General Terms and Conditions

General Terms and Conditions of Sale of Karl Buschmann Maschinenbau GmbH

Section 1 Scope and Application

1.1

The following General Terms and Conditions of Sale apply to all deliveries, services and offers between us and businesses, legal entities under public law or a special fund under public law and, if applicable, vis-a-vis consumers as defined by Section 13 of the German Civil Code (hereinafter referred to as “customer”).

1.2

The General Terms and Conditions of Sale apply in particular to contracts for the sale and/or delivery of movable goods (“goods”) regardless of whether we manufacture the goods ourselves or purchase them from suppliers (Sections 433, 651 of the German Civil Code). Unless otherwise agreed, the General Terms and Conditions of Sale in the version valid at the time of the customer’s order or at least in the version initially communicated to them in text form serve as a framework agreement for similar future contracts, without us having to refer to them again in each individual case.

1.3

Our General Terms and Conditions of Sale apply without exception. Deviating, conflicting or supplementary terms and conditions of the customer only form part of the contract if and insofar as we have expressly agreed to their validity. This consent requirement applies in all cases, including for example when we carry out the delivery to the customer without reservation in the knowledge of the customer’s general terms and conditions.

1.4

Individual agreements made with the customer in specific cases (including collateral agreements, supplements and amendments) have precedence over these General Terms and Conditions of Sale in all cases. The content of such agreements is – subject to proof to the contrary – governed by a written contract or our written confirmation.

1.5

Any legally relevant declarations and notifications that the customer must make to us after conclusion of the contract, e.g. setting of deadlines, notifications of defects, declarations of withdrawal or reduction, must be made in writing to be effective.

1.6

References to the validity of statutory provisions have only clarifying significance. Even without such a clarification, the statutory provisions remain valid, unless they are directly amended or expressly excluded in these General Terms and Conditions of Sale.

Section 2 Consumer Arbitration Proceedings

Karl Buschmann Maschinenbau GmbH does not participate in consumer arbitration proceedings under the Consumer Dispute Settlement Act. Disputes concerning the concluded contract and its execution may be negotiated before the mediation office.

Mediation office of Handwerkskammer Düsseldorf (Düsseldorf Chamber of Crafts)
Georg-Schulhoff-Platz 1
40221 Düsseldorf
Tel.: 0211-87950
Fax: 0211-8795110
Email: info@hwk-duesseldorf.de
Website: www.hwk-duesseldorf.de

Section 3 Offer and Contract Conclusion

3.1

Our offers are subject to change and non-binding. This also applies if we have provided the customer with catalogues, technical documentation (e.g. drawings, plans, calculations, references to DIN standards, circulars), other product descriptions or documents – also in electronic form – to which we reserve ownership and copyright.

3.2

The customer's order of the goods is considered a binding contractual offer. Unless otherwise stated in the order, we are entitled to accept this contractual offer within 3 weeks after we receive it.

3.3

Acceptance can be declared either in writing (e.g. by order confirmation) or by delivering the goods to the customer.

3.4

Our order confirmation alone is decisive for the content of the contract, in particular the scope of services. Collateral agreements, amendments and supplements are only valid if we confirm them in writing.

3.5

Any verbal subsidiary agreements or statements made by sales employees or commercial agents that go beyond the written contract must always be confirmed by us in writing.

Section 4 Terms of Delivery

4.1

The delivery period is agreed individually or is specified by us when the order is accepted. If this is not the case, the delivery period is 4 weeks from conclusion of the contract.

4.2

If we cannot comply with binding delivery periods for reasons for which we are not responsible (non-availability of the service), we will inform the customer of this immediately and at the same time inform them of the expected new delivery periods. If the service is also not available within the new delivery period, we are entitled to withdraw from the contract in whole or in part; we will reimburse any payment already made by the customer without delay. A case of non-availability of performance as defined here is in particular the non-timely self-delivery by our supplier. If we have concluded a congruent hedging transaction, neither we nor our supplier are at fault or we are not obliged to procure in an individual case.

4.3

Entry of our delay in delivery is determined by the statutory provisions. A reminder from the customer is, however, required in any case. If we default in delivery, the customer may demand lump-sum compensation for the damage caused by default. The lump-sum compensation amounts to 0.5% of the net price (delivery value) for each completed calendar week of delay, but in total no more than 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer did not suffer any damage at all or only a considerably lower damage than the above lump sum.

