GTC’s (General terms and conditions)
1. General provisions
1.1 These Terms and Conditions shall apply to all our (including future) offers, contracts, agreements, deliveries, and other services. Amendments to these GTC’s shall apply if and as far as they have been communicated. The general terms and conditions or general business conditions of the customer are hereby countermanded; we are not obliged to comply with them even if we do not expressly contradict them during or after conclusion of the contract.
1.2 Verbal ancillary agreements must be confirmed by us in writing to take effect. This does not apply to verbal ancillary agreements which are made with members of the senior management and / or authorised signatories.
2.Offer and conclusion of contract
2.1 Our offers are subject to change. Contracts are concluded through the process of making an order and the receipt of our written confirmation. Contracts closed in this manner reflect in full, any arrangements made between the contractual parties relating to the subject matter. Verbal commitments on our part before completion of this contract are not legally binding and any verbal agreements with the customer are replaced by the written contract, unless it is expressly stated in them that they are binding.
2.2 Our deliveries and services are subject to the availability of the goods or services being ordered, particularly regarding punctual self-delivery on our side.
3.1 Our prices are ex-works or storage (the storage facility may belong to a third party) excluding packaging, freight, shipping costs and insurance, plus the respective statutory duties and VAT.
3.2 If the agreed delivery takes place more than six weeks after conclusion of the contract in accordance with the agreement or for reasons beyond our control, we shall be entitled to increase the agreed prices accordingly if costs have increased, particularly regarding material price increases.
3.3 As far as we distribute the costs invoiced by the plant for the production of tools to the customer, the customer acquires neither ownership nor possession of the tools. These tools remain with the respective plant. The right to use such tools for further orders made by the customer remains as long as the plant grants us permission for the respective use.
4.1 Any deadlines and dates for deliveries and services promised by us are only approximate unless a fixed deadline or date has been expressly confirmed or agreed upon.
4.2 We are entitled to make partial deliveries, unless these partial deliveries are economically unreasonable for the customer.
4.3 In the case of call orders, we are entitled to deliver the goods within 6 months without call for delivery. If the call is not made within the agreed period or within 6 months we are entitled to demand prepayments for the quantity not yet called upon.
4.4 Delivery periods begin on the date of our order confirmation. If dispatch had been agreed upon, delivery periods and delivery dates refer to the date of transfer to the forwarding agent, carrier or third parties responsible for transportation. If delivery is delayed through a fault on the part of the customer, the delivery day shall be deemed to be the day of readiness for dispatch (supply of services by us).
4.5 If we are prevented from the timely fulfilment of our obligations due to unforeseen events which concern us or our suppliers and which cannot be averted with due diligence depending on the circumstances of the case (e.g. war, natural disasters, accidents, strikes, lockouts) delivery shall be delayed by the duration of the hindrance. If such events deem the delivery or performance of services impossible or unreasonable and the hindrance is not merely temporary, we are entitled to withdraw from the contract.
4.6 Deviations in quantities to be supplied and/or masses are permitted up to a value of 10%, even in the case of partial deliveries. Deviations in quality are permissible within the scope of DIN or EN tolerances.
5. Transfer of risk and dispatch
5.1 The risk shall also pass to the customer upon acceptance of ex-works freight-free delivery. If the dispatch or delivery is delayed because of circumstances caused by the customer, the risk is transferred from the day on which the delivery item is ready for dispatch and this has been communicated to the customer by us.
5.2 The choice of transport routes and means of transport are made at our discretion and without liability in any circumstance unless otherwise instructed in writing.
5.3 Insurance against transport damages shall be in force only after special agreement and at the expense of the customer.
6.1 Goods supplied are to be carefully inspected immediately after delivery to the customer or to the third party designated by them. Identifiable defects shall be reported to us immediately and in writing not later than within 7 days after receipt of the goods. Non-identifiable defects shall be reported to us immediately and in writing not later than within 7 days after discovery of the defect. If the customer does not comply with their obligation to notify us of identifiable damages the goods shall be deemed to have been approved, regardless of the respective defects.
6.2 At our request, the defective item is to be returned to us free of freight charges. In the case of legitimate complaints, we will reimburse the cost of the cheapest delivery; this does not apply insofar as freight costs are increased due to the item arriving from a location other than the original location specified for the intended use.
