General Terms of Delivery and Payment (hereinafter referred to as: General Conditions of Sale)

General provisions

1. Our deliveries and services as well as all ancillary services are and shall be exclusively subject to the following General Conditions of Sale. These General Conditions of Sale shall in any case form an integral part of all contracts with the contractual partner, hereinafter referred to as the “Customer”.

2. We hereby expressly object to the Customer’s conditions of purchase as well as to any other General Terms and Conditions, and such conditions shall not become the subject matter of the contract. They shall not become part of the contract in any case, irrespective of whether we object to them again upon receipt or not. Our General Conditions of Sale shall be deemed accepted by the Customer upon acceptance of the goods delivered to the Customer at the latest.

3. Any oral agreements deviating from these General Conditions of Sale shall not become the subject matter of the contract unless confirmed by us in writing.

4. Our employees are not entitled to make oral agreements or oral commitments beyond the contents of the written contract.

5. Any deviations during order processing shall not entitle the Customer to demand a change of these General Conditions of Sale.

6. Any waiver of the requirement of written form in the clauses above and below must be in writing in order to be effective.

Offers and conclusion of contract

7. Our offers are without engagement and non-binding.

8. Declarations of acceptance and orders must be confirmed by us in writing in order to become legally effective. The same shall apply to any amendments, changes and collateral agreements.

9. No special services are included in the offers. They must be stipulated expressly in writing and expressly confirmed in writing by us in order to become the subject matter of the contract.

10. Drawings, figures, measurements, weights and other performance data shall be non-binding unless expressly confirmed by us in writing. Any public statement, promotion or advertising shall not be deemed to be a binding description of the condition of the goods. Any information and figures contained in brochures and catalogues are approximate values customary in the industry unless expressly stipulated by us as binding.

Long-term contracts, call orders, price adjustment

11. Contracts of unlimited duration may be terminated upon 3 months’ prior notice.

12. In case of any material change of the costs of wages, materials or energy with regard to long-term contracts (contracts with a term exceeding 6 months), each of the contractual parties shall be entitled to demand a reasonable price adjustment taking into consideration such factors.

13. If no binding order quantity was agreed upon, our calculation shall be based on the non-binding order quantity expected from the Customer for a certain period of time (target quantity). Should the Customer purchase less than the target quantity, we shall be entitled to reasonably increase the price per item. Should the Customer purchase more than the target quantity, we shall grant a reasonable discount on the price per item to the extent the Customer informed us of such additional quantities 3 months before delivery at the latest.

14. For call order contracts, binding quantities must be called at least 2 months before delivery, unless otherwise agreed upon. Additional costs incurring due to a delayed call or any subsequent changes of any call with regard to time or quantity made by the Customer shall be borne by the Customer, whereas our cost calculation is authorative.

Confidentiality

15. Each of the contractual parties shall use any and all documents (including samples, models and data) and know-how obtained in connection with the contractual relationship only for the shared purposes of the contractual parties and each of the parties shall treat such documents and know-how confidentially towards third parties with the diligence of a prudent businessman if the other contractual party marked such documentation and know-how as confidential or if it is in the interest of such party that such documentation and know-how is treated confidentially. This confidentiality obligation shall become effective upon initial receipt of such documents or know-how and shall remain in force for a period of three years after the end of the year during which the business relationship ended.

16. This obligation does not apply to documents and know-how which are in the public domain or which the other contractual party received without any confidentiality obligation before receipt of such documents and know-how from the other party or which the other contractual party receives at a later time from a third party entitled to disclose such documents and know-how or which were developed by any of the contractual parties without the use of the other party’s secret documents or know-how.

Drawings and descriptions

17. Any drawings or technical documentation of the goods to be delivered or their manufacture we provided to the Customer shall remain our property.

Samples and manufacturing equipment

18. Unless otherwise agreed upon, the costs of manufacturing for samples and manufacturing equipment (tools, jigs, moulds, etc.) shall be invoiced separately from the goods to be delivered. The same shall apply to manufacturing equipment to be replaced due to wear and tear.

19. Claims for damages asserted against us due to any damage or destruction of the samples and manufacturing equipment shall only be admissible for grossly negligent violations of our obligations or for wilful or grossly negligent violations of our statutory representatives’ or vicarious agents’ obligations.

