Terms of Delivery and Payment
1. Subject matter and conclusion of contract
(1) General terms and conditions do not apply, unless we have explicitly accepted them in writing.
(2) The present prices are subject to confirmation; we reserve the right to charge the prices valid at the time of dispatch, if the cost situation changes, in particular for material price fluctuations.
(3) Orders accepted by our travelling salesmen and sales representatives are only valid following our explicit confirmation, if they deviate from our Terms of Delivery and Payment as well as from our current prices.
2. Delivery
(1) The goods shall be delivered at the Orderer’s risk. Damages or loss of shipped goods after the delivery item has left our business premises are at Orderer’s risk.
(2) The delivery period shall be extended by an appropriate period in the case of measures concerning labour disputes, in particular strikes and lock-outs, as well as in the case of unexpected hindrances, even if they occur at our pre-suppliers, such as e.g. disruption of operations, difficulties during raw material procurement, outage of production plants. In such cases, we reserve the right to withdrawal from the contract.
(3) In this case, any claims for damages of the Orderer or any reminder brought to our attention shall be excluded, if the delivery time is exceeded, or if we withdraw from the contract in the event of unexpected impediments.
(4) We are released from our contractual obligations, if there are justified doubts about the credit-worthiness of the Contracting Party, likewise, if older already overdue bills have not been settled.
3. Objections
(1) Visible defects must be reported no later than one week after receipt of the goods in writing. Non-visible defects must be reported in writing immediately, no later than seven days alter discovery, alter they have become known. Return consignments are not permissible without previous coordination with us.
(2) In the case of legitimate notification of defects, we are obliged to provide a replacement. As far as this replacement eliminates the objection, Orderer’s claims for cancellation and reduction as well as Orderer’s right to withdraw from the contract or claims for damages are excluded. Liability for any kind of consequential harm, caused by a defect is excluded.
4. Retention of title
(1) Until all accounts receivable due to us by our contractual partner now or in future have been satisfied, our contractual partner warrants us the following securities that we can release on demand as far as their nominal value effectively exceeds the value of our accounts receivable by more than 20%. Delivered goods shall remain our property. Processing and transformation shall always occur for us as producer, however, without obligation. If the delivered goods are processed with other goods not belonging to us, we shall gain joint ownership of the new goods in proportion of the invoice value of the goods delivered by us to the invoice value of the other processed goods at the time of processing. In the case that our goods are combined or mixed with other movable goods to form an integrated good, and in the case that the other good can be seen as a staple, the contractual partner shall transfer the proportional joint ownership insofar as he has ownership of said staple. A possible surrender required by us for the purpose of the purchase of ownership or joint ownership is replaced by the now agreed-to arrangement that our contractual partner shall keep safe the goods for us in the manner of u borrower, as long as he does not own the goods himself, or replace the committal now through the transfer to us of the claim for surrender against the owner. In the following, goods to which we have the right to ownership or joint ownership according to the above stated regulations shall be referred to as goods subject to retention of title.
(2) Our contractual partner is entitled to sell or combine with other goods, to process or to mix the goods subject to retention of title with other goods in on orderly course of business. The claims resulting from the sale, combination, processing or mixing are already ceded to us now in total or proportionately by entitlement of joint ownership of the sold, combined, processes or mixed goods. In taking up such claims into current accounts the cession also includes all balances due. The cession shall take priority over the rest. Subject to revocation, we authorize the contractual partner to collect the assigned receivable. The collected claims shall be immediately paid to us by our contractual partner as far and as soon as our claims are due. As far as our claims are not yet due, the collected claims shall be recorded separately by our contractual partner. Our right to collect the claims ourselves remains unaffected. However, we are obliged to not collect the claims as long as the contractual partner complies with the payment obligations resulting from the received claims, does not default on payment or is not subject to insolvency or settlement proceedings, or a cessation of payment be on hand or imminent. Upon our request the contractual partner is obliged to make known the assigned receivables and the respective liable party, and to hand over the corresponding documents and to provide all the necessary information needed for collection. If we are entitled to collect the claims, our contractual partner is additionally obliged to notify the parties liable about the cession, whereby we are entitled to initiate such notification ourselves. In the case of suspension of payment, application or initiation of insolvency proceedings, judicial or extrajudicial composition proceedings, our contractual partner’s right of resale, processing, combination, mixing and the right of collection of the assigned receivables is forfeited even without our revocation.
(3) Our contractual partner is obliged to inform us immediately about any access by third parties to the goods subject to retention of title and the assigned receivables. Any costs of intervention or the defense thereof shall be to our contractual partner’s account.
(4) Our contractual partner is obliged to treat the goods subject to retention of title with due care, in particular to insure them sufficiently against losses due to fire, water or theft.
(5) In the case of breach of contract by our contractual partner – especially is the case of delay or default of payment – we reserve the right to take back the goods subject to retention of title at the contract partner’s expense, or to demand the transfer of our contract partner’s right to claim restitution, without having to state the withdrawal from contract beforehand or at the same time. In particular, this withdrawal or change of the goods subject to retention of title by us shall not be considered o withdrawal from contact unless this is expressly stated in writing.
(6) Should our retention of title lose its validity with a supplier in a foreign country or for any other reasons, or should we lose the right of ownership for the goods subject to retention of title for any reason, our contractual partner shall be obliged to immediately provide some other security for the goods subject to retention of title or some other security for our accounts receivable, according to applicable law of the location which the goods are destined for in accordance with its intended purpose and which comes as close as possible to the retention of title according to German law.
5. Payment
(1) Our invoices must be paid within 10 days of the date of the invoice in noncash without any deduction.
(2) If the Orderer falls into arrears with payment – a payment is deemed to have been made only when we have the sum at our disposal – we are entitled to charge interest at a rate of 3% over the respective basic interest rate of the German Federal Bank without previous reminder and declaration of default. After a reminder by letter we are entitled to charge interest to the amount of the costs charged by the banks for raising of credit.
(3) We only accept cheques and bills of exchange as conditional payment whereby we reserve the right to accept bills of exchange; These are only considered as payment after redemption and payment of all additional expenses.
(4) Incoming payments are set off against oldest due debts.
6. Place of performance and place of jurisdiction
(1) The place of performance for delivery and payment is Wuppertal.
(2) The place of juridiction for all legal disputes arising from the contractual relationship is the District Court Wuppertal or the Regional Court Wuppertal, if the Orderer is a fully qualified merchant, a legal entity under public law or a special public fund. We are however also entitled to institute legal proceedings at the local court competent for the registered office of the Orderer. Wuppertal is agreed on as place of jurisdiction for filing claims concerning businessmen according to § 4 Germans Commercial Code by way of judicial dunning procedure.
(3) These terms are governed by the laws of the Federal Republic of Germany – also in the case of deliveries to Orderers abroad.
7. Amendments, additional agreements, partial effectiveness
(1) Amendments and supplementations of the contract as well as additional agreements are only effective if they are confirmed by us in writing.
(2) Should individual provisions of this contract be invalid, then the validity of all other provisions of the contract remains unaffected.