Our terms and conditions apply to all present and future business between us and the Purchaser, even if we do not contradict possibly differing terms and conditions of sale or counter-confirmations, which we hereby expressly reject. These Terms and Conditions are deemed to be agreed the latest at the moment of acceptance of the goods or services by the Purchaser. Any differences require our written consent for each individual contract. If any individual clauses of these Terms and Conditions are wholly or partially invalid, the other conditions remain valid.
2. Quotations, conclusions
Quotations are without obligation, unless we expressly specify to the contrary in writing. Cost estimates and carriage informations are non-binding. Orders with us by the Purchaser, and any quotations, information or agreements by our employees, only become binding on us with our written confirmation. Confirmation is always given subject to the reservation that we have the necessary stocks to fulfil the orders, or can produce or obtain the goods in good time.
Prices quoted are always subject to price changes by our suppliers up to the date of delivery. We are entitled to invoice the prices valid on the date of delivery. Fixed prices require specific written confirmation. If the costs associated with the production, trading and transport of the goods, including public charges, are increased, or their basis changed, up to the date of delivery, the (fixed) purchase price payable by the Purchaser shall increase, even where these costs are not calculated separately in addition to the price. If it is not legally permissible to pass on the cost increase to the Purchaser, we shall be entitled to withdraw from the contract. Cost increases that are caused by the Purchaser shall be borne exclusively by the Purchaser.
4. Delivery dates
In the case of failure to comply with delivery dates, the Purchaser must grant us a reasonable period of grace. On expiry of this period, the Purchaser is entitled to refuse acceptance of the late delivery; claims for compensation are excluded. The delivery period starts on full clarification of all the details of execution and does not include the transport time. It shall be extended by any period in which the Purchaser any of or its group or affiliated companies (cf. subsection 13 are in arrears with, or late in performing, any obligations.
5. Delivery, transfer of risk
We are entitled to make partial deliveries. If the quantities of goods available to us are insufficient to satisfy requirements of all purchasers, we are entitled to shorten all deliveries by a certain share; above this we are released from any delivery obligations. Deliveries are always made at the risk of the Purchaser. The risk is transferred to the Purchaser as soon as the goods are ready to dispatch, no later than the moment at which the goods are handed over to the carrier or haulage company, or leave the works or warehouse. The acceptance of the goods by the carrier or haulage company is deemed to be proof of flawless packaging and loading, and rules out any claims against us in respect of deficiencies or damage.
6. Dispatch, transport costs
Transport is at the expense of the Purchaser. Packaging is charged at the cost price and is not returnable. We arrange the transport routes, means of transportation and protection, without any guarantee of providing the cheapest or fastest carriage, or full utilisation of the load capacity.
7. Acceptance, handover
If the goods are not forwarded to the orderer, but to a third party, the orderer must check and accept them at our premises; otherwise they are deemed to be supplied in accordance with the order on dispatch.
8. Delivery problems
Circumstances and incidents that prevent or substantially impede the delivery release us from our delivery obligation for as long as they last. This applies in particular to cases of force majeure, government interventions at home or abroad, substantial changes to currency values and exchange rates, and also where our suppliers are released, wholly or in part, from their delivery obligations due to their terms and conditions, or if the normal procurement and transport options are no longer available. In such cases, even if we are already in arrears, we are entitled to deliver with a corresponding delay, including a reasonable response time; in addition we are also entitled, at our discretion, to withdraw from the contract, wholly or in part, immediately or at a later date. Under no circumstances are we obliged to any compensation (in kind). The Purchaser may withdraw from the contract if we do not state when asked whether we wish to withdraw from the contract or deliver within a reasonable period.
Complaints are only valid if the Purchaser notifies us of them immediately on receipt of the goods, or no later than eight days thereafter, provided they are still at the location of delivery and in the condition they were delivered, in writing or verbally followed up with written confirmation including a precise description of the individual defects. Complaints regarding hidden defects may only be made within three months of receipt of the goods. In the case of fittings and machine parts, we assume liablility for the duration of one year for the fact that they were produced using the most appropriate materials. Processing, resale or repairs without our written consent are deemed to imply unreserved acceptance. Complaints with regard to partial deliveries do not give cause for refusal of the remaining delivery. The right to claim for defects lapses the latest one month after refusal of the complaint by us. The right claim for defects is ruled out if the Purchaser has failed to preserve possibility of recourse against third parties (e.g. factual reports by rail authorities; certification of shortages). Measures taken by us to minimise damages do not constitute acknowledgement of defects. If we enter into negotiation concerning a complaint, this does not imply renouncement of the objection that the complaint was not lodged on time, was factually unfounded or was otherwise inadequate. In the case of a complaint, we shall at our discretion either supply a defect-free replacement on return of the defective goods, cancel the contract or charge a reduced price; any transport costs incurred will be reimbursed. Any further claims of any kind, including in respect of compensation for further (consequential) damages are excluded. Our liability is limited to the scope within which we ourselves are reimbursed by our suppliers, carriers, haulage contractors or insurers. Despite any claim for defects, the terms of payment must be complied with. Failure to comply shall release us from any warranty obligations.
