Zasady i warunki
A) General terms and conditions
§ 1 General
1. Our terms and conditions of sale ("Terms and Conditions") only shall apply. Terms and conditions of the customer that conflict with or deviate from our Terms and Conditions will not be recognised by us unless we have expressly agreed to them in writing. Our Terms and Conditions shall apply even if we should effect delivery without reservation to the customer despite our having knowledge of customer's terms and conditions which conflict with or deviate from our own Terms and Conditions.
2. All agreements made between ourselves and the customer relating to the execution of an order must be made in writing.
3. Where the customer is a business entity within the meaning of § 24 AGBG (German Act Governing General Terms and Conditions of Business), our Terms and Conditions shall also apply in all future business with the customer.
§ 2 Offers and conclusion of contracts
1. Our offers are without obligation on us unless indicated otherwise in the order confirmation. We agree to be bound by specially prepared offers for a period of thirty calendar days from the date of the offer.
2. Where an order is to be seen as an offer within the meaning of § 145 BGB (German Civil Code), we may accept it within 14 calendar days by issuing our order confirmation or by delivering the ordered goods. After expiry of the said period, the offer shall be deemed to have been refused. If we do not issue an order confirmation, our invoice shall be valid as order confirmation.
3. We reserve title and copyright to all illustrations, drawings, calculations and other documents. This also applies to such written documents as are indicated as "confidential". Documents and such like may be passed on to third parties only with our prior express written consent. If so requested by us, documents must be returned to us, whereby no copies thereof may be retained by the customer.
§ 3 Prices
1. Unless indicated otherwise in the order confirmation, our prices are quoted "ex works", exclusive of packing; packing and transport will be charged for additionally.
2. Our prices are quoted exclusive of VAT; VAT will be charged at the statutory rate in force on the day of billing and shown in the invoice as a separate item.
3. If the agreed delivery date is more than six months after the date of conclusion of contract or if delivery can only be effected after expiry of such period for reasons for which the customer is responsible, our prices which are valid on the day of delivery or on the day on which the goods are made available shall apply. Should a price increase exceed the rise in the cost of living index, the customer shall have the right to repudiate the contract.
§ 4 Delivery times
1. A delivery time quoted by us shall not start until all technical questions have been clarified.
2. Delivery times or dates shall only be binding on us if agreed in writing.
3. Should the customer fall into delay with acceptance of delivery or fail to fulfil any of his other duties to assist, we shall have the right to claim compensation for any loss as well as any additional expenses incurred by us. In this case, also the risk of accidental loss or accidental deterioration of the goods shall pass to the customer at the time at which he falls into delay with acceptance.
§ 5 Shipment and passing of risk
1. The risk shall pass to the customer on hand-over of the goods or at the time when the customer falls into delay with acceptance.
2. Packing will be as customary in the trade. It will be charged for separately at cost and is non-returnable. The customer shall have a duty to take care of disposal of packing at his own expense.
§ 6 Liability
1. All liability on our part for breach of duties arising from minor negligence shall be barred except where material contractual duties, damage or injury to life, limb or health, guarantees or claims under the Product Liability Act are concerned. The same shall also apply to breaches of duty committed on the part of our legal representatives and vicarious agents.
2. Should operating or maintenance instructions and mixing recommendations not be complied with, changes made to the products, parts be replaced or consumption materials used, all warranty on our part shall lapse unless the customer is able to refute a duly substantiated assertion that a defect would not have arisen but for any of the reasons of the aforesaid kind.
3. Liability for normal wear and tear is barred.
§ 7 Limitation periods
1. Claims on account of a defect in a used item shall lapse one year from delivery of the item.
2. Claims based on any other grounds than a defect in the item itself shall lapse after one year.
3. In deviation from Fig. 1 and Fig.. 2, the statutory periods shall apply if liability is claimed on grounds of wilful intent or a given guarantee.
§ 8 Reservation of title
1. We reserve title to the item of sale until receipt of all payments arising from the delivery contract. In the event of any breach of contract by the customer, in particular any delay in payment, we shall have the right to take back the item of sale. Taking-back or garnishment by us of an item of sale which was supplied by us subject to our reservation of title shall always constitute repudiation of the contract. After taking back an item of sale, we shall have the right to dispose of it otherwise, whereby the sale proceeds will - after the deduction of reasonable realisation costs - be credited towards the customer's liabilities.
2. The customer shall have a duty to notify us without delay in writing of any garnishment of items to which we reserve title as well as of any other intervention by third parties and to inform the garnisher of our reservation of title. Should the third party be unable to reimburse us for the court and out-of-court costs of legal action pursuant to § 771 ZPO (Code of Civil Procedure), the customer shall be liable for the loss incurred by us.
§ 9 Payment
1. Except as may be agreed otherwise, our invoices are due and payable with 2 % cash discount within 8 days from date of invoice or without any discount within 30 days from date of invoice.
2. We expressly reserve the right to refuse cheques and bills of exchange. Cheques and bills of exchange will only be accepted on account of payment. All discount or bill expenses shall be borne by the customer and be due and payable immediately.
3. In the event of justified doubts concerning the creditworthiness of the customer, in particular if the customer should fail to honour a cheque or if he should cease payments, we shall have the right to make all outstanding amounts due for payment immediately even if we have accepted cheques. We shall also have the right to demand payment in advance or the provision of security.
