§ 1 – Scope
All of our deliveries, services and offers are performed exclusively on the basis of these General Terms and Conditions of Sales and Delivery (GCSD). These are a component of all contracts concluded by us with the customer regarding the deliveries and services that we offer.
Our offered deliveries and services are aimed at both consumers and entrepreneurs. For the purposes of this GCSD, (i) a consumer is a natural person who concludes the contract for a purpose which can be associated with neither commercial nor independent professional activity (§ 13 of the German Civil Code – BGB) and (ii) an ‘entrepreneur’ is a natural or legal person or a legal partnership which acts in exercising its commercial or independent professional activity in the conclusion at the time of the concluding the contract. (§ 14 (1) BGB). Customer or third-party conditions shall not apply even if we do not expressly object to their validity in individual cases. Even if we should refer to written correspondence which contains terms and conditions of the customer or of a third party, or refers to such terms and conditions, this does not constitute agreement with the validity of those terms and conditions.
§ 2 – Offer, confirmation of order, description of goods
Offers and price listings contained in brochures, adverts and other advertising materials shall be non-binding, unless they are expressly designated as binding. The customer is bound to an order placed by them and not yet accepted by us 14 calendar days after dispatch. We are entitled to accept the offer within this time period. The time at which our acceptance is received by the customer is determinant for compliance with the deadline. The provision of the commissioned delivery or service shall also be deemed acceptance
The contract, concluded by our written confirmation of order or conclusion of contract, including these GCSD, shall be exclusively determinant for our legal relationship with the customer. This shall represent in full all agreements between the parties concerning the contractual object. Any verbal promises made by us before conclusion of the contract are legally non-binding. The written contract shall replace any verbal agreements of the contractual parties unless it is expressly stated in each case that these continue to be binding. Our information on the object of delivery or service (e.g. weight, dimension, load capacity, tolerance and technical data) as well as our representation thereof (e.g. in drawings, illustrations, brochures and other product descriptions) are only approximate unless the usability for the contractually intended purpose presupposes exact conformity.
They are not guaranteed characteristics unless expressly designated as such.
We reserve title and/or copyright to all offers and cost estimates submitted by us as well as to samples, drawings, illustrations, calculations, brochures, catalogues, models and other documents made available to the customer. The customer may not make these documents and/or objects accessible to third parties, disclose them, use them through third parties or reproduce them, either as such or with regard to content, without our express consent.
§ 3 - Prices and payments
The prices shall apply to the services and scope of delivery listed in our order confirmations plus statutory value-added tax, but not including packaging and – in the case of export deliveries – customs duties, and fees and other public charges. Entrepreneurs may receive an invoice with declared value added tax.
Invoice amounts are to be paid within 14 days of receipt of the invoice by the customer without deduction, unless otherwise agreed in writing. Receipt of payment in our account shall determine its timeliness. If the customer is an entrepreneur and has not paid by the due date, interest of 5% p.a. shall be charged on the outstanding amounts from the due date; we reserve the right to claim higher interest and further damages in the event of default.
If the customer is in default of payment, we shall be entitled to charge the statutory default interest. We reserve the right to assert further proven damages.
Offsetting against counterclaims of the customer or retention of payments due to such claims is only permissible if the counterclaims are undisputed on our part or are legally established.
We shall be entitled to execute or render outstanding deliveries or services only against advance payment or provision of security if, after conclusion of the contract, we become aware of circumstances which are likely to significantly reduce the creditworthiness of the customer and which endanger the payment of our outstanding claims by the customer under the respective contractual relationship.
§ 4 - Delivery time and deliveries, delayed delivery
Deliveries shall be made from our plant in 02923 Kodersdorf unless otherwise arranged.
Unless expressly agreed otherwise, the delivery dates and delivery periods stated by us are approximate.
Should we fail to meet an agreed delivery or service date, the customer shall give us a reasonable grace period of no less than 2 weeks.
Irrespective of our rights arising from a delay on the part of the customer, we shall be entitled to demand from the customer an extension or postponement of delivery/service periods for the period in which the customer does not fulfil his contractual obligations to us to perform the delivery/service.
Force majeure, sovereign measures, strikes, lockouts and other events that lead to the prevention, obstruction or essential complication of our services shall entitle us to a corresponding extension of the delivery period, including a necessary preparatory period. We will immediately inform the customer of such circumstances. The customer may demand a declaration from us as to whether we intend to withdraw from the contract due to these circumstances, or deliver within a reasonable period of time. If we do not make a declaration within 7 working days at the request of the customer, the customer may withdraw from the contract. Any remuneration already paid up to this point in time will then be refunded to the customer. If through no fault of our own the delivery or service becomes impossible for us due to the aforementioned circumstances, both contractual parties shall be entitled to withdraw from the contract.
We shall only be entitled to make partial deliveries and render partial services if
a) the partial delivery or partial service can be used by the customer as part of the contractual purpose;
b) delivery of the remaining ordered goods or the provision of the remaining service is ensured and
c) no additional expenditure or additional costs arise for the customer as a result of this, unless we declare our willingness to bear these costs.
§ 5 - Place of performance, transfer of risk, acceptance
If the customer is an entrepreneur, our registered office in 31547 Rehburg-Loccum shall be the place of performance for all obligations arising from the contractual relationship, unless otherwise specified.
The mode of dispatch and packaging shall be at our dutiful discretion. If the customer is a consumer, the risk of accidental destruction, accidental damage or accidental loss of the delivered goods shall pass to the customer at the time that the goods are delivered to the customer or that the customer is in default of acceptance.