4.4

The rights of the customer in accordance with Section 8 of these General Terms and Conditions of Sale and our statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to the impossibility of the unreasonableness of the performance and/or subsequent performance) remain unaffected.

4.5

We have the right to make partial deliveries if

  • the partial delivery can be used by the customer within the framework of the contractual text of destination,
  • the delivery of the remaining ordered goods is ensured and
  • the customer does not incur any considerable additional work or additional costs as a result (unless we declare ourselves willing to bear these costs).

4.6

We are also not liable for the impossibility of delivery or for delays in delivery, insofar as these are caused by force majeure or other events that were not foreseeable at the time of the conclusion of the contract (e.g. operational disruptions of all kinds, difficulties in the quality of materials or energy, transport delays, lawful lockouts, shortage of labour, energy or raw materials, difficulties in obtaining necessary official permits, official measures or the failure of, incorrect or untimely delivery by suppliers), for which we are not responsible.

If such events make it considerably more difficult or impossible for us to provide the delivery or service and the hindrance is not only temporary, we also have the right to withdraw from the contract. If hindrances are of temporary duration, the delivery or service deadlines will be extended or the delivery or service dates postponed by the period of the hindrance plus a reasonable start-up period. If the customer cannot reasonably be expected to accept the delivery or service as a result of the delay, they are entitled to withdraw from the contract by means of an immediate written declaration to us.

Section 5 Delivery and Transfer of Risk

5.1

Delivery is ex-warehouse, which is also the place of performance for the delivery and any subsequent performances. This is our headquarters in Hamminkeln. Upon request and at the expense of the customer, the goods will be shipped to another destination (sale to destination). Unless otherwise agreed, we are entitled to determine the type of shipment (in particular transport company, route, packaging) ourselves.

5.2

The risk of accidental loss and accidental deterioration of the goods is transferred to the customer at the latest upon delivery. With sale to destination, however, the risk of accidental loss and accidental deterioration of the goods as well as the risk of delay is transferred upon delivery of the goods to the forwarding agent, the carrier or the person or institution otherwise designated to carry out the shipment. If acceptance has been agreed, it becomes decisive for the transfer of risk. Otherwise, the statutory provisions of the law on contracts for work and services also apply accordingly in the case of an agreed acceptance. Delivery or acceptance is deemed the same if the customer is in default of acceptance.

5.3

In the event that the customer is in default of acceptance, fails to cooperate or if our delivery is delayed for other reasons for which the customer is responsible, we have the right to demand compensation for the resulting damage including additional expenses (e.g. storage costs). We will charge a lump-sum compensation for this in the amount of 0.5% of the delivery value per calendar week up to a maximum total of 5%, beginning with the delivery deadline or – in the absence of a delivery deadline – with the notification of the readiness of the goods for dispatch. Proof of higher damages and our statutory claims (in particular compensation for additional expenses, reasonable compensation, termination) remain unaffected; the lump sum must, however, be set off against further monetary claims. The purchaser has the right to prove that we have not incurred any damage at all or that the damage incurred by us is considerably less than the above lump sum.

Section 6 Prices and Terms of Payment

6.1

Unless otherwise stated, we are bound by the price contained in the offer for thirty days from the date of the offer. In the absence of a special agreement, the prices are ex-works, but not including packaging. The contractual partner is responsible for the disposal of the packaging. The prices are exclusive of value added tax at the respective statutory rate.

6.2

In the case of sale to destination (Section 4 (1)), the customer bears the transport costs ex-warehouse and the costs of any transport insurance requested by the customer. Any customs duties, fees, taxes and other public charges are borne by the customer.

6.3

The purchase price is due and payable within 14 days from invoicing and delivery or acceptance of the goods. We are however – also within the scope of an ongoing business relationship – entitled at any time to carry out a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation. Discount agreements require prior agreement. If a discount has been agreed, payment must be made within 10 days of the invoice date and delivery or acceptance of the goods. The date of receipt into our account is decisive. The discount is forfeited in case of late receipt.

6.4

Upon expiry of the above payment period, the customer is in default. During the period of default, interest is charged on the purchase price at the statutory default interest rate applicable at the time. We reserve the right to assert further damages caused by delay. Our claim to the commercial interest on maturity (Section 353 of the German Commercial Code) remains unaffected vis-à-vis merchants.

