delivery and payment terms
1. Scope of the Conditions
1.1. Deliveries, services and offers are made exclusively on the basis of these terms and conditions. These terms and conditions are deemed to have been accepted upon receipt of the goods or service at the latest. Counter-confirmations by the purchaser with reference to his terms and conditions of business or purchase are hereby rejected.
1.2. Deviations from these terms and conditions are only valid if the supplier confirms them in writing.
1.3. These terms and conditions also apply to pending and imminent transactions, even if the supplier does not refer again to his delivery and payment terms.
1.4 They also apply to future transactions.
2. Offer, contractual obligation, written form
2.1. The supplier’s offers are non-binding and subject to change
2.2. Confirmation of acceptance and all orders require written or telex confirmation from the supplier to be legally effective. The same applies to assurances, modifications or ancillary agreements.
2.3. The written form requirement pursuant to clauses 1.2 or 2.2 can only be waived in writing.
2.4. The supplier reserves all ownership rights and copyrights to cost estimates, drawings and other documents; they may only be made accessible to third parties with the supplier's prior consent. Drawings and other documents relating to offers must be returned immediately upon request if the order is not placed with the supplier.
3. Weights, data, technical dimensions
We reserve the right to make deviations due to improvements or model changes, which is why the weights or dimensions given are not binding. The technical data given are non-binding average empirical values.
4. Payment
4.1. The prices apply for new machines ex works, for used machines ex location, in each case excluding packaging and assembly. The only accessories included in the price and to be supplied are those listed in the supplier's confirmation.
4.2 Unless otherwise agreed, the Supplier’s invoices are payable and due without deduction 30 days after the invoice is issued, even in the event of refusal of acceptance.
4.3. The supplier is entitled, despite any contrary provisions of the customer, to initially offset payments against older debts. If costs and interest have already been incurred, the supplier is entitled to offset the payment first against the costs, then against the interest and finally against the main service.
4.4. Payment is only deemed to have been made when the supplier can dispose of the amount. Bills of exchange - only if they are eligible for discount - and cheques are only accepted as payment. The customer shall bear the discount and bank charges, which must be paid by the customer immediately after the supplier issues the invoice.
4.5. If the customer defaults on payment, the supplier is entitled to demand default interest of 5% above the respective base interest rate per annum. If the supplier is able to prove that the damage caused by the default is greater, he is entitled to claim this. The customer is, however, entitled to prove that the supplier has suffered no or significantly less damage as a result of the default in payment.
4.6. If the purchaser fails to meet his payment obligations or if the supplier becomes aware of other circumstances that call the purchaser's creditworthiness into question, the supplier can demand security for the entire purchase price or remuneration and set the purchaser a reasonable deadline for providing the security. After the deadline has expired, the supplier is entitled to withdraw from the contract or to refuse to fulfill the contract and to demand compensation for non-fulfillment.
4.7. The purchaser is only entitled to offset or withhold payment with regard to the supplier's purchase or work remuneration claim if the supplier has expressly agreed to this or if the counterclaims are undisputed or legally binding. Refusal of acceptance also does not entitle the purchaser to withhold payment.
5. Place of performance
The place of performance for all obligations arising from the contract is the registered office of the supplier. The place of performance is not changed by the fact that the supplier undertakes to ship the goods.
6. Performance (time), performance disruptions, delay
6.1. The deadlines and dates specified by the supplier are non-binding unless expressly agreed otherwise in writing. The customer can request the supplier in writing to deliver within a reasonable period of time 6 weeks after a non-binding delivery date or a non-binding delivery period has been exceeded. The supplier is only in default upon this reminder.
6.2. The supplier is not responsible for any inability to deliver or perform due to force majeure and events that make delivery significantly more difficult or impossible for the supplier - this also includes subsequent difficulties in procuring materials, operational disruptions, strikes, lockouts, staff shortages, lack of means of transport, official orders, etc. - even if they occur at the supplier's suppliers or their subcontractors, even if binding deadlines and dates have been agreed. They entitle the supplier to postpone delivery or performance for the duration of the hindrance plus a reasonable start-up time, or to withdraw from the contract in whole or in part due to the part that has not yet been fulfilled.
6.3 If the hindrance lasts longer than three months, the customer shall be entitled, after granting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled.
