to be used for concluding a contract with a natural person or a legal entity that pursues a commercial activity or is self-employed, or with legal entities of the public law, or with a special fund under the public law (referred to hereinafter as the „customer“)
All agreements, offers and supplies shall exclusively be made on the basis of these Terms & Conditions of Sale . They shall thus apply to all future business transactions, even if they have not been explicitly agreed. Provisions of the customer contradicting our Terms and Conditions of Sale or deviating from them as well as clauses with a deviating, complementing or modifying content possibly contained in letters of acceptance or confirmation from customers are explicitly objected herewith.
On concluding the contract, the customer acknowledges the exclusive validity of our Terms and Conditions of Sale.
Article 1 Supply agreement
1. Our offers shall be subject to change without notice. The company reserves the right to make technical modifications and improvements as well as modifications as regards the shape, the color and/or the weight to a reasonable extent.
2. Dimensions, weight data, figures and drawings as well as the details and figures contained in brochures and catalogs shall be binding only, if agreed so explicitly in writing.
3. The volume of an order may be exceeded by up to 10 % or fall short of this percentage for reasons attributable to the manufacturing technology and in the event of deliveries made to order. A notification of the customer shall not be required, while the excess quantity or the shortage of quantity shall be correctly accounted for .
4. Partial deliveries within the delivery periods set by us shall be admissible, as long as the fitness for use is not compromised.
5. When placing an order for goods, the order shall be binding on the customer, with the latter being bound to purchase the goods ordered. We shall be entitled to accept the offer to contract (which the order constitutes) within two weeks after its receipt. The contract shall materialize when we confirm the order.
The order may be confirmed either in writing or by delivering the goods to the customer.
6. We shall reserve the proprietary and copyrights in our samples, cost estimates, drawings and similar information of physical and immaterial kind, also in electronic form; they shall not be made accessible to third parties. We shall undertake to disclose information and documents marked as confidential by the customer to third parties only after having obtained the customer's approval.
7. The goods shall be delivered exclusively in accordance with the agreed technical delivery specifications. Should we have to make deliveries on the basis of customer drawings, specifications, samples etc., the customer shall bear the risk that the goods are suitable for the intended purposes. The time of passing the risk shall be decisive for the contractual conditions of the goods. In as much, we shall be liable for the proper processing only. Unless explicitly agreed, we shall not assume any liability for determining the quality of the material and for any damage caused by corrosion.
Article 2 Delivery period
1. Delivery periods shall only be binding, if being explicitly referred to them as such and confirmed in writing.
2. The delivery period shall commence by dispatching the order confirmation, but not before the documents, supplies, permits and releases, if any, to be provided by the customer have been submitted and the agreed down-payment has been received. If technical ambiguities or defects are subsequently identified in the customer's order documents or drawings, the delivery period shall commence again, after matters have been clarified.
3. The delivery period is deemed to have been kept, if the goods are ready for immediate collection and the customer has been notified accordingly or if the goods have left the company premises before the delivery period has expired.
4. Partial deliveries within the delivery periods set by us shall be admissible, as long as the fitness for use is not compromised.
5. If the failure to keep the delivery period is attributable to Force Majeure, industrial disputes or other events beyond the supplier's control, the delivery period shall be extended accordingly. The supplier shall notify the customer about the beginning and the end of such circumstances .
6. The contract shall be concluded on condition that the correct supplies are received from our own suppliers in a timely fashion. This shall only apply in cases, where non-deliveries are beyond our own control, especially in cases of concluding congruent hedging transactions with our supplier.
7. If the shipment of goods is delayed at the customer's request or for reasons for which the customer is responsible, the costs for storing the goods shall be charged to the customer. Storage costs shall become due from the first month after notifying the customer that the goods are ready for shipment and shall amount to a maximum of 10 % of the goods value for each month, or part thereof, if stored in our premises. The right to assert further claims due to the delay, which can be asserted without further notice , shall not be affected.
Article 3 Payment
1. Unless agreed otherwise in writing, the prices shall be valid ex works, i.e. excluding a chargeable flat S&H fee and the statutory sales tax (VAT). Discounts shall not be granted, bills not be accepted.