4. If the customer should finally and absolutely cease payments and/or if proceedings in bankruptcy or court-supervised or out-of-court composition proceedings are applied for against him, we shall also have the right to repudiate the contract in respect of that part which has not yet been fulfilled.
5. Should the customer default on payment, we shall have the right to claim interest on arrears in accordance with the statutory provisions. If we are able to show having incurred higher loss through default, we shall have the right to claim therefor.
6. The customer shall only have the right of offset if his own counterclaims have been finally and absolutely established at law, are undisputed or have been recognised by us. The customer shall also only have a right to withhold payment insofar as his counterclaim derives from one and the same contractual relationship.
§ 10 Data processing
We shall have the right to store and/or process in accordance with data protection law all data received relating to the customer.
§ 11 Salvation clause
Should any of the provisions of these Terms and Conditions be or become invalid, this shall have no effect on the validity of any other provision or on the validity of the agreement between the customer and ourselves.
B) Special provisions relating to business entities
In relations with business entities, the following provisions shall additionally apply:
§ 1 Warranty
1.Defects in items of delivery including the handbooks and other documents will, in response to corresponding notification by the user, be remedied by the supplier within the statutory period of two years from delivery. Remedy will be done at buyer's option by either cost-free repair or replacement. In the case of replacement, the buyer shall have a duty to return the defective item.
2. If the defect cannot be remedied within a reasonable period of time or if replacement must be deemed for other reasons to have failed, the buyer may, at his option, claim a reduction in price or repudiate the contract. Remedy may only be deemed to have failed if the supplier has been granted sufficient opportunity to effect repair or replacement without the desired effect having been achieved, if repair or replacement is impossible, if repair or replacement is refused or unreasonably delayed by the supplier, if justified doubts regarding the likelihood of success exist or if unreasonableness must be assumed on other grounds.
§ 2 Duty to examine and give notice of defects
In the case of bilateral mercantile transactions, the warranty rights of the customer shall be dependent upon his having duly fulfilled his duties to examine and give notice of defects pursuant to §§ 377, 378 HGB (German Commercial Code). Notice of defects must be made in writing.
§ 3 Liability
Liability on our part for unforeseeable loss or damage shall be barred except on grounds of wilful breach of duties, damage or injury to life, limb or health, guarantees or claims under the Product Liability Act.
§ 4 Reservation of title
In addition to the provisions of A) § 8, the following shall also apply:
a) We reserve title to items supplied by us until such time as all of our claims against the customer arising on any legal grounds whatsoever have been fulfilled.
b) In deviation from A) § 8, the taking-back of items of purchase from registered traders shall not constitute repudiation of the contract unless expressly stated by us in writing as doing so. We shall have the right, irrespective of the claim to performance due to us on expiry of a period of time allowed to the customer for the performance of an obligation, to demand surrender of the item of delivery if the customer fails to fulfil his obligation towards us or to do so punctually and/or if the customer acts in an inadmissible manner on items delivered to him subject to reservation of title. If the customer has fulfilled the contract, we shall have a duty to release the items to him.
c) If items have been delivered for a commercial pursuit carried on by the customer, the items may be resold in the normal course of business. In this case, however, the customer already hereby assigns to us, in the amount of the total invoice value (including VAT) of our claim, all claims accruing to him against his customers or third parties from resale of the items of purchase, regardless of whether they have been resold with or without any prior further processing. Where the items are resold on credit, the customer shall reserve title to the items towards his customer. Our customer hereby assigns to us his rights and claims accruing against his customer from such reservation of title.
d) Any processing of items which are subject to our reservation of title ("reserved goods") by the customer shall be deemed done on our behalf but without giving rise to any costs for us. Where reserved goods are processed, combined or mixed with other goods not belonging to us, we shall have co-title to the new item so created in the same proportion as that between the value of our item of delivery (total invoice amount, including VAT) and the value of the other goods at the time of processing, combination or mixing. Where the customer acquires sole ownership to a new item, it is agreed that the customer shall grant us co-title thereto in the same proportion as aforesaid and shall keep the item on our behalf without this giving rise to any costs for us. Where reserved goods are resold together with other goods, whether with or without any prior processing, combination or mixing, the anticipatory assignment agreed in Fig. 3 Letter c shall only apply up to the invoice value of the reserved goods resold together with the other goods.
e) Where reserved goods are incorporated as an integral part into the real property of the customer, the customer hereby already assigns to us the claims arising from sale of the real property or the rights thereto, together with all ancillary rights.
f) We undertake, on the request of the customer, to release any securities to which we are entitled insofar as the realisable value of such securities exceeds the value of our claims by more than 10 %, whereby the choice of securities to be released shall lie with us.
§ 5 Passing of risk
1. Unless indicated otherwise in the order confirmation, it is agreed that delivery will be effected "ex works".
2. The risk shall pass to the customer as soon as the consignment has been delivered into the custody of the person effecting transport or has left our works for the purpose of shipment. If, on the request of the customer, shipment is delayed or is not effected, the risk shall pass to the customer on our notification of readiness for shipment.
3. Deliveries will, on the request of the customer, be insured in his name and for his account.
§ 6 Applicable law, legal venue, place of performance
1. These Terms and Conditions and the entire business relationship between the customer and ourselves shall be governed by the law of the Federal Republic of Germany.
2. The legal venue shall be the courts having jurisdiction for our place of business in Münster. We shall, however, also have the right to bring legal action against the customer at the courts having jurisdiction for his place of domicile.
3. Unless indicated otherwise in the order confirmation, our place of business in Münster shall also be the place of performance.