These conditions apply to all contracts, deliveries and other services, including advisory services. These override the purchasing conditions of the customer.
2.01. Quotations are always subject to confirmation. Orders will be considered as accepted if there is written confirmation from us or if they are completed immediately after the receipt of the order. In which case, the delivery note or the invoice acts as the confirmation of order. In the case of make and hold orders, the full specified amount is to be purchased by the agreed date.
If we are delivering on the basis of the manufacturer’s price list, our prices shall always refer to the current manufacturer’s price list, unless expressly agreed otherwise.
Any special prices that are agreed only apply to the order concerned and do not act as a precedent for future contracts.
2.02. If our sales staff make verbal agreements or give verbal promises which go beyond the contents of the written contract, this will always require written confirmation.
We are not bound by obvious errors, clerical or printing errors and miscalculations. The documents accompanying the quotation, e.g. pictures, drawings, calculations, weights and measurements are only approximations, unless agreed otherwise. Specifications (especially those regarding performance and usability of the products supplied, as well as DIN standards) only constitute a warranty of assured quality in terms of Section 459 para. 2 of the German Civil Code if we provide a written statement to this effect.
Verbal agreements from people who have the unlimited authority to represent us or have the authority to represent us, and who cannot be restricted externally, remain unaffected by the above terms.
2.03. Technical advice is provided according to the best of our knowledge and belief. Liability can only derive as a consequence, if this advice is part of our contractual agreement.
2.04. If we provide samples, these are regarded as specimens and not as samples in terms of Section 494 of the German Civil Code.
2.05. If we are aware of facts after a contract has been concluded, especially a default with the payment of previous deliveries, which according to best commercial judgement indicate a significant worsening of a financial situation, we have the right to require cash in advance or appropriate securities and in the case of refusal, to rescind from the contract. In this case, payment for partial deliveries shall become due with immediate effect.
3.01. If there is no specifically binding, written commitment from the senior management, delivery periods shall only be approximately agreed. They shall begin with the date of clarification of all technical and other details within the contract as well as the provision of the necessary documentation. They shall be extended by the period of time by which the purchaser is in default with contractual obligations, including any existing business connection from other contracts.
3.02. The expiry of specific delivery periods and dates does not free a customer who wishes to withdraw from a contract or requires compensation for damage, from setting a reasonable number of grace days (at least 14 days) for supplying the service or from declaring that he shall decline the service after the period has expired. This shall not apply if a period or a date for the service has been expressly indicated as binding.
3.03. Partial deliveries are permissible to a reasonable extent.
3.04. The right to carry our correct and punctual self-supply is always reserved.
3.05. The delivery period shall be extended (including if there is a default) in the event of force majeure and in the event of any unpredictable events which occur after the conclusion of the contract which we are not responsible for (these especially include operational disturbances, strikes, lock-outs or transport disturbances) and if these hindrances are proven to have considerable impact on our service or delivery. This shall also apply if these circumstances affect our suppliers or their subcontractors. We shall inform the purchaser at the beginning and the end of such hindrances as soon as possible. The purchaser may require us to provide a declaration of whether we are cancelling or whether we wish to deliver within a reasonable period of time. If we do not supply an immediate explanation, the purchaser has the right to withdraw.
3.06. We are not liable for defaults or failures to deliver (impossibility) which are caused by our suppliers. However, we will sign over any claims against the suppliers to the purchaser.
3.07. The purchaser retains the right to withdraw after the expiration of a reasonable deadline which has been set by us.
4.01. We shall select the dispatch route and method. The same applies to the packaging, which takes place in accordance with transport considerations, safety considerations and environmental considerations.
4.02. If dispatch is delayed, either through the wishes or the fault of the customer, the goods will be stored at the cost and risk of the customer. In this case, the ready-to-deliver notification shall the same as the dispatch notification. The invoice shall be immediately due for payment with the storage of goods.
4.03. In addition to this, as soon as the goods leave the warehouse, the risk is transferred to the buyer when they are handed over to a dispatcher or a hauler or, if they are delivered by the customer’s own lorry.
