Verkaufs- und Lieferbedingungen
§ 1 General – Scope of application
(1) Our terms and conditions of sale shall apply exclusively; we shall not recognise any terms and conditions of the customer which conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our terms and conditions of sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our terms and conditions of sale.
(2) The content of all agreements made between us and the customer for the purpose of executing this contract shall be governed exclusively by our written order confirmation. The purchase contract is only concluded with our written confirmation, even if the order has been accepted by a commercial agent or employee. All agreements made between us and the customer for the purpose of executing this contract must be set down in writing in this contract.
(3) Our Terms and Conditions of Sale shall also apply to all future transactions with the customer.
§ 2 Offer – Offer documents
(1) Our offers are valid for 12 weeks and can only be accepted within this period. The technical documents belonging to the offer, such as illustrations, dimensional drawings, weight specifications, etc., are only approximate unless they are expressly designated as binding. We expressly reserve the right to deviations in the execution from the illustrations in our lists.
(2) We reserve ownership rights and copyrights to illustrations, drawings, calculations and other documents; they may not be made accessible to third parties. This applies in particular to such written documents which are designated as “confidential”; the customer requires our express written consent before passing them on to third parties.
§ 3 Prices – Terms of payment
(1) List prices announced by us are non-binding and will be adjusted to the development of raw material prices and wage costs without obligation to give notice. Unless otherwise stated in the order confirmation, our prices shall apply “ex works”, excluding packaging and transport insurance; these shall be invoiced separately. In the case of devices in which precious metals are processed, we must reserve the right to charge the respective daily price. Should the delivery period exceed 4 months after conclusion of the contract, we reserve the right to adjust the price accordingly in the event of an increase in the cost of raw materials or wages.
(2) The statutory value added tax is not included in our prices; it is shown separately in the invoice at the statutory rate on the day of invoicing.
(3) Unless otherwise stated in the order confirmation, the net purchase price (without deduction) is due for payment within 30 days of the invoice date. If payment is made within 10 days, a discount of 2 % shall be granted. Invoices for services and spare parts are due immediately net without any deduction. If the customer is in default of payment, we shall be entitled to charge interest on arrears at a rate of 2% above the respective discount rate of the Deutsche Bundesbank or the base interest rate applicable at this point. If we are able to prove a higher damage caused by default, we are entitled to assert this. If the customer is in arrears with due payments or if circumstances are recognisable that his willingness to pay appears to be endangered, the delivery can be made dependent on an advance payment. In such a case, promised terms of payment or trade credits may also be reduced or revoked.
(4) The customer shall only be entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been acknowledged by us. In addition, he shall be entitled to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
§ 4 Delivery time
(1) The start of the delivery period stated by us presupposes the clarification of all technical questions. If advance payment has been agreed or is due, the delivery period shall not commence before receipt of payment.
(2) Compliance with our delivery obligation presupposes the timely and proper fulfilment of the customer’s obligations.
(3) The delivery period shall be extended appropriately in the event of measures within the framework of industrial disputes, in particular strikes and lock-outs, as well as in the event of unforeseen hindrances beyond our control, insofar as such hindrances demonstrably have a considerable influence on the completion or delivery of the delivery item. This shall also apply if the circumstances occur with subcontractors. We are also not responsible for the aforementioned circumstances if they occur during an already existing delay. In important cases, we will inform the customer of the beginning and end of such hindrances as soon as possible.
(4) If, after we have already fallen into arrears, the customer sets us a reasonable grace period with a threat of rejection, he shall be entitled to withdraw from the contract after the fruitless expiry of this grace period; the customer shall only be entitled to claims for damages due to non-fulfilment in the amount of the foreseeable damage if the delay is based on intent or gross negligence or on a material breach of duty.
(5) If the customer is in default of acceptance or violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred by us, including any additional expenses. In this case, the risk of accidental loss or accidental deterioration of the purchased item shall also pass to the customer at the point in time at which the customer defaults on acceptance.
§ 5 Versand, Gefahrenübergang
(1) Unless otherwise stated in the order confirmation, delivery “ex works” is agreed. Shipment shall always be effected by the means of transport determined by us without liability for the cheapest shipment in each case.
(2) Unless otherwise agreed, packaging shall be charged at cost price.
(3) As a rule, we shall cover the delivery with transport insurance; the costs incurred in this respect shall be borne by the customer. In the event of damage, the customer shall be solely responsible for immediately securing the ascertainment of the damage and providing the documents required for the settlement of the damage.
§ 6 Warranty for defects
(1) The warranty rights of the purchaser presuppose that he has duly fulfilled his inspection and complaint obligations owed in accordance with §§ 377, 378 HGB within 8 days of receipt of the delivery. The prerequisite for any warranty is the use of the delivery items under normal operating conditions or those specified in the contract, proper maintenance and observance of our operating instructions. We cannot assume any warranty for instruments and elements which are subject to difficult operating conditions, such as thermocouples, resistance thermometers, gas withdrawals and their protective fittings and comparable devices.
