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.
1. 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. Subject to individual agreement to the contrary, all supplies shall occur “ex works” within the meaning of INCOTERMS 2020.
3. Exclusive legal venue and place of performance for all obligations resulting from the respective Contract 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 us and the Buyer is exclusively governed by German law.
4. 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 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 promptly report any defects and/or deficiencies in accordance with §§ 377, 378 of 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 always be granted the opportunity to supply products which correspond to the agreed specifications.
5.3. To the extent we are not prepared or unable to supply 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 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. Subject to the provisions below, any and all other claims of the Buyer – based upon whatever legal basis – shall be excluded. We shall not be liable for any damage which is not directly connected with the supplied product and in particular, we shall not be liable for loss of profit, loss of use and/or any other consequential damages. The foregoing limitation of our liability shall not apply to the extent that the damage is attributable to intentional behaviour or gross negligence or in cases of personal injury resulting in damage to life, health and/or body. The limitations and exclusions do furthermore not apply to the extent we have guaranteed certain specifications of the sold products or their usability. Furthermore, the foregoing limitation of liability shall not apply to damage which was caused by wilful and/or negligent breach of essential contractual obligations; to the extent that intentional behaviour or gross negligence is not attributable to us and to the extent we have not guaranteed certain specifications, our liability shall in all such cases be limited to the amount of damages which could typically be expected and foreseen.
5.5. We should not be liable for damages due to or caused by non-compliance with agreed delivery dates, if and to the extent that the cause for such delay is not our fault or that of our auxiliary persons (i. e. persons that we employ to fulfil our own contractual obligations). Our liability for delayed supply or failure to supply caused by acts or failure to act of our suppliers, shall only exist if, in the course of selecting our respective vicarious agents (i. e. persons that do not act on our behalf for the purpose of fulfilling our contractual obligations) and/or suppliers, we have been acting with gross negligence.
5.6. Any remediation claims shall be time-barred after twelve months following delivery. The foregoing shall not apply if compulsory law foresees longer periods of limitation.
5.7. Any liability in excess of the foregoing and including compensation of disbursements and consequential damages shall – irrespective of the legal basis of such claim – be excluded. Such exclusion shall not apply to claims based upon §§ 1 through 4 of the German Product Liability Law or other compulsory law applicable.
5.8. The foregoing clauses shall not be interpreted as shifting the burden of proof to the Buyer. To the extent our liability is excluded or limited, such exclusion and/or limitation shall also apply in favour of our employees, officers, directors, representatives, sub-contractors and auxiliary persons.