6.5

The customer is only entitled to set-off or retention rights to the extent that a claim is legally established or undisputed. In the event of delivery defects, the customer's counter rights, in particular in accordance with Section 7 (6) sentence 2 of these General Terms and Conditions of Sale, remain unaffected.

6.6

If after conclusion of the contract it becomes apparent, e.g. through an application for the opening of insolvency proceedings, that our claim to the purchase price is jeopardised by the customer’s lack of ability to pay, we have the right to withdraw from the contract in accordance with the statutory provisions on refusal of performance and – if necessary after setting a deadline – to withdraw from the contract (Section 321 of the German Civil Code). For contracts concerning the manufacture of unacceptable items (individual production), we are entitled to withdraw from the contract immediately; the statutory regulations concerning the dispensability of setting a deadline remain unaffected.

Section 7 Retention of Title

7.1

We reserve ownership of the goods sold until all our present and future claims from the purchase contract and an ongoing business relationship (secured claims) have been paid in full.

7.2

The goods subject to retention of ownership may neither be pledged to third parties nor transferred by way of security before full payment of the secured claims. The customer must inform us immediately in writing if an application for the opening of insolvency proceedings is filed or if third parties seize the goods belonging to us (e.g. seizure).

7.3

If the customer acts in breach of contract, in particular if the purchase price due is not paid, we have the right to withdraw from the contract in accordance with the statutory provisions and to demand the return of the goods on the basis of the retention of title and the withdrawal. We may assert these rights only if the customer does not pay the due purchase price, if we have previously set the purchaser a reasonable deadline for payment without success and if such a deadline is dispensable according to the statutory provisions.

7.4

The customer is authorised until revocation according to (c) below to resell and/or process the goods subject to retention of title in the ordinary course of business. In such a case, the following provisions apply in addition.

(a)

The retention of title extends to the full value of the products resulting from the processing, mixing or combination of our goods, whereby we are considered the manufacturer. If the ownership rights of third parties remain in force in the event of processing, mixing or combining with goods of third parties, we obtain co-ownership in proportion to the invoice values of the processed, mixed or combined goods. Otherwise, the same applies to the resulting product as to the goods delivered under retention of title.

(b)

The customer hereby assigns to us by way of security all claims against third parties arising from the resale of the goods or product, either in full or in the amount of our possible co-ownership share in accordance with the preceding paragraph. We accept this assignment. The obligations of the customer mentioned in paragraph 2 also apply with regard to the assigned claims.

(c)

In addition to us, the customer remains authorised to collect the claim. We agree not to collect the claim as long as the customer fulfils their payment obligations to us, there is no defect in their ability to pay and we do not assert the reservation of title by exercising a right in accordance with paragraph 3. In such a case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment. We are also entitled in this case to revoke the customer’s authority to further sell and process the goods subject to retention of title. (d)

If the realisable value of the securities exceeds our claims by more than 10%, we will release securities of our choice at the customer’s request.

Section 8 Claims for Defects

8.1

The statutory provisions govern the customer’s rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or faulty assembly instructions), unless otherwise stipulated below. The statutory special regulations for final delivery of the goods to a consumer (supplier recourse according to Sections 478, 479 of the German Civil Code) remain unaffected in all cases.

8.2

The basis of our liability for defects is primarily the agreement reached on the quality of the goods. The product descriptions of the manufacturer designated as such, which were provided to the customer prior to his order or in the same way as these Terms and Conditions were included in the contract, are regarded as the agreement on the quality of the goods.

8.3

If sales are made on the basis of samples and/or initial sample test reports, the contracting parties agree that the samples and initial sample test reports are specifications of quality. We only guarantee the parameters expressly listed as target values in a test report, even during production and when the product is modified according to the agreed test intervals. Any deviations going beyond this are, as far as they do not affect the contractual purpose of the product, insignificant within the scope of the usual technical adjustments. Commercial and/or technically unavoidable deviations of the goods from the type sample may not be objected to.

8.4

Any liability on our part is excluded for damage resulting from the non-observance of installation, operating and usage information as well as warnings on the product. Furthermore, no warranty is given for damages that have occurred for the following reasons: Inappropriate or incorrect use, faulty assembly or commissioning by the contractual partner or third parties, natural wear and tear, wear and tear due to above-average load, in particular of bearings and sealing elements, faulty or negligent handling, unsuitable operating materials, replacement materials, defective construction work, unsuitable building ground, current fluctuations and lack of an emergency power supply, chemical, electrochemical or electrical influences, provided that they are not attributable to a fault on our part. The customer is aware that the purchased item may show signs of corrosion due to contact with aggressive fluids (e.g. slurry or wastewater) and that this does not constitute a defect in the product.