Our liability only extends to the scope of these terms and conditions of sale and supply. Our liability for vicarious agents is limited to liability for due care in selecting them and supervision as required. We only accept liability for malicious intent and gross negligence. We do not accept liability for water or frost damage or damage resulting from defective installation, incorrect assembly, natural wear and tear, the failure of seals and membranes, chemical, physical and, in particular electrical effects, damage to materials from aggressive media, from incorrect operation or improper or excessive use or destruction through force. We do not accept liability under any circumstances for advice, information or recommendations given by us or our employees.
11. Terms of payment
Our invoices are due for payment net 30 days after the date of the invoice. We offer a 2% discount for payment within 10 days of the date of invoice. Bills and cheques are no cash payment; if we allow them, they will only be accepted on account of payment on condition that they can be discounted and subject to reimbursement of all charges. We are not liable for the timely presentation of bills and cheques. Purchaser’s rights of offset or retention are excluded. Our employees are not authorised to accept payments nor do they have any power of disposition without written authorization.
12. Payment arrears, doubt of creditworthiness
In the case of payment arrears with no need for prior warning, we may claim interest on arrears at the standard bank rates, as well as further damages. Any discounts, rebates and other credits granted to the Purchaser shall be forfeit. Furthermore, we may store the goods delivered separately, have them marked and collected, without setting a deadline or period of grace at the expense of the Purchaser, withhold or refuse to make any further deliveries relating to this or other contracts, fully or in part, and demand immediate payment in respect of all deliveries, advance payments and, in the case of fault, damages in respect of non-fulfilment. We are also entitled to the aforementioned rights if circumstances become known about the Purchaser, the Purchaser’s shareholders or companies of its group or affiliated companies (cf. subsection 13), which case doubt on the Purchaser’s creditworthiness. If such circumstances become known in the case of a party involved in a bill transaction, we may demand full payment immediately.
13. Retention of title, securities
a) Secured claims, release in the case of excessive security
The following securities shall be provided until payment in full of all claims, including account balance claims, due to us or companies of our group or affiliated companies, regardless of their legal basis, from the Purchaser and its associated companies. If the value of the securities exceeds that of the claims in total by more than 20 percent, we shall be obliged, at the request of the Purchaser, to release securities of our choice. All securities provided by the Purchaser to us or companies of our group or affiliated companies (subsection 13), apply concurrently in favour of all other associated companies and may be called on to settle their claims.
b) Retention of title, machining and processing, blending and combining
The goods remain our property until payment in full of all outstanding claims. Machining and processing are in all cases undertaken on our behalf to the exclusion of the acquisition of ownership by the processor as provided by Section 950 of the German Civil Code, without any obligation on our part. If the goods are blended, combined or processed together with other items, the Purchaser hereby assigns its rights of ownership, co-ownership or possession of the new combined item to us and holds it on our behalf, unless we became co-owner of the new item in the same ratio as that of the value of the goods subject to retention of title (cost price) to the other goods at the time of processing in any case. Pledging or transfer by way of security of our property/co-owned property is forbidden.
c) Expanded retention of title
Should the Purchaser sell our goods (in a processed, blended or combined state), the Purchaser hereby assigns to us all outstanding claims against its customers, even where they comprise remuneration for work done, including all ancillary rights, especially securities. If the Purchaser sells our goods after processing, combining or blending them with goods not belonging to us, we are joint creditor alongside with the co-beneficary; at most the Purchaser’s claim against its customers is assigned to us in line with the amount of the sale value of the goods subject to reservation of title supplied by us, plus 25%.
d) Authorisation to sell
Provided the Purchaser is a trader, the Purchaser is authorised to sell our property in the course of proper trade; this authorisation lapses if the Purchaser is in arrears or agrees with its customers that claims cannot be assigned. The Purchaser is revocably authorised to call on the claims assigned to us itself, provided it is not in arrears; assignment to third parties is not permitted. Assignment to us always relates to the part of the claim that is still realisable. At our request the Purchaser shall disclose the assignment and provide us with the necessary information and documents. Furthermore, the Purchaser hereby assigns future claims in respect of damage to the goods supplied by us (e.g. insurance, unlawful acts) to us.
e) Passing on the retention of title
In the case of resale of the goods supplied by us, the Purchaser is obliged to agree retention of title.
f) Assertion of the retention of title, third-party claims, claims relating to possession
If we take the goods back on the grounds of retention of title, this does not mean withdrawal from the contract. The Purchaser is obliged to return the goods at its own expense and is liable for any reduced value, for our take-back costs (at least 20% of the price) and loss of profit. The Purchaser must inform us immediately, where necessary by telephone, telegram or telex, if a third party challenges our rights. The Purchaser renounces claims arising from possession.
g) Right to security, ban on remuneration
We are entitled/authorised at all times, by way of security in respect of the proper fulfilment by the Purchaser of its obligations, to demand securities at our discretion (in particular land charges) and additions and to draw on and realise items of value from the Purchaser that are subject to our actual influence, as security/collateral. The Purchaser may only assign, pledge or otherwise dispose of claims to which it is entitled against us and companies of our group or affiliated companies (subsection 13) with our consent.
14. Place of performance, place of jurisdiction, applicable law
The place of performance for all deliveries, including those with free delivery, is Hanau. The place of performance for the Purchaser’s obligations, and the place of jurisdiction, including for trial by the record and for claims raised in the course of collection procedures, is Hanau. However, we may bring actions at the location of the Purchaser’s registered office and at any other permitted courts. The contract is governed exclusively by the law of the Federal Republic of Germany as it applies to transactions between German residents within the country.