4.04. Gases are delivered in rental canisters, which will be returned when empty. If these, or at least the same kind of bottles are not returned, we have the right to invoice the purchaser for the costs that our supplier will pass onto us.
4.05. If we agree with the customer that they will give up the right to return, in return for a discount, the customer shall be obliged to dispose of the used packaging at an approved waste disposal site which offers a controlled disposal in line with the packaging regulations.
4.06. In terms of Section 4 para. 3 of the packaging regulations, no discount is granted for packaging which is excluded from the scope of this regulation (“contaminated packaging”). In addition, this cannot be returned.
5.01. Our prices are in Euros plus VAT.
5.02. If there is a considerable change to our costs, for example through a change in our suppliers’ pricing, we have the right to make an appropriate adjustment to our prices in the case of deliveries which are due to occur over four months after the contract has been concluded. The customer has the right to withdraw if the price is more than 10% higher.
5.03. Our payment terms are 30 days after the date of the invoice. This only applies if the purchaser is not overdue for payments of previous deliveries.
5.04. Payment by means of a cheque/bill of exchange always requires special agreement. Credit notes issued against bills of exchange and cheques in hand will be issued minus the expenses at the value on the day that we have access to the equivalent value.
5.05. Irrespective of the date that any received or credited bills of exchange mature, payment is due immediately if the terms of payment are not met or information is made known which indicates a significant worsening of a financial situation of the purchaser. In the latter case we have the right to make further deliveries conditional upon payment in advance or through the provision of appropriate securities.
5.06. Should the purchaser default in payment or fail to honour a bill of exchange, we have the right to take the goods back and if necessary, enter the premises of the purchaser and remove the goods. In addition to this, we can prohibit the additional disposal and the removal of the delivered goods. The redemption is not an annulment of the contract, unless the consumer credit act applies. In cases which fall under paragraphs 5.05. and 5.06. we may withdraw the direct debit mandate (para.6.04.) 6.04.) and demand payment in advance for outstanding deliveries. The purchaser can however, avert this, as well as the legal consequences named in para.5.06. 5.06. through the provision of security to the value of our claim for payment.
5.08. Interest on late payment is calculated at 5% above the base interest rate of the European Central Bank, plus VAT. This may be set higher or lower if we can provide evidence of a charge with a higher interest rate, or the purchaser can provide evidence of a lower charge.
5.09. Any offsetting against our claims is only permissible with counter-claims which are undisputed or established as legally binding. A right of retention based on earlier or other business transactions as part of the current business relationship cannot be asserted. Unilateral deductions for the disposal of packaging material are not permissible.
(6.01) We shall retain possession of the goods until full payment of the purchase price. We shall retain ownership of goods which the purchaser has received from us within the framework of their self-employed or commercial activity until all outstanding demands from the business relationship including future requirements which may arise (together with concurrent contracts or those to be concluded at a later date) have been settled. This also applies if individual or all claims are subsumed by us in a running account and the balance has been established and recognised.
If we establish purchaser’s liability on a bill of exchange in connection with the payment of the purchase price, the right to ownership shall apply until the redemption of the bill of exchange by the purchaser as the drawee.
6.02. The purchaser must immediately inform us of any possible third party access to the goods with a retention of title as well as assigned claims. The purchaser may only sell the unpaid goods as part of their usual course of business subject to ordinary sales conditions, provided that the receivables from the resale are transferred to us in accordance with points 6.03. to 6.04. The purchaser shall not be entitled to dispose of the goods in any other way.
6.03. The purchaser’s outstanding amounts from the resale must been assigned to us from the outset. They serve as collateral to the same extent as the withheld goods. If the withheld goods have been sold together with other goods which have not been supplied by us, the outstanding claim from the resale shall be assigned to us in proportion to the invoice value of our goods against the other sold goods.
