1.1. The following terms apply exclusively to all of our quotations, sales and deliveries. We do not accept purchaser’s terms of business that conflict with or differ from our Terms and Conditions, unless we have expressly agreed to them in writing. Differing arrangements apply only to a specific contract and not to subsequent contracts, save where expressly otherwise agreed.
1.2. All agreements, subsidiary agreements and contractual amendments must be made in writing. This applies equally to any revocation of this clause governing written form. To be effective, verbal or written agreements deviating from our contractual conditions and/or the order confirmation must be approved by the proper number of directors or authorised officers. Neither our office staff nor field staff are authorised to make differing agreements or to grant special terms.
2. INFORMATION, ADVICE
All information and advice given in respect of our products is based on our previous experience. Figures quoted are average values found from such experience. Any information or advice provided does not obviate the need for the goods supplied to be tested for suitability nor for compliance with processing instructions. Any information given verbally is not binding.
3. QUOTATION, CONTRACT SIGNATURE
3.1. All quotations are made subject to contract. A supply contract or any other contract becomes binding on us only when we have confirmed the customer’s order or other order in writing or have delivered the goods.
3.2. Samples and trial items are supplied without obligation as goods on approval. Where a purchase is made based on samples and/or trial items it is made subject to deviations standards in the industry and within normal manufacturing tolerances. Unless expressly specified in the order confirmation, the supply of samples or trial items is not linked with any guarantee of quality or service life.
3.3. Samples and trial items are to be returned to us in perfect condition within 4 weeks. If they are not returned within this period, we shall be entitled to charge the list purchase price. Price lists are available on request at any time.
3.4. Save where expressly agreed otherwise, the information provided by us in text or illustrated form (e.g. descriptions, illustrations or drawings) in catalogues, brochures or other publications conclusively defines the quality of the goods we supply and their potential applications. The information we provide is not a guarantee of service life or quality and is based on our current understanding. We accept no liability for successful use of goods supplied.
3.5. Measurements in quotations and brochures are only approximate and apply subject to standard tolerances with enamel goods. All goods are subject to changes in construction made for product development purposes.
4.1. The prices charged are the prices stated in our binding price list applicable on the day of delivery, save where a fixed price has been expressly agreed in writing.
4.2. All prices are net and exclusive of VAT, which is to be paid by the purchaser at the prevailing statutory rate.
4.3. If there is any increase in our sundry material procurement costs, energy costs or labour costs/incidental wage costs between the date of order confirmation and the date of delivery, we shall be entitled to adjust an agreed fixed price accordingly. The purchaser will be entitled to cancel the contract if the price rise exceeds 5%.
5.1. The delivery periods will begin on the date of our order confi rmation, but not before any agreed down payment has been received and not before all of the order details have been fi nally clarifi ed, the requisite certifi cates procured and/or all necessary documents provided. The delivery date is deemed to have been met if the subject goods have left our factory or warehouse before this period has expired, or have been notified as ready for delivery if the goods cannot be forwarded on time for reasons beyond our control. Delivery dates are deemed to be approximate where there is no provision to the contrary.
5.2. When a delivery date not expressly designated as ‘fixed’ in the order confirmation is overrun, the purchaser may set a reasonable extension period for delivery. We can only be in default on expiry of this extension period.
5.3. Without prejudice to our rights arising out of delays in payment by the purchaser, delivery dates will be extended by the period of time that the purchaser fails to honour his obligations to us.
5.4. The right remains for the purchaser to arrange proper and timely delivery himself, as long as we are in no way to be liable for such non-standard delivery.
5.5. Unforeseen, exceptional circumstances beyond our control, such as industrial action, operational breakdown, government action, transport disruption or other instances of force majeure, irrespective of whether we or our suppliers are affected by such circumstances, will exempt us from our obligations under the relevant contract, although hindrances of a temporary nature shall do so only for the duration of the hindrance and a reasonable start-up time thereafter. The above circumstances are also beyond our control if they arise during a delay that has already occurred. If as a result, delivery subsequently becomes impossible or unreasonable for one of the parties, either party will be entitled to terminate the contract.
5.6. We shall not be liable for any loss due to delays arising from any breach of our contractual obligations caused by minor negligence, save where such a breach leads to injury to life, bodily harm or impaired health. There is no connection between this provision and any change in the burden of proof to the disadvantage of the purchaser.
5.7. Should liability for loss due to delay arise not only from a breach of contractual obligations caused by minor negligence, the purchaser shall, subject to the exclusion of further claims, be entitled only to claim compensation amounting to 0.5% for each full week of delay, up to a maximum of 5 percent in total, of the value of that part of the total delivery that, due to the delay, cannot be used on time or for its contractual purpose.
5.8. We shall be entitled to make part deliveries where acceptable to the purchaser. Part deliveries may be invoiced separately.
6. FORWARDING, TRANSFER OF RISK
6.1. Delivery will be ex works (Goslar), unless otherwise agreed. If Incoterms have been agreed as the delivery terms, the version applicable on the date of contract signature shall apply.