8.5

Unless the quality has been agreed upon, the statutory regulation applies to assess whether a defect is present or not (Section 434 (1) sentences 2 and 3 of the German Civil Code). We do not, however, assume any liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).

8.6

The purchaser’s claims for defects presuppose that they have fulfilled their statutory obligations to inspect and notify defects (Sections 377, 381 of the German Commercial Code). If a defect becomes apparent during the inspection or later, we must be notified of this in writing without delay. Notification is regarded as immediate if it is made within 2 weeks, in which case timely dispatch of the notification is sufficient to comply with the deadline. Irrespective of this obligation to inspect and give notice of defects, the customer must notify us in writing of obvious defects (including incorrect and short delivery) within 2 weeks of delivery, in which case timely dispatch of the notification is also sufficient to meet the deadline. If the customer neglects the proper inspection and/or notification of defects, our liability for the unnotified defect is excluded.

8.7

If the item delivered is defective, we can initially choose whether we provide subsequent performance by eliminating the defect (rectification) or by delivering a defect-free item (replacement). This does not affect our right to refuse subsequent performance under the statutory conditions. We are entitled to make the supplementary performance owed dependent on the customer paying the purchase price due. The customer is, however, entitled to withhold a part of the purchase price reasonable in relation to the defect.

8.8

The customer agrees to give us the time and opportunity required for the supplementary performance owed, in particular to hand over the goods complained about for inspection purposes. For replacement deliveries, the customer must return the defective item to us in accordance with the statutory provisions. Subsequent performance does not include the removal of the defective item or its reinstallation if we were not originally required to install it.

8.9

We will bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs (not removal and installation costs) if a defect is actually present. We may otherwise demand that the customer reimburse us for the costs arising from the unjustified demand for the removal of defects (in particular testing and transport costs), unless the lack of defects was not recognisable to the customer.

8.10

If subsequent performance has failed or if a reasonable period to be set by the customer for subsequent performance has expired with no result or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. There is, however, no right of withdrawal in the case of an insignificant defect.

8.11

Even in the case of defects, the customer’s claims for damages or compensation for futile expenditure are only valid in accordance with Section 8 and are otherwise excluded.

8.12

If the customer chooses to withdraw from the contract due to a legal or material defect after a failed supplementary performance, they are not entitled to any additional claims for damages due to the defect. If the customer chooses compensation after a failed supplementary performance, the goods remain with the contractual partner when this is reasonable. Compensation is then limited to the difference between the purchase price and the value of the defective item. This is not applicable if the breach of contract was caused maliciously.

8.13

The warranty of Karl Buschmann Maschinenbau GmbH expires if the contractual partner carries out any changes or repair work.

8.14

Karl Buschmann Maschinenbau GmbH does not guarantee in particular that slurry will be stirred optimally without solids.

Section 9 Other Liability

9.1

Unless otherwise stated in these General Terms and Conditions of Sale including the following provisions, we are liable for any breach of contractual or non-contractual obligations in accordance with the statutory provisions.

9.2

We are liable for damages, regardless of the legal basis, within the scope of the liability for culpability in the case of intent and gross negligence. In the case of simple negligence, we are liable in accordance with the statutory provisions (e.g. for care in our own affairs) and subject to a milder scale of liability, only

a) for damages arising from injury to life, limb or health

b) for damages arising from a not insignificant breach of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the contractual partner regularly relies and may rely); in this case, however, our liability will be limited to compensation for the foreseeable, typically occurring damage.

9.3

The limitations of liability resulting from paragraph 2 also apply in the event of a breach of duty by or in favour of persons whose fault we are responsible for under statutory provisions. They are not valid if we have fraudulently concealed a defect or have assumed a guarantee for the quality of the goods and for claims of the customer according to the Product Liability Act.

9.4

With regard to a breach of duty not consisting of a defect, the customer may only withdraw or terminate if we are responsible for the breach of duty. The customer’s free right of termination (especially according to Sections 651 and 649 of the German Civil Code) is excluded. Otherwise, the statutory requirements and legal consequences apply.

