General Terms and Conditions of
26135 Oldenburg (Oldb.)
I. Scope of application
1. The following terms and conditions of sale, delivery and payment shall apply to all contracts, deliveries and other services, including consulting services and information. They also apply to all future contracts of the customer with us as well as to future deliveries and other services to be rendered to him including consulting services and information.
2. The contract is concluded exclusively under the following conditions. Deviating general terms and conditions of the customer shall not become part of the contract even if we have not expressly objected to them. Deviating general terms and conditions of the customer shall only become part of the contract if and to the extent that we have expressly agreed to their validity in writing.
3. Individual agreements made in individual cases with the customer (including collateral agreements, supplements and amendments) shall in any case take precedence over these General Terms and Conditions. Subject to proof to the contrary, the content of such agreements shall be governed by a written contract or our written confirmation.
II. Conclusion of contract
1. Orders to us, contract amendments and supplements as well as collateral agreements must be made in writing. Orders placed by telephone or in any form other than written form shall be deemed accepted if the conclusion of the contract is confirmed by us in writing by order confirmation. The order of the goods by the customer shall be deemed a binding contractual offer. Unless otherwise stated in the order, we shall be entitled to accept this contractual offer within two weeks by means of a written order confirmation.
2. The information contained in brochures, catalogues, advertisements and price lists or in the documents belonging to an offer, drawings, illustrations, samples, technical data and other technical data as well as recommendations for use are non-binding. Data, drawings, illustrations, samples, technical data and other technical data shall only become part of the contract if and insofar as they have been expressly and bindingly confirmed by us. Only a quality of the subject matter of the contract which is expressly designated as a guaranteed quality in the order confirmation shall be deemed a guaranteed quality.
3. The customer must inspect the goods immediately after delivery by us or by the company commissioned with the transport. The recommendations for use made by us, information on application, use and processing by us are non-binding and do not release the customer from his obligation to inspect the goods for their suitability for the purpose intended by the customer.
4. We reserve all property rights and copyrights to illustrations, drawings, samples and other documents. They may not be used for purposes other than those provided for in the contract and may not be made accessible to third parties without our express consent.
1. Our prices and offers are subject to change and non-binding. Prices contained in catalogues, brochures or offers are net prices plus VAT. The prices quoted are ex works excluding packaging, freight and insurance costs as well as all incidental costs incurred, in particular customs duties, taxes and levies on imports and exports. Upon invoicing, the prices per packing unit shall be rounded to full cents and multiplied by the order quantity.
2. If the agreed delivery period is longer than four months from order placement, we shall be entitled to charge the prices in accordance with our price list valid on the day of delivery. If a delivery on call has been agreed, we reserve the right to adjust the agreed prices in accordance with the changed development of market prices for comparable goods at the time of the call or the increased production costs incurred
by us at the time of the call. At the customer’s request, we shall substantiate the factors of increase.
1. Our invoices are payable within 21 days after invoicing without deduction. You can make payments by direct debit, EC/Maestro or credit card, PayPal or on account. If a SEPA Basic Mandate / SEPA Company Mandate has been issued, the direct debit will be collected 10 days after the invoice date. The customer agrees to shorten the period for pre-notification to 5 days. The customer assures an appropriate account coverage. Costs incurred by us due to non-redemption or chargeback of the direct debit shall be borne by the customer as long as the non-redemption or chargeback is the responsibility of the customer. However, we are entitled at any time, even within the framework of an ongoing business relationship, to make a delivery in whole or in part only against advance payment. We declare a corresponding reservation at the latest with the order confirmation.
2. The customer shall be in default of payment upon receipt of the first reminder, but no later than 21 days after the due date and receipt of an invoice or equivalent payment statement. In the event of default, we shall be entitled to interest on arrears in accordance with § 288 BGB (German Civil Code) from the commencement of the default, subject to proof of higher damage caused by default.
3. The customer shall only be entitled to set-off or retention rights to the extent that his underlying claim is legally established or undisputed or this claim of the customer against us is based on the same contractual relationship as our claim against the customer.
