The following General Terms and Conditions are a component of every contract we conclude.
None of the customers purchasing conditions apply, unless we have expressly accepted them in writing.
The only law that shall apply for all contractual relationships with the purchaser shall be German law. The UN convention on contracts for the international sale of goods (CISG) is not valid for the relationship between the purchaser and us.
These conditions apply to legal communication with commercial and industrial enterprises. We only supply customers, who when entering into a contract with us are exercising their commercial or self-employed business capacity and legal entities under public law and separate estates subject to public law (mutual trading activities).
The agreed place of fulfilment for supply and payment, and the legal venue, is Flensburg, with the proviso that we are also entitled to take proceedings at the location of the purchaser′s headquarters or branch.
Offers, conclusion of contract, prices
Our offers are non-binding in terms of quantity, price and delivery time. On placing an order the purchaser bindingly declares that they wish to purchase the goods they have ordered. The acceptance that leads to the conclusion of a contract can be expressed by the delivery of the wares, the performance of a service, or that we in some other manner confirm the acceptance of the order to the customer. The contract comes into force with such acceptance by us.
Entrepreneurs and consequently also the purchaser have no right of revocation.
Technical and design deviations from the descriptions and specifications in documents, and the right to make model, design and material modifications in the light of technical progress are reserved, without any rights against us being able to be derived from this.
Our prices are net prices. Unless indicated otherwise in our order confirmation, they are valid ex warehouse Flensburg or in the case of direct mail orders from the German border or German port of import plus the value added tax valid on the day of delivery, excluding packaging, insurance, freight charges and any applicable low-quantity surcharge. These items will be invoiced separately. The customer is responsible for disposing of the packaging at his or her own cost.
The collection of the delivery item is the responsibility of the purchaser as a matter of principle, and must take place upon notification of availability at the factory or warehouse without delay.
In the event that delivery by us is desired, this will take place ex warehouse as a matter of principle, and – unless agreed otherwise in individual cases – at the purchaser′s cost. If the purchaser wishes the delivery item sent to them, the risk of accidental gloss and accidental impairment of the delivery item is transferred to the purchaser when the delivery item is handed over to the carrier, haulier, shipping agent or collector. This also applies if, as a result of an individual agreement, we bear the freight costs or we ourselves execute the shipping via transport person.
If the purchaser is in default of acceptance, we are entitled to claim refund of any expenditure associated therewith. On commencement of the default of acceptance the risk of accidental impairment and accidental loss is transferred to the purchaser.
If shipping is delayed for reasons beyond our control, the risk is transferred to the purchaser on notification of readiness for shipping.
Any details relating to delivery dates are not binding for us and only represent an unbinding estimation. Any agreement of binding delivery dates must be made in writing.
The contract is concluded with the reservation of correct and timely self-delivery. We are therefore entitled to withdraw if our supplier if the purchase contract we have concluded before concluding the respective contract of sale has not been fulfilled for reasons beyond our control.
We are also entitled to withdraw from concluded contracts if the procurement of the goods at the time the contract was concluded is rendered substantially impeded as a result of disasters, acts of war or similar circumstances. A substantial impediment exists in any case if the market price of the purchase item has increased by 25% or more between conclusion of the respective contract and the scheduled delivery date.
In the event of disturbances in our operations or warehouse that are beyond our control, or in the event of impeding official measures, the delivery period shall be extended by the length of the disruption. We are also entitled to withdraw from concluded contracts if the disturbance for which we are not responsible continues over a period longer than four weeks. A disturbance in the aforementioned context also includes such business interruptions or constraints caused by large-scale personnel shortfall resulting from illness, labour disputes or the like.
Acceptance and handover, examination, notification of defects
The purchaser is duty bound to also accept part deliveries. Part deliveries can be invoiced immediately.
In the case of deliveries on demand, the demand represents a primary obligation within the agreed time limit.
The customer is obliged to accept delivery items even if they display minor defects, irrespective of the existence of any possible warranty claims.
The purchaser is obliged to examine the delivery item for any defects on handover, and to report any such faults or defects in writing and without delay. The relevant provisions and legal consequences of the German Commercial Code (HGB) shall apply accordingly.
Reservation of proprietary rights
The delivered goods remain our property until full payment of our purchase price claim and any other claims we have against the purchaser. The reservation of proprietary rights also remains in force if individual receivables are included in a running account and the balance has been determined and acknowledged.
If the goods subject to reserved ownership delivered by us are treated or processed by the purchaser, the treatment or processing is done for us as manufacturer in terms of § 950 BGB.
If our reserved goods are combined, mixed or processed together with the purchaser′s own goods, we acquire co-ownership of the new item or in the case of a mixed product in proportion to the value of our reserved goods compared to the value of the other goods at the time of the combination, mixing or processing. We make no claim regarding the increased value created through the combination, mixing or processing.
The purchaser herewith assigns to us his claims and all ancillary rights resulting from the resale of our reserved goods and all goods that are our property in accordance with Section 6.2 or in our co-ownership in accordance with Section 6.3 as security for all our claims against the purchaser at the time of the resale.
In the case of resale of the goods of which we are co-owners in accordance with Section 6.3, only that part of the claim is assigned to us that corresponds to the value of our co-ownership share.
If the purchaser has sold the claim from the resale within the scope of real factoring, the purchaser shall assign to us the claim against the factor that replaces it.
We herewith expressly accept the above assignments.
If the value of the claims assigned to us as security exceeds our claims against the purchaser by more than 20%, we are obliged, at the purchaser′s request, to release the existing securities above that value.
