For our deliveries and services, also information, consultations and repairs, the following conditions apply Terms and conditions of the customer shall only apply if and insofar as we expressly acknowledge them in writing.
(2) Deviations and additions of the purchase contract on the part of the buyer are only effective with our express written confirmation;
(3) Data of our customers will be stored and processed by us as far as this is necessary for the proper handling of the business relationship.
II. Offer and contract
(1) All offers are not-binding The prior sale is reserved.
(2) Delivery periods are subject to correct and punctual self-delivery, unless the seller has promised binding delivery periods in writing.
(3) Sales prices shall only be deemed fixed prices if the Seller has agreed to them in writing.
(4) Samples and specimens are regarded as approximate examples of quality, dimensions and color.
(5) All information about our products, in particular the illustrations, drawings, weight, dimension and performance data contained in our offers and printed matter, are to be regarded as approximate average values. They are not warranted properties, but descriptions or markings of the goods. Unless limits for permissible deviations are expressly specified in the order confirmation and designated as such, deviations customary in the industry (manufacturing tolerances) are permissible in any case.
(1) The prices valid on the day of delivery in accordance with our price list shall apply unless a fixed price has been expressly agreed.
Invoice settlement by cheque or bill of exchange is on account of payment and requires the consent of the seller. Discount, bill charges and costs shall be borne by the purchaser.
(2) All prices are net prices without value added tax, which the customer has to pay in their respective legal amount.
The Seller shall be entitled to charge the Buyer, who is a merchant within the meaning of the German Commercial Code (HGB), interest from the due date and the Buyer, who is not a merchant, from the date of default in the amount of the credit costs to be paid by the Seller itself, but at least 5% above the base interest rate, in each case plus interest from the date of default add Tax. – We reserve the right to assert further claims for damages.
(3) Unless expressly agreed otherwise, the customer shall bear additional freight costs and special packaging costs, additional charges, public levies and customs duties in addition to the customary packaging.
In the event of payment difficulties on the part of the buyer, in particular also in the event of default in payment, cheque or bill protest, the seller shall be entitled to make further deliveries only against advance payment, to demand immediate payment of all outstanding invoice amounts – including deferred invoice amounts – and to demand cash payment or security against return of bills of exchange accepted on account of payment.
(4) In the case of orders and commissions which are not to be executed within 4 months of conclusion of the contract, we shall be entitled to invoice the prices valid on the day of delivery.
Invoices of the Seller shall be deemed accepted unless objected to in writing within 30 days of the invoice date. The seller will inform the buyer of this with each invoice.
(5) The buyer waives the assertion of a right of retention from earlier or other transactions of the current business relationship. The offsetting of counterclaims is only permissible to the extent that these have been acknowledged by the seller and are due for payment or have been legally established.
(6) With respect to a merchant within the meaning of the German Commercial Code (HGB), we shall be entitled to set off against such claims which he has against our parent, subsidiary, sister or other affiliated companies, even if the due date is different.
(1) Delivery periods (dates) shall commence on the date of our order confirmation, but not before all details of the order have been unambiguously clarified and any necessary certificates provided.
(2) For deliveries by the seller, the loading point is the place of performance; the buyer bears the risk upon delivery. Delivery shall be made to the agreed place; in the event of amended instructions, the buyer shall bear the costs.
(3) Industrial disputes or unforeseeable extraordinary events such as sovereign measures and traffic disruptions, etc. shall release the Seller from the obligation to deliver for the duration of their effects or, in the event of impossibility, in full.
(4) In the event of default in performance by the seller or impossibility of performance for which the seller is responsible, claims for damages by the buyer are excluded unless they are based on intent or gross negligence on the part of the seller, a legal representative or vicarious agent.
(5) We are entitled to make partial deliveries if these are reasonable for the customer.
(6) The export of our articles by the buyer requires our prior approval.
(7) If the delivery or order is delayed at the customer’s request, storage charges amounting to 0.5% of the invoice amount per month or part thereof may be charged, beginning one month after notification of readiness for delivery. This storage fee shall be limited to a maximum of 5 % unless it can be proven that higher costs have been incurred. The customer reserves the right to prove that less damage has been incurred.
(1) If we are not responsible for the return, we may reduce the credit by 10% of the costs incurred by us (storage/delivery) depending on the type and scope of the return. The customer reserves the right to prove that less damage has been incurred.
VI. Framework Agreements
(1) Framework and call-off orders oblige the customer to accept the total quantity on which the framework/call-off order is based.
