- These General Terms and Conditions for Sales – hereinafter called GTCs – shall apply to all our contracts, deliveries and all types of services, unless they are changed or ruled out with our explicit written approval.
- Our GTC shall also apply to all future orders of the buyer, regardless of whether we refer to them in each individual case.
- Our offers are non-binding. Incoming orders, agreements, commitments and collateral agreements, including suspensions and annulments, shall only become binding for us through our written confirmation.
- Information on characteristic properties – unless we specifically stipulate this – shall not constitute a quality guarantee pursuant to Section 443 of the German Civil Code (BGB).
The place of fulfilment for all reciprocal claims and obligations based on implemented contracts shall be Herdecke. The place of jurisdiction shall be Hagen i. W., also in the case of bills of exchange and cheque lawsuits.
Prices and terms of payment: All prices shall apply ex works. Subject to delivery possibility, the prices applicable on the day of delivery shall be binding. These are for payment within 14 days after the invoice date, minus 2% early payment discount, and within 30 days without deduction or according to agreement. From the due date of our purchase price claims, without any reminder – with explicit reservation of the right to enforce compensation for any possible greater damage incurred – the interest and expenses must be paid which the banks in each respective case charge for unsecured loans. If the time when payment is due depends on the day of delivery, the day when the goods are made available for dispatch shall apply as delivery day. In the case of transfer of payment through cheque or letter of credit the day when the countervalue is available shall apply as receipt of payment. The discount shall always be borne by the party which provided the letter of credit. We reserve the right to return the payment of the countervalue in cash to the customer step by step at any time if, in our opinion, during the term of payment there is a change in the financial situation of the acceptant or issuer or the customer.
Until complete payment of the buying price and until payment of all due and not due claims from the ongoing business relationship, including all secondary claims (in the case of payment by cheque or letter of credit until clearance of the cheque or letter of credit), the delivered goods shall remain our property. The buyer is forbidden from mixing our goods with externally similar or nearly similar goods. If the goods are combined with other objects, unless by act of law we become joint owner proportionally to the share of our goods subject to retention of title, the purchaser shall now already transfer his/her share of the new objects and store them on behalf of us with the diligence of a responsible businessperson. Our ownership of these objects shall only serve to provide us security to cover the amount of our claims. The buyer may only sell our property or joint property in normal business operations, i.e. the buyer shall not be allowed to pledge it or re-assign it for security. All claims of the buyer arising from the reselling of our goods or the products manufactured with them shall now already be assigned to us together with all ancillary rights. The assigned claim shall provide security for us only to cover the amount of our claims. Until an objection is lodged, which shall be possible at any time, the buyer shall be entitled to collect the receivable claim arising from reselling the goods in a fiduciary capacity on our account. However, the buyer may not possess such claims through assignment. If we request, the buyer must notify us about the debtors of the assigned claims and inform these debtors about the assignment. Our securities are conditional insofar as upon full payment of all claims from the business relationship our property shall be transferred to the buyer without any further consideration and the buyer shall be entitled to the assigned claims. We hereby undertake an obligation, upon request by the buyer, to release the security we are entitled to in accordance with the existing provisions – according to our choice – insofar as their value does not exceed the claims to be secured by more than 25%. The buyer must immediately notify us regarding pledging or other influences by third parties. The property right shall also apply to the forwarding agent to whom the goods are transferred upon request by the seller or by the buyer.
The terms of delivery are only to be regarded as approximate and non-binding. Even in the case of an explicitly agreed delivery time the following shall apply: If we are prevented from fulfilling our obligation by unforeseeable circumstances which we were not able to avoid despite exercising a reasonable amount of care warranted by the circumstances – irrespective of whether such circumstances occurred in our works or at our subcontractors – for instance interruptions of operations, delays in delivery of important raw materials and construction materials, the term of delivery shall be increased by an appropriate amount of time if the delivery or service does not become impossible. If the delivery or service becomes impossible due to the above-mentioned circumstances, we shall be relieved of our delivery obligation. Also in the event of strike and lockout the term of delivery shall be increased by an appropriate amount of time if the delivery or service does not become impossible; if the delivery or service becomes impossible, we shall be relieved of our delivery obligation. If the delivery term is extended in the above-mentioned cases or if we are relieved of our delivery obligation, any possible claims for compensation for damage and rights of withdrawal of the buyer shall no longer apply.
