These terms and conditions of sale, delivery and payment (hereinafter referred to as the ‘present Terms and Conditions’) constitute an integral part of all of our contracts on the delivery of goods, repair services, planning services as well as any other services; in the event of ongoing business relationships with merchants, they apply as amended and printed on our lists of goods and/or prices also to future contracts; also, we accept any orders submitted verbally, by telephone, facsimile or via IT systems solely together with the present Terms and Conditions as amended. The present Terms and Conditions will be deemed as accepted by the purchaser, unless the latter objects to their application immediately upon placement of order. Any terms and conditions of purchase of our customers and/or terms and conditions of sale of our suppliers will have no binding force upon us, to the extent they are inconsistent with the present Terms and Conditions, even in case we have not objected to them expressly. Any orders placed with us will not be deemed as accepted by us until we confirmed them in writing or until we effected implicit delivery.
In the event orders are placed with us via the Internet or by e-mail, a relevant contract will be deemed as concluded with legal effect, solely if we confirmed such orders in writing. Should we, upon request, allocate a password to a customer for the placement of orders via the Internet, such customer is solely authorised to use such password. The customer shall be responsible for ensuring that the password may not be misused. In the event an unauthorised person places an order with us by using the password we allocated to our customer, such customer shall object to our written confirmation of order without undue delay; otherwise, a contract with legal effect is deemed as concluded with the customer on the basis of the contents set forth in our confirmation of order.
In principle, our field-service representatives are solely authorised to negotiate orders; orders will not be deemed as accepted until they were confirmed in writing by our headquarters or by one of our sales offices or until delivery of goods was effected. To take legal effect, individual commitments made in connection with a contract, in particular warranties that our goods are of a specific quality or recommendations for the use of our goods, indicated delivery periods, discounts and bonuses as well as any potential settlement of complaints on accommodating terms, are subject to a relevant express confirmation in writing issued solely by our headquarters or our branches, unless contractual form is mandatory for verbal declarations in accordance with the German Commercial Code or principles of legal inspection. To take legal effect, any amendments and/or modifications effected by telephone or made verbally are subject to confirmation in writing, as well. All of our offers are submitted on a non-binding basis. We reserve property rights and copyrights to all illustrations and drawings contained in our catalogues and prospectuses as well as to all samples or any other documentation. Any such documentation may not be disclosed vis-à-vis third parties without our approval and must be returned promptly upon request. Any reproduction thereof, be it in full or in part, is not permissible. All specifications of dimensions and weights are indicated without any obligation on our part. We reserve the right to modify the design, dimensions and weights of our products. The technical specifications indicated in our catalogues and prospectuses constitute nonbinding reference values.
The sales prices indicated in our price list as applicable at any given point of time are effective; our sales prices are quoted exclusive of value added tax as applicable at any given point of time and constitute ex-works prices. The prices prevailing on the day of placement of order will be charged, if delivery is effected within a period of four months following placement of order. In the event of subsequent (partial) deliveries (for example in case of call-off orders) we reserve the right to adjust our prices. In case of default of payment and in particular in the event of enforcement by court action all invoices still outstanding will fall due and payable with immediate effect; additionally, all discounts, bonuses etc. granted will forfeit. The same legal consequence(s) will ensue, if a petition in insolvency is filed against the assets of the purchaser before a court. Set-off of counterclaims is solely permissible, if we do not contest such claim or if such claim has become res judicata. A mark-up for small-volume purchases of 10%, or at least € 9.00 is charged for small-scale orders, not exceeding a net value of goods of EUR 190.00 All prices we quote in our offers are subject to change without notice; they solely apply to prompt orders. Our invoices are payable within a period of thirty days following date of invoice (and not following receipt of invoice or goods). In case of payment in cash within ten days following date of invoice we grant a discount of two percent on the total amount invoiced, provided however, that all invoices due have been settled. Payment periods are considered kept, once the amount of the remittance or cheque was credited to one of our accounts within the agreed period. The purchaser’s bringing forward an alleged defect does not release the purchaser from his obligation to effect payment. We do not accept any additional discount deductions or discount deductions for payments received after the agreed period qualifying for a discount, nor do we accept any reduction of dispatch and packaging costs. In the event the purchaser exceeds the granted credit term, we will be entitled to invoice contractual default interest at a rate charged by banks for borrowed monies, however, no less than five percent per annum, as well as defer or reject any further deliveries as from the date of maturity.
We are entitled to charge a flat-rate of EUR 15 for any pretrial expenses, in particular costs accruing in connection with obtaining a court order to enforce payment, without need of production of sufficient proof of higher or lower expenses incurred on our part. We accept cheques and bills solely on account of performance. Assumption of discount charges as well as any other expenses lies with the purchaser. Deliveries to customers with whom we have not yet entered into business relationship are effected solely on a cash-ondelivery basis, less a discount of three percent. Unsatisfactory information about the credit standing of a customer entitles us to subsequently specify different terms and conditions of payment and/or demand securities or prepayment. Without an expressly granted collection authority, our fieldservice representatives are not empowered to accept payment.