6.3 Defect claims of the customer are limited initially to the right to demand supplementary performance. The supplementary performance shall be made at our discretion either through rectification (elimination of the defect) or replacement (delivery of defect-free goods). In the event that supplementary performance is not fulfilled, the customer may, at their discretion, demand a reduction in compensation (abatement) or withdraw from the contract. Insofar as we are obliged to compensate for futile expenses pursuant to § 284 BGB (German civil code) due to a defect or in lieu of damages such claims may only be asserted in accordance with paragraph 7 of these GTC’s. Any recourse claims of the customer according to § 478 BGB and in particular, also the right to claim reimbursement pursuant to § 478 para. 2 BGB remain unaffected. Even within the scope of such recourse claims, claims for damages by the customer or claims for reimbursement of expenses pursuant to § 284 BGB which are demanded instead of compensation in lieu of performance are still limited according to paragraph 7 of these GTC’s.
6.4 It is the customer’s responsibility to assess and check the suitability of the product for its intended purpose or use. Any advice or recommendations given by us remain non-binding and must be carefully checked by the customers themselves.
6.5 The warranty does not apply insofar as the customer or a third party modifies the delivery item without our express written consent thereby making correction of faults impossible or unreasonable. In any case the customer shall bear the additional corrective costs arising from the modification.
6.6 In the case of the acceptance of a procurement guarantee (the absence of promised features) we are only obliged to compensate indirect consequential damages, if the procurement guarantee assumed by us includes liability for such damages.
6.7 The limitation period for claims and rights due to shortcomings in our deliveries/ services is one year – irrespective of their legal grounds. The does not apply (1) to intentional defects or fraudulent concealment, (2) in the event of acceptance of a quality guarantee, (3) in the case of the supplier’s withdrawal pursuant to §§ 478, 479 BGB, (4) in the cases of § 438 para. 1 No. 2 of the BGB and § 634 a para. 1 No. 2 BGB (design or supervision services for a structure or defects in a structure or in an object which has been used, in accordance with its normal use, as a structure and such use has caused the defects concerned), (5) for claims for damages insofar as these are not subject to the limitations of liability according to paragraph 7 of these GTC’s. For the cases referred to in the preceding sentence (2) the statutory limitation period applies.
7. Limitation of liability
7.1 We are liable according to the statutory provisions concerning damages – irrespective of the legal basis for, (1) damages due to injury to life, body or health, (2) for other damages which result from an intentional or grossly negligent breach of duty on our part or on the part of our legal representatives or vicarious agents (3) insofar as we have assumed a material quality guarantee, (4) for claims arising from the Product Liability Act or (5) if we, our legal representatives or our vicarious agents have violated an essential contractual obligation (cardinal obligation). All further liability is excluded.
7.2 However, in the event of a breach of an essential contractual obligation (cardinal obligation) we are only liable for damages that are foreseeable and typical to this type of contract at the time of conclusion of the contract. In such cases our liability to compensate is limited to: EUR 1,000,000.00 per claim for material damage and EUR 250.000,00 per claim for financial losses.
7.3 The above disclaimer/ limitation of liability according to paragraphs 1 and 2 shall also apply for fault during contract negotiations.
7.4 Instead of compensation in lieu of performance, replacement of futile expenses according to § 284 BGB in the event of such legal requirements takes place only if the limitations of the preceding paragraphs 1 and 2 are taken into account.
8. Off-setting, withdrawal, and retention rights
8.1 The set-off, assertion of a right to refuse performance or assertion of a right of retention concerning the customer’s claims is excluded, unless the customer’s counterclaim is legally binding, ready for decision or uncontested.
9.1 The return of cut and / or processed defect-free goods is excluded. Otherwise, defect-free goods returned to us in their original condition will be accepted by us only if this has been expressly agreed upon in writing beforehand. Any costs incurred shall be borne by the sender. If the returned goods are in good condition, we will issue a credit note redeemable against other goods minus the usual handling fee of 15% of the invoice value (no less than €150,00).
10. Payment terms
10.1 Our invoices are payable within 8 days from the invoice date in cash or by bank transfer with a 2% discount on the total invoice amount or within 14 days in cash or by bank transfer with a 1% discount on the total invoice amount or within 30 days from the invoice date in cash or by bank transfer without any discount on the total invoice amount.