2. The payment shall become due in full on receipt of the delivery. The customer shall be in default without any further notice on the part of the supplier 8 days after the due date, if the payment has not been made. In the event of complaints, the customer shall not have a right of retention, unless the delivery is obviously defective or the customer is patently entitled to refuse acceptance. In such cases, the customer shall only have a right of retention, if the retained amount is reasonably proportionate to the defects and to the expected costs of supplementary performance (especially the remedy of defects). The customer shall not be entitled to assert claims and rights on the grounds of defective supplies, if he has not made the payments due and if the amount due (including the payments made, if any) is reasonably proportionate to the value of the delivery with the defects.
2 a. We shall be liable in accordance with the statutory regulations, if the rendering of the services is delayed by us or one of our representatives (or vicarious agent) as a result of a deliberate act or gross negligence. However, our liability in cases of gross negligence shall be limited to the foreseeable damage typical of such contracts. In cases beyond the ones referred to in sentence 1 above, our liability for the delayed damages shall be limited to altogether 1 % of the value of the delivery, apart from the services, and to altogether 25 % of the value of the delivery as damages for deliveries not made; any further claims asserted by the customer shall be excluded, also after a grace period set to the contractor to render the service, if any, has expired. The aforementioned restrictions shall not apply in cases of liability for bodily harm and where the health or human lives have been put at risk. The above regulations shall not constitute a change of onus to the disadvantage of the customer.
The above regulations shall also apply to claims for the reimbursement of costs incurred in vain.
2 b. We shall be liable in accordance with the statutory regulations, if deliveries are impossible as a result of a deliberate act or gross negligence on our part or on the part of one of our representatives (or vicarious agent). However, our liability in cases of gross negligence shall be limited to the foreseeable damage typical of such contracts. In cases except the ones referred to in sentence 1 above, our liability for the impossibility to pay damages and for expenditures incurred in vain shall be limited to altogether 25 % of the value of the delivery; any further claims against us on the grounds of deliveries not made shall be excluded. The aforementioned restrictions shall not apply in cases of liability for bodily harm and where the health or human lives have been put at risk. The right of the customer to withdraw from the contract shall not be affected. The above regulations shall not constitute a change of onus to the disadvantage of the customer.
3. The customer can only exercise his right of retention, if his counterclaim refers to the same contract. The customer shall only have a right to offset claims, if his counterclaims have been legally established or if we have acknowledged them.
4. The failure to meet the agreed payment conditions as well as any fact of which we become aware only after concluding the contract and which gives rise to concern that the customer may not make his payment on time shall entitle the supplier to demand securities for all and any claims arising from the supply agreement, irrespective of any due dates, and to suspend the work on the delivery item until such securities have been furnished.
Article 4 Changes in price
1. Changes in price shall be admissible, if there is a time gap of more than four months between the date of concluding the contract and the agreed delivery date (also in the case of partial deliveries and progress payment invoices). If the wages, cost of material and the acquisition prices in the market increase until the order is completed, we shall be entitled to adjust the prices reasonably and in accordance with the cost increases. The party placing the order shall only be entitled to withdraw from the contract, if the price increase considerably exceeds the increase in the general cost of living between the day of placing the order and the day of delivery.
2. If the customer is a merchant, a legal entity of the public law or a special fund under the public law, changes in price in accordance with the above provision shall be admissible, provided there is a time gap of more than six weeks between the date of concluding the contract and the agreed delivery date.
Article 5 Confidentiality
1. Each contracting party must use the documents (including samples, models and data) and the information received in the course of the business relationship established thru the contract concluded only for the purposes mutually pursued by this relationship. Such documents and information shall be treated with the same degree of care as internal ones and shall not be disclosed to third parties if the other contracting party has marked them as confidential or shown a manifest interest to keep them secret. This obligation shall begin when such documents or information are initially received and end 36 months after the termination of the business relationship.
2. This obligation shall not apply to documents and information that are in the public domain, or of which the receiving party has already had knowledge without having been committed to secrecy, or which have been received by a third party that has been entitled to pass them on, or which have been developed by the receiving party without using the confidential documents or information of the other contracting party.
Article 6 Packaging, dispatch and shipment
1. The packaging shall become the property of the customer and we shall charge or it. The postal and packaging charges shall be invoiced separately. The mode of dispatch shall be at our discretion.
2. The customer shall immediately inform the carrier/forwarding agent and us about any shipping damage.
3. T he risk of accidental deterioration and accidental loss shall pass to the customer with the goods being transferred to the carrier/forwarding agent or to any other person or institution commissioned with the shipment of the goods.