(2) If there is a defect in the purchased item for which we are responsible, we shall be entitled at our option to remedy the defect exclusively in our workshops or to make a replacement delivery. In the event that the defect is remedied, we shall be obliged to bear all labour and material costs necessary for the purpose of remedying the defect. We shall not bear travel, transport and personnel costs for repair work outside our workshops and shall be charged to the customer.
(3) If we are unwilling or unable to remedy the defect or deliver a replacement, if we refuse to do so or if it is delayed beyond a reasonable period of time for reasons for which we are responsible, or if the remedy of the defect or deliver a replacement fails in any other way, the customer shall be entitled to demand rescission of the contract (rescission).
(4) Insofar as nothing to the contrary is stated below (para. 5 and para. 6), further claims of the customer – for whatever legal reasons – are excluded. Therefore, we shall not be liable for damages which have not occurred to the delivery item itself; in particular, we shall not be liable for lost profits or other financial losses of the customer.
(5) The above exclusion of liability shall not apply if the cause of the damage was based on intent or gross negligence. Furthermore, it shall not apply if the customer asserts claims for damages due to non-fulfilment in accordance with §§ 463, 480 para.2 BGB (German Civil Code) due to the absence of a warranted characteristic.
(6) If we culpably breach an essential contractual obligation or a “cardinal obligation”, liability shall be limited to the damage typical of the contract; otherwise it shall be excluded pursuant to paragraph (4).
(7) The warranty period shall be 6 months, calculated from the transfer of risk. This period is a period of limitation and also applies to claims for compensation for consequential damage caused by a defect, unless claims are asserted in tort.
§ 7 Total liability
(1) Further liability for damages than provided for in § 6 (4) to (6) is excluded – irrespective of the legal nature of the asserted claim.
(2) The provision pursuant to para.(1) shall not apply to claims pursuant to §§ 1, 4 Product Liability Act. Insofar as the limitation of liability pursuant to § 6 Para.(6) does not apply to claims arising from product liability pursuant to § 823 BGB, our liability shall be limited to the indemnification paid by the insurance company. If this does not occur or does not occur completely, we shall be obliged to assume liability up to the amount of the sum insured.
(3) The provision pursuant to paragraph (1) shall also not apply in the event of initial incapacity or impossibility for which we are responsible.
(4) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff, representatives and vicarious agents.
§ 8 Securing retention of title
(1) We reserve title to the object of sale until receipt of all payments under the delivery contract. In the event of breach of contract by the customer, in particular default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us does not constitute a withdrawal from the contract, unless we have expressly declared this in writing. The seizure of the object of sale by us shall always constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to sell it; the proceeds of such sale shall be set off against the customer’s liabilities – less reasonable selling costs.
(2) The customer shall be obliged to treat the object of sale with care; in particular he shall be obliged to insure it sufficiently at replacement value against fire, water and theft at his own expense. If maintenance and inspection work is necessary, the customer must carry this out in good time at his own expense.
(3) Bei Pfändungen oder sonstigen Eingriffen Dritter hat uns der Besteller unverzüglich schriftlich zu benachrichtigen, damit wir Klage gemäß § 771 ZPO erheben können. Soweit der Dritte nicht in der Lage ist, uns die gerichtlichen und außergerichtlichen Kosten einer Klage gemäß § 771 ZPO zu erstatten, haftet der Besteller für den uns entstandenen Ausfall.
(4) The customer is entitled to resell the object of purchase in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount agreed with us (including VAT) which accrue to him from the resale against his customers or third parties, irrespective of whether the object of purchase has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves shall remain unaffected thereby. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been made for the opening of bankruptcy or composition proceedings or payments have been suspended. If this is the case, however, we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtor (third party) of the assignment.
(5) The processing or transformation of the object of sale by the customer is always carried out for us. The customer’s expectant right to the object of sale shall continue in the transformed object. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other processed objects at the time of processing. In all other respects, the same shall apply to the object created by processing as to the object of sale delivered subject to reservation of title.
(6) If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of our object of sale to the other mixed objects at the time of mixing. If the mixing is carried out in such a way that the customer’s item is to be regarded as the main item, it shall be deemed agreed that the customer assigns us proportionate co-ownership. The customer shall keep the resulting sole ownership or co-ownership in safe custody for us.
(7) The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a piece of real estate.
(8) We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 20%; the choice of the securities to be released shall be incumbent on us.
§ 9 Jurisdiction – Place of Performance – Terms of Delivery of the Electrical Industry
(1) Our place of jurisdiction shall be our registered office in Ratingen; however, we shall also be entitled to sue the customer at the court of his place of residence.
(2) Unless otherwise stated in the order confirmation, our registered office in Ratingen shall be the place of performance.
(3) In addition to these terms and conditions, the latest valid version of the “General Terms and Conditions of Delivery for Products and Services of the Electrical Industry” shall apply.
§ 10 Severability clause
Should any provision of these terms and conditions be or become invalid in whole or in part, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by an appropriate provision which comes as close as possible to the invalid clause within the framework of the legally permissible possibilities.
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