10.2 Cheques will only be accepted as a means of payment and count as payment only when they have been cleared; the resulting charges and expenses shall be borne by the customer.
10.3 In the case of deferrals of payment amounts we are entitled to exact an additional forbearance charge of 8 percentage points above the basic interest rate per annum.
10.4 If the customer is in default with a material obligation regarding acceptance of our services or compensation for agreed payments, all payment claims based on the same legal relationship shall become due immediately.
10.5 claims of the customer against us are non-transferable.
11. Retention of title, security rights
11.1 We reserve the ownership of the goods delivered by us (hereinafter referred to as: reserved goods) until the complete fulfilment of all claims arising from the business relationship with the customer, including those arising in future. With respect to open invoices (current accounts) the retention of title secures our respective balance demands.
11.2 The customer shall be entitled to process and sell the reserved goods in the normal course of business up to the point of instigation of recovery (11.7). Pledges and security assignments are not permitted.
11.3 If the reserved goods are processed by the customer, the processing is carried out for us without any liability arising therefrom and we acquire the property directly or – if the goods have been processed using materials belonging to several owners or the value of the processed goods is higher than the value of the reserved goods – we acquire co-ownership (fractional ownership) of the newly created goods to the ratio of the value of the reserved goods to the value of the newly created goods. In the event that no such transition of property should take place, the customer shall already transfer their future property or – in the aforementioned relationship – co-ownership of the newly created goods to us. If the reserved goods are combined with other items to form a uniform item or are inseparably mixed, and if one of the other items is to be regarded as the main item, the customer shall transfer to us proportionate co-ownership of the uniform item pursuant to the relationship specified in sentence 1.
11.4 In the event of the resale of the reserved goods, the customer shall already assign to us any claims arising therefrom (in the case of our co-ownership of the goods, an amount proportionate to the ratio of goods owned). The same is true for other claims in place of the reserved goods, such as insurance claims or claims from unauthorised handling in case of loss or destruction. We hereby authorise the customer to collect the claims assigned to us on their own behalf. This collection authorisation can only be rescinded in the case of an enforcement event (i.e. default of payment).
11.5 If any third party attempts to gain access to secured goods, in particular, by initialising attachment proceedings, the customer shall advise such third parties promptly of our ownership interest and inform us of such attempts in writing without undue delay, so as to enable us to enforce our ownership rights. If the third party is not able to reimburse us for judicial or extrajudicial costs in this case, the customer is liable to pay these costs to us.
11.6 At the request of the Customer, we shall be obliged to relinquish ownership of the reserved goods and/or any other items or claims in lieu of reserved goods if the value of such goods or other items or claims exceeds the value of secured claims against the customer by more than 20%.
11.7 If we withdraw from the contract in the event of a breach of contract by the customer – particularly regarding delays in payment – we are entitled to the reserved goods and their return.
12. Withdrawal, compensation for damages
12.1 We reserve the right to make the delivery dependant on provision of an advance payment or security performance or to withdraw from the contract by written declaration if the customer has provided incorrect information about their person or any facts relating to their creditworthiness or ceases their payment, applies for a moratorium or bankruptcy and conciliation procedures have begun or been applied for against the customer’s assets. Our statutory right to withdraw shall remain unaffected by the above provisions.
12.2 In the event that the customer requests compensation for damages (instead of performance), this shall amount to 25% of the order total. Compensation shall be void or reduced accordingly if the customer is able to prove that no damage or impairment or significantly lower damage or a lower level of impairment has occurred to us. Damages shall be correspondingly higher if we are able to proof that a higher loss or higher level of impairment has occurred to us.
13. Place of performance, jurisdiction, and applicable law
13.1 The place of performance for all deliveries is Velbert.
13.2 The sole jurisdiction for any disputes arising from the business relationship is our headquarters. However, mandatory legal provisions regarding exclusive jurisdiction shall remain unaffected by this provision.
13.3 The law of the Federal Republic of Germany shall apply to the exclusion of (i) the provisions of the United Nations Convention on Contracts for the International Sale of Goods from 11th April 1980 (CISG).
If individual provisions of these terms and conditions are or become invalid in whole or in part, the remaining conditions shall thereby remain unaffected.