Terms of Delivery and Payment June 2004
§ 1 Scope of the Conditions
(1) Our terms of delivery and payment apply exclusively; we do not recognise customer's conditions that conflict with or differ from ours unless we have explicitly accepted their validity in writing. Our conditions continue to apply even if we make deliveries to the customer without objecting to customer's conditions of which we are aware and that conflict with or differ from our conditions.
(2) All agreements that are made between us and the customer for the purpose of executing this contract are recorded in this contract in writing.
(3) Our conditions only apply to entrepreneurs in the sense of § 310 Para. 1 BGB (Bürgerliches Gesetzbuch - German Civil Code); they also apply to any future transactions with the customer.
§ 2 Quotations, prices, and delivery or performance times
(1) Our quotation is free unless otherwise indicated in the confirmation of order. Statements of acceptance and all orders are only legally binding when confirmed by us in writing or by telex. The same applies to extensions, modifications and supplementary agreements; drawings, pictures, dimensions, weight and other performance data are only binding when they are explicitly agreed in writing.
Our sales and field staff are not authorised to make supplementary agreements orally or to give oral assurances that go beyond the contents of the written contract.
(2) Unless otherwise indicated in the confirmation of order, our prices are ex-works and do not include packaging; this will be billed separately. We retain the right to modify our prices appropriately if, after conclusion of the contract, decreases or increases in costs arise, in particular as a result of pay agreements or changes in the cost of materials. We will justify such changes to the customer on request.
Delivery of 6 m goods with a value of €2,500 or more is without charge, as is delivery of roller shutter accessories, motors etc. above €500.
The conditions agreed in each case apply to export deliveries. Statutory VAT is not included in our prices; it is shown separately on the invoice at the rate applying on the day the invoice is written.
The withholding of discounts requires special written agreement. Unless otherwise indicated on the confirmation of order, the purchase price is due within 8 days of the data invoice with a 2 % discount, or 30 days of the date of invoice, net and without discount. Statutory regulations governing the consequences of delayed payment apply.
The customer is only entitled to make charges against us if his counterclaims are legally established, uncontested or acknowledged by ourselves. He is, furthermore, only authorised to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
Payment is only considered to have been made when the money is available to us; in the case of payment by cheque, this means when the cheque has been cleared.
(3) Delivery deadlines, whether agreed bindingly or not, must be in writing. The delivery period quoted by us starts when any technical questions have been settled. Fulfilment of our duty to supply further presupposes the punctual and correct satisfaction of the customer's obligations. The right to object to the unfulfilled contract is reserved.
If the customer's acceptance is delayed, or if he culpably breaches other duties of cooperation, we are entitled to charge for any damages that may have arisen as a consequence, including any additional expenses. The right to make further claims is retained. Inasmuch as circumstances of delayed acceptance or culpable breach of duties of cooperation on the part of the customer are present, the risk of accidental destruction of or accidental deterioration in the object being sold transfers to the customer at the time when the delay in acceptance or in meeting debts begins.
Even in the case of bindingly agreed deadlines and timetables, we are not responsible for delays in delivery or performance resulting from force majeure or from events which more than temporarily make it significantly more difficult or impossible for us to make the delivery; this particularly includes strikes, lock -outs, orders made by the authorities and so forth, including cases in which these events occur at our suppliers or their sub-contractors' sites. They entitle us to postpone the delivery or performance for a period equal to the duration of the hindrance, plus an appropriate start –up time, or to withdraw in part or in whole from the contract as a result of the unfulfilled section.
If the hindrance lasts for longer than three months, the purchaser is entitled, after first setting an appropriate deadline that allows further time, to withdraw from that part of the contract that is not yet satisfied. If the delivery time is extended, or if we are released from our obligations, the purchaser may not derive any claims for damages from this. We may only cite the circumstances named above if we inform the purchaser without delay.
Inasmuch as we are responsible for the failure to observe bindingly agreed deadlines and timetables, or if we are late in performance, the purchaser may claim compensation for delay amounting to one half of one percent for every complete week of delay, not, however, exceeding 5% of the invoice value of the delayed deliveries or performances. The right to make further claims is precluded unless the delay results at least from gross negligence on the part of the seller.
We are entitled to make partial deliveries and to carry out partial performances at any time unless the partial delivery or partial performance is of no interest to the purchaser.
§ 3 Transfer of Risk
Risk transfers to the purchaser as soon as the shipment is handed to the person performing the transport, or when it has left our stores for the purposes of shipment. If shipment is delayed in response to the purchaser's wish, the risk transfers to him when readiness for shipment is announced.
§ 4 Liability for Defects
(1) The customer's right to claim for defects assumes that he has properly fulfilled the duties in respect of investigation and complaint to which he is obliged in accordance with § 377 HGB (Handelsgesetzbuch - German Commercial Code).