6.4. If the supplier defaults, the customer is only entitled to withdraw if he sets a reasonable grace period in writing with the express declaration that he will refuse acceptance after this period has expired. The grace period must be at least 6 weeks if a binding deadline is exceeded and at least 3 weeks if notice of default is given in accordance with section 6.1. In the case of partial default, the right to withdraw only exists if partial fulfillment of the contract is of no interest to the customer.
6.5 The supplier is entitled to make partial deliveries.
7. Transfer of Risk, Insurance
7.1. Delivery is deemed to have been completed when the delivery item is ready for dispatch and this has been communicated to the customer. At this point in time, the risk passes to the customer, regardless of whether the delivery item is located at the supplier's headquarters or elsewhere.
7.2. Shipping is at the purchaser's expense and risk. If the purchaser has not given special shipping instructions, the supplier must arrange shipping at its own discretion. The risk of transport is always borne by the purchaser - even in the case of freight-free delivery using the supplier's own vehicles.
8. Warranty
8.1 Agents and travellers of the Supplier are not authorized to acknowledge any defects or claims for defects.
8.2. New machines
The supplier is liable for defects in the delivery, unless it is a lack of guaranteed properties, to the exclusion of all further claims as follows: The supplier is obliged to repair all parts free of charge that are defective as a result of a circumstance that occurred before the transfer of risk. If the supplier is late in making the repair, the customer is entitled to set a reasonable grace period in writing - usually at least 6 weeks - with the express declaration that he will withdraw after this period has expired. After the deadline has expired, the customer has the right to rescind the contract or to reduce the price. The same applies if the supplier cannot remedy the defect or if further attempts at repair are unreasonable for the customer. The customer has no further claims, in particular a claim for lost profits and compensation for indirect damage.
8.3. Exclusion of warranty
Liability for defects does not exist or is void
a) if the customer has not properly fulfilled his inspection and complaint obligations pursuant to Sections 377 and 378 of the German Commercial Code (HGB).
b) if the notification of defects was not made in writing.
c) if the delivery item has been handled incorrectly or carelessly, in particular if it has been subjected to excessive stress, or if unsuitable operating and lubricating agents, tools or replacement materials have been used.
d) if the Purchaser has made a change without the Supplier’s consent.
e) if the delivery item was not installed by a fitter from the manufacturer or a fitter from the supplier, unless the customer can prove that this neither caused the fault nor made it more difficult to rectify the fault. The above exclusion of liability does not apply if the cause of the damage is based on intent, gross negligence or a breach of a cardinal duty. If the supplier negligently breaches a cardinal duty, the obligation to pay compensation is limited to the foreseeable damage typical for the contract.
8.4. Used machines
Any warranty is excluded for used machines. Any agreements to the contrary require written confirmation from the supplier.
8.5. Guaranteed properties
The information provided by the supplier regarding the machines supplied is only guaranteed properties if it is expressly designated as such. If guaranteed properties are not present, a guarantee is provided in accordance with the statutory provisions. However, claims for damages are limited to the interest in performance.
8.6. Limitation period
The limitation period is 6 months, calculated from the transfer of risk. This period is a limitation period and also applies to claims for compensation for consequential claims for defects, provided that no claims are made for tortious acts. In the case of multi-shift operation, the limitation period is 3 months.
9. Total Liability
9.1. To the extent that our liability for damages is excluded or limited in accordance with Section 8.3, this also applies to all other claims, including claims based on negligence when concluding the contract, breach of secondary obligations, in particular claims arising from producer liability in accordance with Sections 823 et seq. of the German Commercial Code (HGB).
9.2. This provision in section 9.1 does not apply to claims pursuant to Section 1.4 of the Product Liability Act, nor to cases of inability or impossibility.
9.3 To the extent that our liability is excluded or limited, this also applies to the personal liability of our employees, workers, staff, representatives and vicarious agents.
9.4. The limitation period for claims between the supplier and the purchaser is governed by Section 8.6, unless claims arising from producer liability pursuant to Sections 823 et seq. of the German Commercial Code (HGB) are at issue.
10. Retention of title
10.1. The goods remain the property of the supplier until all of his current or future claims have been paid, regardless of the legal basis, and until all bills of exchange and cheques given to the supplier in payment have been redeemed. Even if the purchase price for specifically designated claims has been paid, if the customer chooses a type of financing by virtue of which the supplier receives the purchase price but remains liable - e.g. through joint liability from a bill of exchange - the property remains reserved. In the case of an ongoing invoice, the reserved property serves as security for the supplier's balance claim.