4. The goods are deemed to have been shipped and transferred, irrespective of the customer delaying their acceptance.
5. The goods shall be insured against shipping damage at the customer's request only and at his expense. If requested so by the customer in writing, we shall have the delivery insured, at the customer's expense, against theft, breakage as well as shipping, fire and water damage and against other insurable risks. Prices with the carriage paid shall apply on condition that the rail, road and sea traffic on the traffic routes concerned is not obstructed. Dead freight charges shall be borne by the customer.
6. Wire mesh boxes and Euro pallets used for the shipment shall be exchanged. Should an exchange fail or prove to be impossible, the wire mesh boxes shall be charged according to their replacement value.
Article 7 Warranty
1. The warranty claims shall be forfeited if the goods are modified or tampered with in any way. If the chain wheels for the calibrated chains are not included in the same order, the relevant wheels shall be sent in for calibration immediately after the order has been confirmed. Otherwise, the warranty for the precise fit of the chains and wheels shall be excluded.
We shall not be responsible for any defects caused by improper use or misuse, by incorrect installation, assembly or commissioning by the customer or by a third party, by the usual wear and tear, by improper or careless treatment, nor for repairs carried out by the customer himself or by third parties.
Warranty claims shall not be entertained, if the goods deviate only slightly from the contracted or specified conditions or if the fitness for use is only slightly impaired.
2. We shall be given the opportunity to establish the identified defect(s) ourselves. Defective goods shall therefore be immediately returned to us on request. The warranty claims, if any, shall be forfeited, if the customer fails to perform his duties in this respect or makes modifications to the objected goods without our approval.
3. We shall have the option to choose between a remedy of defects and a new delivery. If supplementary performance does not remedy the defect, the customer shall have the option to claim a reduction in the purchase price or to withdraw from the contract.
4. The expenditure required for the purpose of supplementary performance shall be borne by the customer, provided its increase is caused by moving the delivery to another location but the customer's premises, unless this removal is in line with the intended use of the goods.
5. The customer must report patent defects in writing without any delay, but not later than 10 days after having received the goods; otherwise, the assertion of warranty claims shall be excluded. To meet the deadline, timely mailing shall suffice. The onus to prove all claims, especially the defect itself, the time of identifying the defect and the timely information about the complaint, shall entirely rest with the customer.
If the acceptance of goods has been agreed with the customer, the goods are deemed to have been approved on accepting them. Any further warranty claims shall be excluded, unless the defect cannot be identified despite careful examination during the acceptance.
6. A second attempt to rectify the defect(s) has failed . If the customer wishes to withdraw from the contract on the ground of a legal or material defect after supplementary performance has failed, he shall not be entitled to additional damages in view of the defect. If the customer wishes to claim damages after supplementary performance has failed, the goods shall remain with the customer, if this is reasonable. The damages shall be limited to the difference between the purchase price and the value of the defective goods. This shall not apply, if the breach of contract has been maliciously caused by us.
The statutory period of limitation for claims and rights arising from defects in the delivery – irrespective on what legal grounds – shall be 1 year from the delivery of the goods. This shall not apply, if the customer has failed to notify us about the defect(s) in time (paragraph 5 above).
This statutory period of limitation shall also apply to any claims for damages against the supplier which are connected with the defect(s) – notwithstanding the legal grounds of the claim. If any claims for damages exist against the supplier which are not connected with a defect, the one-year statutory period of limitation shall also apply.
The one-year statutory period of limitation shall basically not apply in cases of intent or where a defect has been concealed with malicious intent, nor in cases of bodily harm and where the health, life or freedom have been put at risk, to claims under the product liability law as well as in the event of gross negligence or of a violation of major contractual duties.
The above regulations shall not constitute a change of onus to the disadvantage of the customer.
6a. The customer can only withdraw from the contract under the prevailing statutory regulations, if we are responsible for the violation of duties; however, in the case of defects, the statutory regulations and these Terms and Conditions shall prevail. In the event of a violation of duties, the customer shall state within a reasonable period and after being asked to do so by us, whether he wishes to withdraw from the contract on the grounds of duties being violated or whether he insists on the delivery.
7. It is understood that only the manufacturer's product specification forms the basis for the conditions of the goods. Public statements, promotions or advertisements of the manufacturer (of the product or individual components thereof) shall not constitute a contractual specification for the goods. If the customer is given incorrect assembly instructions, we shall only be responsible for providing correct assembly instructions, and only then, when the error in the assembly instructions prevents the proper assembly.
8. The customer is not given guaranties in the legal sense. Guaranties of the manufacturer(s), if any, shall not be affected.