(2) Insofar as no specific call dates arise from the contract, the entire quantity of the blanket order/batch order is to be called within 12 months.
(3) If the customer fails to comply with call-off dates, we shall be entitled to deliver and invoice the total quantity in full four weeks after written notification, with reference to the consequences of the omitted call-off. Our rights from a delay of the customer remain unaffected.
(1) Unless otherwise contractually agreed, payments shall be made in Euro and shall be free of postage and charges. Bills of exchange and cheques shall not be deemed payment until they have been honored and credited and shall be accepted without any obligation to present and protest in due time.
(2) Payments must be made within 10 days net, in each case from the invoice date, in the case of delivery by our Service & Support on delivery; we reserve the right to demand advance payment at our discretion. In the case of deliveries to fitness studios, advance payment is generally deemed to have been agreed.
(3) If payment periods are exceeded, we shall be entitled to charge interest at the respective bank rates for overdraft facilities, but at least 5% above the base rate of the European Central Bank. Each contracting party is entitled to prove another interest disadvantage. Claims in the event of default shall remain unaffected.
(4) The customer may only withhold payments or set them off against counterclaims if such counterclaims are undisputed or have been finally determined by a court of law.
(5) All our claims – including those from other contracts with the customer – shall become due immediately irrespective of the term of any accepted and credited bills of exchange in the event of default in payment, bill protest or suspension of payment by the customer or if we otherwise become aware of circumstances which give rise to justified and considerable doubts as to the customer’s solvency or creditworthiness. This shall also apply if these circumstances already existed on the part of the customer when the contract was concluded but were not known to us or had to be known to us. In all cases mentioned, we are also entitled to make outstanding deliveries only against advance payment or provision of security and, if the advance payment or provision of security is not made within two weeks, to withdraw from the contract without setting a new deadline. Further claims remain unaffected.
VIII. retention of title
(1) The delivered goods shall remain the property of the seller as reserved goods until payment of the purchase price and repayment of all claims arising from the business relationship and claims still arising in connection with the object of purchase. The inclusion of individual claims in a current account or the balancing and recognition thereof shall not cancel the retention of title. If, in connection with the payment of the purchase price by the buyer, a bill of exchange liability of the seller is established, the retention of title shall not expire before the payment of the bill of exchange by the buyer as drawer. If the buyer defaults on payment, the seller is entitled to take back the reserved goods after a reminder and the buyer is obliged to surrender them.
(2) If the reserved goods are processed by the Buyer into a new movable object, the processing shall be carried out for the Seller without the Seller being obliged to do so; the new object shall become the property of the Seller. In the event of processing together with goods not belonging to the Seller, the Seller shall acquire co-ownership of the new item in proportion to the value of the reserved goods to the other goods at the time of processing. If goods subject to retention of title are not combined with goods belonging to the seller in accordance with § 6 of the German Civil Code (BGB) § 974 of the German Civil Code, the Seller shall become co-owner in accordance with the statutory provisions. If the Seller acquires sole ownership by combining, mixing or blending, he hereby assigns co-ownership to the Seller in proportion to the value of the reserved goods to the other goods at the time of combining, mixing or blending. In such cases, the Buyer shall store the item owned or co-owned by the Seller, which shall also be deemed to be reserved goods within the meaning of the following provision, free of charge.
(3) If reserved goods are sold by the buyer, alone or together with goods not belonging to the seller, the buyer already now assigns the claims arising from the resale in the amount of the value of the reserved goods with all ancillary rights and rank before the rest; the seller accepts the assignment. The value of the reserved goods is the invoice amount of the seller plus the value of the reserved goods. a security surcharge of 10 %, which, however, shall not be taken into account if the rights of third parties conflict with it. If the resold reserved goods are co-owned by the Seller, the assignment of the claim shall extend to the amount which corresponds to the Seller’s share value of the co-ownership. 1 sentence 1 shall to the extended reservation of title; the assignment in advance in accordance with § 1 of the German Civil Code shall not apply. Abs. 3 sentences 1 and 3 shall also extend to the balance claim.
(4) The purchaser is only entitled and authorized to resell, use or install the reserved goods in the ordinary course of business and only subject to the proviso that the claim within the meaning is actually transferred to the seller. The purchaser is not entitled to dispose of the reserved goods in any other way, in particular by pledging them or assigning them as security.