6.2. If, at the purchaser’s request, the goods have been forwarded to a place other than the place of performance, the purchaser will meet all costs thereby incurred. The choice of transit route and carrier will be at our discretion. We and the carrier must be notified in writing by the purchaser of the type and extent of any transit damage immediately upon receipt of the goods. Goods will only be insured against damage, loss or breakage in transit at the purchaser’s express request and at his expense.
6.3. Forwarding and transportation are always at the purchaser’s risk when goods are supplied ex works. This is also applicable if we make delivery to a third party (drop shipment deliveries) and when goods or empties (reusable packaging) are returned. Even when part deliveries are made, the risk passes to the purchaser as soon as the consignment has been transferred to the carrier or has left our warehouse for forwarding or, in the case of delivery ex works, has left our plant.
6.4. If forwarding is delayed due to circumstances for which the purchaser is responsible, or if the purchaser himself is arranging transportation, risk will pass to the purchaser on notification that the goods are ready for despatch. The purchaser must meet storage charges incurred after risk has been transferred. The monthly storage charge for goods delivered to our factory or warehouse will be 0.5% of the invoice value. Subject to showing good reason for so doing, we reserve the right to levy higher storage charges. Once a reasonable period of time has elapsed to no effect, we shall be entitled to dispose of the goods by other means and to supply the purchaser within a reasonably extended period.
7.1. Payments are to be made in euros (€) and must be free of all charges and postage. They must be remitted only to the bank indicated by us. Payment by cheque will be deemed to have been made only when cashed. Cheques are accepted with no obligation for timely presentation or protest.
7.2. Unless expressly agreed otherwise, payments must be made within 10 days of the invoice date at a 2% discount and within 30 days of the invoice date with no deduction. There will be no discount entitlement if previous outstanding invoices remain unpaid.
7.3. If the deadline allowed for payment is exceeded, we shall be entitled to charge interest at 8 percentage points above base (Section 247 of the German Civil Code [BGB]). All of our outstanding accounts will also become immediately due.
7.4. The off-setting of any counter-claims by the purchaser is permissible only if such counter-claims are undisputed or established in law. In the event of deficient deliveries, the purchaser may at most withhold a sum amounting to three times the cost of subsequent work to make good such deliveries. When exercising his right of retention, the purchaser agrees to pay as security the amount of the unpaid portion by bank guarantee or, at our discretion, by depositing it with a notary of his choosing.
8. RETENTION OF TITLE
8.1. All goods supplied shall remain our property (retained-title goods) pending settlement of all financial claims, made on any legal grounds whatsoever, including all future and conditional claims arising from contracts signed simultaneously or subsequently. The same shall apply if payments are made against specified outstanding amounts. Should there be evidence indicating that a purchaser is unable to pay or that such inability is impending, we shall be entitled to terminate the contract without notice and to demand restitution of the goods.
8.2. Any adaptation or processing of retained-title goods is done on our behalf as the manufacturer in accordance with Section 950 of the BGB without creating any obligation on our part. All such processed goods are deemed to be retained-title goods as defi ned in clause 8.1. If retained-title goods are processed, combined or included by the purchaser with third party goods, we shall be entitled to co-ownership of the new goods to the ratio of the invoice value of the retainedtitle goods to the other goods used. Should our right of title become void as a result of such combination or inclusion, the purchaser agrees with immediate effect to assign to us his title or expectant rights in the new goods or object to the extent of the invoice value of the retained-title goods and to retain same on our behalf at no charge. The co-ownership rights at issue shall be deemed to be retained-title goods as defined in clause 8.1.
8.3. The purchaser may sell on, process or combine the retained-title goods with other items or otherwise install them (resale) only as part of his normal business activities and as long as he is not in default. He shall not be entitled to dispose of the retained-title goods in any other way. We must be informed immediately of any third party seizure of or other access to the retained-title goods.
8.4. The purchaser agrees with immediate effect to assign to us his receivables arising from the resale of the reserved-title goods. These shall serve as security to the same extent as the retained-title goods. The purchaser will only be entitled and authorised to resell goods on the assurance that all receivables becoming due to him as a result will be transferred to us.
8.5. If the retained-title goods are sold by the purchaser at an inclusive price together with third party goods, the receivables arising from such sale shall be assigned to us in the amount of the invoice value of the retained-title goods sold in each instance.
8.6. If the receivable amount assigned is included in a current account, the purchaser hereby assigns to us a part of the balance corresponding to the amount of the receivable sum inclusive of the final balance from the current account.
8.7. The purchaser will be entitled to collect such receivables on our behalf until such time as we revoke this right. We shall be entitled to revoke this right if the purchaser fails to meet his payment obligations arising from his business transactions with us or if we become aware of circumstances likely to lessen substantially the purchaser’s creditworthiness. If the conditions are such that we wish to exercise our right of revocation, the purchaser must on request inform us forthwith of the receivable sums assigned and the debtors to which these apply, provide all information necessary to collect such debts, hand over to us all associated documents and notify the debtor of the assignation.
