General conditions of business and delivery
(1) All deliveries, services and quotes by the delivery company (hereinafter “seller”) are based exclusively on these general conditions of business and delivery. They are part of all contracts the seller concludes with its contractual partners (hereinafter “buyer(s)”) regarding its services or deliveries. They also apply to future deliveries, services or quotes made to the buyer, even if they have not been separately agreed on again.
(2) Buyer or third-party terms and conditions are invalid, even if the seller does not specifically object to them in individual cases. Even if the seller refers to a letter containing or citing the buyer’s or a third party’s terms and conditions, this does not mean it deems these to be valid.
II. Quote and contract signature
(1) All seller quotes are non-binding and subject to change, unless they are expressly marked as binding or contain a specific acceptance period. The quote is deemed to have been accepted by the seller if it has been confirmed in writing or the delivery has been made.
(2) The legal relationships between the seller and buyer are governed solely by the written purchase agreement, including these general conditions of business and delivery, which fully reflects all agreements made between the contractual parties regarding the contractual object. Sub-agreements, amendments and changes to the relevant agreements, including these general conditions of business and delivery, must be made in writing in order to be considered valid. A fax or email is sufficient for upholding this written form requirement.
(3) Seller details relating to the object of delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data), as well as diagrams thereof (e.g. drawings and illustrations), are only approximations, unless useability for the intended contractual purpose requires an exact match. They are not guaranteed properties; just descriptions or labelling of the delivery or service. Conventional deviations and deviations based on legal regulations or constituting technical improvements, as well as the replacement of components with equivalent parts, are permitted, insofar as this does not affect useability for the intended contractual purpose.
III. Prices and payment
(1) The prices apply to the service and delivery scope listed in the order confirmations. Additional or special services are charged separately. The prices are ex works in EUROs, plus the legal VAT (and customs duties for export deliveries), as well as fees and other public taxes.
(2) If the agreed prices are based on the seller’s list prices, and the delivery is to be made more than four months after contract signature, the seller’s list prices valid at the time of delivery shall apply (minus any agreed proportionate or fixed discount).
(3) Invoice amounts must be paid in full immediately (enforceability) after the goods have been delivered, unless otherwise agreed on in writing. The definitive date is the date on which the payment is received by the seller. Cheques are only classified as payments once cashed. If the seller does not pay by the due date, the outstanding amounts incur an interest of 9% points above the basic interest rate p.a., starting from the due date; this does not affect the claiming of further damages in the event of default.
(4) Offsetting against the buyer’s counterclaims, or withholding payments because of such claims, is only permitted if the counterclaims are undisputed or legally established.
(5) The seller is entitled to perform outstanding deliveries or services on condition of pre-payment or collateral security if, after signing the contract, it becomes aware of circumstances which may significantly lower the buyer’s credit rating, and which jeopardise the chances of the buyer paying the seller’s outstanding claims arising from the contractual relationship.
IV. Delivery and delivery period
(1) Deliveries are made ex works.
(2) Anticipated deadlines set by the seller for deliveries and services are only approximate, unless a fixed period or deadline has been expressly guaranteed or agreed on in writing. Insofar as shipping has been agreed on, delivery periods and deadlines refer to the time of handover to the carrier, freight forwarder or other third party hired for transportation purposes.
(3) Irrespective of its rights resulting from a default by the buyer, the seller can ask the buyer to extend delivery and service periods, or postpone them by a period equivalent to that for which the buyer does not comply with its contractual obligations to the seller.
(4) The seller is not liable for infeasible deliveries or delivery delays, insofar as these have been caused by force majeure or other events unforeseeable at the time of contract signature (e.g. any kind of operational disruptions, difficulties in procuring materials or power, transport delays, strikes, legal lock-outs, shortages in staff, power or raw materials, or missed, incorrect or late delivery by suppliers), and which are beyond the seller’s control. If such events considerably impede or prevent the seller from rendering the service or delivery, and this is not a temporary issue, the seller is entitled to withdraw from the contract. In the case of temporary impediments, the delivery or service periods are extended or postponed by an amount of time equivalent to that of the impediment, plus an appropriate start-up period. Insofar as the buyer cannot be expected to accept the delivery or service as a result of the delay, it may withdraw from the contract by submitting an immediate written statement to the seller.
