• General Conditions of Sale and Delivery
  • Warranty

General Conditions of Sale and Delivery

1. General provisions

 

All offers and contracts concluded with us are based exclusively on the following general conditions of sale and delivery. They apply to any business with entrepreneurs, public law entities and separate funds under public law. Conflicting provisions of the customer are not valid. By placing orders, the customer accepts our conditions of sale and delivery. They apply to all future deals between the parties also without explicit stipulation.

 

2. Offers, conclusion of contracts

2.1.

Our offers are always without obligation. The purchase contract is concluded only by our explicit acceptance
(confirmation of the order) or by our delivery. Oral agreements or side-agreements do not exist. Subsequent changes, amendments or side-agreements have to be made in writing.

 

2.2.

Our confirmation of the order as well as these conditions are decisive for the content of our delivery obligations. Changes of construction, colour or form with respect to the delivery goods are permissible as far as they are reasonable for the customer.

 

3. Prices and payment terms

3.1.

The agreed price is compiled of the value of the goods, standard freight charges plus sales tax if delivery is made to an address on the German mainland and no different information on the article were provided. We deliver exclusively “ex works” to delivery addresses on German islands or abroad. Sales tax, costs of delivery, packaging and loading as well as possible customs duties will be separately charged in such cases. If the customer wishes a transport insurance for the goods, he has to inform us in writing prior to shipping. The insurance costs will be borne by the customer.

 

3.2.

Invoiced amounts have to be paid within 30 day of the invoice date. No allowances or other discounts are being granted. In case of a default of payment of the customer, interest has to be paid on the claim in the amount of the average interest rate imposed by German banks for outstanding current account credits. The right to enforce higher damage is reserved. It is up to the customer to prove that no damage or essentially less damage was caused by the default of payment. The minimum interest rate during the default of payment amounts to 8 % p.a. above the respective base interest rate of the European Central Bank. The right to enforce higher damage remains unaffected.

 

3.3.

The customer only has the right to offset or retain against our claims if his counter claims were established as final and absolute, undisputed or were accepted by us. Claims of the customer towards us may not be assigned.

 

4. Delivery

4.1.

We endeavour to deliver as soon as possible. Terms for delivery must have been agreed in writing. They commence with the contracting date unless otherwise explicitly provided for. The adherence to delivery periods presupposes the timely fulfilment of all required acts of cooperation, in particular the adherence to the agreed payment terms by the customer. If these preconditions are not fulfilled without us being responsible for, the periods will be adequately extended.

 

4.2.

If after the conclusion of contract circumstances become known which give reason to doubt the liquidity of the customer, we reserve the right to make the delivery dependent upon securities or advance payment.

 

4.3.

Our delivery obligation rests in cases of force majeure (unforeseen circumstances and incidents caused not through our fault, which could not have been prevented with the diligence of a prudent businessman, including war, business and traffic disruptions, strikes, lockouts, delivery disruptions, official orders etc.). If it is not reasonable for a party due to the duration of a hindrance to continue to adhere to the contract, the party is entitled to withdraw from the contract.

 

4.4.

If we entered into a congruent covering transaction with our pre-supplier, the delivery terms stipulated by us are subject to the timely and proper delivery to us.

 

4.5.

Partial deliveries are admissible if they are reasonable for the customer.

 

4.6.

If we do not make the delivery or not as agreed upon, the customer must grant us an additional, adequate period to effect the performance which normally should be at least two weeks. Otherwise, the customer is not entitled to withdraw from the contract. In case of default in delivery or impossibility we are liable for compensation claims only in accordance with item 7.

 

4.7.

The risk of accidental loss and accidental deterioration of the goods passes to the customer upon handover, in case of a sale by delivery to a place other than the place of performance with the delivery of the goods to the carrier, the shipper or other person or institution determined to execute the shipment. If the customer is in default of acceptance the handover is considered as being effected.

 

4.8.

If the customer is in default of acceptance we are entitled following, the ineffectual passing of a reasonable period set to the customer, to charge storage fees in the amount of 0.5 % of the price of the goods to be delivered, however in total 5 % at the most. The contracting parties are fee to prove higher or lower storage costs or other damages. Further reaching rights remain unaffected.

 

5. Reservation of title, enforcement proceedings

5.1.

We reserve the sole ownership of all delivery goods (reserved goods) until all claims we might have in relation to the business relationship with the customer are fulfilled. In case of current invoices the reserved goods serve as guarantee for the balanced claims.

 

5.2.

The customer is obliged to handle the goods with care and to insure them properly against the usual risks(burglary, fire, water, etc.). During the duration of the reservation of title, a pledging or security transfer of the delivered goods in full or in part are not allowed. In cases where we do not deliver the goods to a customer but to a third party, the customer obliges to explicitly indicate to this third party our reservation of title and the inadmissibility of pledges and security transfers.

 

5.3.