V. Deliveries and Default
1. We reserve the right to make customary deviations from the quantities and dimensions stated in the order confirmation and such deviations do not entitle the customer to give notice of defects.
2. Our obligation to deliver is subject to the complete, timely and correct delivery of our suppliers and the customer to us.
3. We shall be entitled to make partial deliveries which are reasonable for the customer.
4. We shall state the expected delivery period on our order confirmations. The stated delivery periods shall be extended appropriately in the event of unforeseen events beyond our control, in particular force majeure, industrial disputes with strikes or lock-outs, shortages of raw materials, operational disruptions, delays in the delivery of raw materials, irrespective of whether these obstacles occur at our premises or at those of our suppliers.
Compliance with the delivery period or the agreed delivery time presupposes that the customer has fulfilled all his obligations, in particular the provision of necessary official certificates or permits or the performance of an agreed payment.
The delivery period shall be deemed to have been met if the goods have been handed over to the customer or, in the case of agreed dispatch of the goods, to the company commissioned with the transport, or if the customer has been notified that the goods are ready for collection by him at our works.
5. Deliveries shall always be made ex works. The risk of accidental loss and accidental deterioration shall pass to the customer upon the goods being made available for collection at the works location and the customer being notified that they are ready for collection.
If the goods are dispatched to another location at the customer’s request, the risk of accidental loss and accidental deterioration shall pass to the customer when the goods are handed over to the company commissioned with the transport.
This shall also apply if and to the extent that we are entitled to make partial deliveries to the customer.
6. In the case of an agreed delivery on call, the customer is obliged to accept the goods within 14 working days after we have notified the customer that the goods are ready for call, otherwise no later than the expiry of the agreed call period.
7. If the goods are not accepted by the customer in due time, we shall be entitled to deposit the goods in a public warehouse or in any other safe manner at the risk and expense of the customer.
8. If we are unable to meet binding delivery deadlines for reasons for which we are not responsible (non-availability of performance), we shall inform the customer thereof without delay and at the same time inform the customer of the expected new delivery deadline. If the performance is also not available within the new delivery period, we shall be entitled to rescind the contract in whole or in part; we shall immediately reimburse any consideration already rendered by the customer. The case of non-availability of the service in this sense shall include in particular the failure of our suppliers or the customer to deliver to us on time if we have concluded a congruent hedging transaction, if neither we nor our suppliers are at fault or if we are not obliged to procure in individual cases.
9. The occurrence of our delay in delivery shall be determined in accordance with the statutory provisions. In any case, however, a reminder by the customer is required. If we are in default of delivery, the customer may demand lump-sum compensation for the damage caused by the delay. For each completed calendar week of delay, the lump-sum compensation shall amount to 0.5% of the net price (delivery value), but not more than a total of 5% of the delivery value of the goods delivered late. We reserve the right to prove that the customer has suffered no damage at all or only a significantly lower damage than the aforementioned lump sum.
10. The rights of the customer according to item VII and our statutory rights, in particular in the event of exclusion of the obligation to perform (e.g. due to impossibility or unreasonability of performance and/or subsequent performance), shall remain unaffected.
VI. Defects, warranty and statute of limitations
1.The basis of our liability for defects is above all the agreement reached on the quality of the goods. Product descriptions, details, drawings, illustrations, samples, technical specifications and other technical data shall only be deemed to be agreed quality if and insofar as they have been expressly and bindingly confirmed by us in the order confirmation.
2. If the quality has not been agreed, it shall be assessed according to the statutory provisions whether a defect exists or not (§ 434 Para. 1 S. 2 and 3 BGB, German Civil Code). However, we assume no liability for public statements made by the manufacturer or other third parties (e.g. advertising statements).
3. The claims for defects of the customer presuppose that he has fulfilled his legal obligations to examine and give notice of defects (§§ 377, 381 HGB, German Commercila Code). If a defect becomes apparent upon collection, delivery, inspection or at any later point in time, we must be notified of this immediately in writing. If the customer fails to inspect the goods immediately after they have been collected or delivered by us or by the company commissioned with the transport and if for this reason he fails to notify us immediately of a defect which can be detected during a dutiful inspection, the goods shall be deemed to have been approved. The goods shall also be deemed to have been approved if a defect is discovered later and the customer fails to notify us of the defect without delay. The timely dispatch of the notification shall suffice to preserve the rights of the customer.