9.5

If the delivery item is manufactured or produced according to the customer’s drawings, specifications or technical specifications, we are liable only for the corresponding design. The risk of selling such product parts produced according to drawings and binding design instructions is borne exclusively by the contractual partner.

Section 10 Statute of Limitations

10.1

Notwithstanding Section 438 (1) No. 3 of the German Civil Code, the general limitation period for claims for material defects and defects of title is one year from delivery. If an acceptance has been agreed, the statute of limitations begins with the acceptance.

If the customer is an entrepreneur or merchant as defined by the German Commercial Code, the warranty for used goods is excluded.

10.2

The aforementioned limitation periods of the law of sale are also valid for contractual and non-contractual claims for damages of the customer based on a defect of the goods, unless the application of the regular statutory limitation period (Sections 195 and 199 of the German Civil Code) would lead to a shorter limitation period in individual cases. Claims for damages of the customer under Section 8 (2) sentence 1 and sentence 2 (a) as well as under the Product Liability Act are, however, subject to the statutory limitation periods.

Section 11 Rights of Use

11.1

By paying our claims, the customer is granted neither a simple nor an exclusive right of use in terms of the copyright law. All rights are reserved.

11.2

The same applies to sketches, drafts, final artwork, breaks, photocopies etc. These documents remain our property even after payment has been made and must be treated confidentially by the customer and may not be made accessible to third parties.

Section 12 Choice of Law and Place of Jurisdiction

12.1

The law of the Federal Republic of Germany governs these General Terms and Conditions of Sale and the contractual relations between us and the customer, excluding international uniform law, in particular the UN Convention on Contracts for the International Sale of Goods.

12.2

If the customer is a merchant as defined in the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive, including international, place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship is our registered office in Hamminkeln. The same applies if the purchaser is an entrepreneur as defined in Section 14 of the German Civil Code. We are, however, also entitled in every case to bring an action at the place of performance of the delivery obligations in accordance with these General Terms and Conditions of Sale or a prior individual agreement or at the customer’s general place of jurisdiction. Overriding statutory provisions, in particular those concerning exclusive jurisdiction, remain unaffected.

12.3

German is the language of negotiations and contracts.

12.4

If the contract or these General Terms and Conditions of Sale contain loopholes, those legally effective regulations are deemed to have been agreed to fill these loopholes which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these General Terms and Conditions of Sale if they had been aware of the loophole.

Note:

The customer acknowledges that we store data from the contractual relationship in accordance with Section 28 of the German Federal Data Protection Act for the purpose of data processing and reserves the right to transfer the data to third parties (e.g. insurance companies) to the extent necessary for the performance of the contract.

 

Version as of 02/06/2017

General Terms and Conditions of Purchase of Karl Buschmann Maschinenbau GmbH

Section 1 Scope and Application

1.1

The following General Terms and Conditions of Purchase apply to all deliveries, services and offers between us and companies, legal entities under public law or a special fund under public law and, if applicable, vis-à-vis consumers as defined by Section 13 of the German Civil Code, hereinafter referred to as “contractor”.

1.2

All deliveries, services, offers, orders and other transactions with us are exclusively subject to these General Terms and Conditions of Purchase. These are part of all contracts that we conclude with our contractors for the deliveries or services offered by them.

1.3

They also apply to all future transactions and business relations, even if they are not expressly agreed to again.

1.4

By accepting the order or concluding the contract with us, these terms and conditions are considered agreed to.

1.5

We only recognise the terms and conditions of our contractual partners or third parties to the extent that they comply with our regulations or are expressly confirmed in writing. Any reference to a letter containing or referring to the terms and conditions of our contractual partners or third parties does not imply our agreement to the validity of those terms and conditions. Any counter confirmations of the contractual partner with reference to their business, purchase or order confirmations are hereby rejected.

1.6

Deviations from these conditions of purchase are only valid if they have been expressly confirmed by us in writing. The waiver of this formal requirement must also be in writing.

1.7

Apart from the following provisions, only the statutory provisions apply.

Section 2 Consumer Arbitration Proceedings

Karl Buschmann Maschinenbau GmbH does not participate in consumer arbitration proceedings under the Consumer Dispute Settlement Act. Disputes concerning the concluded contract and its execution may be negotiated before the mediation office of Handwerkskammer Düsseldorf (Düsseldorf Chamber of Crafts)

Georg-Schulhoff-Platz 1
40221 Düsseldorf
Tel.: 0211-87950
Fax: 0211-8795110
E-mail: info@hwk-duesseldorf.de
Website: www.hwk-duesseldorf.de

Section 3 Order and Contract Conclusion

3.1

Our orders are subject to change and non-binding unless they are expressly declared as binding in writing. Orders should be understood as an invitation to submit offers.