The customer is entitled to process and sell the reserved goods in the proper course of business unless the customer is in default in his payments to us. The customer assigns upon us as security already now claims from the resale of the goods, also under contracts for work and services and contracts for work and material, insurance claims as well as claims towards third parties due to damages, demolition, burglary or loss of the goods. We accept the assignment. In case of a resale of the goods, the customer has to reserve the ownership of the reserved goods vis-à-vis his purchasers until the purchase price is completely paid. The customer is not entitled to resell the goods to third parties if the purchase price claim from the resale is subject to a prohibition of assignment.

 

5.4.

We revocably entitle the customer to collect the claims assigned upon us for his own account and in his own name. Upon request, the customer has to disclose to us the debtors of the assigned claims. If the customer assigns the claims from a resale within the framework of a true factoring the customer has to indicate such case to us. The customer assigns already now the payment claim towards the factor in the amount of the claim to be secured. We accept the assignment. If the claims hereby assigned to us are deposited in an account current, the customer hereby assigns to us a possible positive balance of the account current up to the amount of the claim we are entitled to. We hereby accept the assignment.

 

5.5.

If the customer is in default in his payment, we are entitled to take possession of the reserved goods after ineffectual expiration of an adequate period determined by us. If the reserved goods are possessed by a third party, the customer is obliged upon first request to inform us about the whereabouts of the reserved goods, and he agrees that we take possession of the reserved goods also in such case. After we have taken possession of the goods, we are entitled to utilize at its best the reserved goods through private or public sale regardless of the payment and other obligations of the customer. The proceeds will be set-off against the customer’s liabilities after deduction of costs incurred. If we assert our reservation of title of the reserved goods, take possession of them or attach them, this is not considered being a withdrawal from the contract unless we explicitly declare the withdrawal.

 

5.6.

The customer informs us in writing without delay of all enforcement proceedings, levies of attachment, seizures, damages or other dispositions or interferences of third parties with respect to the reserved goods and provides to us copies of orders to levy a judgement debt or of records. Furthermore, he has to undertake any effort to avert the execution of the abovementioned proceedings.

 

5.7.

If a petition to initiate insolvency proceedings with respect to the assets of our customer is filed, we are entitled to withdraw from the contract and demand the immediate return of the reserved goods.

 

6. Warranty for defects

6.1.

The characteristics and features stipulated in our offer and our order confirmation are considered to be the agreed quality of our goods. Other or further reaching characteristics and features are only considered to be agreed quality if this has been explicitly agreed with the customer in writing. All information with respect to the quality of the delivery goods and the way of implementing our services in our brochures, catalogues or other written documents exchanged prior to the offer as well as in data sheets only apply approximately unless they are explicitly declared binding in our order confirmation. Deviations will not entitle the customer to claim any warranties for defects or damages. This also applies to photos, drawings and other figures. Output data refer to an operation with an air temperature of +20°C, with a concrete floor and dry operating conditions. Deviations of specified speeds are permissible in the range of usual tolerances even under the
before-mentioned conditions.

 

6.2.
Public statements, promotions or advertising by us or a third party do not constitute an agreed quality of the
goods.

 

6.3.

We principally do not grant a warranty in the legal sense for our delivery goods and/or our services. A case
of warranty only exists if it is explicitly declared as such.

 

6.4.

The customer has to examine the goods with respect to defects upon delivery without delay. Identifiable defects have to be notified to us by the customer without delay, within 8 days at the latest. Not identifiable defects have to be notified to us in writing by the customer without delay, however within 8 days at the latest upon their discovery. The sending of the notification is sufficient to adhere to the periods determined in sentences 2 and 3 above. The period of examination and notification of defects commences upon delivery. If the customer fails to examine the goods and notify the defects in time, he cannot plead the defect.

 

6.5.

It is our decision with respect to all parts of the delivery goods with verifiable material defects at the passing of risks or poor services at the time of acceptance to either repair or newly deliver them (supplementary performance). Parts which were substituted by us within the framework of such supplementary performance will become our property with their removal. The customer has to grant us sufficient time and opportunity for supplementary performance. We bear the costs incurred by us through the supplementary performance
unless the subject of the delivery was brought subsequently to a place other than the customer’s branch if such movement does not correspond to the intended use. In the recent case the increased expenses caused by the movement have to be borne by the customer.

 

6.6.

If the supplementary performance fails the customer is entitled to effect other legal claims based on defects.
The customer has no right to withdrawal because of irrelevant defects. With respect to rights of withdrawal
and damage claims the special provisions in item 7 apply in addition to the legal preconditions.

 

6.7.

If out of several sold goods only individual ones are defective, the possible withdrawal right of the customer is limited only to the defected goods unless this is unreasonable for the customer. Payments may only be withheld by the customer to the extent that is appropriate in relation to the defects.

 

6.8.