6.04. The purchaser has the right to collect claims based on the resale of the withheld merchandise, unless we withdraw the direct debit mandate as mentioned in the cases in paragraph 5.07. If requested by us to do so, the purchaser is required to immediately inform their customers of the assignment to us, if we have not informed them ourselves, and to provide us with the necessary information and documentation that is required for the collection. The purchaser has no right to the further assignment of claims. An assignment on the basis of genuine factoring is subject to the notification of the factoring bank and the accounts which are held there and that the factoring receipts exceed the value of our secured claims. Payment of our claim is immediately due with the credit note of the factoring proceeds.
6.05. We agree to release the securities to which we are entitled if their value exceeds the claims to be secured (if they have not yet been settled) by 20%.
7.01. Notifications of any obvious and/or recognised defects, short deliveries or incorrect deliveries must be received in writing within 7 days, or at least before use or processing. In accordance with Sections 337, 378 of the German Commercial Code, any further obligations on the part of the merchant remain unaffected.
7.02. In the case of justified complaints we will choose to either remedy defective goods, delivery replacements or issue a credit note.
7.03. In order to correct defects, the purchaser shall, within reason and opportunity, allow us the necessary time to do this work and in particular, shall provide the faulty item or sample for our disposal. Otherwise the warranty shall not valid. If there is doubt about the justification for the complaint, we shall request the advice of our supplier first of all.
7.04. If we allow an appropriate deadline to lapse, without repairing the fault or delivering a replacement or, if it is impossible to rectify or deliver a replacement, or if we refuse to do so, the purchaser has the right to annul the contract (change) or request a reduction of purchase price (lessening)
7.05. No warranty shall be provided for damages which occur in the following circumstances: – inappropriate or improper use – failure to follow the manufacturer’s instructions, recommendations or directions for use – incorrect installation, commissioning, maintenance or repair which has not been carried out by us – incorrect storage or transport or other careless handling on the part of the purchaser or a third party – natural wear and tear.
7.06. If the product is lacks a guaranteed attribute at the time of the transfer of risk, the purchaser has the right to withdraw. Compensation for non-fulfilment due to consequential harm caused by a defect can only be claimed in so far as the warranty has the purpose of protection against the subsequent consequential harm caused by a defect.
8.01. Our liability is solely determined by the agreements set out in the above sections. Claims by the purchaser for damages arising from culpability in concluding the contract, infringement of ancillary contractual obligations and tort are excluded, unless they refer to gross fault on our part or one of our vicarious agents. If we breach material contractual obligations we are also liable for minor negligence. In this case our liability is, however, restricted to the replacement of predictable and typical damage. The statute of limitations for these claims expires one year after receipt of the goods / acceptance of the delivery by the purchaser.
8.02. Claims based on product liability legislation remain unaffected by the above regulations.
9.01. A redemption or exchange is only possible by prior written agreement. Otherwise, acceptance will not be honoured. Open packaging and goods which are no longer marketable are, in principle, excluded from redemption or exchange.
9.02. The level of any reimbursement for goods which are still reusable shall be determined by an evaluation of these goods and will be fixed by us according to reasonable discretion.
10.01. Troubleshooting can often be a lengthy process. Repair dates can, therefore, only be approximate, unless we have given a formal, binding confirmation for a certain date.
10.02. If an estimate is required before the commencement of repairs, this must be explicitly stated. The costs for the estimate must be reimbursed, even if the repairs are not commissioned.
10.03. Whether or not repairs are undertaken at our workshop or another workshop lies at our discretion.
10.04. The provisions in sections 7. and 8. correspondingly applicable to our warranty.
The purchaser is hereby informed that we shall process personal data gathered within the framework of the business relationship in line with the regulations of the Federal Data Protection Act.
12. PLACE OF FULFILLMENT, PLACE OF JURISDICTION, APPLICABLE LAW
12.01. The place of fulfilment and the exclusive place of jurisdiction for deliveries and payment (including actions arising from cheques and bills of exchange), as well as all occurring disputes, if the purchaser is a registered trader, legal entity or special fund under public law shall be the competent court for our head office. However, we also reserve the right to bring action against the purchaser at their court of jurisdiction.
12.02. This contractual terms are wholly subject to German law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.