20. Should the Customer suspend or terminate the cooperation during the time of production of the samples or manufacturing equipment, the Customer shall bear all and any costs of production incurred so far.

21. The manufacturing equipment shall remain under our control until the completion of the delivery contract, even if such equipment is paid for by the Customer. After completion of the contract, we shall be entitled to assert a right of retention to such manufacturing equipment if the Customer fails to fulfil its main and ancillary contractual obligations in whole or in part.

22. We shall store such manufacturing equipment free of charge for a period of three years after the last delivery to the Customer subject to section 19 of these General Conditions of Contract. After such period of time, we shall ask the Customer in writing to inform us within a period of 6 weeks of the further use of such equipment. Our storage obligation shall terminate if the Customer neither informs us of the further use nor places another order within such period of 6 weeks.

Deliveries, terms and/or dates of delivery, rescission, damages

23. The stated terms and/or dates of delivery shall be without engagement and shall not form the basis of any claims, including claims for damages. Only those delivery dates that were expressly stipulated by us in writing as binding may give rise to such claims.

24. We shall not be responsible for any delays in delivery and service due to force majeure based on events making delivery more difficult or even impossible, including but not limited to strikes, lockouts, governmental orders etc., even if such events occur to our suppliers and other companies used for the fulfilment of the contract. Such events entitle us to extend delivery and/or service by a period of time corresponding to the duration of such force majeure event plus an adequate lead time or to rescind the contract in whole or in part with respect to the unfulfilled part thereof.

25. Delivery periods and delivery obligations shall be suspended if the Customer is in arrears with any liabilities from another contract concluded between us and the Customer or if there are legitimate doubts as to the Customer’s solvency. Doubts shall be deemed legitimate if for example a credit agency rates the Customer lower than “satisfactory” or equivalent and/or a credit insurance company reduces or cancels a credit line granted to the Customer. In such case, we shall be entitled to suspend delivery until the Customer provides security.

26. Six weeks after the expiry of a non-binding date of delivery or term of delivery, the Customer shall be entitled to demand in writing that we deliver within an additional period of six weeks. Calculations of such period must be made taking into consideration section 24 and section 25 of these conditions. After expiry of such additional period of six weeks, we shall be deemed to be in delay in delivery, but only if we were asked beforehand to execute delivery. Again, calculations of such period must be made taking into consideration section 24 and section 25 of these conditions.

27. If the period of delivery is extended, if we are released from our obligations in accordance with section 25 or if we are in delay, the Customer shall not be entitled to claim damages unless the damage is based on our grossly negligent violation of obligations or on wilful or grossly negligent violations of our statutory representatives’ or vicarious agents’ obligations.

28. We shall be entitled to perform partial deliveries and services at any time.

29. The quantities delivered may deviate by up to 10 % from the total order value for production-related reasons. The total price shall be adjusted accordingly.

30. If the Customer agreed with us on the cancellation of an order before delivery of the relevant goods after we had confirmed such order in writing, we shall be entitled to demand lost profit amounting to 30 % of the order value. The Customer shall be entitled to prove that no damage incurred at all or that the damage incurred is substantially lower than that.

Delivery and transfer of risk

31. The risk of loss or damage shall be transferred to the Customer upon receipt of the notification that the goods are ready for dispatch.

32. If no notification of readiness for dispatch is sent, the risk shall be transferred upon shipment as soon as the goods leave our premises. If transport is effected by a third party, the risk shall be transferred upon transfer of the goods to the person effecting the transport.

33. The Customer shall be responsible for transport insurance and other insurances with regard to the goods we deliver.

34. If shipment is delayed upon the Customer’s request, we shall invoice storage fees amounting to 1 % of the invoice amount for each month or part of month, starting at the time of the initially agreed upon readiness for dispatch. The Customer shall be entitled to prove that no damage incurred at all or that the damage incurred is substantially lower than that.

35. We shall be entitled to choose the route and way of transport.

36. We shall not be obliged to store the goods. Any storage of the goods shall be at the Customer’s risk and expense. In case of any loss or damage, the Customer shall not be entitled to assert claims for damages unless such loss or damage incurred due to a grossly negligent violation of our obligations or due to a wilful or grossly negligent violation of our statutory representatives’ or vicarious agents’ obligations.

