I. Scope and Offer
- These General Terms of Delivery and Payment apply to all contracts we enter into, now or in the future, with entrepreneurs, legal entities under public law, and special funds under public law.
- Our offers are subject to change. Oral agreements and promises related to contract conclusion will be binding only if we confirm them in writing. No feature will be deemed promised or guaranteed unless we have expressly designated it as such in writing. The contract’s content will be governed by our written order confirmation and the conditions set forth here. If we make a written offer that includes a deadline and the ordering party accepts the offer on time, that offer and our conditions will become part of the contract’s content with no other formal requirements being necessary. Side agreements and amendments require our written confirmation.
- Although information such as dimensions, weight, illustrations, descriptions and drawings is optimally determined, it remains an approximation to which we will not be bound. Drawings and other documents will remain our property. Neither they nor cost estimates may be made available to third parties. We will retain the copyright to those documents.
II. Prices and payments
- Unless otherwise agreed, the prices from the price list valid at contract conclusion will apply.
- If fees or other third-party costs that are contained in the agreed price arise or change later than four weeks after contract conclusion, we may change the prices to a corresponding degree.
- We may raise the agreed price of quantities not yet delivered if a change in the economy or the raw materials market brings about circumstances that make manufacturing or purchasing the product in question much more expensive than at the time at which the price was agreed. If this occurs, the customer may cancel any orders affected by our price increase within four weeks of being notified thereof.
- Unless otherwise agreed, full payment will be due in Mönchengladbach 30 days or less after invoicing (with a 2% rebate if payment is received within 10 days after invoicing). In the event of payment default, we may charge default interest amounting to 9% above the basic rate of the European Central Bank. The assertion of further default damage remains reserved. We will accept cheques and bills of exchange only on account of payment; under reserve of their being finally credited; and with the right to return them if they are not; in addition, we accept bills of exchange only on prior written agreement. We will assume no liability for timely presentation or protest. If we learn that protests have been lodged against a bill of exchange or cheque in relation to the ordering party, or if after contract conclusion it becomes clear that our payment claim is jeopardised by that party’s inability to pay, we are entitled to the rights under § 321 of the German Civil Code, BGB (plea of uncertainty). We will also be entitled to make due for payment all non-time-barred claims under the ongoing business relationship with the ordering party. Otherwise, the plea of uncertainty extends to all additional outstanding deliveries and services from the business relationship with the ordering party.
- The ordering party may not withhold payment and may not set off our claims against any of its own counterclaims unless those counterclaims are uncontested by us or have become res judicata.
III. Delivery period
- Information about delivery periods is approximate. Any indicated delivery period will begin on the date of our written order confirmation, but not before the ordering party has given us all the documents, permits and releases, as well as all the information necessary to technically equip the delivery object, that the ordering party is obligated to procure.
- Our delivery obligations are subject to correct and timely internal supply, unless incorrect or delayed internal supply is our fault.
- A promised delivery period will be deemed complied with if before that period expires the delivery object has left our factory or we have notified the ordering party of the readiness for shipment.
- A promised delivery period will be reasonably extended if there are labour disputes, or if unforeseen events occur over which we have no influence (force majeure) and which are significant for the completion of the delivery object. This also applies if such events occur during an existing delay. To that end, it is irrelevant whether these circumstances affect us, the supplier’s factory, or an upstream supplier.
- If shipment is postponed at the ordering party’s request, we will charge them the monthly storage costs incurred, but at least 1⁄2% of the invoiced amount, beginning one month after we notify them of the readiness for shipment. We may also grant the ordering party a reasonable period during which to accept the delivery object; if that period expires to no avail, we may dispose of the delivery object by other means and deliver supplies to the ordering party within a reasonably extended time limit, perhaps for a price to be newly negotiated.
- If the ordering party fails to fulfil its contractual obligations, especially by making an agreed prepayment on time, delivery periods will not be complied with and this noncompliance will not entitle the ordering party to any claims.