3.2

If we place an order, the contractor must send his offer with price and delivery time information without delay. Should this offer contain details of the contract modalities differing from those of our order, a contract will only be concluded if these changes are expressly confirmed by us.

3.3

A contract is only concluded upon issuance of a written order confirmation with express confirmation of the price and delivery time. Order confirmations also require our written confirmation to be legally effective.

3.4

Our order confirmation alone is decisive for the content of the contract, in particular the scope of services. Collateral agreements, amendments and supplements are only valid if we confirm them in writing.

3.5

Any verbal subsidiary agreements or statements made by sales employees or commercial agents that go beyond the written contract must always be confirmed by us in writing.

Section 4 Delivery Period

4.1

The agreed delivery periods are binding. The contractor is required to notify us immediately in writing if they believe they will not be able to meet the agreed delivery times for any reason.

4.2

A failure by the contractor to perform his service or to perform it within the agreed delivery period or if they are in arrears, our rights – in particular to withdraw from the contract and to claim damages – are determined in accordance with the statutory provisions. The regulations in 3.3 remain unaffected.

4.3

If the contractor is in arrears, we may demand a contractual penalty of 1% of the net price per completed calendar week, but not more than a total of 5% of the net price of the goods delivered late. We are entitled to demand the contractual penalty in addition to performance and as a minimum amount of compensation owed by the contractor in accordance with the statutory provisions without prejudice to the assertion of further damages. Should we accept the delayed performance, we will claim the contractual penalty at the latest with the final payment.

Section 5 Delivery and Dispatch

5.1

Delivery and dispatch will be made within Germany “free domicile” to the address indicated in the order. If no destination is specified and nothing else has been agreed, delivery must be made to our registered office in Hamminkeln.

The respective destination is also the place of performance for the delivery and any subsequent performance (debt to be discharged at creditor's domicile).

5.2

If it is agreed in deviation from this that pricing is ex-works or ex-warehouse of the contractor, the consignments must be transported at the lowest cost in each case, unless a specific mode of transport is expressly prescribed by the customer.

5.3

Extra costs for expedited transportation that may be necessary to meet a delivery date are borne by the contractor.

5.4

The risk of accidental loss and accidental deterioration of the goods is transferred to us only upon delivery to the place of performance. If acceptance has been agreed, it becomes decisive for the transfer of risk. Otherwise, the statutory provisions of the law on contracts for work and services also apply accordingly in the case of acceptance. If we are in default of acceptance, this shall be equivalent to handover or acceptance.

Section 6 Packaging

6.1

The contractor is responsible for packaging the goods properly at their own expense and is liable for all damage caused by improper packaging.

6.2

No deposit can be charged for packaging.

6.3

The packaging rules contained in the order or delivery schedule are applicable to the packaging. Otherwise, the packaging regulations in their currently valid version apply.

Section 7 Prices and Invoices

7.1

The price stated in the order is binding. All prices include statutory value-added tax unless this is shown separately.

7.2

Provided that nothing to the contrary has been agreed upon in individual cases, the price includes all services and ancillary services of the seller (e.g. assembly, installation) as well as all ancillary costs (e.g. proper packaging, transport costs including any transport and liability insurance).

7.3

Invoices must be issued in accordance with statutory regulations. In particular, the invoices must contain our order number, the article number, delivery quantity and delivery address of the order.

7.4

Invoices that have not been properly issued and cannot be assigned clearly are deemed not to have been issued until clarification is requested by us and they do not constitute grounds for default.

7.5

The previous paragraphs apply analogously to delivery notes and dispatch notes.

Invoices and delivery notes must each be provided to us in duplicate.

Section 8 Payments and Offsetting

8.1

The agreed price is due for payment within 30 calendar days of complete delivery and performance, including any agreed acceptance and receipt of a proper invoice.

8.2

If the invoice is paid in full by us within 14 days, the seller grants a 3% discount on the net amount of the invoice.

8.3

We do not owe any interest on maturity. The statutory provisions shall apply to payment defaults.

