These terms of delivery and payment are part of all offers and agreements, both in commercial and enterprise business and in current as well as future business contacts. Regarding future orders a renewed reference to the terms of delivery and payment shall not be required.
With this the seller contradicts opposing terms of business, especially terms of purchase, in commercial and enterprise business. They shall only be valid as far as the seller agrees to them in writing. Correspondingly differing agreements especially verbal agreements are only binding if they are confirmed in writing.
A contract shall not fail because of differing terms of business.
2. Offers; Prices; Samples and Specimen
The seller´s offers are not binding; they have to be seen as request to the customer to place a buying order. With the customer´s buying order and the seller´s acknowledgement of this order the contract shall take effect. If the seller´s acknowledgement of order varies from the order, it is meant as new provisional offer.
Selling prices are fixed prices only when guaranteed in writing. Unless otherwise agreed, prices are based on the seller´s current price list on delivery date. Unless otherwise stated, all prices are net prices in Euro, in compliance with the seller´s terms of delivery, clause 3.
Samples, specimen, verbal remarks, recommendation as well as other supports and information like photocopies, sketches, measurements and weight given are only approximately valid and are not binding, unless a special written assurance or guarantee is given.
3. Place of Fulfilment; Delivery
Place of fulfilment for both parties to the contract shall be Germany- 51467 Bergisch Gladbach.
Both, part deliveries and extra or reduced deliveries, in support of an efficient order processing, shall be reserved to the seller, unless they are unreasonable for the customer. Proof of unreasonableness is incumbent on the customer. Unless otherwise agreed, invoices are proportionately changed according to delivery. Each part delivery is taken as fulfilment of a special order according to these terms.
Unless expressly guaranteed, delivery dates are provisional, but every reasonable effort shall be made to keep the dates.
Delivery takes place in accordance with the contract clause agreed on in each individual agreement, which is based on the valid version of INCOTERMS.
4. Compliance with Legal Requirements
Unless otherwise stated, the customer is responsible for the compliance with legal and official requirements concerning imports, transportation, storage and use of goods
5. Receipt of Statements
Announcements and other declarations, that have to be made towards one party, shall take effect, when they reach this party. If there is a deadline to be met, the statement must reach the party within this period.
6. Force Majeure
In the event that the seller is prevented from carrying out its obligations under a contract for sale as a result of any cause beyond its control such as, but not limited to, Acts of God, War, government intervention, strikes, traffic delays, internal breakdown, equipment failures, shortage of raw materials etc, that of the seller immediately informs the customer, the seller shall be relieved of its obligations and liabilities under such contract for sale for as long as such fulfilment is prevented. Unforeseeable events, culminating in delay, impossibility or other failures do not oblige the seller to pay any compensation but entitle the seller to withdraw from contracts, as long as they have not been settled yet. The arrangements above do not apply to events occurring through the seller´s own fault.
7. Complaints / Warranty / Liability / Guilt
The business or enterprise customer has to notify all visible faults, the non-business or non-enterprise customer all obvious faults immediately on receipt of goods, definitely before use or installation, in writing.
The customer has to record and document faults in an appropriate way. Damages in transit have to be taken down in detail in the shipping note and captured on photo. Unless regarded as unreasonable, the customer is obliged to enable an examination through the seller or his insurance. If the customer´s conduct in this connection causes disadvantages for the seller, especially if the seller´s insurance legitimately refuses to take over the sum insured, the customer has to recoup the seller´s losses with regard to this.
In commercial and enterprise business the seller gives one (1) year´s guarantee, with the exception of instances of liability due to wilful conducts as far as the seller is concerned.
Acknowledged complaints in time in commercial and enterprise business enable the seller to either compensate or repair or to refund the purchase price, taking back faulty goods. The seller is entitled to two attempts of compensation or repairing. Claims for damages in commercial and enterprise business can only be asserted if discount or withdrawal is inacceptable to the customer.
Unless expressly agreed, the reference to norms and product descriptions basically contains the more detailed product name and does not represent an assurance or quality guarantee. All information concerning product features and application, though based on the seller´s test results, do not relieve the customer of making own assessments.
The seller is liable for the fault of legal representatives, managerial staff and ordinary subcontractors in cases of intent and gross negligence fully, in cases of minor negligence only for the breach of fundamental contract clauses to the amount of predictable damage. The preceding restriction does not apply to instances involving injury of life, body and health.
All returns, also due to damage in transit, require a prior coordination with the seller.
9. Payments; Discount; Special Right to Rescind; Compensation and Withholding
Unless otherwise stated, all payments shall be due upon receipt of goods. Normally goods are sent by letter post.
Account settlement by cheque or debit requires the seller´s consent. Basically the seller does not accept debits with a longer repayment period than three months. All accumulating banking and debit expenses have to refunded.
Invoices are considered as accepted, unless a written protest is made within 30 days after invoice. Interest on arrears shall be charged according legal regulations. Further claims for damages are reserved.
In case of discount agreed on the discount is only given on the value of goods, excluding freight charges. Only balanced customers accounts entitle to discount agreements.
Defaults of payment, cheque or debit protest entitle to execute additional orders only with payment in advance, to immediately claim all outstanding, even deferred, payments and to demand cash payment or security for returning debits and cheques.
In case of discontinuing payments, insolvency proceedings concerning the customer and rejection of application for insolvency proceedings for lack of assets the seller shall be entitled to withdrawal. Claims for damages due to the seller´s withdrawal cannot be asserted by the customer.
Non- purchase at date of delivery as well as non- compliance with liability to pay result in loss of customer´s right to future deliveries, including the right to demand purchase after due date and claims for damages for the seller´s part remain valid.
Compensations are precluded, unless based on undisputed or legally binding claims. The same applies to assertion of withholding rights resulting in another contractual relationship.
The seller remains the owner of the goods affected by the contract until the seller has been paid in full for such goods.
11. Secrecy; Ownership of Materials; Intellectual Property Right
All commercial and enterprise details that the customer learns about in connection with his order shall be treated as trade secrets and thus confidentially.
12. Data Storage
The seller is entitled to save the customer´s data, within the laws of federal data protection.
13. Governing Law; Applicable Law
In commercial and enterprise business any claim, dispute or controversy between customer and seller shall be resolved exclusively in Germany, D-51467 Bergisch Gladbach..
All legal relations between customer and seller shall be governed by German Law. With this, arrangements, especially those regarding international private law, which could culminate in the application of a different law, are expressly contradicted. In the same way United Nations regulations concerning contracts in international trade agreements are expressly contradicted.
If any part of these terms and conditions that is not fundamental is found to be illegal or unenforceable, such finding will not affect the validity or enforceability of the remainder of these terms and condition.