1. Scope of Application
All our sales and other supplies and services including consultations to entrepreneurs shall exclusively be governed by the following General Conditions of Sales and Supply unless otherwise agreed upon in each individual case. Any deviating conditions or counter-confirmations of the Customer shall be applicable only if, and to the extent that, we have given our express written consent. In particular, our silence to such deviating conditions of the customer shall not be construed as acknowledgement of consent. Such deviating conditions or confirmations of the Customer are hereby expressly objected to.
2. Offers and Acceptances
2.1. An order of a Customer shall be deemed to be accepted only if we have acknowledged acceptance in writing or if we have delivered the products. In case of immediate delivery by us, the confirmation of the order may, however, be replaced by our bill of delivery. The products remain our property until the Customer has paid the entire price of the products. 2.2. Any side agreements, express warranties and all other arrangements shall be effective only if expressly confirmed by us in writing. 2.3. Any reference to standards, similar technical rules, other technical specifications, descriptions and illustrations of the products in offer, sales literature and other documents shall be considered a description only and not a warranty of certain characteristics of the products. Certain characteristics of the products shall, in principle, only be deemed warranted by us if expressly confirmed in writing. 2.4. Call-ins of delivery as well as amendments and additions shall be in writing. 2.5. We reserve the right to modify in technical respects the products to be supplied if, and to the extent that, such technical modifications do not have any negative impact, and the Customer can be reasonably expected to accept them.
3.1. If an agreement on the price was not expressly reached and confirm by us in writing, the price is determined by our offer (incl. Catalogues and other offers) plus customary packaging and transport plus the statutory VAT which shall be borne by the Customer. All prices are applicable in the currency stated on the corresponding document. Unless otherwise agreed upon in writing prices in offers are valid for 30 days. 3.2. If after the coming into effect of the contract, freight costs, insurance costs or official charges (e.g. customs, import and export duties) are newly introduced or raised, we shall be entitled to add such additional charges to the agreed price even in case of freight paid or duty paid delivery.
4. Weights and Measures
4.1. Any deviations in weights and measures within the limits of customary tolerance and relevant DIN-standards shall be permitted, in addition, we reserve the right to modify weights and measures in the cause of technical developments, standardization works and production possibilities if and or the extent that the intended use according to the order is not impaired thereby. 4.2. The delivery weights and number of units determined by us shall be prevailing for invoicing purposes.
5. Time of delivery
5.1. Delivery dates and periods shall be agreed upon expressly and in writing in order to be binding. In case of any delivery dates and periods which are subject to change or only approximate indications (e.g. app., about, etc.), we shall use our best affords to comply with them. 5.2. It shall be allowed to effect deliveries prior to expiration of the delivery period. The delivery date shall be the day of our notice that we are ready to dispatch the products, otherwise the day of the dispatch itself. We are entitled to make partial deliveries. 5.3. If we are in default with delivery, the Customer shall be obliged to set a reasonable period of at least 4 weeks. After the unsuccessful expiration of this respite period the Customer shall be entitled to withdraw from the contract. If and to the extent that products have not been declared ready for delivery. Any claims for damages irrespective of the reason therefore may be asserted in accordance with the provisions set out in Sec. 12 only. 5.4. We shall not be in default as long as the Customer in default with the performance of any of his obligations towards us, including obligations arising out of any other contracts.
6. Reservations of Self-supply, Force Majeure and other Obstacles
6.1. In case of non-delivery, incorrect of delivery or delayed delivery or non-performance, incorrect or delayed performance of any services by our suppliers for reasons beyond our responsibility or in any event of force majeure, we shall be entitled to delay the delivery for the period of such construction or withdraw from the contract, either in wholes or in part with respect to the part yot outstanding. Force majeure shall also be strikes, lock-outs, administrative orders and actions, shortage of energy and raw material, shortage of transport capacity, business obstacles beyond our responsibility, e.g. by fire, flood, destruction of machinery, and other obstacles that, from an objective point of view, have not been caused by our fault. The above provisions shall also apply if the above mentioned circumstances should arise after we were in default. 6.2. If a binding delivery date or period has been agreed upon and because of an event as described in Sec. 6.1. above such delivery date or period is exceeded, the customer may require us to declare within a period of 2 weeks whether we want to withdraw from the contract or effect delivery within a reasonable respite period, if we do not make a declaration, the Customer shall be entitled to withdraw from the part of the contract our outstanding.
7. Dispatch, Risk Transfer
7.1. Unless otherwise agreed upon in writing the products are dispatched by us excluding insurance. We reserve the right to choose the route of transport and the means of transport. Transport damages shall immediately be notified on the delivery note and shall be acknowledged by the freight carrier or in the case of transportation by rail or mail by the railway company or post office in order to assort claims for damages. 7.2. Unless otherwise agreed upon in writing the risk shall pass to the Customer upon transfer of the product to the freight carrier. 7.3. Any products reported ready and due for dispatch have to be called by the Customer without undue delay. If products ready for dispatch are not called and accepted without undue delay, we shall be entitled at our discretion either to dispatch the products or to stock them at Customer’s risk and expense. 7.4. It is generally excluded to return any ordered products which have been duly delivered. In exceptional cases, subject to our prior written consent, the products shall be taken back. The Customer will then be charged a margin for taking back in an amount of at least 50%.
