Our terms apply to all transactions concluded between the buyer and us both now and in the future, even if we do not again contradict the buyer’s deviating purchasing conditions or counter-confirmations, which we hereby expressly reject. Our terms are regarded as agreed at the latest upon receipt of the goods or services by the buyer. Deviations require our written confirmation for each stand-alone contract.
- Offers, conclusion of contracts
Our offers are free of obligation. Our samples, specimens, analysis data and other statements concerning the quality of the goods are non-binding, outline information, unless such is expressly guaranteed. Cost estimates and freight details are non-binding. We are not bound by the buyer’s orders or by offers, information, recommendations and advice given by or other agreements made with our employees until we confirm such in writing. We are not responsible for obtaining official Permits.
- Delivery, transfer of risk
All shipments are sent carriage forward and at the risk of the buyer, even if goods have been sold franco, cif etc., so that the buyer bears the risk of any damage or loss of weight incurred during transport or the complete or partial destruction, loss or seizure of the goods. Risk is transferred as soon as the goods are handed over to the carrier or freight forwarder, although at the latest when they leave our dispatching works or warehouse. If carriage paid delivery has been agreed, the freight costs will be deducted from the invoice. Goods which fail to be accepted shall be stored for the account and at the risk of the buyer. If it is not possible to ship the goods to the original port of destination, we are entitled to deliver to another port or by land; if feasible after issuing prior notification. The additional costs incurred on this account are borne by the buyer. It is admissible for us to make part deliveries.
- Dispatch, shipping costs
Goods are dispatched at the buyer’s expense. Unless we are given special instructions, we – acting on behalf of the buyer – decide the method of transport and the route. We take out insurance coverage only at the request and the expense of the buyer.
- Hindrances to delivery
Circumstances and events beyond our control which hinder the delivery or make it considerably more difficult release us from our obligation of delivery for the duration of the adverse effects. This particularly applies to sovereign acts, although furthermore if our upstream suppliers are released from their obligation of delivery in full or in part, or if normal means of procurement or transport are no longer available. In such cases, we are entitled to deliver the goods with a corresponding delay, plus a reasonable run-up time. In addition, we are entitled to withdraw from the contract in full or in part, immediately or later, at our discretion. The buyer can withdraw from contract if we fail, upon request, to declare whether we want to withdraw from the contract or to deliver within a reasonable deadline. If in the aforesaid cases the quantities of goods available to us are insufficient to satisfy all buyers, we are entitled to make uniform reductions. Moreover, we are released from our delivery obligations.
The buyer must lodge a complaint in writing of all obvious, recognisable defects to the goods and packaging, of any missing quantities or incorrect deliveries without delay after delivery, although within 14 days (for commercial transactions in the sense of §24 AGB) and in all cases before the goods are resold, processed, mixed, consumed or assembled. The buyer must notify concealed defects in writing without delay after their discovery – at the latest within six months from delivery. If the buyer fails to comply with the aforesaid obligations, the goods are regarded as accepted. A complaint lodged about a delivery or service does not entitle the buyer to reject further deliveries or services under the same or under a different contract. The buyer must notify us of transport damage in writing without delay and have such documented by the freight carrier. Action taken to reduce damage is not regarded as recognition of a defect. Even if we enter negotiations regarding a complaint, we do not waive the objection that the complaint was not lodged on time, was materially unjustified or was otherwise inadequate.
- Warranty, liability
If a complaint is justified, we shall perform rework or deliver replacement items in return for the defective goods at our discretion. If the rework or the replacement delivery fails, the buyer can demand a reduction in the price or reimbursement of the contract at its discretion. If claims against third parties arise, we can demand that claims against us are not pursued until legal recourse against the third party has failed. With the exception of claims to damages due to assured characteristics, we are only liable for the infringement of contractual duties which are attributable to malice aforethought or gross negligence. We are also liable for negligence in case of default or impossibility, although only to the amount of the added expenditure for a coverage purchase or a replacement delivery. The buyer’s claims due to material defects expire by limitation of time one year after the objects of purchase or the services are handed over to the customer. Exceptions to this are complaints lodged by consumers, claims to damages due to fatalities, physical injuries and harm to health and/or claims to damages due to losses incurred due to gross negligence or malice aforethought on the part of the seller. The periods of limitation prescribed by law apply. Liability towards merchants in cases of damage of all kinds, regardless of the legal reason, due to malice aforethought or gross negligence is limited to the direct losses incurred. We extend a warranty of 6 months from the invoice date for the goods we deliver. Liability for our vicarious agents is limited to careful selection and any supervision required. Our liability in case of malice aforethought and gross negligence is limited to a maximum of EUR 50,000 per event of damage. Any claims under product liability laws are neither limited nor excluded by the foregoing regulations.
