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General Terms and Conditions of Delivery and Payment
Last updated: May 2014
1.
General information
(1)
Our deliveries, services and offers are carried out exclusively on the basis of the present General
Terms and Conditions. The present Terms and Conditions shall apply to any future business, even
if there is no explicit mention of the terms. At the latest with the acceptance of our goods or
services the present Terms are considered accepted. Confirmations of the Purchaser referring to
their own Terms of Business and Purchase will not be accepted.
(2)
In case any of the provisions contained in these General Terms and Conditions shall be invalid,
the validity of all remaining provisions contained herein shall not in any way be affected thereby.
The parties are to replace, within the bounds of what is reasonable, any invalid provisions in
good faith with such provisions which best approximate the economic intent of the contract wi
thout the content of the contract being thereby subject to a material amendment. The foregoing
shall apply if circumstances in need of regulation are not explicitly regulated.
(3)
All agreements made between us and the Purchaser for the purpose of performance of this
contract shall be made in writing.
2.
Conclusion of the contract; scope of services
(1)
Our offers are without engagement and noncommittal. Declarations of acceptance and all orders
are subject to our confirmation in writing, by fax or electronic mail in order to become valid. The
contract is deemed to be concluded if we send a written declaration (acceptance of order) which
determines the scope of the service obligations. If this written declaration does not exist, our
scope of services shall be determined by the offer which the Purchaser has accepted at the due
date. The delivery replaces the written acceptance of order.
(2)
The Purchaser must check our acceptance of order immediately to ensure that it is correct and
complete and must inform us of any discrepancies between the order and the acceptance within
5 working days.
(3)
The performance characteristics specified in the catalogues and orders such as figures, plans etc.
are only to be considered an approximation. Plans, figures, measures, weights or other per
formance data are only binding if explicitly confirmed in writing. We reserve unqualified proper
ty and copyright usage rights to cost proposals, plans and other documentation (hereinafter:
documentation). Such documentation may only be made accessible to third parties following our
prior approval and are, if the order is not placed with us, to be returned to us immediately upon
request.
(4)
Our sales employees are not authorised to make further verbal agreements or provide verbal
warranties which go beyond the content of the written contract.
(5)
The Purchaser is liable for the correctness, accuracy and completeness of his order data and all of
his order documents, especially those relating to plans as well as for technical data and samples.
Verbal details including those relating to amendments and modifications of the documentation
and data provided shall require confirmation in writing. If we do not confirm in writing or execute
an order within a month after receipt, within 3 months in special cases (e.g. custom products),
during the term of which the Purchaser is bound to his order, the Purchaser is entitled to take back
the order without him being entitled to lodge claims for damages against us.
3.
Prices; payment terms
(1)
Our prices are prices (EURO of the ECB). The prices specified in our acceptance order shall
prevail. They are ex works, in Germany plus applicable valueadded tax and do not include
installation, commissioning and assembly costs as well as packaging, freight, postage and
insurance costs. They are calculated on the basis of the salary, material costs and other costs
applicable on the day of our tender. If there is an increase in material and commodity prices,
energy costs, salaries and wages, production or transport costs, we are entitled to invoice the
prices arising on the day of delivery due to cost increases that have effectively occurred.
(2)
Supplemental deliveries and services are invoiced separately.
(3)
Payments are to be made in cash and free of charge without any deductions, namely: 1/3 deposit
after receipt of the order confirmation, 1/3 upon notification of the eadiness for dispatch of the
main parts to the Purchaser, the remaining amount within 30 days from the date of the invoice.
Despite different provisions by the Purchaser, we are entitled to offset payments first against his
older debts; we will inform the client of the offset method employed. If any cost and interest
were generated, we are entitled to offset the payment first against the cost, then the interest and
the main service as last.
A payment is considered settled when we can dispose of the sum. In the case of cheques, the
payment is only considered settled when the cheque is cashed. We reserve the right to take in
external or own acceptances as conditional payment; the payment of our claim is considered to
be completed as soon as the Purchaser cashes the bill of exchange. The Purchaser shall bear
discounts, fees and other expenses.
(4)
In case of culpable exceedance of the payment deadline, default interest in the amount of 8
percentage points shall be requested above the applicable base lending rate. If the Purchaser
defaults on a considerable part of his payment or cheques or bills of exchange are protested or
the criteria for lending are not applicable, all of our claims against him for immediate payment
shall fall due. The foregoing also applies to invoices originally deferred as well as any later bills
of exchange or cheques.
(5)
If the financial position of the Purchaser deteriorates considerably after conclusion of the
contract or if the deterioration in the financial position only becomes apparent after the con
clusion of the contract, we are entitled in the event of breach of the consideration to refuse
deliveries not yet executed and demand appropriate advance payments or collateral security,
respectively.
(6)
The exercise of the setoff by the Purchaser is only permissible if the claim of the User has been
found to be indisputable or legally binding. The Purchaser may only use a right of retention
insofar as it is based on claims arising from the same contractual relationship.
4.
Series deliveries, long-term and order contracts
(1)
Indefinite contracts are subject to termination at a term of 3 months to the end of the month.