8. Defect Notification
8.1. The Customer or the consignee designated by customer shall inspect the products immediately upon receipt and, if necessary, ascertain by sample-processing whether the products are suitable for intended application. Quantity variances shall be immediately notified in writing, but at the latest within 3 working days. Open defects shall be notified in writing immediately, but at the latest within a period of 14 days from the receipt of the products, and hidden defects shall be notified in writing immediately upon their detection, but at the latest within a period of 14 days upon detection. The Customer shall deliver to us a sample of the defective product for inspection within 14 days after detection. If the Customer retrains from making such notification in due form and time, the warranty expires. The date of our receipt of the notification shall be decisive for the observance of the prescribed period. 8.2. If complaints of defects are not justified we shall be entitled to invoice all costs incurred herewith to the Customer.
9.1. If complaints of defects are justified, we are entitled, at our option, to instruct the Customer in order that the Customer will be able to cure the defect itself or to replace such defective products by replacement-delivery. The Customer’s action for rescission or reduction of purchase price excluded. 9.2. Any other claims of the Customer, e.g. for damages, because of, or in connection with, defects or consequential damages based on defects, irrespective, of their legal basis, shall be excluded. 9.3. Our warranty obligation shall not exist if the delivered products are defect-free i.e., in particular, if defects are caused by disregard of operating, maintenance or installation instructions, improper handling defective or negligent handling, interventions by the Customer or third parties in the delivered products. The provisions and instructions of MSDS and TDS (Sep. 11) are binding in any case. 9.4. Any warranty claims against us shall be barred after the expire of 8 weeks after delivery to the Customer or the place of delivery designated by the Customer, unless a longer period is agreed in writing for certain products.
10. Terms of Payment
10.1. Products supplied shall be payable promptly without any deduction after delivery of the goods unless other terms are agreed. On all Invoices due interests at the rate of 8% p.a. shall be charged from the date on which payment becomes due. The date of payment shall be the date when the money is received by us or credited to our account. The right to assert any further claims for damages in case of default in payment shall remain unaffected. 10.2. If any of the terms of payment have not been observed or if we learn of circumstances which give rise to justified doubts regarding the Customer’s creditworthiness, we shall be entitled in such cases, notwithstanding any further legal claims, to require prepayment or a reasonable security before making any further supplies or deliveries then still outstanding. After having set a reasonable respite period for providing any such securities, we may withdraw from the contract or claims for damages. 10.3. Unless otherwise agreed in writing the Customer is not entitled to declare a set-off against us.
Provisions Instructions The safety provisions and information according to MSDS (Material Safety Data Sheet) and the technical instructions according to TDS (Technical Data Sheet) are binding for each order and integral part thereof. The customer is liable for any damage in case of non-compliance with MSDS and TDS.
12. Exclusion and Limitation of Liability
12.1. For any claims directed against us irrespective of the legal basis, we may be held liable only in case of gross negligence. Any further liability in particular the liability for consequential damages is excluded. This limitation is subject to third party claims raised for product liability in accordance with the German Product Liability Apt. 12.2. The Customer shall decide on the use of our delivered products and other services in its own responsibility. Unless we have confirmed in writing specific characteristics of the products for a purpose stipulated by contract, any advice concerning the technical application shall not be binding and our liability is excluded in any case. Such advice shall only illustrate to the Customer the best possible use of the products and does not relieve the Customer of its obligation to satisfy itself by way of testing the products, suitability for the intended application. In all cases, the provisions and instructions according to MSDS and TDS are binding for the Customer. 12.3. The exclusion of liability under Sec. 12.1. to 12.2. shall also apply to the same extent with respect to our management, legal representatives, executives and non-executives, employees and other agents. 12.4. Any and all claims for damages against us are barred within 8 weeks following the delivery of the products.
Should individual provisions of these conditions be or become invalid, the remaining provisions shall continue to be in full force and effect. The invalid provision shall automatically be replaced by such other provision coming as close as possible – to the legally permissible extent – to the economic meaning and purpose of the invalid provision.
14. Applicable Law, Place of Performance and Place Jurisdiction
14.1. German law shall be applicable with the express exclusion of the law embodied in the United Nations Conventions on Contracts for the International Purchase of Goods dated April 11, 1980. 14.2. Bielefeld, Germany shall be place of performance and place of jurisdiction for both parties. We are also entitled to use the Customer at its domicile or residence.
15. Any dispute relating to these terms and conditions will be settled in accordance
with German law.