The purchaser is only entitled to resell or reserved goods and the goods that are our property in accordance with Section 6.2 or in our co-ownership in accordance with Section 6.3 within the scope of his normal business and only under the prerequisite that the purchase price claim from the resale in accordance with Section 6.4 is transferred to us.
The purchaser is obliged to adequately insure our reserved goods and goods that are our property in accordance with Section 6.2 or in our co-ownership in accordance with Section 6.3 against loss and damage due to fire, theft, water and other hazards, and are to provide proof of insurance to us on request. The purchaser hereby assigns his claims for compensation against insurance companies or other obligated parties to which he is entitled – proportionately if necessary – to us. This assignment is also hereby accepted.
We must be notified of any impairment of our reserved goods and the goods that are our property in accordance with Section 6.2 or in our co-ownership in accordance with Section 6.3, such as third party seizures, without delay.
If we take back any purchase items because of reserved proprietary rights, this does not count as withdrawal from the contract. We have the right to satisfy our claims from the free sale of the reserved goods we have taken back.
Claims arising from our invoices shall, at our option and unless otherwise agreed, be paid in advance, by cash on delivery or by SEPA direct debit. Irrespective of individual contract for goods, payment shall be due immediately on collection or delivery of goods.
We are entitled, despite any different terms of payment of the purchaser, to credit payments against the purchaser′s oldest debt first. If any costs and interest have arisen, we are entitled to first credit payments against the costs, then the interest, and lastly against the main claim.
The purchaser is in default even without a reminder or dunning, if he has not paid within 30 days of receipt of the invoice. If a reminder, demand or dunning is received, the purchaser is also in default before a period of 30 days after receipt of invoice has expired. Default interest is set at 8 per cent above the base interest rate at the time. We reserve the right to claim higher interest damages.
If the purchaser does not comply with his contractual payment obligations, or ceases payment, or if we become aware of other circumstances that put the purchaser′s creditworthiness in doubt, we are entitled to declare the complete rest amount owing as due. § 321 BGB shall be applied, with the proviso that we are still entitled despite the objection foreseen therein, if the purchaser′s financial situation was already bad when the contract was concluded, but we were not aware of it.
The purchaser cannot assert any rights of retention against our claims. The offsetting against any of our claims is also ruled out, unless the counterclaim is uncontested or has been established in law.
Details provided about our goods are generally purely quality descriptions, unless they are explicitly described as assured properties.
The purchaser must examine the accepted or delivered goods for any faults without delay. Should any such faults be discovered, we must be notified in writing without delay. Otherwise § 377 ff. HGB shall apply. Apart from this, any warranty claims are generally precluded if as a result of further shipping, treatment or processing of the goods delivered by us or other circumstances make it no longer possible for us to properly examine and determine that the goods are in fact faulty.
Warranty claims will expire by limitation within 12 months, beginning on the date the item was handed over.
Warranty for any used goods sold is precluded.
If the purchaser makes a claim against us under warranty and it turns out that there are no grounds for a claim under warranty (e.g. user error, improper handling of the item sold, non-existence of a defect), the purchaser must refund all the costs arising from the examination of the item sold.
In so far as the manufacturer grants the purchaser a voluntary warranty for the goods delivered, the type and scope of the warranty shall exclusively depend on the content of the manufacturer′s warranty. Claims under this warranty – in so far as this warranty extends beyond the statutory warranty rights â can only be made against the manufacturer.
In all cases in which we are liable in business transactions based on contractual or statutory basis for claims for damages or expenses, we are only liable in so far as we, our institutions, legal representatives or vicarious agents have acted with deliberate or gross negligence.
This does not affect liability for the culpable violation of fundamental contractual obligations. Fundamental contractual obligations are such as those which cede the contract parties rights that the contract must guarantee in view of its content and purpose, especially the obligations whose fulfilment makes the proper execution of the contract possible in the first place and the observance of which the contract parties regularly rely on and place their trust in.
As far as an ascribable violation of an obligation is down to simple negligence and there has been no culpable violation of a contractual obligation, our liability for compensation is however limited to the foreseeable damage, which typically occurs in similar cases.
The aforementioned exclusions of liability do not apply to cases of homicide, injury to health or body, for guaranteed properties and in the case of any liability in accordance with the German Product Liability Act. In these cases we shall be liable according to the statutory provisions.
Any other liability on our part is precluded.
The aforementioned disclaimers and limitations of liability apply to the same extent to our institutions, legal representatives, employees and other vicarious agents.
Industrial property rights and copyrights
The purchaser will notify us without delay and in writing if he is made aware of any violation of industrial property rights or copyrights by a product supplied by us. We are solely entitled and obliged to defend the purchaser against any claims by the owner of such rights and to deal with such claims at our own expense in so far as they are based on the direct violation by a product supplied by us. We will, as a matter of principle, make every effort to acquire the right of use for the purchaser. If this is not possible on commercially reasonable terms, we shall, at our own discretion, modify or replace this product so that the protective right is not violated or we shall take back the product and refund the purchase price less any amount for the usage granted.
On the other hand, the purchaser shall defend us or release us from all claims made by the owners of such rights which are levelled against us, in that we have followed the purchaser′s instructions or because the purchaser altered the product or integrated it into the systems.
Any programmes and associated documentation supplied by us are only for the purchaser′s own use within the scope of a simple, non-transferrable licence, and exclusively for use on products supplied by us. The purchaser may not make these programmes and documentation available to any third party without our prior written approval, even in the event of resale of our hardware. Copies may – without us accepting any costs or liability – only be made for archiving, replacement, or fault finding purposes. Where originals carry a copyright protection notice, the customer must attach the same to any copy.
The export of our goods to non-EU countries requires our written approval, regardless of the fact that the purchaser is solely responsible for obtaining all the necessary official import and export licences.