Terms and conditions of sale and delivery
I. Field of application
All delivery transactions are done under the following terms and conditions. Any change to our terms and conditions requires our express written consent.
- All offers are subject to change without notice.
- A delivery obligation arises only when a written confirmation of order is issued which is decisive for the mutual contractual obligations. The same confirmation shall not be valid unless there have been telegraphic, telephonic or other verbal agreements.
- For sale by weight, the weight determined on our scales is binding for both parties and decisive for the calculation of the bill.
- Any documents enclosed with the offer, such as illustrations, drawings and weight specifications only give approximate values customary in the industry, unless they have been expressly designated as binding. We reserve the rights of ownership and copyright for such documents. They may not be disclosed to third parties and must be returned to us immediately on request.
- The raw materials and the manufacture of the ordered goods shall be subject to DIN standards with the known tolerances or the commercial regulations.
- All prices, unless otherwise agreed, are prices ex works or from our station. Orders for which fixed prices are not expressly agreed shall be calculated on the prices applicable on the day of delivery. Packaging will be charged at cost price.
- If there is an increase in the production costs or other charges, especially freight costs, which were not taken into account when the price was determined but which make the delivery more expensive, we shall be entitled to ask for a corresponding increase in price.
IV. Delivery periods
- The delivery periods and dates given are always only approximate. We will make every effort to comply with them.
The delivery periods begin with the date of our order confirmation, however not before complete clarification of all details of the order. Part deliveries are permitted.
- If we default, the buyer can withdraw from the contract after the expiry of a grace period set for us that is appropriate for us if the goods are not reported as finished by the deadline. The withdrawal must be declared in writing and immediately after the expiry of the statutory period. There is no right to withdraw, if we had not been able to respect the deadline through no fault of our own.
- Operational disturbances or other events of force majeure such as a strike, lock-out or delay in delivery from our suppliers entitle us – not the customer – to withdraw from the contract completely or partially.
- Claims for damages due to late delivery or non-delivery are excluded in any case.
- The dispatch takes place in all cases at the expense and risk of the purchaser, on franko, cif, fob and similar contracts.
- The risk, even if freight-free delivery has been agreed upon, shall pass to the customer as soon as the consignment has left the factory. If the shipment or delivery is delayed due to a fault of the customer, the risk shall pass to the customer from the date of the readiness for dispatch. When shipping by the Bundesbahn, or a carrier, any claims for damages by the customer shall be made by the customer himself directly to the Bundesbahn or the carrier. Such claims do not affect the date when the invoice becomes payable and in no case shall entitle the customer to a reduction of the invoice amount.
VI. Payment terms
- Unless another form of payment has been agreed, all invoices shall be payable in cash, without deduction, by the 15th of the month following the delivery or the completion indicated, regardless of when the goods were received.
- The payments shall be made directly to us. They may not be withheld because of unrecognized counterclaims, without prejudice to the right of the complaint.
Offsets are not permitted.
- Payments by bill of exchange or cheque are accepted at our sole discretion, and are only considered to be fulfilled upon redemption. Discount charges and other costs shall in any case be borne by the customer.
VII. Late payment
- If the payment period is exceeded, default occurs without further reminder. We are entitled in this case, subject to the validation of any further damages caused by default, to demand the debt collection costs incurred and interest at the rate of 5% above the respective discount rate of the European Central Bank.
- If the customer is in arrears with a payment, or a part payment, or has stopped his payment or his economic situation has deteriorated so that compliance with the payment deadlines is called into question, we can withdraw from the contract after expiry of a reasonable period of time or require a surety. If a surety is denied, we are entitled to withdraw from the contract. No compensation obligation is triggered by our withdrawal from the contract. However, the customer is obliged to compensate us for the damage.
VIII. Liability for defects
- Complaints will only be accepted if they are received by us in writing within eight days after receipt of the goods. The same shall apply in the case of complaints with regard to the number of items, quantity and weight. Any defects, that cannot be detected by even the most careful examination within the period of eight days must be reported immediately after discovery, but not later than 3 months after receipt of the goods. In the event of defects, any machining and processing must be stopped immediately. Claims for defects shall become time-barred at the latest one month after the rejection of the complaint by us.
- In the case of claims for justified defects made within the correct time period we will deal with obvious and hidden defects as well as the lack of specified properties at our choice:a) either repair the goods free of charge orb) deliver satisfactory goods against returned defective ones or
c) issue a credit note
All further claims, especially claims for damages, are excluded.
- We are not obliged to carry out subsequent improvements, subsequent deliveries or issue credit notes, if the customer has not met his contractual obligations. Our guarantee obligations will become void if the delivered goods are altered, improperly handled or processed.
- If the goods are not shipped to the customer, but to a third party, they must be checked and approved by us, otherwise they will be considered as delivered in accordance with the dispatch order.
IX. Retention of title
- The delivered goods remain our property until full payment of the purchase price is received and any other claims originating from previous deliveries have been resolved.
- The retention of title shall also apply, if the customer has machined or processed the goods. If the reserved goods are processed, combined or mixed with other goods, we shall be entitled to co-ownership of the new items, in the ratio of the invoice value of the reserved goods to the invoice value of the other goods used. If our retention of title becomes extinct by combining or mixing, the customer shall transfer to us his ownership rights to the new stock or items to the extent of the invoice value of the reserved goods and keep them in trust and for us free of charge.
- The customer may sell the related goods as resellers in the ordinary course of business and prior to the time when he falls into arrears. A resale is not permitted if there is a decline in the assets, cessation of payments or similar events. In the case of resale, the customer now assigns his future purchase price claims to us for safety reasons. He shall also make all deliveries only under mutual exclusion of set-off.
- The customer is entitled and obliged to collect the receivables assigned to us as long as we do not revoke this authorization. The customer has to keep incoming payments separate from other assets until all claims to which we are entitled are resolved. Upon request, the customer is obliged to transfer the amount of payments collected to us. For payments on a cheque/bill of exchange basis, the acceptance of which is at our discretion, the customer agrees that our claims for goods and our retention of title to the delivered goods will not be affected.
- The customer may not mortgage the goods or pledge them as security before full payment of the purchase price has been made. The customer is obliged to inform us immediately of seizure of our property or other interventions by third parties. All costs incurred in the defence of these measures must be reimbursed to us by the customer.
- If the customer is in arrears, in whole or in part, or should he be in breach of an obligation arising from the agreed reservation of ownership, then we can prohibit the resale, processing or handling of the delivered objects and require their return, without withdrawing from the contract.
X. Place of performance and jurisdiction
- Place of performance and jurisdiction, also for bills of exchange, cheques or documents for both parties is Gelsenkirchen, Germany.
- The relations between us and the customer are subject exclusively to the law of the Federal Republic of Germany.
- The headings preceding the individual sections are only for convenience and have no material meaning, especially not a final and sole control.
- Should one of the provisions of these terms and conditions of sale and delivery be found wholly or in part contestable or ineffective the validity of the remaining provisions shall not be affected.
Gelsenkirchen, June 2009