8.8. Our assertion of retention of title shall not constitute revocation of the contract unless we expressly state this in writing. The purchaser’s right to own the retained-title goods shall lapse if he fails to perform his obligations under this or any other contract.
9. LIABILITY FOR FAULTY GOODS
9.1. We do not accept liability for unsuitable or improper use, particularly excessive stress, faulty assembly or faulty operation by the purchaser or third parties, natural wear and tear, faulty or negligent usage or handling, particularly by untrained staff.
9.2. The purchaser agrees to inspect all deliveries carefully for completeness and adequacy immediately upon receipt – even if samples or trial items were previously supplied. The delivery is deemed to have been accepted if a defi ciency has not been reported by letter, telex or fax within 10 working days of the goods arriving at their destination, or, if the defi ciency could not be found during due inspection, within 10 working days of discovering same. This also applies to multiple deliveries. A multiple delivery is deemed to have been accepted if no complaint is lodged within 10 days of the goods arriving at their destination. Our field staff are not authorised to acknowledge quantity or defi ciency complaints.
9.3. A purchaser accepting faulty goods knowing them to be defective shall only be entitled to the claims and rights in respect of defi ciencies if he reserves the right to these by reason of defi ciency on acceptance.
9.4. We guarantee to meet the purchaser’s claims in respect of defective goods for a period of two years, starting in each instance with the date of delivery. This shall not affect liability for defects of title as defi ned by statutory provision. Liability for losses arising from defects shall be governed by clause 10.
9.5. Where there are valid grounds for complaint, the purchaser shall initially only have a claim for defects to be made good, which we may effect as we see fit either by repair or by supplying a defect-free item. If such remedial action fails to work, is unacceptable to the purchaser (Section 440 of the BGB) or superfluous to his requirements, the purchaser shall immediately have the right to reduce the purchase price or, if he so chooses, to revoke the contract or to demand damages in place of any work or reimbursement of wasted expenditure in accordance with clause 10, because:
a) we ultimately decline to make good,
b) we do not effect the make-good work on a contractually agreed date or within a specific period and in the contract the purchaser has contractually tied his continued interest in the execution of the contract to the timely provision of services, or
c) there are special circumstances, which, when considering the interests of both parties, justify immediate cancellation (Section 323, para. 2 of the BGB).
9.6. Where we deem it necessary to effect repairs or replacement deliveries, the purchaser shall allow us sufficient time and opportunity for such repairs or replacement deliveries, failing which our liability for the deficiency shall be deemed to have been discharged. Only in urgent cases where operational safety is endangered or in order to avoid disproportionately large losses, in which case we must be informed immediately, or if we are late in rectifying the defect, shall the purchaser have the right to rectify the defect himself or to have it rectifi ed by others and then to claim reimbursement of the necessary costs from us.
9.7. The warranty period for the goods replacing a faulty item will also be two years. It will run at least until the expiry date of the original warranty period for the goods supplied.
10. LIABILITY FOR DAMAGES
10.1. We accept liability for damages arising from injury to life, bodily harm or impaired health in accordance with statutory provisions.
10.2. Our liability for breach of duty and our non-contractual liability shall, moreover, be limited to wilful intent and gross negligence. Liability for gross negligence of our employees, staff and vicarious agents is hereby excluded.
10.3. Breaches of material contractual obligations (cardinal duties) are excluded from clause 10.2. In such instances, even in cases of only minor negligence, we shall be liable for own negligence and that of our employees, staff and vicarious agents.
10.4. Liability is restricted to the typical contractual losses which we could have expected at contract signature based on the circumstances known to us at that time.
10.5. Any further liability is excluded, irrespective of its legal basis. In particular, we will not accept liability for lack of commercial success, loss of profi ts, consequential loss, losses as a result of defects or losses arising from third party claims
10.6. The aforementioned limitations on liability apply equally to claims for reimbursement of wasted expenditure (Section 284 of the BGB).
10.7. Claims against us for damages on any legal grounds whatsoever shall lapse within two years of statutory commencement of the period of limitations and in any case no later the date of delivery of the item.
10.8. There is no shift in the burden of proof to the disadvantage of the purchaser connected with the above provisions.
10.9. Claims for compensation under the Product Liability Act remain unaffected.
11. RETURNED GOODS
11.1. Goods may only be returned by prior arrangement and must be sent carriage paid.
11.2. We charge a handling fee for returns of 30% of the net value of the goods, plus any reprocessing costs.
12. PLACE OF EXECUTION, JURISDICTION, APPLICABLE LAW
12.1. The place of execution for all obligations of both parties to this contract shall be Goslar.
12.2. Any disputes involving registered trade operators shall exclusively be settled before a competent court of law having jurisdiction for our headquarters. We shall, however, also be entitled to bring actions against the purchaser in other jurisdictions.
12.3. The relationship between ourselves and the purchaser shall be governed by German law with the exception of the United Nations Convention on the International Sale of Goods (CISG) and the provisions of international private law.
12.4. Should subsequent circumstances cause individual provisions of these Terms and Conditions to be or become invalid, this shall not affect the validity of the remaining provisions.
Issued March 2003