All contracts concluded with us for deliveries and services shall be based on these terms and conditions. They are a legally binding part of the contract for our entire business relationship and are recognised as binding by the customer when the order is placed. No verbal ancillary agreements were made.
In commercial business transactions, different terms and conditions, deviations and verbal ancillary agreements shall only be effective if we have expressly confirmed them in writing or if they comply with mandatory law.
II. Offers and prices
Our offers are subject to change. Orders are only binding for us if they have been confirmed by us in writing. In the absence of such confirmation, an issued invoice shall confirm the binding nature of the order. Only our order confirmation defines the scope of the contractual performance.
Details in catalogues and price lists as well as illustrations, manufacturer part numbers, etc. are for illustrative purposes only, and are only to be deemed approximate. We reserve the right to make customary and/or insignificant deviations that do not impair usability and are reasonable for the customer.
We reserve the right of ownership and copyright to illustrations, drawings, calculations and other documents. This also applies to written documents that are designated as “confidential”. Customers require our express written consent before passing them on to third parties.
The prices valid on the day of delivery shall apply. Our prices are in € (EUR), unless otherwise stated, and do not include VAT.
We deliver ex warehouse in Porta Westfalica or ex works, not including packaging. Transportation is at the expense and risk of the customer, and the risk passes to the customer upon dispatch of the delivery. If the customer is a consumer, the risk is only transferred upon the handover to the customer. This applies regardless of the cost.
We choose the carrier and pack the goods appropriately for the type of transport. We fulfil any special requirements of customers after calculating the additional costs.
Insurance against transport damage is only taken out at the request and expense of the customer.
2. Delivery quantity
We reserve the right to deliver marginally over or under agreed quantities to the usual degree and/or to coordinate on packing units as well as partial deliveries, insofar as this is reasonable for the customer.
3. Delivery time
Delivery periods begin upon the conclusion of the contract and are only binding if they have been confirmed in writing. The delivery period shall be extended accordingly if the customer is late with or fails to fulfil any necessary and/or agreed cooperation on its part.
4. Delivery opportunity
Delivery periods shall also be extended in the event of industrial disputes as well as the occurrence of unforeseen obstacles beyond the seller’s control, such as delivery delays by an upstream supplier, traffic and operational disruptions, shortages of materials or energy, etc. Changes to the goods to be delivered and/or quantities initiated by the customer shall also result in a reasonable extension of the delivery period.
If the service is not available, we reserve the right to withdraw from the contract. If the customer is a consumer, this shall only apply if we have informed him immediately about the non-availability, and reimburse any consideration paid without delay.
As a rule, goods that have been duly ordered and delivered will not be taken back. In exceptional cases, which do however require our express written consent, we are prepared to take such goods back under the following conditions:
- The return shipment must be made “free domicile”, without any additional costs for us.
- The goods must be in a perfect condition suitable for sale.
- The invoice number and date on which the delivery was made must be stated.
- A deduction of 25% of the credit amount is made for goods inspection, storage and other administrative costs incurred by us.
- The return is settled exclusively with a credit note, to be offset against ongoing payments.
1. Payment terms and payment methods
Germany: Invoices to account customers are payable without deductions within 14 days of the invoice date.
International: Invoices to account customers are payable without deductions within 14 days of the invoice date. Otherwise, payments shall be made as cash in advance, cash against documents or with an irrevocable, confirmed and divisible letter of credit.
2. Payment default
If the customer is culpable for missing the payment deadline, late payment interest shall be charged at a rate of 5% above the applicable base interest rate pursuant to Section 247 of the German Civil Code (BGB), with the right to enforce further claims. For legal transactions not involving consumers, the interest rate shall be 8% above the base rate applicable at the time. If there are several overdue receivables, incoming payments shall be offset against the oldest receivable in each case.
If the customer defaults on a not insignificant part of the payments, if his cheques or bills of exchange are contested, or if the conditions for granting credit no longer apply, all of our receivables from him shall become due for immediate payment. This shall also include invoices originally deferred as well as bills of exchange or cheques falling due at a later date.
If the financial situation of the customer deteriorates considerably after the order has been placed, or if the customer’s credit unworthiness only becomes apparent after the contract has been concluded, we are entitled to refuse deliveries that have not yet been made, or to demand reasonable advance payments or securities if payment of the consideration is at risk.