Article 8 Limitations of liability
1. We shall assume liability in accordance with the statutory regulations in cases of malicious intent or gross negligence on our part or on the part of one of our representatives (or vicarious agents). As for the rest, we shall only assume liability in accordance with the product liability law in cases of bodily harm, where life or health have been put at risk, when major contractual duties have been culpably violated or if we have concealed the defect with malicious intent. However, claims for damages on the ground of violating major contractual duties shall be limited to the foreseeable damage typical of such contracts, unless another liability claim arises in accordance with the previous sentence.
The provisions contained in the paragraph above shall apply to all claims for damages , on whatever the legal grounds they have been brought, especially those arising from defects, from a violation of contractual obligations or from tortuous acts. They shall also apply to compensation claims for expenditure made in vain. However, the liability for delays shall be determined in accordance with Article 3, paragraphs 2 and 2 a, the liability for impossibility (of performance) in accordance with Article 3, paragraph 2 b.
2. The statutory period of limitation for claims and rights on the ground of defective supplies – irrespective of the legal ground – shall amount to 1 year. The statutory period of limitation shall also apply to any claims for damages against us which are connected with the defect(s) – notwithstanding the legal grounds of the claim. If any claims for damages exist against us that are not connected with a defect, this one-year statutory period of limitation shall also apply.
The statutory period of limitation shall be applicable with the following proviso: It shall basically not apply in cases of intent or where a defect has been concealed with malicious intent, nor in cases of bodily harm and where the health, life or freedom have been put at risk, to claims under the product liability law as well as in the event of gross negligence or of a violation of major contractual duties.
The statutory period of limitation for all and any claims shall commence on the day of delivery. Unless explicitly stipulated otherwise, the statutory regulations about the commencement and suspension of limitation, the suspension of the running time and the resumption of a time limit shall not be affected.
The above regulations shall not constitute a change of onus to the disadvantage of the customer.
Article 9 Reservation of title
1. We shall reserve the title to the goods until all claims arising from the current business relationship, irrespective of the legal reason it has been established for, have been settled. In case of a current account being kept, the reservation of title shall act as security for our payment balance request. This shall also apply when payments are made by the customer in settlement of certain claims.
2. The customer shall treat the goods with utmost care. Should maintenance work and inspections become necessary, they shall be carried out by the customer at regular intervals and at his own expense.
3. Goods subject to reservation of title shall always be processed or altered on behalf of us as the manufacturer without creating any obligation for us. When processing or altering the goods subject to reservation of title in combination with other goods not delivered by us, we shall become co-owners of the newly created goods in the proportion of the value of the goods subject to reservation of title and the value of the other processed or altered goods at the time of processing or altering the original goods.
4. Should our ownership in the goods subject to reservation of title expire as a result of the goods being mixed or joined with others, the customer herewith assigns his title or co-ownership rights in new or mixed goods to the extent of the invoiced value of the goods subject to reservation of title and shall ensure their safekeeping on our behalf free of charge. The new property in customer's possession thus created by processing, altering, joining or mixing (referred to hereinafter as the „new property“) or the title or co-ownership rights to which we are entitled or which are be assigned to us pursuant to sentence 2 of this paragraph shall serve as security for our claims in the same way as the goods subject to reservation of title themselves, as stipulated under 1. above. Unless the following provisions do not stipulate otherwise, they shall be applicable accordingly to the new property in customer's possession.
5. The customer shall sell or dispose of the goods subject to reservation of title only in the course of proper business transactions on the basis of the usual General Terms & Conditions of Sale and only as long as he does not default on his payment obligations that arise from his business relation with us. On his part, the customer shall only sell the goods subject to reservation of title by reserving the title to himself and make sure that any claims arising from such transactions can be assigned to us.
6. Any claims of the customer arising from the re-sale of the goods subject to reservation of title are herewith assigned to us and we accept the assignment. The claim shall serve as a security for us to the same extent as the goods themselves that are subject to reservation of title. Should the customer sell or dispose of the goods subject to reservation of title together with other goods not supplied by us, the assignment of the claim shall only apply to the amount invoiced for our goods now resold and subject to reservation of title. With regard to the sale of goods pursuant to paragraph 3 above or the statutory regulations about the new property that has been created by mixing and joining and in which we have a title or co-ownership rights, the assignment of the claim(s) shall apply to the value of our share in the new property.
