Sales Terms and Delivery Conditions
§ 1 General information – Area of application
(1) Solely our sales terms shall apply; we shall not accept conflicting terms or buyer’s terms which deviate from our sales terms unless we have explicitly agreed to their validity in writing. Our sales terms shall also apply if we unconditionally execute delivery to the buyer whilst aware of conflicting terms or buyer’s terms, which deviate from our sales terms.
(2) Our written order confirmation shall be exclusively decisive for the content of all agreements which are stipulated between us and the buyer for the purpose of the fulfilment of this contract. The contract of sale shall not be conclusive until we have given our written confirmation even in the event that the order has been accepted by a sales representative or an employee. All agreements, which are stipulated between us and the buyer for the purpose of the fulfilment of this contract, shall be recorded in writing in this contract.
(3) Our sales terms shall also apply for all future business dealings with the buyer.
§ 2 Offer – Offer documents
(1) Our offers shall be valid for 12 weeks and can only be accepted within this period of time. The technical documents relevant to the offer such as illustrations, scale drawings, weight specifications, etc. shall only be approximately decisive as long as they are not explicitly designated as binding. We explicitly point out that the designs shall be subject to variations in comparison to the illustrations in our lists.
(2) We shall reserve the right of ownership and the copyright on illustrations, drawings, calculations and other documents; they may not be made accessible to third parties. In particular, this shall apply to written documents, which are designated confidential; before the transmission thereof to third parties, the buyer shall require our explicit written consent.
§ 3 Prices – Terms of payment
(1) The list prices we specify shall be non-binding and shall be adapted to the development of the commodity prices and labour costs without any obligation of notification. Unless otherwise specified in the order confirmation, our prices shall be regarded as ex works excluding packaging and cargo insurance; these shall be invoiced separately. For devices in which precious metals are used, we must reserve the right of calculating the respective daily price. Should the time for delivery exceed 4 months after contract conclusion, we shall reserve the right of a respective price adjustment of cost increases regarding commodities or wages.
(2) The statutory value added tax shall not be included in our prices; it shall be shown separately in the invoice in the statutory amount on the day of issuing the invoice.
(3) The purchase price shall be payable net (without deduction) within 30 days after receipt of the invoice at the latest. A 2% cash discount shall be granted for payments within 10 days. Invoices for services and spare parts shall be immediately payable without any deductions. Should the buyer be in default of payment, we shall be entitled to demand default interest amounting to 8% above the respective base rate. In the event that we are able to verify greater damage caused by default, we shall be entitled to assert claims for this. Should the buyer be in default of due payments or should circumstances become evident that his/her willingness to pay appears to be at risk, the delivery can be made dependent on a prepayment. In such cases, stipulated terms of payment or commercial loans can also be reduced or revoked.
(4) The buyer shall only be entitled to set-off rights if his/her counterclaims are established as final and absolute, undisputed or accepted by us. Furthermore, he/she shall only be entitled to exercise a right of retention insofar as his/her counterclaim is based on the same contractual relationship.
§ 4 Delivery time
(1) The commencement of the delivery time we indicate shall presume the clarification of all technical questions. Should prepayment be stipulated or owed, the delivery time shall not commence until payment has been received.
(2) The compliance with our obligations for delivery shall require the punctual and proper fulfilment of the buyer’s obligations.
(3) The delivery date shall be adequately extended for measures in line with industrial conflicts, in particular strikes and lock-outs as well as for the occurrence of unforeseeable hindrances, which we have no effect on, as far as such hindrances have a verifiably significant influence on the completion or delivery of the article of sale. This shall also apply if these circumstances occur to sub-suppliers. We shall also not be responsible for the aforementioned circumstances if they arise during an already existing default. In important cases, we shall inform the buyer of the commencement and end of such hindrances as soon as possible.
(4) Should the buyer set an appropriate period of grace while threatening to otherwise refuse acceptance of performance after we have already defaulted, he/she shall, after the fruitless expiration, be entitled to withdraw from the contract; the buyer shall only be entitled to claims for damages due to non-fulfilment amounting to the foreseeable damage if the default is based on intent or gross negligence or on a fundamental breach of contract.