4. If the delivered item is defective, we can first choose whether we provide supplementary performance by remedying the defect (subsequent improvement) or by delivering a defect-free item (replacement delivery). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected.
5. We shall be entitled to make the supplementary performance owed dependent on the customer paying the purchase price due. However, the customer shall be entitled to retain a reasonable part of the purchase price in proportion to the defect.
6. The customer must give us the time and opportunity necessary for the owed subsequent performance, in particular to hand over the rejected goods for inspection purposes. In the event of a replacement delivery, the customer must return the defective item to us in accordance with the statutory provisions. Subsequent performance shall include neither the removal of the defective item nor its reinstallation if we were originally not obliged to install it.
7. We shall bear or reimburse the expenses necessary for the purpose of testing and subsequent performance, in particular transport, travel, labour and material costs as well as any dismantling and installation costs, in accordance with the statutory provisions, if a defect actually exists. Otherwise, we may demand reimbursement from the customer for the costs incurred as a result of the unjustified request to remedy the defect (in particular testing and transport costs), unless the lack of defectiveness was not recognisable to the customer.
8. If the supplementary performance has failed or a reasonable period to be set by the customer for the supplementary performance has expired unsuccessfully or is dispensable according to the statutory provisions, the customer may withdraw from the purchase contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right of withdrawal.
9. Claims of the purchaser for damages or reimbursement of futile expenses shall only exist in the case of defects in accordance with Section VII and shall otherwise be excluded.
10. notwithstanding § 438 para. 1 no. 3 BGB (German Civil Code), the general limitation period for claims arising from material defects and defects of title shall be one year from collection by the customer or delivery by us or a transport company commissioned by us. If acceptance has been agreed, the limitation period shall commence upon acceptance.
11. Statutory special regulations regarding the limitation period (in particular § 438 para. 1 no. 1, para. 3, §§ 444, 445b BGB, German Civil Code) shall remain unaffected.
12. The aforementioned limitation periods of the German Sales Act shall also apply to contractual and non-contractual claims for damages by the customer based on a defect in the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB, German Civil Act) would lead to a shorter limitation period in individual cases. However, claims for damages on the part of the purchaser based on intent or gross negligence, as well as in the case of damages resulting from injury to life, limb or health and in accordance with the ProdHaftG (German Product Liability Act), shall become statute-barred exclusively in accordance with the statutory limitation periods..
1. Claims of the purchaser for damages are excluded. Excepted from this are claims for damages by the customer arising from injury to life, limb or health or from the breach of essential contractual obligations (cardinal obligations) as well as liability for other damages based on an intentional or grossly negligent breach of duty by us, our legal representatives or vicarious agents.
2. Essential contractual obligations are those whose fulfilment is essential for the proper performance of the contract and on whose observance the contractual partner regularly relies and could have relied under the circumstances of the conclusion of the contract. This includes in particular the obligation to deliver the delivery item on time, its freedom from defects of title as well as such material defects which impair its functionality or usability more than only insignificantly, as well as obligations to provide advice, protection and care which are intended to enable the customer to use the delivery item in accordance with the contract or are intended to protect the life and limb of the customer’s personnel or to protect the customer’s property from considerable damage.
3. If an essential contractual obligation is breached due to slight negligence, liability shall be limited to the foreseeable damage typical of the contract, unless the claims for damages of the Purchaser are based on injury to life, limb or health.
4. The aforementioned limitations of liability shall also apply to breaches of duty by or for the benefit of persons whose fault we are responsible for in accordance with statutory provisions. They shall not apply if we have fraudulently mistakenly assumed a defect or a guarantee for the quality of the goods and for claims of the customer under the ProdHaftG (German Product Liability Act).