The settlement of the share in the claim assigned to us shall take precedence over all others .
7. If the customer includes claims arising from the re-sale of goods subject to reservation of title in a current account existing with his buyers, he assigns herewith any credit or final balance in his favor to such as extent to us that is equivalent to the overall amount of the claim arising from the re-sale of our goods subject to reservation of title and credited to the said current account. The previous paragraph shall be applied accordingly.
8. Until revoked, the customer shall be entitled to collect the claim(s) assigned under Article 9, paragraph 6. He shall pass on any payments in settlement of the claim(s) assigned to us without any delay up the amount secured by such claims. We shall be entitled to revoke the customer's authorization to collect such payment claims for cause, especially when a protest of a bill is issued, when the customer defaults on or suspends payments, when insolvency proceedings have been instituted or when there is sufficient evidence for the customer's excessive indebtedness or imminent illiquidity. Apart from that, we can also disclose this assignment of the claim by way of security after due warning and having granted a reasonable grace period, we can collect and utilize the assigned claims and we can demand from the customer to disclose the assignment of the claim to his own customers.
The customer shall not be entitled to assign claims from the re-sale of goods, not even those arising from a genuine factoring contract.
9. We can also, at any time, revoke the direct debit mandate in the event of delayed or suspended payments on the part of the customer, if the customer transfers his business to a third party, in the event of impaired creditworthiness and doubtful trustworthiness, if the customer's business is dissolved and if he violates his contractual duties in accordance with paragraph 3 above. In this case, the customer shall immediately notify his buyers of the assignment of claims by way of security to us und provide us with all and any information and documents that are necessary to collect the claims. He shall also be under the obligation to hand over or transfer to us all securities, if any, to which he is entitled for claims from his own customers.
10. If the realizable value of the existing securities exceeds our own secured claims by 15 %, we shall be prepared, at the buyer's request, to release securities at our discretion.
11. The customer shall inform us without any delay, if a levy of execution has been issued against the goods subject to reservation of title or any other securities existing in our favor, or if the goods or securities are impaired or at risk in any other way.
12. The customer shall insure the goods subject to reservation of title sufficiently against fire and theft. He assigns herewith his claims from the insurance contract to us.
13. Should the customer default on the contract, especially should he delay payments or violate any provision set forth in this Article, we shall be entitled to withdraw from the contract and demand the return of the goods. For cases like that, the customer herewith grants his approval that we can recover the goods subject to reservation of title in the customer's possession, or have them recovered, or that we can recover the new property in customer's possession in the sense of paragraph 2 above, provided we are the sole owners.
The demand for the recovery of the delivery item/the new goods shall not be construed as withdrawal from contract, unless we declare this explicitly.
In order to enable us carry out these measures and to generally inspect the goods subject to reservation of title or the new property, the customer shall allow us or any persons commissioned to do so access to his premises.
14. When putting the chains into operation and using them, our assembly and operating instructions shall be observed. They can be downloaded from the Internet. We also make reference to the safety regulations, especially DIN standard 685, Part 5, AWF 24, as well as the accident prevention regulations of the Trade Association (such as VBG 9a „Load-absorbing appliances during hoisting operations“ and the safety instructions [“ Sicherheits-lehrbrief ”] for strikers operating hoisting equipment). The statutory regulations shall also be observed.
Article 10 Final provisions
1. The legal relations between the contracting parties shall be governed exclusively by German law with the recourse to the international private law and the United Nations Convention on Contracts for the International Sale of Goods (CISG) being excluded.
2. The place of jurisdiction for all disputes arising from this contract shall only be the court that is responsible for our head office, if the customer is a merchant, a legal entity of the public law or a special fund under the public law. We shall also be entitled to bring action at the place of the customer's head office. This shall also apply, if the customer has no general place of jurisdiction in Germany , or if his place of residence or his whereabouts are unknown at the time of filing the suit.
3. The place of performance shall be D-59423 Unna.
4. Should individual provisions of the contract with the customer or of these General Terms & Conditions, partly or wholly, be or become ineffective, the validity of the remaining provisions hereof shall in no way be affected. The provision which may be wholly or partly ineffective shall be replaced by relative provisions coming as close as possible to the commercial purpose of the ineffective one(s).
5. The assignment of rights and duties of the customer arising from the contract concluded with us shall require our written approval, in order to become effective.
Data protection clause
We shall be entitled to store personal data about the customer in an automatic data processing system in accordance with the Federal Data Protection Act.