(5) The seller is only entitled to make partial deliveries if
a) the partial delivery may be used by the buyer for the intended contractual purpose,
b) delivery of the remaining ordered items is guaranteed, and
c) this does not involve any significant effort or additional costs for the buyer (unless the seller agrees to bear these costs).
(6) If the seller defaults on a delivery or service, or is unable to perform a delivery or service for any reason, the seller’s liability is limited to compensation as per point VII of these general conditions of business and delivery.
V. Place of performance, shipping, packaging, transfer of risk
(1) Unless otherwise agreed, the place of performance for all obligations arising from the contractual relationship is Bottrop.
(2) The seller’s chooses the type of shipping and packaging at its discretion.
(3) The risk is transferred to buyer by no later than the day the delivery object is handed over to the carrier, freight forwarder or other third party appointed for transportation purposes (whereby the start of the loading process is deemed definitive). This also applies if partial deliveries are made, or in the event the seller has taken on other additional services (e.g. shipping). If shipping or handover is delayed due to circumstances caused by the buyer, the risk is transferred to the buyer from the day the seller is ready for shipping and has advised this to the buyer.
(4) The seller only insures the consignment against theft, breakage, transport damage, fire damage, water damage or other insurable risks at the expense and express request of the buyer.
(1) The legal warranty period applies.
(2) The items must be carefully checked as soon as they are delivered to the buyer. They are considered as having been approved if the seller does not receive a complaint regarding visible defects or other defects detected during an immediate, thorough check within seven working days of the item being delivered, otherwise within seven working days of the defect being discovered or the date on which the buyer noticed the defect through normal use of the item without any specific checks, in the form stipulated in point II, paragraph 2. The rejected delivery item must be returned to the seller, freight prepaid, at the seller’s request. In the event of justified complaints, the seller bears the costs of the cheapest shipping method.
(3) In the event of material defects in the delivered items, the seller is obliged and entitled to choose, within an appropriate period of time, whether to initially repair it or provide a replacement delivery. If this fails, e.g. the repair or replacement delivery is impossible, infeasible, refused or inappropriately delayed, the buyer may withdraw from the contract or reduce the purchase price accordingly.
(4) If a defect caused by the seller, the client may demand compensation under the conditions stipulated in point VII.
VII. Liability to pay compensation for fault
(1) The seller’s liability to pay compensation, regardless of the legal grounds, and particularly as a result of impossibility, default, defective or incorrect delivery, a breach of contract, a breach of obligation during contractual negotiations, or misconduct, is limited as per this point VII, insofar as it is a case of fault.
(2) The seller is not liable
a) in the event of minor negligence by its bodies, legal representatives, employees or other assistants;
b) in the event of gross negligence by its non-managerial employees or other assistants,
if the matter does not involve a breach of important contractual obligations. Important contractual obligations include those to provide prompt, flawless delivery, as well as consultancy, protection and duty-of-care obligations designed to enable the buyer to use the delivery object as per the contract, or which seek to protect the life and limb of the buyer’s staff or third parties, or the buyer’s property, from significant damage.
(3) Insofar as the seller is liable to pay compensation as per point VII (2), this liability is limited to damages which, at the time of contract signature, the seller anticipated as possible consequences of a contractual breach, or which, taking into account the circumstances it was aware of or should have been aware of, it should have anticipated by exercising the appropriate care. Indirect damage and secondary damage resulting from defects to the delivery item may also only be compensated for if they are to be typically expected from normal use of the delivery item.