(5) Should the buyer be in default of acceptance or in breach of other obligations to co-operate, we shall be entitled to assert claims for damages which result for us including possible additional expenditures. In this case, the risk of an accidental loss or an incidental deterioration of the purchased goods shall pass over to the buyer at the point in time in which he/she is in default of acceptance.
§ 5 Shipment, transfer of perils
(1) Unless otherwise stated in the order confirmation, delivery shall be stipulated ex works. Shipment shall always be effected using the route of transport we indicate without any liability for the respectively most inexpensive shipment.
(2) Unless otherwise stipulated, packaging shall be calculated at net cost price.
(3) Normally, we shall take out cargo insurance for the delivery; the buyer shall bear the costs which accrue in this respect. In the event of damage or loss, the buyer shall be solely responsible for the immediate assurance of the claims assessment and for procuring the documents required for the claims settlement.
§ 6 Warranty for defects
(1) The buyer’s warranty rights shall require that he/she has duly complied with his/her owed obligation to inspect and immediately make a complaint regarding the defect upon receipt of the merchandise according to § 377 German Commercial Code within 14 days after receipt of delivery. The requirements for every warranty shall be the application of the articles of sale under normal operating conditions or those specified in the contract, proper maintenance and adherence to our operating instructions. We cannot grant warranty for instruments or elements which are subject to difficult service loading such as thermal elements, resistance thermometers, withdrawals of gas and their protective fittings and comparable devices.
(2) Should the buyer be an entrepreneur, we shall initially render warranty for defects of the merchandise according to our choice by means of rectification of defects or compensation delivery (supplementary performance). In the case of rectification of defects we shall be obligated to bear all labour and material costs required for the purpose of the rectification of deficiencies. We shall not bear infrastructure, transport and personnel costs for repair work outside of our work shops and shall be charged to the buyer. The warranty period for entrepreneurs shall be one year as of delivery of the object of purchase.
(3) Should we not be prepared to render or be capable of rendering supplementary performance, should we refuse to do so or should it be delayed beyond a reasonable period for reasons which we are responsible for or should the supplementary performance otherwise fail, the buyer shall be entitled to withdraw from the contract or to request a reduction of the purchase price.
(4) Should the buyer choose to withdraw from the contract because of a defect of title or material defect after failed supplementary performance, he/she shall not be additionally entitled to any claims for damages on account of the defect. Should the buyer choose compensation after failed supplementary performance, the object of purchase shall remain with the buyer should this be reasonable for him/her. Compensation shall be limited to the difference between the purchase price and the value of the defective object. This shall not apply if we have caused the breach of contract fraudulently.
(5) Guarantees and assurances shall not be given. Should the buyer receive faulty assembly instructions, we shall merely be obligated to deliver accurate assembly instructions and this only in the case that the error in the assembly instructions prevents the correct and proper assembly.
§ 7 Liability
(1) In the event of slightly negligent breaches of duty, our liability shall be limited to the foreseeable, actual average damage typical for this type of contract according to the type of object of purchase. This shall also apply for slightly negligent breaches of duty by our legal representatives or vicarious agents. We shall not be liable to entrepreneurs in the event of a slightly negligent breach of insignificant contractual obligations.
(2) The preceding limitation of liability shall not apply for claims resulting from product liability. Provided that the limitation of liability pursuant to § 6 sec.(4) for claims resulting from manufacturer’s liability pursuant to § 823 German Civil Code does not intervene, our liability shall be limited to the indemnification of the insurance. As far as this does not or not fully occur, we shall be obligated to a liability amounting to the limit of indemnity. The limitation of liability shall also not pertain to bodily injuries and health damages or the buyer’s loss of life which are attributable to us.