In all other cases, the risk shall transfer to the customer upon delivery of the goods to the transport company, unless delivery has been arranged with our own company vehicles.
Insofar as acceptance shall place, delivery or service shall be deemed to have been accepted if
a) the delivery and – insofar as we are also obligated to installation or laying – the completion of said installation or laying;
b) we have informed the customer of this with reference to the fiction of acceptance (‘Abnahmefiktion’) in accordance with this § 5 para. 4 and have requested the customer to accept the goods;
c) 15 working days have elapsed since delivery or installation, or the customer has commenced use (e.g. by commissioning), in which case 10 working days have elapsed since delivery or installation and
d) the customer has refrained from acceptance within this period for a reason other than a defect notified to us which makes the use of the delivery item or service item impossible or significantly impairs it.
§ 6 – Warranty/material defects
With regard to the deliveries and services offered by us, the customer shall be entitled to statutory warranty rights, unless otherwise stipulated below. Customer claims for damages due to obvious material defects of the delivered goods are excluded if the customer does not notify us of the defect within a period of 2 weeks after delivery.
If the customer is an entrepreneur, the delivered goods must be carefully inspected immediately after delivery to the customer or to a third party designated by the customer. With regard to obvious defects or other defects which would have been recognisable in an immediate, careful inspection, the goods shall be deemed to have been approved by the customer if we do not receive a written notice of defect within 5 working days of delivery. With regard to all other defects, the delivered goods shall be deemed to have been approved by the customer if the notice of defect is not received by us within 5 working days of the time at which the defect became apparent; if the defect was already recognisable to the customer at an earlier point in time under normal use, this earlier point in time shall be decisive for the commencement of the period for notification of defects.
§ 7 – Liability for damages in case of fault
Our liability for damages, regardless of the legal basis, in particular in the event of default, defects, the breach of essential contractual obligations or other breaches of duty, is limited to the foreseeable damage typical for the contract. The above limitations of liability shall not apply to our liability for wilful misconduct or gross negligence with regard to guaranteed characteristics, injury to life, limb or health or under the Product Liability Act.
The above exclusions and limitations of liability shall apply to the same extent in favour of our institutions, legal representatives, employees and other vicarious agents.
§ 8 - Retention of title
All goods delivered by us (reserved goods) shall remain our property until complete fulfilment of all our present and future claims against the customer arising from the contract. The customer shall store the reserved goods for us free of charge.
The goods subject to retention of title may neither be pledged to third parties nor assigned as security until all secured claims have been paid in full. If third parties have access to the reserved goods, in particular by seizure, the customer shall immediately notify them of our ownership and inform us thereof in order to enable us to enforce our ownership rights.
In the event of breach of contract by the customer, in particular default in payment, we shall be entitled to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of retention of title (enforcement event).
The customer is entitled to process and/or sell the reserved goods in the ordinary course of business until the occurrence of an enforcement event. If the reserved goods are processed by the customer, it is agreed that the processing is carried out in our name and for our account as manufacturer and that we directly acquire ownership or – if the processing is carried out from materials of several owners or the value of the processed item is higher than the value of the reserved goods – co-ownership (fractional ownership) of the newly created item in the ratio of the value of the reserved goods to the value of the newly created item. In the event that no such acquisition of ownership should occur with us, the customer hereby transfers his future ownership or – in the aforementioned proportion – co-ownership of the newly-created object to us as security. If the reserved goods are combined or inseparably mixed with other items to form a uniform item and if another item is to be regarded as the main item, we shall transfer to the customer, insofar as the main item belongs to us, the proportionate co-ownership of the uniform item in the proportion stated in sentence 1.
If we on our part have co-ownership of the reserved goods in proportion to the co-ownership shares, the customer hereby assigns to us by way of security the resulting claim against the purchaser in the event of resale of the goods subject to retention of title. The same applies to other claims which take the place of the reserved goods or otherwise arise with regard to the reserved goods, such as insurance claims or claims arising from tort in the event of loss or destruction. We authorise – with possibility of revocation – the customer to collect claims assigned to us in the customer’s own name as long as the customer meets all payment obligations towards us, is not in default of payment, no petition for the opening of insolvency proceedings has been filed and there is no other defect in his ability to pay. If this is the case, we may demand that the customer inform us of the assigned claims and their debtors, provide all information necessary for collection, hand over the relevant documents and inform the debtor (third party) of the assignment. We may only revoke the direct debit authorization in the case of an enforcement event.
The customer also assigns to us the claims to secure our claims against the customer which arise against a third party through the combination of the delivered goods and real estate.
At our discretion, we shall release the reserved goods as well as the items or claims replacing them at the request of the customer if their realisable value exceeds the amount of the secured claim by more than 10% or the nominal amount by more than 50%.
§ 9 - Place of jurisdiction, applicable law, effectiveness, data
If the customer is an entrepreneur, our registered office in 31547 Rehburg-Loccum shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship. In this case we shall also be entitled to sue the customer at any admissible place of jurisdiction. In all other cases, we or the customer may bring an action before any court having jurisdiction on the basis of statutory provisions.
Contracts concluded between us and the customer are subject to the law of the Federal Republic of Germany to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
It should be noted that we store data from the contractual relationship in accordance with <154/> 29 of the Federal Data Protection Act for the purpose of data processing and reserve the right to transfer this data to third parties (e.g. insurance companies) to the extent necessary for the fulfilment of the contract.
The invalidity of any one or more provisions shall not affect the validity of the remaining provisions.
Last updated: June 2014