(2)
f in the case of longterm contracts (contracts with a term of more than 12 months) a material
change in the salary, material or energy costs arises after the first four weeks of the term of the
contract, each Party is entitled to request that the price be adjusted having regard to such
factors.
(3)
Our prices are calculated on the basis of the agreed order quantities. If no binding order quan
tities are agreed, our calculation is then based on the agreed target quantities. If the order
quantity or target quantity is not achieved, we are entitled to increase the price per unit in an
appropriate manner. If the Purchaser exceeds the quantity with our consent, he can request an
appropriate price reduction if he notifies us of this in writing at least 3 months prior to the agreed
delivery date. The amount of the reduction or increase must be calculated using our calculation
bases.
(4)
In the case of delivery contracts on call, unless otherwise agreed, the binding quantities are to be
notified at least 3 months prior to the delivery date by call. Additional costs arising as a result of
the delayed call or subsequent amendments to the call in terms of time or quantity by the
Purchaser, shall be borne by the latter; our calculation shall prevail here.
5.
Time of delivery
(1)
Delivery dates or deadlines which may be arranged with or without engagement shall be made
in writing. Our delivery times are calculated from the date of our order acceptance. All changes
made to the scope of services after the order has been accepted will result in a corresponding
extension of the delivery period.
(2)
The observance of delivery deadlines requires the timely receipt of all the documentation to be
submitted by the Purchaser as well as compliance with the agreed payment terms and other
obligations by the Purchaser. Should the buyer delay or neglect required or agreed upon
concurrence activities on his part, the delivery deadline shall be extended appropriately.
(3)
Even in the case of agreed binding delays and dates, we cannot be held responsible for
unintentional delays of delivery or service due to Force Majeure and due to events which cause
difficulties for the delivery which are not only temporary or which render impossible any delivery
– such events are, among others, strike, lockout, governmental decisions, malfunctions or the
shutdown of key production facilities / machinery, delays in the delivery of material raw and
building materials, lack of materials and / or energy, for example as a result of major price
increases, delays in transportation as well as all cases of force majeure even if such post
ponement occurs at the sites of our suppliers or subsuppliers of our suppliers. The above shall
also apply if the aforementioned circumstances occur during a delay in delivery which already
exists. Such events entitle us to postpone the delivery or service by the duration of the distur
bance plus an adequate leadtime or to rescind, in whole or in part, the contract due to the part
which has not yet been fulfilled. This shall be without prejudice to other rescission rights.
(4)
If the disturbance continues for more than three months, the Purchase is entitled after an appro
priate grace period to rescind the contract in whole or in part, in consideration of the part which
has not yet been fulfilled. If the delivery time is extended or if we are exempt from our obligation,
the Purchaser shall have not have the right to claims damages in this regard. We can only refer
to the stated circumstances if we inform the Purchaser of such disturbances without delay.
(5)
If acceptance of the delivered goods is requested, the latter’s conditions must be stipulated upon
conclusion of the contract at the latest. The acceptance has to be performed at our factory
immediately after we have informed the Purchaser that the goods are ready for acceptance. The
Purchaser shall bear the costs of the acceptance.
(6)
If dispatch or service of documents is delayed at the request of the Purchaser by more than a
month after notice of readiness for dispatch, we shall have the right to invoice the Purchaser for
every month of warehouse rent begun amounting to 0.5% of the price of the delivered goods but
not exceeding 5%. The Parties are at liberty to provide documentary evidence of higher or lower
storage costs.
(7)
This does not affect partial deliveries insofar as such partial deliveries are reasonable for the
Purchaser.
6.
Delivery and transfer of risk
(1)
Deliveries are made EXW (ex works, Incoterms® 2010) from Porta Westfalica. The risk of
accidental loss and/or of deterioration of the delivery item shall pass to the Purchaser once we
have passed the item on to the forwarding agent, carrier or other third parties commissioned
with the delivery (i.e. at the moment when the loading procedure commences) or when the item
has left our warehouse for delivery. This shall apply regardless of the question of payment of
delivery costs or transportation. The delivery is deemed to have been completed once the item
has been unloaded.
(2)
If the dispatch, the service or reception of documents is delayed for reasons for which the
Purchaser is responsible or the Purchaser defaults in acceptance for other reasons, the risk is thus
transferred to the Purchaser.
(3) Unless agreed otherwise, the type of packaging, shipment method, transport route etc. will be
left to our due discretion. The transport boxes that we use as standard for packaging are not
designed to be stacked. If the Purchaser requires special packaging (for instance with strengthe
ned supports to allow the transport boxes to be stacked, but no more than two high), then he/
she must request and agree this in advance (with the submission of the order, at the latest) and
must bear the associated additional costs.
(4)
Upon our request packaging material and transport containers shall be returned immediately
freightfree; a credit memo shall be issued in accordance with the salvage value. Mesh pallets or
Euro flat pallets which are not returned shall be invoiced after a grace period set by us.
(5) Insurance against theft, breakages and damage caused by fire, water or transport or against other
insurable risks is provided only at the express request of the Purchaser and at his/her own expense.
7.
Retention of Title
(1)
Until the full payment of all claims arising from the business relationship, including future and
contingent claims, (including all claims from current account advances) to which we are entitled
on whatever legal grounds at present and in the future, we will be granted the following securi