§ 8 Retention of title
(1) We shall reserve the right to the title of the object of purchase until the receipt of all payments resulting from the delivery contract. In the event of behaviour by the buyer, which is contrary to contract, in particular in the case of default of payment, we shall be entitled to withdraw from the contract and to demand the return of the object of purchase. The attachment of the object of purchase by us shall always represent a withdrawal from the contract. We shall be entitled to the utilisation of the object of purchase after the redemption thereof, the sales proceeds shall be credited against the buyer’s accounts payable – minus appropriate utilisation costs.
(2) The buyer shall be obligated to look after the object of purchase; in particular, he/she shall be obligated to insure the object of purchase at his/her own expense against damage or loss through fire, water and theft in an appropriate amount and to maintain the insurance thereof. Provided that maintenance and inspection work shall become necessary, the buyer must punctually carry out this work at his/her own expense. The buyer shall herewith assign all claims which result from damage to, the destruction of or another loss of the object of purpose, in particular insurance claims, to us in advance; we shall accept this assignment.
(3) In the event of attachments or other encroachments of our rights by third parties, the buyer shall be obligated to immediately inform us, to provide us with the documents (e.g. copy of the attachment record) required for the assertion of these rights and to immediately inform the bailiff a well as the attaching creditors of our titles and other rights.
(4) The buyer shall be entitled to resell the object of purchase in the regular course of business; however, he/she shall now already make all assignments amounting to the total invoice amount (including VAT) we agreed upon to us, which accrue for him/her from the resale from his/her customers or third parties, and this shall be independent of whether the object of purchase has been resold without or after processing. The buyer shall also remain authorised to collect these claims after the assignment. Our authorisation to collect the claim ourselves shall remain unaffected hereof. However, we shall be obligated not to collect the claim as long as the buyer complies with his/her payment obligations resulting from the collected proceeds, is not in default of payment and in particular, has not filed for insolvency proceedings or reorganisation or suspension of payment exists. Should this however be the case, we can demand that the buyer informs us of the assigned claims and their debtors, provides all information required for the collection, hands over all corresponding documents and informs the debtor (third party) of the assignment. The buyer shall not be entitled to other acts of disposal of the object of purpose without approval, in particular not to attachment or collateral assignment.
(5) The processing or alteration of the object of purchase by the buyer shall always be conducted for us. The buyer’s expectant right to the object of purpose shall continue in regard to the altered object. Should the object of purchase be processed with other objects not belonging to us, we shall acquire the co-ownership of the new object in proportion of the objective value of our object of purchase to the other processed objects at the time of processing. Furthermore, the same shall apply for the object which results through processing as for the object of purchase delivered under reservations.
(6) Should the object of purchase be combined with objects not belonging to us, we shall acquire the co-ownership of the new object in proportion of the objective value of our object of purchase to the other combined objects at the time of combination. Should the combination be conducted in a manner that the buyer’s object is to be regarded as the main object, it shall be deemed stipulated that the buyer shall proportionately assign us co-ownership. Therefore, the buyer shall hold the resulting sole ownership or co-ownership in safe custody for us.
(7) The buyer shall also assign the claims for the securing of our claims against him/her to us, which accrue against a third party by means of the connection of the object of purpose to a piece of real estate.
(8) We shall be obligated to release securities, which we are entitled to, upon the buyer’s request insofar as the liquidable value of our securities exceed the claims to be secured by more than 20%; it shall be for us to decide which securities shall be released.
§ 9 Jurisdiction – Place of fulfilment – Delivery terms of the electrical industry
(1) Our business location in Ratingen shall be stipulated as place of jurisdiction; however, we shall be entitled to file legal action against the buyer at the court of his/her residence. The preceding provision shall only apply for contracts with entrepreneurs.
(2) Unless otherwise stipulated in the order confirmation, our business location in Ratingen shall be the place of fulfilment.
(3) In addition to these terms and conditions, the currently valid version of the “General Delivery Terms for the Products and Services of the Electrical Industry” shall apply respectively. § 10 Severability clause Should a provision in these terms and conditions of business be or become completely or partially ineffective, the validity of all other provisions shall not be affected thereof. In place of the ineffective provision an appropriate provision shall apply, which comes closest to the ineffective clause in line with the legally permissible alternatives.