Transport damages have to be notified to the carrier without delay. Insofar, the notification obligations under
the Allgemeine Deutsche Spediteur-Bedingungen (ADSp) (general provisions for German carriers) apply.

 

6.9.

We are not responsible for any of the consequences resulting from the following circumstances: incorrect of improper use, especially overload, deficient installation or startup by the customer or third parties, wear and
tear or normal wear, deficient or negligent treatment, omitted maintenance or maintenance not carried out in accordance with the provisions or our operating instructions, inappropriate operating resources and spare
parts, defective construction work, improper construction ground, chemical, electro-chemical or physical influences, unless the customer proves that the defect was not caused by the behavior of the customer or a third party.

 

6.10.

If the customer gets faulty assembly instructions, we are only obliged to deliver assembly instructions free of faults, and we are only obliged to do so if the faulty assembly instructions are in conflict with a proper assembly. The same applies to faulty operating instructions.

 

6.11.

We are obliged to deliver the goods free from industrial property right and copy rights of third parties (hereinafter: property rights) only in the country of the place of delivery. In case third parties claim with good cause property rights with respect to the delivery goods or parts thereof, we will chose at our expense either to obtain a right to use for the respective delivery goods, to change it in order not to injure the property or copy rights or to exchange the delivery goods (or the respective parts thereof). If this is not possible for us at reasonable conditions, the customer has the statutory rights. Claims of the customer are excluded as far as the violation of property rights was caused by specifications of the customer, by a usage unforeseen by us or by the customer having changed the goods or used them together with products not delivered by us.

 

6.12.

The customer is obliged to inform us in writing without delay about claims made by third parties. He may not accept violations. Measures of defense or settlement arrangements can be made exclusively by us.

 

7. Rights to withdraw and compensation claims of the customer

7.1.

The right to withdraw from the contract is governed by the statutory provisions; the customer may only withdraw on the reason of a breach of duty which is not a defect if we are responsible for such breach of duty.

 

7.2.

We are only liable for defects of any kind – provided the other preconditions exist – in cases of intent and gross negligence. In cases of slight negligence we are only liable in cases of a breach of duty the fulfilment of which just would allow the proper execution of the contract and the adherence of which the contracting
partner can trust regularly (cardinal duty). Apart from that, a liability for damages of all kind is excluded
irrespective of the basis for the claim, including liability for culpa in contrahendo.

 

7.3.

If pursuant to item 7.2 we are liable for negligence our liability is limited to the damage we could normally expect to happen given the known circumstances at the conclusion of contract.

 

7.4.

The previous exclusions and limitations of liability do not apply as far as we granted a guarantee, to damages which have to be compensated under the Product Liability Act as well as for injuries of life, body or health.

 

7.5.

The previous exclusions and limitations of liability also apply in favour of our staff members, vicarious agents and other third parties we employ for the fulfilment of the contract.

 

8. Limitation periods

8.1.

The claims of the customer in relation to a defect of the goods are subject to a limitation period of one year. Unless otherwise agreed in individual cases, claims of the customer in relation to material defects of used delivery goods are excluded.

 

8.2.

Other contractual claims of the customer due to a breach of duties are subject to a limitation period of one year. This does not apply to the right of the customer to withdraw from the contract because of a breach of duty we are responsible for and which is not a defect.

 

8.3

Claims from a warranty are also subject to a limitation period of one year.

 

8.4.

Notwithstanding the previous items 9.1 and 9.2 the statutory limitation periods apply to the following claims of the customer: a) indemnification claims from a product liability, because of an injury of life, body, health or an essential breach of contract or because of other damages caused by an intended or grossly negligent breach of duty by us or our vicarious agents, b) claims for reimbursement of expenses pursuant to sec. 478 para. 2 German Civil Code, c) claims because of fraudulent concealment of a defect.

 

8.5.

Our claims towards the customer are subject to the statutory limitation periods.

 

9. Operation risk

With the handing over of the delivery goods the customer is responsible for all obligations arising from its operation. In particular, the customer has to arrange and be responsible at his expense for adherence to all relevant traffic law, insurance law and tax law provisions. In this respect, the customer will release us from all possible claims of third parties.

 

10. Place of performance , passing of risk , Jurisdiction , Applicable Law

10.1.

Place of performance is Bremen. Exclusive venue for all disputes is Bremen. We are entitled to file a lawsuit at the place of business of the customer. The same applies if the customer has no domestic venue.

 

10.2.

The laws of the Federal Republic of Germany apply to all legal relationships between us and the customer. The provisions of the UN Sales Convention (CISG) do not apply.

 

10.3.

Should individual provisions of the contract including these General terms and conditions be or become invalid fully or in part the validity of the remaining provisions will not be affected. In such case, the fully or partly invalid provision will be replaced by a provision the economic effect of which comes as close as possible to that of the invalid one.

 

10.4.

Alterations of, or amendments to, these general conditions of sale and delivery need to be made in writing. The same applies to the waiver of this requirement of a written form.