(5) The seller authorizes the seller, subject to revocation, to collect the amounts due in accordance with § 3 of the German Commercial Code (HGB). Abs. 3 of the assigned receivables. The Seller shall not make use of its own right to collect as long as the Seller fulfils its payment obligations, also vis-à-vis third parties. At the Seller’s request, the Buyer shall name the debtors of the assigned claim and notify them of the assignment; the Seller shall also be entitled to notify the debtors of the assignment itself.
(6) Über die Zwangsvollstreckungsmaßnahmen Dritter in die Vorbehaltsware oder in die abgetretenen Forderungen hat der Käufer den Verkäufer unverzüglich unter Übergabe der für den Widerspruch notwendigen Unterlagen zu unterrichten.
(7) The right to resell, use or install the reserved goods and the authorization to collect the assigned claim shall lapse upon cessation of payments, application for or opening of insolvency proceedings in or out of court settlement proceedings; the authorization to collect shall also lapse in the event of a cheque or bill protest.
(8) If the value of the securities granted exceeds the claims by more than 20%, the seller shall be obliged to re-transfer or release the securities at his discretion. Upon redemption of all claims of the seller arising from the business relationship, ownership of the reserved goods and the assigned claims shall pass to the buyer.
IX. Warranty and obligation to give notice of defects
(1) The customer is obliged to carefully examine the delivered goods – even if samples or specimens have been sent beforehand – for completeness and correctness immediately upon arrival at his premises. The delivery shall be deemed approved if a notice of defect is not received in writing, by telex or by fax within 7 days of receipt of the goods at the place of destination or if the defect was not identifiable during a proper inspection, within 7 days of its discovery.
The obligations of §§ 377 and 378 of the German Commercial Code apply with the proviso that the purchaser, who is a merchant within the meaning of the German Commercial Code, must be notified in writing of all recognizable and all obvious defects, shortages or incorrect deliveries within 5 working days of delivery, but in any case before any processing or installation.
(2) Transport damage must be reported immediately to the Freight Forwarder/Service & Support; the notification obligations of the General German Freight Forwarding Conditions shall apply in this respect. In the case of delivery by rail, by vehicles of the commercial goods local and long-distance traffic or by other means of transport, the buyer must take care of the necessary formalities vis-à-vis the carrier; customary breakage and shrinkage cannot be objected to.
(3) In the event of a justified notice of defects, we shall, at our discretion, provide a warranty by repair or replacement delivery in the event of defects or the absence of a warranted characteristic of the delivered goods. If the repair or replacement delivery fails, the customer may demand a reduction of the purchase price or cancellation of the contract.
(4) For all other claims for damages to which the customer may be entitled due to or in connection with defects or lack of warranted characteristics of the delivered goods, irrespective of the legal basis, we shall only be liable in the case of intent and gross negligence, Section X shall apply.
However, this provision shall not apply to claims for damages due to consequential damage caused by a defect in the absence of a warranted characteristic if the warranted characteristic is intended to protect the customer against the risk of such damage; in this case too, however, we shall only be liable for the typical and foreseeable damage.
(5) A defect does not exist in the case of deviations of the delivered goods from the order confirmation which are customary in the industry. In the case of goods which have been sold as declassified or used material, the purchaser shall not be entitled to any claims on account of any defects.
(6) Our warranty shall lapse if reworking and modifications are carried out without prior consent or if parts not supplied by us/as well as spare parts are used.
(7) The prerequisite for the warranty is the fulfillment of the contractual obligations incumbent on the customer, in particular the agreed terms of payment.
(8) Further warranty claims are excluded.
X. limitation of liability
(1) In the event of a timely, justified notification of defects of defective goods within the meaning of § 377, 378 HGB (German Commercial Code), the buyer shall be entitled to warranty claims for one year excluding claims for damages. Warranted properties are to be expressly marked as warranties.
Claims for damages by the buyer arising from positive breach of contract, unlawful acts are excluded, unless they are based on intent or gross negligence on the part of the buyer, a legal representative or vicarious agent.
(2) All the above liability provisions shall also apply in the event that actions of the fitters and forwarders commissioned by us should have led to damage.
XI. Place of performance, place of jurisdiction and applicable law
(1) Place of performance for our deliveries is Bochum.
(2) If the prerequisites for a place of jurisdiction agreement pursuant to § 38 of the German Code of Civil Procedure are met, the place of jurisdiction for all claims of the contracting parties, including actions on bills of exchange and cheques, shall be our registered office.
(3) The law of the Federal Republic of Germany shall apply to all legal relationships between us and the customer. The UN Convention on Contracts for the International Sale of Goods (CISG) and any other intergovernmental agreements, even after their adoption into German law, shall not apply.
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