We shall be bound to delivery periods, solely if we expressly warranted their compliance. Delivery periods commence on the date of placement of order and constitute approximate delivery dates, subject to correct and in-time delivery to us. Warranted delivery periods are deemed as complied with, once we are notified that the goods are ready for dispatch. Warranted delivery periods are extended to an appropriate extent in case of occurrence of Acts of God and interruptions of operations or traffic disturbances. Additionally, any such event entitles us to withdraw from the concluded contract inasmuch as the goods have not been delivered yet and may not be procured within a reasonably extended delivery period due to impossibility of delivery to us. We are not liable for providing compensation for any damage which occurred as the result of any delayed delivery due to interruption of operation or traffic disturbance, due to unforeseen difficulties in connection with the procurement of raw materials and sup- General Terms and Conditions plies and/or in connection with deliveries to us or as the result of the occurrence of Acts of God. Partial deliveries may be effected at the expense of the purchaser. In the event the purchaser fails to specify the mode of dispatch, we will select the transportation option which we consider the most favourable without assuming any responsibility for the least expensive mode of shipment and safe delivery of the goods so dispatched. Shipment is carried out at purchaser’s risk. We dispatch all ordered goods free purchaser’s address. For such service we are entitled to charge a flat-rate shipping and handling fee of up to EUR 10.00.
All our deliveries are effected subject to extended reservation of title. Without disclosing the pertaining ownership rights, the goods may be neither pledged nor assigned to any third party. The foregoing provision does not encompass any fastening material and any other consumables processed in the ordinary course of business. To such extent, the customer, as of now, shall assign to us each and every claim against his customer, including all accessory rights, arising therefrom in the amount of the value of such goods subject to reservation of title. We hereby accept such assignment. The goods subject to our reservation of title as well as the claims assigned in accordance with the foregoing provision serve as security for all, including any future, claims arising from the business relationship with the relevant customer, insofar as and for as long as claims exist in our favour. We undertake to discharge the securities to which we are entitled in accordance with the foregoing terms and conditions at the request of the customer, inasmuch as their realisable value exceeds the claims to be secured by twenty percent. In the event we accept cheques and/or bills on account of performance to settle purchase price payments, our reservation of title will not extinguish until their due encashment. On items, which, for instance, were handed over to us for repair purposes, even in case such items needing repairing are not the property of the client, a lien by agreement covering all of our claims arising from the repair order inures to our benefit.
The customer shall review our deliveries and invoices without undue delay and lodge a complaint to us in respect of any potential defects or inconsistencies as defined in Articles 377 and 378 of the German Commercial Code without undue delay. Otherwise, the delivery or invoice will be deemed as accepted. We assume liability for potential defects on the products delivered by us and our repair services within the legally required periods, as we may choose either in form of rectification or in case of delivery of goods also in form of substitute delivery or by crediting the value of the goods to the account of the customer, unless separate warranties were granted which exceed such scope of liability. In the event such measures prove to be unsuccessful, the customer may, at his sole discretion, demand reduction of the agreed remuneration or in case of delivery of goods also reversal of the purchase contract (rescission of sale). For proving a defect and compliance with the warranty period the customer is requested to submit the defective product as well as the relevant invoice. Incidentally, acceptance or exchange of returned goods or any other complaints are ruled out. Our liability for warranted qualities is limited to compensation for direct damage, unless the warranty so given expressly would have had for its purpose to protect the customer from the very consequential damage which occurred as the result of the defect. In any case, knowledge and observance of the relevant DIN standards and utilisation instructions for the application of our products lies with the customer. Incidentally, neither we nor our legal representatives nor any persons employed in performing any of our obligations may be held liable, unless our liability is based upon intent or gross negligence on the part of our legal representatives and any persons employed in performing any of our obligations or upon culpable violation of a cardinal contractual obligation or any other essential contractual obligation and originates in any impossibility, default, positive violation of a contractual duty (not consisting of delay of performance or due to supervening impossibility), culpa in contrahendo, violation of rectification obligations, violation of a separate contract for information, consultancy contract or warranty contract, as well as in a tortuous act. Any liability, no matter the legal ground thereof, exceeding the legally stipulated warranty periods is ruled out, unless a separate warranty was granted. In any case, compensation payments are limited to the following maximum amounts for each loss event: Bodily injuries, EUR 500,000 however, no more than EUR 250,000 per single person Damage to property EUR 50,000 Basically, we assume liability for third-party products delivered by us solely to such extent to which our upstream suppliers assume and perform warranty obligations for their manufactured articles vis-à-vis us.
In principle, we do not take back goods purchased from and duly delivered by us. Exceptions may be considered only in particular cases following prior understanding. When we declare our willingness to take back goods on accommodating terms, we will deduct an administrative charge of ten percent from the amount to be credited to the customer. Shipment of the returned goods is free of charge for us. The goods so returned must be duly packaged. Any rectification work required due to insufficient packaging or any other impact will be charged at cost price. Customised products which may not be resold for different purposes may not be returned at all.
The place of performance for all of our services is the place of dispatch indicated in the respective delivery note, as we may deem also the City of Lohmar, Germany. The City of Lohmar serves as place of performance for the orderer’s payment obligation as well as place of jurisdiction. However, we reserve the right to institute legal proceedings at the headquarters of the orderer to collect our receivables by court action. Foreign deliveries are subject to German law. Technical specifications, our product assortment and prices are subject to alterations without notice. We accept no liability whatsoever for any misprints and/or errors.
In the event the present Terms and Conditions have not become, in full or in part, an integral part of the contract or are, in full or in part, unenforceable, such legal vacuum does not affect the remaining provisions of the contract. Inasmuch as the present Terms and Conditions have not become an integral part of the contract or become unenforceable, legal provisions apply.