The following delivery and payment conditions are valid as of 1 October 2005 and replace all previous conditions.
Existing special agreements with individual customers are not effected by these terms. All orders received by us will only be carried out according to our following conditions, regardless of possible divergent business terms and conditions of our clients, even if these form the basis of the order. Counter-confirmations from the customer under reference to their business or purchasing conditions are hereby contradicted. Agreements that differ from our business terms and conditions are only effective, if confirmed by us in writing. A verbal cancellation of this “in writing” clause is legally void.
Prices and Delivery
In so far as no other agreement has been made, the current prices correspond to our respective lists, valid on the day of delivery as agreed. Our lists are valid subject to price changes made in the meantime. At the time of delivery, as far as no other valid agreements were made, we deliver ex works in Wuppertal. Our prices do not include the costs for loading, shipping, packaging and transportation insurance. Likewise, the legal value-added tax, valid on the day of the delivery and invoicing, must be added, in so far as it is a delivery within Germany. We are not responsible for delivery and service delays due to force majeure or due to events, which make the delivery unreasonable or impossible for us – these include also the subsequent commencement of a strike, lock-out, official demands etc., also when they occur with our suppliers or subcontractors. We have the right to postpone the delivery or service for the duration of the impediment plus an appropriate start-up time or can rescind the contract due to a breach of contract – in part or in total, if the fulfilment of the contract would be unreasonable for us. Risk is transferred to the customer, at the latest after the loading of the items to be delivered, also when partial deliveries are carried out or we have already assumed other services, i.e. shipping costs. In so much as insurance for the delivery exists with transportation companies in our favour, in the case of damages, it will be handed over to the customer. The same applies for possible further liability of the transportation company with respect to us as the sender.
So far as nothing else has been agreed upon, our invoices are payable without discount within 30 days after the shipping of goods. The customer is obliged to apply payments made respectively to the oldest existing debt. An instruction from customer, which deviates from this, is invalid. In so much as costs and interest have already been generated, the customer payment must first be applied to costs, then to the interest and finally to the main principle due. The payment is not valid until we have the entire amount at our disposal. In the case of payment by check, the payment is not valid until the check has cleared. Promissory notes will not be accepted. In the case of default on payment, we calculate interest for default beginning on the first day of default. We charge default interest in the amount of 7.5 % above the respective bank rate of the European Central Bank beginning on the first day of default. If a customer does not comply with their obligation to pay, this is especially assumed if we must write three or more reminders – a check we have be given or one of our initiated debit notes is not honoured or if we are aware of other circumstances, which places the credibility of a customer in question, we are authorised to make the entire remaining debt due immediately. Likewise, we are authorised to require pre-payment of deliveries at any anytime with any customer without stating a reason. A customer can only settle our claims when their counterclaim is uncontested or legally established.
Retention of Ownership
The goods remain - with the exception of their resale during the proper course of business – our property until payment of the purchase price and all invoices from the existing business relationship has been made. In the case of resale, the customer transfers hereby their debt to us to their customers from this resale. We hereby accept the transfer. The customer may not pledge or assign the delivered goods as security before their complete payment. In the case of access by third parties, especially in the case of seizure and confiscation, the customer must inform us of this immediately. The third party must be advised of our retention of ownership immediately. In the case of breach of contract from the customer, especially in the case of payment default, subsequent to notice, we are authorised to reclaim the goods and the customer is obligated to return them. In the case of suspension of payments, application for or declaration of bankruptcy, an in court or out-of-court settlement, as well as the return of checks or debit notes by the payer’s bank, the customer’s right to work with or to resell the products under retention of title is extinguished.
We guarantee that the goods are free from material and manufacturing errors that prevent the suitability of the goods for normal use or significantly reduce their usability. After receipt of our deliveries, they must be proofed for their correctness. Short or wrong deliveries, as well as possible defects can only be rejected in writing within 7 days after receiving the delivery. Claims regarding defects, which are not obvious must be made within 14 days. The guarantee does not apply if a change has been made to the delivered product by the other side, or if the buyer does not return the product immediately as requested. Barring further claims, the faulty parts/products will, according to our judgement, be repaired free of charge, replaced or credited. A further liability, in particular, for damages, which are not caused by the delivered products, is excluded, provided that there is no demonstrable wilful or grossly negligent fault on our part.
Should any provision of these terms be invalid or unenforceable in total or in part, the remaining provisions shall be valid. In the place of an invalid provision, a valid provision is presumed, which comes closest to the meaning of the invalid provision.
Place of Performance and Court of Jurisdiction
Place of performance for all deliveries and services according to the provisions available here is Wuppertal. Court of jurisdiction for the resolution of disputes according to business law is Wuppertal.