8.4

We are legally entitled to the set-off and retention rights as well as the defence of non-performance of the contract. In particular, we are entitled to withhold the payments due as long as we are still entitled to claims against the contractor arising from incomplete or defective performance.

8.5

The contractor has a right of set-off and retention only on the basis of counterclaims that have been legally established or are undisputed.

Section 9 Warranty

9.1

Statutory provisions apply to our rights in the event of material defects and defects of title of the goods (including incorrect and short delivery, improper assembly, faulty assembly, operating or user instructions) and any other breaches of duty by the contractor, unless otherwise stipulated below.

9.2

According to the statutory provisions, the contractor is liable in particular for ensuring that the goods have the agreed quality when the risk is transferred to us. Any product descriptions which – in particular by designation or reference in the order – are the subject of the respective contract or which have been incorporated into the contract in the same way as these General Terms and Conditions of Purchase are deemed to be an agreement on quality. There is no difference whether the product description comes from us, the contractor or the manufacturer.

9.3

For the commercial obligation to examine and give notice of defects, the statutory provisions according to Sections 377, 381 of the German Commercial Code apply with the following proviso: Our obligation to inspect is limited to defects that become apparent during the inspection of incoming goods at our premises under external inspection including the delivery documents and during our quality control by random sampling. If acceptance has been agreed, there is no obligation to inspect. Otherwise, it depends on the extent to which an inspection is feasible in the normal course of business, taking into account the circumstances of the individual case. The obligation to give notice of defects discovered later remains unaffected. We are deemed to have given notice of defects without delay and in good time in all cases if such is received by the contractor within 8 calendar days.

9.4

It is generally agreed that in the case of defects that are only discovered later, the contractor is responsible for wasted costs. 9.5

If the contractor does not fulfil their obligation of subsequent performance within a time period set by us – at our discretion either by remedying the defect or by delivering a defect-free item – we may remedy the defect ourselves and demand compensation from the contractor for the necessary expenses or a corresponding advance payment.

9.6

If the contractor’s subsequent performance has failed or is unreasonable for us, e.g. due to particular urgency, endangerment of operational safety or the threat of disproportionate damage, no deadline need be set, the contractor will be informed of such circumstances immediately, if possible in advance.

9.7

Otherwise, we are entitled to reduce the purchase price or to withdraw from the contract in the event of a material defect or defect of title in accordance with the statutory provisions. We are also legally entitled to compensation for damages and expenses.

9.8

Our claims arising from supplier recourse are also valid if the goods have been further processed by us or one of our customers prior to their sale to a consumer, e.g. by incorporation into another product.

9.9

The contractor is liable for ensuring that the delivered items or their use do not infringe upon the property rights of third parties. The contractor indemnifies us and our customers from all claims of third parties arising from the use of such property rights.

Section 10 Statute of Limitations

10.1

The mutual claims of the contracting parties are subject to the statute of limitations in accordance with the statutory provisions, unless otherwise stipulated below.

10.2.

Notwithstanding Section 438 (1) No. 3 of the German Civil Code, the general limitation period for claims for defects is 3 years from the transfer of risk. If an acceptance has been agreed, the statute of limitations begins with the acceptance. The 3-year period of limitation also applies accordingly to claims arising from defects of title, whereby the statutory period of limitation for in rem restitution claims of third parties (Section 438 (1) No. 1 of the German Civil Code) remains unaffected. Moreover, claims arising from defects of title do not become time-barred under any circumstances as long as the third party can still assert the right – in particular in the absence of limitation – against us. 10.3 Before we acknowledge or fulfil a claim for defects asserted by our customers (including reimbursement of expenses according to Sections 478 (2), 439 (2) of the German Civil Code), we will notify the contractor and request a written statement of the facts of the case. If the statement is not made within a reasonable period of time and no amicable solution is reached, the claim for defects granted by us is deemed to be owed to the customer; in such a case, the contractor is responsible for providing evidence to the contrary.

Section 11 Compliance with Statutory Provisions and Safety

11.1

The contractor is responsible for compliance with the accident prevention regulations or the safety recommendations of the trade associations, the trade supervisory authority and the like.

11.2

The respective valid statutory regulations on environmental protection and the use and handling of hazardous or harmful substances must be observed with regard to the composition of materials, the components for production materials etc.

11.3

The contractor must also independently ensure compliance with the statutory provisions in other respects. Should we fail to comply with the statutory provisions, the contractor must draw attention to this fact. If no such notification is made, the contractor will be liable for any damages arising from this themselves and under our indemnity.