IV. Transfer of risk; Acceptance
- Unless otherwise agreed, risk will be transferred to the ordering party as soon as the goods are handed over to the forwarding agent or freight carrier, but at the latest when they leave our factory or warehouse. This also applies if we have taken on other services such as shipment, paying the costs thereof, or delivery.
- If shipping is delayed by circumstances for which the ordering party is to blame, the risk will be transferred to that party as soon as it is notified of the readiness for shipment.
- We shall insure the delivered parts against theft; damage from burglary, transport, fire or water; and against other insurable risks at the ordering party’s expense, only if doing so is possible and reasonable, and only on the basis of a separate agreement.
- The ordering party shall accept delivered objects even if they feature immaterial defects, without prejudice to that party’s rights under Section VI..
- Excess or short deliveries are permissible within the following bounds, provided the price is adjusted accordingly: for ring travellers of steel, 10% or less; for ring travellers of nylon, 5% or less; and for rings, excess deliveries of 5% or less. We may make partial deliveries.
V. Retention of title
- We will retain the title to the delivered objects until all payments under the delivery contract, and all arrears that are outstanding on conclusion of that contract, have been paid. The retention of title will still apply if the claims are included in an ongoing invoice with a statement of balance. The retained title will hedge our claims from the account balance and will expire if the balance is paid.
- The ordering party shall insure our property at its expense, in accordance with the provisions of the country in which the delivery is made. If the law of the country in which the delivery object is located forbids the retention of title, but allows the supplier to retain other security rights to the delivery object, we may exercise all rights of that kind; the ordering party shall cooperate in these and other measures that we wish to take to ensure our claims or protect our property rights (or rights that replace those property rights). If the delivery object has not been fully paid for, the ordering party shall at its expense insure it against theft; damage from fire, burglary, or water; and other damage. If the ordering party fails to provide us with proof of such insurance coverage, we may at that party’s expense insure the object that has been delivered but not yet fully paid for.
- As long as we retain our title, the ordering party may neither pledge the delivery object nor transfer it by way of security; the ordering party shall inform us without undue delay of any distraints, confiscations, or any other rights of disposal by third parties.
- If the ordering party behaves in a manner contrary to the contract – especially by defaulting on payment – we may take the goods back after a warning has been given and the ordering party shall return them. We may exploit the delivery object at our discretion, including on the open market, and set off the proceeds: initially against the costs of that exploitation, then against our outstanding claims along with interest. Neither our assertion of the retention of title nor any distraint of the delivery object by us will be deemed withdrawal from the contract unless we have expressly declared this to be the case.
- The ordering party may sell the goods or process them further if considering the following provisions
a) The ordering party’s authorisation to process the retained goods during the ordinary course of business ends if that party’s payments are discontinued or insolvency proceedings are initiated against that party’s assets.
b) The retained goods will not become the ordering party’s property (in accordance with § 950 of the German Civil Code, “BGB ”) just because that party processes them. The processing will be deemed to have been performed on our behalf, but will not result in any liabilities for us. If the retained goods are processed along with other objects not belonging to us, we will acquire coownership of the new item in the ratio of the value of our retained goods to the total value of the goods.
c) The ordering party hereby assigns to us the claim arising from the further sale of the retained goods, along with all ancillary rights; the assignment will be proportionate if the goods have been processed, mixed, or combined and we have acquired co-ownership of the new item in the amount of our invoice value. In the latter case, we will be entitled to a corresponding fraction of the purchase price claim in question, in the ratio of the invoice value of our retained goods to the invoice value of the object. If the ordering party has sold the claim as part of genuine factoring, that party shall assign to us the claim against the factor that replaces the sold claim. We accept this transfer.
d) We will not collect the assigned claims as long as the ordering party complies with its payment obligations. The authorisation to collect will be forfeited if the ordering party defaults on payment. If this occurs, the ordering party authorises us to inform the buyer of the assignment and collect the receivables ourselves. The ordering party shall give us at our request an exact breakdown of the claims to which we are entitled, with names and addresses of the buyer, amount of the individual claim, invoice date, etc.; grant us all information necessary to assert the assigned claims; and allow us to review that information. The ordering party may itself collect the receivables as long as we give no different instructions.
e) We shall release the securities to which we are entitled insofar as their value exceeds the claims to be secured by more than 20%.
f) The ordering party shall store the retained goods for us at no charge. The ordering party hereby assigns to us the damage compensation claims to which it is entitled from damage of the aforementioned type, against insurance companies or other obligated parties, in the amount of those claims.
g) All claims and rights arising from the retention of title, to all special forms set forth in these conditions, will continue to exist until full release from contingent liabilities into which we have entered in the interest of the ordering party.
