1. Area of validity
By placing an order, the purchaser expressly acknowledges these general terms and conditions. The purchaser’s terms and conditions – and the agreements that they may contain – are expressly contradicted by our general terms and conditions unless otherwise expressly agreed in writing by both parties.
Prices include free delivery excluding packaging unless a special agreement has been made. The prices stated in our tenders are valid for a period of 3 months provided that no other period is given when the tender is submitted. If any significant change occurs in respect of wage, material or energy costs during contracts with a term in excess of 4 months or during unlimited contracts, we are entitled to appropriately adjust the price whilst taking these factors into consideration. The prices for subsequent orders are non-binding.
3. Packaging and shipment
Packaging will be charged at cost price and is non-returnable. Unless otherwise indicated, the mode of shipment will be chosen at our discretion without assuming responsibility to ensure the cheapest form of transportation.
4. Conditions of payment
Our invoices shall be payable within 10 days of the invoice date with a 2% discount or 30 days net. In the event of delayed payment, we reserve the right to charge default interest amounting to 8% above the respective base interest rate. The offsetting or retention of payments due to counterclaims by the customer that are not recognised by us is not permissible.
5. Delivery deadline
The delivery deadline shall commence once all documents that are to be produced in order to fulfil the order have been submitted and the order has been confirmed. Delivery is deemed to have been carried out on schedule when the goods have left the works within the agreed deadline or readiness for dispatch is reported. In the event of force majeure or interruption of operations, particularly raw material or energy shortages, machine breakdown, tool breakage, strikes, lock-outs, transportation difficulties or other unforeseeable, unavoidable and serious circumstances, we are relieved from our duty to perform for the duration of the disturbance and to the extent of its impact. This also applies should these events occur at a time in which we are in default. We are obliged to immediately provide the necessary information within the context of what can be reasonably expected and to also adapt the obligations to the changed conditions in good faith. Part deliveries are permissible. If we are in default regarding the service, the ordering party may withdraw from the contract provided that they set a reasonable extended deadline for the delivery to take place and we allow this deadline to pass without fulfilment. Any further claims, especially compensation claims due to default are excluded provided that we did not cause the default as a result of intent or gross negligence.
6. Retention of property rights
The goods delivered by us will remain our property until all claims against the ordering party have been settled. In the event that the ordering party sells the goods supplied by us – irrespective of their condition – they hereby assign the claims against their recipient arising from the sale, up to the amount of our claims, to us. The ordering party is obliged to inform their recipient of the assignment to us and to provide us with all of the necessary documents and information needed in order to exercise our rights. In the event that the ordering party receives payments from their recipient, it is deemed that such payments are collected on our behalf and are to be forwarded to us immediately. The goods may not be pledged or put up as security until the goods have been completely paid for. The ordering party is to inform us immediately in the event of repossession by a third party. If the value of the security given to us exceeds the accounts receivable by more than 10%, we are required to release the security provided to us at the request of the ordering party.
7. Guarantees and complaints
Complaints must be made in writing within 8 days. They will no longer be recognised after this date. We assume no guarantee that our goods are suitable for a specific use. When using our goods, the purchaser is obliged to check suitability in advance. Excess or shortfall deliveries of up to 10% are permitted. There is no entitlement with regard to returns or subsequent deliveries. The right to give notice of defects does not apply in the event that the goods supplied by us have already been worked or processed by the ordering party. Returns will only be accepted by prior agreement.
The order can no longer be cancelled after the order confirmation has been dispatched. The purchaser shall remain culpable for the entire sum of the order in the event of unilateral termination by the purchaser.
9. Patent infringement
In the event that the goods are manufactured and delivered in accordance with a particular design of the ordering party (according to drawings, samples or other specified information), the ordering party shall assume responsibility that the rights of third parties, especially patents, samples and other legally protected rights or copyrights have not been infringed upon as a result of the design. The ordering party is obliged to relieve us from all third party claims that may occur as a result of such infringements.
Claims for compensation any kind arising from encumbrance liability are excluded provided that we are not guilty of intent or gross negligence. This also applies to claims for compensation due to default, impossibility of performance, culpable infringement of secondary contractual obligations, from fault at conclusion of contract and from unlawful actions.
Our liability is exclusively based on these terms and conditions. All claims not expressly granted herein, including claims for compensation irrespective of the legal basis are excluded unless we, our legal representatives or our agents are guilty of negligence. We assume no liability for damage that has not occurred to the supplied goods themselves. In particular, we assume no liability for loss of profit or other financial losses incurred by the purchaser.
12. Period of limitation
The period of limitation for claims against us amounts to 6 months provided that no longer period of limitation deadlines have been agreed upon.
13. Call orders
The following additional conditions shall apply in the event that we confirm a purchase order with the express, documentary declaration “call order”: the purchaser is obliged to accept and pay for the confirmed amount of the purchased goods as a primary obligation from the agreed contract. The following applies in the event that no further information with regard to the minimum call quantity and the time of the call obligation: the lowest minimum quantity as in the case of normal sales is to be requested. We determine this at our discretion. The call must at least take place on a quarterly basis. A call order must be completely taken within 12 months. We will store any amounts that have not been taken within the agreed period of time at the usual storage rate with the same liability as with our own property. The purchase price is due on the day upon which the call period expires and is contractually subject to interest according to Figure 2, Sentence 3. Call quantities not taken before the agreed deadline must be paid for in advance. This means that we are only obliged to provide delivery in the agreed form once we have been provided with the equivalent value for the part delivery or remainder of the delivery. In the event that no call is made before the agreed deadline, we reserve the right, to assert a claim for compensation due to non-fulfilment after prior notice and to refuse to deliver the goods. The following applies if we no longer manufacture a purchase item or no longer manufacture it in the same form: we have the right to decide whether we still wish to fulfil the call request or not. In the latter case, we have the right to assert claims for compensation provided that we have made reference to the failure to make the call order as well as the obligation to provide compensation in accordance with Figure 4. Otherwise, we have the right to withdraw from the contract without any obligation to provide payment for any fees provided that they have not been fulfilled up to this point.
14. Partial invalidity
If individual conditions of these sale and delivery terms and conditions become completely or partially ineffective, the remaining conditions will remain unaffected. Any ineffective conditions will be replaced with regulations that most closely represent the economic purpose of the original contract whilst reasonably taking the interests of both parties into account.
15. Place of performance and jurisdiction
The place of performance for deliveries and payments is Dortmund in both cases. The place of jurisdiction for purchaser and seller is Dortmund. Date 08/2007