defects. If subsequent fulfilment fails, the customer shall be entitled at their discretion either to demand reduction of the price or revocation of the contract (rescission). However, the customer shall not be entitled to rescind the contract in the event of minor deficiencies. Where, after unsuccessful remedy, the customer opts for rescission of the contract, they shall not be entitled to additional compensation for the defect.
6.5. The foregoing provisions comprise final warranty for our goods. In particular, we accept liability for any other possible legitimate claims for damages on account of or in connection with defects of the goods delivered, regardless of the legal grounds, exclusively in accordance with No. 6.6 of these General Terms and Conditions.
6.6. We shall only assume liability for claims for damages on account of culpable acts, regardless of the legal grounds, e.g. default, defective delivery, violation of contractual obligations or infringement of duties during contract negotiations, tortious acts, product liability (except liability under the Product Liability Law) in the event of intent or gross negligence.
6.7. Liability for slight negligence shall be ruled out, unless a major contractual obligation has been breached (cardinal obligation). Personal liability of our legal representatives, vicarious agents and company employees for damage caused on account of slight negligence shall be ruled out; a restriction in accordance with the foregoing provisions shall also apply to them.
6.8. Any warranty claims by the customer shall be considered lapsed after six (6) months after delivery of the goods. Any claims for damages on account of slight negligence shall be considered lapsed after six (6) months after delivery of the goods. In so far as the conditions for delivery recourse in accordance with Art. 478 of the German Civil Code are fulfilled, the statutory limitation period pursuant to Art. 479 of the German Civil Code shall apply.
6.9. Product descriptions in user manuals as well as other indications or recommendations for the use or suitability of products for certain applications are general guidelines from which the condition/quality of the contractual goods/services may deviate in individual cases on account of the wide variety of possible applications as well as special circumstances (e.g. environmental impacts). The contractual partner is therefore obligated to carry out their own tests.
7. Retention of Title / Extended Retention of Title
7.1. We retain the title to the goods delivered by us until all our receivables arising from the entire business relation with the customer have been settled. These include existing and future claims arising after contract conclusion.
7.2. From our point of view as the manufacturer and without any obligation on our part, processing or alteration of our goods by the customer shall always be subject to Art. 950 of the German Civil Code. Processed or altered goods shall be regarded as conditional goods in accordance with No. 7.1 of these General Terms and Conditions. Where conditional goods are processed, altered, joined or mixed by the customer with other goods not belonging to us so that they become a new item or mixed stock, we shall be entitled to a share in the ownership of the new product, proportionate to the invoice value of the conditional goods and the value of the other processed or mixed goods at the time of processing. The share in the ownership shall be regarded as conditional goods in accordance with No. 7.1 of the present General Terms and Conditions.
7.3. If conditional goods are joined or mixed with other goods and another product which does not belong to us is to be regarded as the essential element within the meaning of Art. 947 of the German Civil Code, it is hereby agreed that a share in the ownership proportionate to the invoice value of the conditional goods and the value of the essential element is transferred to us, and the customer shall store the goods on our behalf free of charge. The share in the ownership shall be regarded as conditional goods in accordance with No. 7.1 of the present General Terms and Conditions.
7.4. The customer shall be obligated to keep conditional goods fully insured against the usual risks and to provide evidence thereof upon request. The customer hereby assigns any possible insurance claims to us.
7.5. The customer must store conditional goods on our behalf. We must be given the opportunity to take an inventory and provide the goods with adequate labelling at the place of storage upon request at any time. The customer must inform us immediately of any seizures or other third-party intervention which could impair our rights, stating all the details which enable us to take every possible legal action.
7.6. The customer shall have the right to sell the goods in commercial transactions according to their customary conditions in so far as they ensure that all claims from further sale are assigned to us in accordance with No. 7.7 of the present General Terms and Conditions.
7.7. The customer hereby assigns to us all claims from further sale of conditional goods, also in the context of service contracts or contracts on the delivery of moveable objects to be manufactured or created, including any ancillary rights. They shall, to the same extent, serve as security for the conditional goods. The customer shall only be entitled to assign the claims to third parties subject to our prior written consent.
7.8. Where the customer sells the conditional goods together with goods not delivered by us, assignment of the claim from further sale shall only apply to the amount of the invoice value of our conditional goods at the time of delivery. In cases where we have a share in the ownership in accordance with No. 7.2 or 7.3 of the present Terms of Sale, assignment of the claims in the event of sale shall only apply to the extent of the ownership share.
7.9. Until further notice, the customer shall be entitled to collect receivables from re-sales in accordance with No. 7.7 of the present General Terms and Conditions. Our right to collect the receivables ourselves shall remain unaffected.
7.10. Where the customer does not fulfil their obligations under this contract or other contracts with us or we become aware of circumstances which reduce their creditworthiness, then
– we may forbid any re-sale, processing and alteration of the conditional goods as well as their joining or mixing with other goods;
– we may withdraw from this contract; in which case the customer’s right to possess the conditional goods shall be forfeited and we may demand surrender thereof; we shall then be entitled to enter the customer’s premises, take possession of the conditional goods at the customer’s expense and, without prejudice to the customer’s payment commitments and other obligations, sell the reclaimed goods by means of private or auction sales to our best advantage. The proceeds shall be set off against the customer’s debts after deduction of costs incurred. Any possible surplus amount shall be paid to the customer.
7.11. In the event of a default in payment the customer shall be obligated to surrender the conditional goods immediately upon our first request.
8. Place of Fulfilment / Applicable Law / Court of Jurisdiction
8.1. The contractual relationship between us and the customer is subject to the laws of the Federal Republic of Germany. The UN-Sales Law (CSIG) and other agreements, including future interstate or international treaties, shall not be applicable, even if incorporated into German law.
8.2. The competent court of jurisdiction in the event of any disputes in connection with the relationship with our customer is Verden. Statutory provisions on exclusive jurisdiction shall remain unaffected. This agreement on the court of jurisdiction shall not apply to customers who are not traders.
9. Final Provisions
9.1. Any amendments and supplementary provisions to this contract, including this written form requirement, shall only be valid if made in writing. The same applies to any ancillary and additional agreements.
9.2. Business dealings with legal entities of public law and special assets under public law are to be treated the same as business dealings with entrepreneurs.
9.3. In the event of one or more provisions being invalid, the validity of the remainder of the contract shall remain unaffected. Any ineffective provision shall be replaced by a legally admissible provision which corresponds to or reflects most closely the economic purpose intended. The same shall apply to any possible loopholes in this contract.
Last updated on 1st January 2020