VI. Notice of defects; Statutory warranty
- The condition of the goods when risk is transferred will be deemed their contractual condition.
- If an inspection and acceptance procedure has been agreed, it may occur only in our factory or warehouse without undue delay after we announce that the goods are ready to undergo that procedure. After the ordering party has performed an agreed inspection and acceptance procedure, no notice of defects which could have been determined during that procedure may be submitted. If the inspection and acceptance procedure is not performed promptly, completely or at all, and we are not to blame, we may ship the goods without acceptance or store them at the ordering party’s expense and risk and bill that party.
- After receiving the delivery object, the ordering party shall inspect it without undue delay, using the degree of thoroughness to be reasonably expected of that party under the given circumstances. A written notice of the defects detected in so doing must be sent within a limitation period of two weeks. Material defects that could not be detected within this period even with the most diligent inspection must be reported in writing without undue delay after their discovery – any treatment and processing being discontinued – but before the agreed limitation periods expire.
- If a justified notice of defects is given on time, we shall provide supplementary performance either through replacement delivery or subsequent improvement, at our discretion. If we fail to successfully provide supplementary performance within a reasonable time period, the ordering party may grant us a reasonable grace period during which to do so, and may reduce the purchase price or withdraw from the contract if that period expires in vain. If the defect is not material, the ordering party may only reduce the price. Further claims, such as those to compensation for damages or for futile expenses, will exist only in accordance with item VII..
- If the ordering party fails to give us the time and opportunity to verify the defect and comply with our obligation under the warranty, especially if they fail to provide the contested goods or samples thereof on request, all warranty claims resulting from the specific defect of which notice has been given will be forfeited.
- Warranty claims become time-barred 12 months after the transfer of risk.
- The preceding provisions also apply to the delivery of goods other than the contractual merchandise.
- The ordering party’s rights of recourse against us under § 478 BGB are limited to the statutory extent of third-party defect claims asserted against the purchaser and assume that the ordering party has complied with its obligation to give us notice of defect under § 377 of the German Commercial Code (“HGB”).
VII. General limitation of liability; Limitation period
- If contractual or non-contractual obligations are breached, we shall be liable – including for our executive employees and other vicarious agents – only in cases of intent or gross negligence, and our liability will be limited to foreseeable damage which is typical of this type of contract.
These limitations do not apply to culpable breaches of material contractual obligations; if the attainment of the contractual purpose is jeopardised; in cases of mandatory liability in accordance with the Product Liability Act; to culpable injury of life, limb and health; and if and to the extent that we have fraudulently concealed defects in the item or guaranteed their absence. Further claims are excluded.
- All claims against us, regardless of legal grounds, will become time-barred 12 months after risk is transferred to the ordering party at the latest.
VIII. Applicable Law; Venue; Place of fulfilment
The laws of the Federal Republic of Germany will apply.
The application of the uniform UN sales law (Uniform Law on the International Sale of Goods and the Uniform Law on the Conclusion of International Sales Contracts for Goods) is excluded. The venue and place of fulfilment is Mönchengladbach. However, we may also file actions with the courts at the place where the ordering party has its registered office.
IX. Final provisions
The ordering party may not assign its contract rights to third parties without our consent. Finding individual provisions to be invalid will not invalidate the rest of the contract. Please note that we will process the ordering party’s data that concern our business transactions with that party, for the purposes of the Federal Data Protection Act.
R+F General Terms and Conditions as of: October 2019