(4) In the event of liability for minor negligence, the seller’s obligation to pay compensation for material damage or physical injury is limited to an amount of EUR 20,000.00 per damage incident, even if this constitutes a breach of important contractual obligations.
(5) The aforementioned disclaimers and limitations of liability apply equally to the seller’s bodies, legal representatives, employees and other assistants.
(6) The limitations stipulated in this point VII do not apply to the seller’s liability for deliberate actions, guaranteed properties, death, physical injury, harm to health, or under the Product Liability Act.
(7) The seller is not liable to the buyer for breaches of rights to registered designs, utility models, patens or other copyrights by the plastic parts manufactured using the tools. If third parties raise claims against the seller for this, the buyer is obliged to exempt the seller from all relevant claims if the buyer is responsible for the cause of the claim.
VIII. Retention of title
(1) The retention of title agreed on below serves to secure all currently existing and future claims raised by the seller against the buyer as a result of the delivery relationship between the contractual parties.
(2) The goods delivered by the seller to the buyer shall remain the seller’s property until full payment of all secured claims. The goods will hereinafter be called reserved goods.
(3) The buyer stores the reserved goods for the seller free of charge. At the seller’s request, the buyer must insure the reserved goods against loss and damage at its own expense; it hereby assigns its claims resulting from the insurance contracts, in advance, to the seller, who accepts them.
(4) The buyer is entitled to sell the reserved goods through conventional business channels until the enforcement event. Pledging and chattel mortgaging are not permitted.
(5) In the event the reserved goods are resold, the buyer immediately assigns the resulting claim against the purchaser, by way of security, to the seller, who accepts it. The same applies to other claims substituting the reserved goods, or which otherwise result in relation to the reserved goods, e.g. insurance claims or claims based on misconduct in the event of loss, damage or destruction.
(6) If third parties access the reserved goods, particularly through seizure, the buyer will immediately assign them as seller property, and inform the seller of this to enable it to assert its ownership rights. Insofar as the third party is unable to reimburse the seller for the judicial or extrajudicial costs arising in this context, the buyer is liable to the seller for this.
(7) The seller will release the reserved goods, and the claims substituting these, upon request and at its discretion, insofar as their value exceeds that of the secured claims by more than 50%.
IX. Intellectual property, exemption
(1) The seller has ownership rights to illustrations, drawings, calculations and other documents. In the event they are eligible for copyright, the copyright for these documents remains with the seller. This also applies to written documents marked as “confidential”. The buyer must obtain the seller’s express written consent before forwarding these to third parties.
(2) The seller shall not be liable for any infringement of intellectual property rights of third parties, in particular in the event that the specifications and construction plans of the buyer have been made by the buyer. In the event of a claim by the seller for third parties for infringement of industrial property rights, the buyer shall release the seller from all claims.
X. Privacy and non-disclosure
(1) The buyer agrees for all its personal data stored for the purposes of fulfilling the contract (order processing and billing) to be processed by computers.
(2) Each contractual party will only use the documents and knowledge gained as part of the business relationship for the jointly pursued purposes, and shall apply the same care as it would for its own documents and knowledge in terms of not disclosing these to third parties if the other contractual party has marked these as confidential or has a clear interest in not disclosing these.
This continues to apply even after the business relationship has ended.
XI. Final provisions
(1) The place of jurisdiction for any disputes arising from the business relationship between the seller and buyer is Schwerin or the buyer’s headquarters – the seller chooses. Essen is the sole place of jurisdiction for lawsuits against the seller. This does not affect mandatory legal provisions on sole places of jurisdiction.
(2) The relations between the seller and buyer are governed exclusively by federal German law, with the exception of the United Nations Convention on Contracts on the International Sale of Goods, dated 11 April 1980 (CISG).
(3) Insofar as the contract or these general conditions of business and delivery contain omissions, these are filled by the legal rules the contractual parties would have agreed on, based on the contract’s economic objectives and the purpose of these general conditions of business and delivery, if they had been aware of said omissions.