Section 12 Product Liability - Indemnification - Liability Insurance Cover

12.1

If the contractor is liable for any product damage, they must indemnify us from claims of third parties to the extent that the cause lies within their area of control and organisation, and they themselves are liable in the external relationship.

12.2

As part of his obligation to indemnify, the contractor must reimburse expenses in accordance with Sections 683, 670 of the German Civil Code that arise from or in connection with a third-party claim, including recall measures carried out by us. The contractor will be informed about the content and scope of recall measures – as far as possible and reasonable – and given the opportunity to respond. Any further legal claims remain unaffected.

12.3

The contractor is required to take out and maintain product liability insurance with a lump-sum coverage of at least 5 million per personal injury/property damage.

Section 13 Subcontracting

The contractor is not authorised without our prior written consent to have the service owed by them performed by third parties.

Section 14 Confidentiality and Protection of Property

14.1

We reserve our property rights and copyrights to illustrations, plans, drawings, calculations, design references, product descriptions and other documents. These types of documents must be used exclusively for the contractual performance and returned to us after completion of the contract. The documents must be kept confidential from third parties, even after termination of the contract. The confidentiality agreement only expires when and insofar as the knowledge contained in the documents provided has become general knowledge.

14.2

The above provisions apply accordingly to substances and materials (e.g. software, finished and semi-finished products) as well as to tools, templates and samples and other items that we provide to the contractor for production. As long as they are not processed, such items must be stored separately at the contractor’s expense and insured to a reasonable extent against destruction and loss.

14.3

Materials, tools, devices and models provided by us to the contractor or procured from third parties must be checked by the contractor for their suitability and absence of defects. Unless a corresponding complaint is made immediately, it is deemed suitable and free of defects.

14.4

Materials provided by us or manufactured for contractual purposes and invoiced to us separately by the contractor remain our property or become our property. The contractor must mark them as our property, store them carefully, protect them against damage of any kind and use them only for the purposes of the contract.

14.5

The risk of loss or deterioration of the materials rests with the contractual partners from the time of storage. 14.6 The contractor is responsible for the processing, mixing or combining (further processing) of provided items on our behalf. The same applies if the delivered goods are further processed by us, so that we are considered the manufacturer and acquire ownership of the product at the latest upon further processing in accordance with the statutory provisions. 14.7 Retentions of title by the contractor only apply insofar as they relate to our payment obligation for the respective products to which the contractor retains title. In particular, any extended or expanded retention of title is not permitted.

Section 15 Insurance Costs Insurance costs of any kind are not borne by us.

These must be assumed by the contractor.

Section 16 Assignment of Claims

The assignment of existing claims against us is excluded. This does not apply to monetary claims.

Section 17 Force Majeure

If we are unable to meet our acceptance obligations due to operational disruptions or force majeure, we have the right to postpone acceptance and, if necessary, to withdraw from the contract after giving notice.

Section 18 Applicable Law, Language

The law of the Federal Republic of Germany governs these General Terms and Conditions of Purchase and the contractual relations between us and the contractor, excluding the UN Convention on Contracts for the International Sale of Goods. The language of negotiations and contracts is German.

Section 19 Place of Performance and Jurisdiction

19.1

The place of performance for all obligations of both contracting parties are our headquarters in Hamminkeln.

19.2

If the contractor is a merchant as defined in the German Commercial Code, a legal entity under public law or a special fund under public law, the exclusive – also international – place of jurisdiction for all disputes arising from the contractual relationship is our registered office in Hamminkeln. The same applies if the contractor is an entrepreneur within the meaning of Section 14 of the German Civil Code. We are, however, also entitled to sue the contractor at his registered office.

19.3

If the agreement of the aforementioned place of jurisdiction with a foreign contractual partner is not permissible due to the law of the respective country of the contractual partner, then Zurich (Switzerland) is agreed as the place of jurisdiction.

Section 20 Miscellaneous

If one of these provisions – for whatever reason – is or becomes invalid, unenforceable or incomplete in whole or in part, the legally effective provision which the contracting parties would have agreed to in accordance with the economic objectives of the contract and the purpose of these terms and conditions if they had been aware of the invalidity, unenforceability or loophole is deemed agreed in place of the invalid provision or to fill the loophole.

 

Version as of 02/05/2017