All of our supplies and services are subject to the following General Terms of Contract which shall apply to all future business with our customer (hereinafter: “Buyer”) even if there is no separate reference or agreement made which explicitly provides for the incorporation of these terms.
Unless we have explicitly confirmed that an offer made by us shall have binding effect, our offers are non-binding and subject to revocation until a contract has been concluded. An order received from a customer shall constitute a binding offer which shall result in a binding contract once we have confirmed acceptance of such offer within 14 days following receipt by way of an order confirmation or by advice of delivery.
2.1 Unless otherwise agreed in individual cases, all deliveries shall be made FCA within the meaning of INCOTERMS 2020.
2.2 The delivery of the goods ordered shall be subject to timely and proper compliance of Buyer with his obligations. We reserve the defence of non-fulfilment of the contract by Buyer. In case of delayed acceptance of the goods ordered as well as in case Buyer violates other duties of cooperation, we shall be entitled to compensation of damage or economical disadvantage resulting therefrom, including damages arising from increased costs and expenditures. Further claims for damages are reserved at any time. The rise of accidental loss or deterioration of the goods shall automatically pass to Buyer at the moment he is in default of accepting the goods, or when he fails to comply with obligations of cooperation.
2.3 If the contract provides that delivery of the goods shall occur later than six months following the date of our declaration of will to conclude the contract (offer or confirmation of Buyer’s order), and provided circumstances which have an impact upon prices of raw materials or prefabricated products have unforeseeably since then changed more than insignificantly, the dates for delivery and the agreed prices shall be adjusted moderately. Should Buyer refuse to agree to such adjustment, we shall be entitled to rescind the contract.
We shall not bear responsibility for delayed delivery or failure of delivery if and to the extent such delay or failure is attributable to force majeure or other events not foreseeable at the time when the contract came into effect (such as interruptions or disturbances of business operations, difficulties in sourcing raw materials and/or energy, delayed transport, war, circumstances or events similar to war, riots, labour strikes, legal lock-outs, lack of manpower, energy or raw materials, difficulties in obtaining public permits, pandemic, epidemic, public measures, lack of supply by sub-suppliers – provided we have timely and duly ordered such supplies). If and to the extent such circumstances or events do significantly impair or delay the delivery of goods or the provision of services by us or make it impossible to deliver goods or provide services not only temporarily (i. e. for more than three months), we have the right to rescind the contract unless Buyer agrees to an appropriate modification of the time for supply or services. In case of just temporary delays, the times and dates for delivery and services shall be postponed correspondingly plus an appropriate amount of time for the re-start of operations. If such postponement of delivery services is not reasonably acceptable for the Buyer, we shall be entitled to rescind the contract with undue delay by way of written notification.
We reserve title to the goods delivered until we have received full payment of the purchase price. The Buyer is entitled to resell the goods in the ordinary course of business. The Buyer, however, automatically assigns to us all receivables arising out of the resale of the goods to which title is reserved, to customers or other third parties, equal to the amount of the goods invoiced on which title is reserved. We hereby accept such assignment in advance.
5.1. Any rights and claims of Buyer based upon defects or deficiencies of the goods are effective only if the Buyer has observed his obligation to inspect the goods and to promptly report any defects and/or deficiencies in accordance with §§ 377of the German Commercial Code and/or Articles 38, 39 of the UN Convention on the International Sale of Goods.
5.2. Should the delivered products turn out to be defective, we shall – at our choice – always be granted the opportunity to supply products as replacement which correspond to the agreed specifications or eliminate the defect(s) by proper means, in particular by way of repair. Should replacement or repair be inacceptable for the Buyer taking replacement into regard all circumstances, he may reject our choice. Our right, however, to refuse replacement in accordance with applicable law, shall remain unaffected.
5.3. To the extent we are unable or not prepared to supply replacement goods free of defects and in accordance with agreed specifications, or if due to reasons attributable to us the time for such supply exceeds an appropriate term, or if the performance of such replacement supply fails for other reasons, the Buyer – at his discretion – is entitled to either rescind the contract or to claim an adequate reduction of the purchase price.
5.4. Any claims under legal warranty shall be time-barred after twelve months following delivery or, insofar as acceptance is required, following acceptance. The foregoing shall not apply as regards claims of Buyer resulting from violation of life, limb or health, or from intentional or grossly negligent violation of our duties by our representatives, officers, employees and/or vicarious agents (which are subject to limitation according to statutory requirements), or if compulsory law foresees longer periods of limitation.
5.5. The foregoing clauses shall not be interpreted as shifting the burden of proof to the Buyer.
6.1 Notwithstanding provisions to the contrary within these General Terms (including provisions following this section 6.1), we shall be liable for the violation of contractual as well as non-contractual obligations in accordance with applicable law.
We shall be liable for damages caused by intentional or grossly negligent act or failure to act, irrespective of the legal ground of such liability. In case of simple negligence and provided our liability for simple negligence is not excluded by immediate effect of law, we shall only be liable
a) for damage to life, limb or health,
b) for damage resulting from the breach of a material contractual obligation (a material obligation is an obligation the fulfilment ofwhich is essential for the proper and due performance of the contract and the compliance with which the other Party may expect and rely upon); in such case, however, our liability shall be limited to the amount or scope of damage that could have reasonably been foreseen by us at the time our first declaration of will intending to result in the contract (binding offer or order confirmation) was made.
6.3 The exclusions and limitations of liability resulting from Sect. 6.2 above shall also apply with respect to third parties as well as regarding the violation of obligations by persons (also in their favour) for whose behaviour we are liable under applicable law. The exclusions and limitations of liability shall not apply where we have concealed a defect we knew of or where we have guaranteed certain characteristics of the goods, as well as regarding claims that Buyer is entitled to under applicable product liability law or other mandatory legal provisions.
Exclusive legal venue and place of performance for all contractual and non-contractual obligations resulting from the respective Contract in connection therewith shall be Dortmund. We reserve the right to bring legal action against the Buyer before any court having jurisdiction over Buyer or the subject matter. The legal relationship between the Buyer and us is governed by German law. If Seller’s place of business or his branch issuing the order is outside Germany, the UN Convention on the International Sale of Goods (“CISG”) shall apply.