10.2. The retention of title also extends to tools, accessories and spare parts supplied. However, if these have been procured elsewhere at the purchaser's expense, the purchaser is entitled to remove them when exercising the retention of title.
10.3. To the extent that title is retained, the purchaser must insure the delivered items against any damage at his own expense.
10.4. If the customer combines the delivery item with another item, this is only done for a temporary purpose. Any processing is carried out for the supplier. If the customer combines, processes or mixes the items permanently, the supplier is entitled to co-ownership of the new item, in proportion to the invoice value of the reserved item to the final price of the new item. The co-ownership is considered to be reserved goods within the meaning of these conditions.
10.5. The customer not only expressly acknowledges, but also agrees with us that the reserved goods will only be connected to the land for a temporary purpose until the security purpose has been fulfilled in accordance with clause 10.1. The contracting parties agree that neither of them has the intention of connecting the reserved goods to the land for any other purpose than a temporary purpose before the security purpose has been fulfilled. The reserved goods connected to the land will therefore only become the property of the customer when the security purpose has been achieved in accordance with clause 10.1.
10.6. As long as the purchaser still owes money, he may not sell the goods delivered by the supplier, unless he has purchased them from the supplier for resale in his business operations and is not in default. In this case, the purchaser must reserve title to the goods until the purchaser has paid the supplier the purchase price in full. Resale on credit is only permitted if the purchaser's creditworthiness has been checked with the care of a prudent businessman.
10.7. The purchaser hereby assigns to the supplier any claims arising from the resale (including from bills of exchange and cheques) or any other legal basis (insurance, tort) in relation to the reserved goods in the amount of their invoice value. Supplier and purchaser agree that the bills of exchange given to the purchaser are the property of the supplier and that the purchaser holds them only for the supplier. The supplier authorises the purchaser to collect the assigned claims in his own name. At the supplier’s request, the purchaser will disclose the assignment and provide everyone with the necessary information and documents.
10.8. If third parties access the goods subject to retention of title, the customer will be informed of the supplier's ownership and will notify the supplier immediately. The customer will bear any costs and damages.
10.9 If the customer acts in breach of contract – in particular if payment is delayed – the supplier is entitled to take back the reserved goods at the customer’s expense or, if necessary, to demand assignment of the customer’s claims for return against third parties. The taking back or seizure of the reserved goods by the supplier does not constitute a withdrawal from the contract – unless the installment purchase law applies – unless the supplier has expressly declared this in writing. The seizure of the purchased item by the supplier always constitutes a withdrawal from the contract. After taking back the purchased item, the supplier is entitled to sell it; the proceeds from the sale are to be offset against the customer’s liabilities – less reasonable sales costs.
10.10. The supplier undertakes to release the securities to which he is entitled under the above provisions at his discretion to the extent that their value exceeds the claims to be secured by 10%, but with the proviso that, with the exception of deliveries in a genuine current account relationship, a release shall only be made for such deliveries or their replacement values which have themselves been fully paid for.
10.11. Der Besteller ist verpflichtet, während der Dauer des Eigentumsvorbehaltes die Ware auf seine Kosten instandzuhalten.
11. Lump sum compensation
If the customer cancels the contract or if the supplier can demand compensation for non-performance, the supplier is entitled - without prejudice to further claims - to compensation for the minimum damage amounting to 15% of the gross purchase price or gross wages. If the customer proves that the damage is less, only the lesser damage is to be reimbursed.
12. Applicable law, place of jurisdiction, partial correctness
12.1. These terms and conditions and the entire legal relationship between supplier and purchaser are governed by the laws of the Federal Republic of Germany. The application of the uniform laws of July 17, 1973 and the application of the uniform UN Convention on Contracts for the International Sale of Goods (CISG) are excluded.
12.2. To the extent permitted by law, the exclusive place of jurisdiction for all disputes arising from the contractual relationship is Detmold. This also applies to disputes in document, bill of exchange or check proceedings. The place of jurisdiction also applies to disputes arising indirectly from the contractual relationship.
12.3. Should a provision in these terms and conditions or a provision within the framework of the other agreements be or become invalid in whole or in part, this shall not affect the validity of all other provisions or agreements.
12.4. The Purchaser's rights arising from this relationship are not transferable without the Supplier's consent. The Supplier shall grant consent if the transfer is necessary for financing purposes.
13. Non-merchants
Clauses 1.3., 5., 8.5., 9.2. and 12.1 do not apply to non-merchants.