37. If we accept returned goods and the reasons for such return are not attributable to our sphere of responsibility, the Customer shall bear the risk until we receive the goods.

Quality, warranty

38. Drawings, figures, measurements, weights and other performance data shall be non-binding unless expressly confirmed by us in writing.

39. The obligations to inspect the goods stipulated in section 377 of the Commercial Code shall remain in force and shall also apply to small traders.

40. If our delivery is to be made in accordance with the Customer’s drawings, specifications, samples, etc., the Customer shall bear the risk of suitability of the goods for the intended purpose. The time the risk is transferred in accordance with section 31 and section 32 above shall be decisive for the determination of whether the goods are in conformity with the contract.

41. We shall neither be responsible for any defects in quality arising from unsuitable or improper use, defective installation and/or commissioning by the Customer or any third party, usual wear and tear, defective or negligent handling nor for defects incurring due to any changes or repairs made by the Customer or any third party without our prior consent. The same shall apply mutatis mutandis to any defects which reduce the value or the fitness of the goods to a minor extent.

42. The warranty for new goods shall be 1 year.

43. No warranty shall be granted for used goods, including used goods that appear to be new. Warranty shall be excluded for goods that are to be processed or resold.

44. With regard to obvious defects to new goods, the Customer shall be obliged to give a notice of defect within 2 weeks upon delivery. Should the Customer fail to give such notice, our warranty obligations shall cease after expiry of such period of 2 weeks.

45. In case of defective delivery or service, we shall be entitled, in our discretion, to effect subsequent delivery or to repair the defective goods. A period of 20 working days shall be deemed reasonable for a remedy of defects. If a remedy of any defect is economically unreasonable, subsequent performance shall be deemed effected by subsequent delivery. After we failed to effect subsequent performance, the Customer shall be entitled, in its sole discretion, to demand a price reduction or to rescind the contract. However, in cases of minor non-compliance, in particular in case of minor defects, the Customer shall not be entitled to rescind the contract.

46. Any claims of the Customer other than those described in section 43 except for claims resulting from injury to life, limb or health shall be excluded unless such damage is based on our grossly negligent violation of obligations or on wilful or grossly negligent violations of our statutory representatives’ or vicarious agents’ obligations.

47. Only the Customer shall be entitled to claims for subsequent performance. Such claims must not be assigned to any third party.

Prices

48. If the Customer is a consumer, we shall be entitled to change our prices if the period of time between the conclusion of contract and the delivery date stipulated in the purchase contract exceeds 4 months.

49. If the Customer is an entrepreneur, our prices are without engagement. The calculation is made based on the prices valid as of the date of delivery. We shall be entitled to increase our prices in order to reflect increases in costs of procurement, delivery, production or similar cost increases, including but not limited to cost increases incurring based on statutory changes.

50. Our prices refer to the scope of performance stipulated in the order confirmation. The prices are stipulated ex works unless otherwise expressly agreed upon in writing.

51. Ancillary costs such as expenses, costs, charges, tolls, fees, etc. shall not be included in this amount and shall be invoiced separately. If we invoice a lump sum for such costs, the Customer shall be entitled to prove that no costs incurred at all or that the costs incurred are substantially lower than that.

52. All prices are stated net and exclusive of applicable VAT at the VAT rate applicable at the date at which the tax liability arises.

Payment and counterclaims

53. Unless otherwise agreed upon or stipulated in writing, invoiced amounts shall become due and payable immediately and in full.

54. Cheques and/or bills of exchange shall not be deemed to be means of payment and shall only be accepted upon prior agreement and only on account of performance and only provided they can be discounted. Discount expenses shall be calculated as of the date the invoiced amount became due. Any warranty for the timely presentation of bills and cheques and for due protest shall be excluded.

55. Claims for a discount shall only be valid if expressly granted by us in writing separately for each invoice. A deviating and/or regular discount granted in the past shall not establish an obligation on our part to grant such discount for future invoices.

56. The Customer shall not be entitled to any right of retention, irrespective of the legal reason.

57. If we delivered defective goods in part and this fact is undisputable, the Customer shall be obliged to pay for the non-defective part of the delivery unless the Customer is able to prove that it cannot use such partial delivery.

58. The Customer shall not be entitled to any right of set-off, except for undisputed counterclaims or counterclaims recognised by declaratory judgment.