Dispatch shall be solely on account of and at the risk of the customer, even if the price agreement applies to delivery to place of destination or on board ship. We shall not be liable for damage incurred during transportation and for any possible delay during transit. In the case of delivery pre-paid by sender freight shall only serve as a model. If no special provisions have been stipulated, dispatch is made according to our discretion without responsibility for ensuring the cheapest freight. The goods shall be deemed as accepted if they leave our works, unless explicitly stipulated in the order that an acceptance process has to be previously conducted. In the case of delivery on board or similar no guarantee shall be provided for the duration of the transportation ex works to the harbour. We shall also not accept any costs or responsibility for any possible necessary storage. Packaging in wire bundle shall not be charged weight of goods gross for net. Recyclable materials shall be used for transportation packaging. Dispatch in DB exchange lattice boxes or on reusable pallets. Any other possible means or types of transportation, outer packaging or sales packaging requested by the customer shall be calculated at cost price, but we shall neither take back the materials used nor dispose of them or have them recycled. The recipient shall bear the costs of freight stamps.
Warranties: For our complete deliveries we hereby provide a warranty that items which have verifiable manufacturing defects shall be replaced free of charge. We hereby rule out any type of warranty for damage to our products which is caused by improper handling, improper use or overuse. These types of damage particularly include
- handle broken through improper use of equipment (for instance leverage …)
- material damage through misuse (for instance banging …)
- handle broken through improper storage of equipment (for instance drying out …)
- material wear through usage.
We hereby reject any type of liability and compensation for damage going beyond this, also due to delayed or inadequate fulfilment. In the case of obvious defects notice of defects must be immediate, and in the case of concealed defects we must be immediately notified in writing as soon as these are detected. Holding back payments because of any type of counterclaim of the buyer, particular also in the case of a right to replacement delivery, shall be ruled out. We hereby reserve the right to withdraw completely or partly from contracts and to credit an appropriate invoice amount instead of providing a replacement delivery.
Deviations in weight from the stipulated item weight of 5% upwards and downwards are unavoidable due to technical reasons and hence admissible. In the case of shovels, spades and hoes, undersupplying or oversupplying ± 5% with quantities of more than 1000 units per type, and with quantities of less than 1000 units per type a deviation of ± 10% shall be allowed.
Concluded quantities: If nothing to the contrary is agreed, the acceptance and delivery of the concluded quantity must be implemented in quantities relatively evenly distributed during the term of the contract. Concluded quantities must be specified and called up at the latest within 6 months. If the orders are not called up punctually or not specified in good time in such a way that the goods cannot be accordingly produced within the contractually agreed deadline of our delivery programme, we shall be entitled to withdraw from contracts or demand compensation for damage due to non-fulfilment without issuing a reminder or setting a deadline. We shall also be entitled to the same rights in the case of a delay in acceptance. If there is a change in the financial situation of the buyer or if the buyer fails to fulfil his/her obligations, even in the case of partly fulfilled obligations we shall be entitled to demand securities for our claims based on the conclusion or the order or to withdraw from the contract and demand compensation for damage because of non-fulfilment. In the case of settlement proceedings regarding the buyer’s assets the buyer hereby now already waives the enforcement of rights pursuant to Section 28 of the German regulation for settlement proceedings (Vergleichsordnung).
Agreements which deviate from the above conditions shall require our written confirmation in order to be valid.
General Limitation of Liability: Insofar as nothing to the contrary is regulated in these GTCs, we shall only be liable for compensation for damage for violation of contractual or non-contractual obligations in the case of wilful intent or gross negligence, unless the violation of obligations causes damage to life and limb or health. Claims arising on the basis of the German Product Liability Act (Produkthaftungsgesetz) shall remain unaffected by this.