3. Power to collect
Representatives are only entitled to accept payments with a special power of attorney.
V. Claims for defects and damages
The limitation period for material defects when selling newly manufactured goods is one year. If the customer is a consumer, the limitation period is two years. Complaints from a customer who is a trader shall only be considered if he has complied with his obligations to inspect and give notice of defects in respect of any deviation pursuant to Section 377 of the German Commercial Code (HGB). Such complaints must be received by us within eight days of receiving the goods. Hidden defects must be reported immediately they are detected.
There is no warranty for the sale of used goods; if the customer is a consumer, the limitation period for material defects is one year.
In the case of defects, the customer can primarily demand subsequent performance according to Section 439 BGB. We can choose between eliminating the defect and delivering a defect-free item if the customer is not a consumer.
If the customer has assembled the received goods and subsequently makes a claim for defects, we shall only be liable if the assembly was carried out professionally. The burden of proof and presentation in this context lies with the customer.
The customer may not make any claims for damages and reimbursement of expenses (hereinafter referred to as: claims for damages), irrespective of the legal grounds, in particular due to breach of duties arising from the contractual obligation and from tort.
This shall not apply in the event of mandatory liability, e.g. under the Product Liability Act, in cases of intent, gross negligence, injury to life, limb or health or breach of material contractual obligations. In the latter case, however, the claim for damages shall be limited to the foreseeable damage typical for the type of contract. With regard to installation and disassembly costs, claims for damages shall be limited to the corresponding rates in the DAT/Schwacke list.
The limitation period for these claims for damages follows the limitation period for material defect claims; the statutory provisions shall apply to claims for damages under the Product Liability Act.
Claims arising from transport damage must be made by the customer to the shipper and confirmed with a damage report. If insurance has been taken out, the insurance company must be notified immediately.
If the customer resells the newly manufactured item to a consumer as part of his commercial operations, and had to take this item back due to a defect, or if the consumer reduced the purchase price, the customer may demand compensation from us for the expenses incurred in relation to the consumer if the defect claimed by the consumer was already present when the risk passed to the customer.
VII. Retention of title
We retain title to all the delivered goods until payment is made in full. In legal transactions with traders, the retention of title shall also apply until all claims – including future and conditional claims – arising from the business relationship have been met.
The customer is not entitled to pledge goods that are subject to a retention of title, or to assign them as security. Any intervention by third parties in relation to these goods, in particular seizures, must be reported to us immediately.
The customer shall only be entitled to resell the goods in the ordinary course of business, and he must assign his claims from the resale to us. We hereby accept this assignment. We can revoke the authority to resell if the customer does not fulfil his contractual obligations properly.
If the goods are adapted or processed by the customer, the retention of title shall also extend to the entire new item. The customer shall acquire co-ownership corresponding to the ratio (fraction) of the value of his goods to that of the goods delivered by the seller.
If the value of all securities we hold exceeds the existing claims by more than 10% on a prolonged basis, we shall release the securities of our choice at the customer’s request.
VIII. Final provisions
Should individual provisions of these General Terms and Conditions be invalid, this shall not affect the validity of the remaining provisions. Within the framework of what is reasonable and in good faith, the contracting parties shall replace any invalid provision with a valid provision that has the same economic purpose, provided that this does not result in a significant change to the content of the contract. The same applies if a matter requiring regulation is not expressly regulated.
2. Applicable law
All contracts shall be governed by German law, taking INCOTERMS as amended into account.
3. Place of performance and jurisdiction
If the customer is a trader as defined in the HGB, or has no general place of jurisdiction in Germany, the following shall apply:
Place of performance for deliveries is Porta Westfalica. Place of performance for payments is Minden/Westphalia. The place of performance may contractually be agreed differently in accordance with the given applicable version of INCOTERMS.
The place of jurisdiction for all disputes arising from the contractual relationship, including proceedings relating to cheques, bills of exchange and documents, shall be the competent place of jurisdiction for the registered office of the seller. The seller may also bring an action before a court which has jurisdiction for the customer’s registered office or a branch office, also in the national capital when in foreign countries.
Valid from 1 July 2008
Schäferbarthold GmbH • 32457 Porta Westfalica