(2) If there is a defect in the object of the sale, the customer is entitled to satisfaction in the form, at his choice, of correction of the fault or of the delivery of a new, fault-free object. In the case of rectification of a fault we are obliged to bear all the expenses, in particular the costs of transport, travel, work and materials required to correct the fault, except inasmuch as they are increased by the object of the sale of having been taken to a location other than the place of fulfilment.
If the fault rectification fails, the customer is entitled, at his choice, to withdraw from the contract or to demand a reduction in price.
(3) We are liable in accordance with statutory regulations, if the customer raises claims for damage compensation arising from malicious action or gross negligence, including the malicious acts or gross negligence of our representatives or assistants. Unless we are accused of malicious breach of the contract, our liability to compensate for damages is limited to foreseeable damage occurring in a typical manner.
(4) We are liable in accordance with statutory regulations inasmuch as we culpably breach a contractual obligation; in that case, the liability to compensate for damage is limited to foreseeable damage occurring in a typical manner.
(5) If the customer is entitled to compensation for damage in place of performance, our liability is limited, even in the event that the rectification fails, to replacement of foreseeable damage occurring in a typical manner.
(6) Liability for culpable injury to life, body or health remains unaffected. This also applies to compulsory liability in accordance with product liability statutes.
(7) Other liability is precluded, except where otherwise regulated above.
(8) The limitation period for claims against damages is 24 months.
The limitation period in the case of recourse in respect of delivery according to § 478 and § 479 BGB remains unaffected. It is 5 years, calculated from the date of delivery of the faulty item.
§ 5 Total Liability
Liability for compensation for damage beyond that described in $ 4 is precluded, regardless of the legal status of the claim raised. This applies in particular to claims for compensation for damage arising from culpa in contrahendo, other breaches of duty, or claims for compensation for material damage arising as a result of illegal activity in accordance with § 823 BGB.
The above limitation to liability also applies if the customer, instead of a claim for compensation for damage in place of performance, requires compensation for useless expenditures.
To the extent that our liability to compensate for damage is precluded or limited, this also applies in respect of the personal liability to compensate for damage of our employees, workers, colleagues, representatives and assistants.
§ 6 Retention of Ownership
(1) Until all claims (including the settlement of all outstanding current account balances) that we have now or in the future for what ever legal ground against the customer have been satisfied, the seller will retain the following securities which he will release on request at his option, provided their value continues to exceed the claims by more than 20 %.
Until complete payment of all the assured claims, the goods remain the property of the seller. Processing or reconstruction are always carried out for the seller as the manufacturer, but without any obligations being created on his part.
(2) If the seller's (joint) ownership lapses through incorporation of the materials, then it is agreed at this stage that the purchaser's (joint) ownership in the unified item is transferred to the seller in proportion to its value (the invoice value).
The purchaser will take care of the seller's (joint) ownership without charge. Goods to which the seller is entitled to (joint) ownership are referred to below as retained goods.
(3) The purchaser is entitled to process the retained goods in the normal course of business, and to dispose of them, as long as he is not in arrears with his payments. Pledging or handling the goods over as security is not permitted. For the sake of security, the purchaser already transfers the full extent of any claims in respect of the retained goods arising from its further sale or from any other legal ground (insurance, unauthorised action) (including all claims for debts from the open account) to the seller.
The seller authorises him until further notice to collect the claims that he has transferred to the seller for our invoice in his own name. This collection authority can only be revoked if the purchaser does not properly fulfil his payment obligations.
(4) If third parties have access to the retained goods, the purchaser will inform them of the seller's ownership and will inform us immediately. The purchaser will be responsible for any costs or damage.
(5) If the purchaser behaves in a way that breaches the contract - in particular if he is in arrears with payment - the seller is entitled to withdraw from the contract and to demand return of the retained goods.
§ 7 Assignment
We are entitled to assign all the rights and obligations arising from this contract to a third party.
§ 8 Place of jurisdiction / Place of fulfilment
(1) If the customer is a merchant, the place of jurisdiction is our place of business. We are, nevertheless, entitled to take proceedings against the customer in the courts having jurisdiction over his place of residence.
If, after completion of the contract, the customer moves his place of residence or usual whereabouts to a location outside the jurisdiction of the Federal Republic of Germany, then our place of business is the place of jurisdiction. This also applies if the residence or usual whereabouts of the customer is not known at the time when proceedings are issued.
(2) The laws of the Federal Republic of Germany apply; the applicability of UN commercial law is precluded.
(3) Our place of business is the place of fulfilment unless otherwise indicated in the confirmation of contract.
§ 9 Partial ineffectiveness
If one or more of the regulations above is or becomes ineffective, the effectiveness of the remaining conditions is not affected. The ineffective regulation is to be replaced by an effective one that satisfies the economic purpose of the regulation as closely as possible.