59. The Customer shall not be entitled to assign or pledge any claims it may have against us.

Retention of title

60. The goods shall remain our property until full payment of all receivables resulting from the current business relationship, including without limitation ancillary charges, claims for damages and payment of cheques and bills.

61. Such retention of title shall remain in force in case individual receivables are included in a current invoice and the balance is struck and recognised.

62. The Customer shall only be entitled to resell the goods subject to retention of title subject to the following conditions and only if the receivables stipulated in section 64 are actually assigned to us.

63. The Customer’s right to resell goods subject to retention of title in the ordinary course of business shall end if revoked by us. Such revocation shall be admissible in case of legitimate doubts as to the Customer's solvency. Doubts shall be deemed to be legitimate if for example a credit agency rates the Customer lower than "satisfactory" or equivalent and/or a credit insurance company reduces or cancels a credit line granted to the Customer, however, in any case at the time the Customer ceases to make payments when due and/or insolvency proceedings are applied for or initiated against its assets.

64. The Customer hereby assigns to us all receivables including any and all ancillary rights resulting from the resale of the goods subject to retention of title, including without limitation any outstanding balance claims. We hereby accept such assignment.

65. If the value of a security provided to us exceeds the total of our receivables by more than 20 %, we shall be obliged to release securities to the extent of such excess upon the Customer’s or any affected third party’s request.

66. The goods subject to retention of title and/or the assigned receivables may neither be pledged nor transferred by way of security. The Customer shall be obliged to inform us immediately of any attempted attachment and of the pledgee.

67. If we accept the return of a delivered item based on retention of title, this shall not be deemed to be a rescission of contract unless expressly stipulated by us. We shall be entitled to settle our claims by privately selling such returned goods subject to retention of title.

68. The Customer shall store the goods subject to retention of title in our name free of charge. The Customer shall be obliged to take out insurance for the goods subject to retention of title against fire, theft and flood to the extent usual in the industry. The Customer hereby assigns to us any claims for compensation against insurance companies or other parties liable to pay compensation resulting from any damage of the type stipulated above up to an amount of the invoice value of the goods. We accept such assignment.

69. All receivables as well as the rights resulting from the retention of title to all special forms stipulated in these conditions shall remain effective until full indemnity from contingent liabilities we assumed in the Customer’s interest.

70. Any processing or alteration of the goods shall be effected in our name as manufacturer, however, without any obligations for us. If our (co-)ownership expires by combination, the transfer of the Customer’s proportionate (co-)ownership of the item (invoice value) to us shall be deemed agreed upon. The Customer shall store our (co-)property free of charge.

71. If the goods are combined with goods of a similar nature without material change, such combination shall be deemed mingling of goods for statutory purposes.

Liability

72. Any claims of the Customer other than those resulting from any injury to life, limb or health shall be excluded unless such damage is based on our grossly negligent violation of obligations or on wilful or grossly negligent violations of our statutory representatives’ or vicarious agents’ obligations.

73. In addition, our liability shall be exclusively subject to the agreements made in the above sections. Any claims not expressly granted in the above sections shall be subject to section 72 of these General Conditions of Sale.

Place of performance and place of venue

74. These General Conditions of Sale and all legal relationships with customers in Germany and abroad shall be subject to German law. The UN Sales Convention (United Nations Convention on Contracts for the International Sale of Goods (CISG - Vienna Sales Convention)) shall be excluded.

75. Place of performance for the payment of the purchase price and for any other performance to be effected by the Customer shall always be the place of our principal place of business, currently in Schwelm.

76. To the extent our Customer is a merchant entered in the Commercial Register for the purposes of the Commercial Code, a legal person under public law or a special fund under public law, our principal place of business, currently Schwelm, shall be the exclusive place of jurisdiction for any and all disputes directly or indirectly resulting from the contractual relationship.

Final provisions

77. Should any provision contained in these General Conditions of Sale or in any other agreement be or become ineffective, this shall not affect the effectiveness of the other provisions or agreements. Such ineffective provision shall be replaced by an effective one which comes as close as possible to what the parties would have agreed on had they been aware of the ineffectiveness of such provision.

Revised: October 2014

AGB Astor-Berning GmbH & Co. KG

 

download.Impressum.agb.Kontakt.Partner