VIII. Security rights
1. We retain title to the delivered goods until full settlement of all our current and future claims against the customer in connection with the delivered goods and arising from a current business relationship. This shall also apply if individual claims against the customer have been accepted by us in a current account and the balance has been struck and acknowledged.
2. Until revoked, the customer is entitled to resell and process the goods subject to retention of title in the ordinary course of business. We shall only revoke the authorisation in the event that the customer does not properly fulfil his contractual obligations towards us.
3. If the reserved goods are processed by the customer into a new movable object, the processing shall be carried out for us without our being obligated to do so; the new object shall become our property. In the event of processing together with goods not owned by us, we shall acquire co-ownership of the new item in proportion to the value of the reserved goods to the value of the other goods at the time of processing. If reserved goods are combined, mixed or blended with goods not owned by us in accordance with §§ 947, 948 BGB (German Civil Code), we shall acquire co-ownership in accordance with the statutory provisions. If the customer acquires sole ownership by combining, mixing or blending, he hereby transfers co-ownership to us in the proportion of the value of the reserved goods to the other goods at the time of combining, mixing or blending. In such cases, the customer shall store the goods owned or co-owned by us, which are deemed to be reserved goods within the meaning of the above provision, free of charge.
4. The customer hereby assigns to us all claims arising from the resale of the goods irrespective of whether the reserved goods were resold before or after processing or whether the reserved goods were combined or mixed with movable or immovable objects. If the reserved goods are resold after processing or together with other goods which are not our property, or if the reserved goods are combined or mixed with other movable or immovable objects, the customer’s claim against his customers shall be deemed assigned in the amount of the value of the reserved goods. We hereby accept the assignment.
The customer is entitled to collect the claims until we revoke the collection authorisation. We shall not revoke the collection authorisation and shall not make use of our own collection authorisation as long as the customer duly fulfils his contractual obligations – in particular payment obligations – also vis-à-vis third parties. Upon request, the customer shall name the debtors of the assigned claims and notify them of the assignment; we shall also be entitled to notify the debtors of the assignment ourselves.
5. The value of the reserved goods is the invoice amount plus 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 us, the assignment of the claim shall extend to the amount corresponding to our share in the co-ownership.
6. The purchaser is obliged to treat the goods with care, in particular he is obliged to insure them at his own risk against fire, water and theft at replacement value.
7. The customer must inform us immediately of any enforcement measures taken by third parties against the reserved goods or the assigned claims, handing over the documents necessary for the objection.
8. The right to resell, use or install the reserved goods and the authorisation to collect the assigned claims shall lapse upon cessation of payments, application for insolvency proceedings, judicial or extrajudicial composition proceedings; the authorisation to collect shall also lapse in the event of a cheque or bill protest. This shall not apply to the rights of the insolvency administrator.
9. We are entitled to demand appropriate securities for the proper fulfilment of the customer’s obligations. If the value of these securities exceeds the claims to be secured by more than 20%, we shall be obliged to retransfer or release securities of our choice.
We would like to point out that personal data will only be collected, stored and processed to the extent necessary to enter into the contractual relationship, to change it if necessary and to carry it out. A passing on of the stored data takes place only in the legally permissible framework. We would also like to point out that we are a member of a protection association for trade creditors, which includes various companies in the construction, metal, chemical and fastening technology sectors. In this respect, we are entitled to store data relating to the customer and to transmit them to the protection association for commercial creditors of which we are a member. Further details are governed by the data protection declaration provided by us and the data protection information. The aforementioned documents are attached to these General Terms and Conditions as attachments; in this respect reference is expressly made to them.
X. Jurisdiction agreement and choice of law
1. Place of performance for both parties to the contract is Oldenburg (Oldb.).
2. The exclusive – also international – place of jurisdiction for all direct and indirect disputes arising from the contractual relationship with the customer and for all disputes arising in connection with the contractual relationship with the customer shall be Oldenburg (Oldb.).
3. The law of the Federal Republic of Germany shall apply to these General Terms and Conditions and the contractual relations between us and the customer, to the exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG).
Status: Oktober 2020