- Terms of payment
Unless something to the contrary has been agreed, our deliveries are payable in cash at the latest 30 after receipt of invoice without deduction of discount. Bills of exchange and cheques are not regarded as cash payments; if we agree to accept such, this is only done to facilitate payment under reservation of discounting options and in return for the refund of all expenses. We are not responsible for the prompt presentation of bills of exchange or cheques. The buyer may not offset its counter claims unless these are undisputed or have been established by a court of law. The buyer does not have a right of retention unless its claims are derived from the same contractual relationship. Unless they have written authority, our employees are not allowed to receive payments or other disposals.
- Default of payment, doubts regarding creditworthiness
If the buyer is in default of payment (which occurs without the need for a reminder), we can charge default interest at the normal bank rates and also pursue further damages, e.g. in the form of a credit surcharge. All discounts, reductions or other benefits granted become invalid. Moreover, we can keep back or reject further deliveries under this or under other contracts in full or in part and demand immediate payment for all deliveries, payment in advance and, in case of culpability, damages due to non-fulfilment. The aforesaid rights also accrue to us if circumstances become known which place doubt on the creditworthiness of the buyer, its shareholder or the undertakings in its division. If such circumstances affect a party to a bill of exchange, we can demand immediate payment.
- Reservation of title, securities
- Secured claims, release of securities:
The following securities are granted until all claims (including current account balance claims) accruing to us and the undertakings in our division against the buyer and the undertakings in its division, regardless of whatever their legal reason, have been paid in full. If their value exceeds our claim by more than 20%, then at the buyer’s request, we shall release securities of our choice. All securities furnished to us by the buyer or by the undertakings in its division are simultaneously regarded as furnished in favour of all undertakings in this division and can be executed to satisfy their Claims.
- Reservation of title, processing, mixing and combining:
The goods remain our property until all claims as per 10 a) have been paid in full. They are always processed on our behalf without the processor acquiring ownership in accordance with §950 BGB, although without any obligation for us. If our goods are mixed, combined or processed with other objects, the buyer even now assigns to us its right of ownership/co-ownership and right of possession to the new item in the ratio of the value or the reserved value (buy-in prices) of the reserved goods to the other objects at the date of mixing, combining or processing, insofar as we do not anyway acquire co-ownership to the new item. The buyer shall safeguard the new item on our behalf. It is forbidden to pledge our property/co-owned property or assign it as security.
- Authorisation for resale:
Insofar as the buyer is a merchant, it is authorised to resell our property in regular business transactions. This authorisation expires if the buyer is in default or if it agrees non-assignability of the claim with its customers.
- Extended reservation of title:
If the buyer resells our goods (processed, mixed or combined), it even now assigns to us all the claims it accrues against its customer on this account, even if they concern remuneration for workmanship, along with all auxiliary rights, in particular securities. If the buyer resells our goods after processing, combining or mixing them with goods not belonging to us, we become joint and several creditors (trustees) alongside the other entitled parties. Alternatively, the buyer’s claims against its customers shall be assigned in the ratio of the sales value of the reserved goods delivered by us to the value of the goods sold by the buyer. The assignment to us always concerns the part of the claim still able to be executed. At our request, the buyer shall disclose the debtors and provide us with the information and documents required to collect the claim. The buyer furthermore assigns its future claims to us due to damage to the goods delivered by us. As long as the buyer is not in default of payment, it is entitled to collect the assigned claims itself, although this authorisation can be revoked. The buyer is not allowed to assign these claims to third parties.
- Pursuit of the reservation of title, third party claims, claims from ownership:
We can separately store, label or collect our goods at the buyer’s expense and prohibit any remuneration concerning the goods. The seller is entitled to access the buyer’s premises to establish the quantity of goods delivered under reservation of title. If we take back the goods for reasons of the reservation of title, this does not represent a withdrawal from contract and the buyer is obliged to hand the goods over at its own expense. The buyer is liable for any reduction in value, our repossession (at least 10% of the price) and foregone profit. It waives claims of ownership.
- Security claim, act of disposal:
We are entitled to demand securities of our choice (in particular land debts) and their reinforcement at any time to ensure proper fulfilment of the buyer’s obligations. We are authorised to avail ourselves of the buyer’s assets subject to our actual influence as security and to exploit these. The buyer may not assign, pledge or otherwise dispose over claims it accrues against us and the undertakings in our division, unless it has our approval.
- Secured claims, release of securities:
- Place of fulfilment and jurisdiction, prevailing law
The place of fulfilment for all deliveries (including carriage forward deliveries) is our dispatching works or warehouse. The place of fulfilment for the buyer’s obligations and the place of jurisdiction is our registered office. However, we are also entitled to take legal recourse at the buyer’s registered office and in front of other courts with responsibility. German law alone shall prevail over the contract, as is applicable to transactions between domestic parties in Germany.
- Recording personal data
We save personal data concerning the buyer with automatic data processing. We furthermore transmit these data to our subsidiaries for storage.