General Terms and Conditions of Sale and Delivery of the companies
END-Armaturen GmbH & Co. KG
Watergates GmbH & Co. KG
§ 1 General – Scope of Application
- These General Terms and Conditions of Sale and Delivery (hereinafter "Sales Conditions") shall apply to all goods and services delivered by us and to all our offers, to the exclusion of all other terms and conditions. These Sales Conditions form part of all agreements that we enter into with our customers in respect of the delivery of goods or services. They shall also apply to all our future deliveries of goods or services, or our future offers, even if not agreed again separately.
- We do not recognise any conditions of the Customer that oppose or deviate from our Sales Conditions, unless we have explicitly consented to their applicability. Our Sales Conditions shall also apply if we carry out the delivery to the Customer without reservations whilst being aware of any conditions of the Customer that oppose or deviate from our Sales Conditions.
- In the event of framework agreements and continuous obligations, any changes to the Sales Conditions will be communicated to the Customer in writing. They will be considered to have been approved if the Customer fails to object in writing within one month of having received such communication. We will draw specific attention to these consequences when communicating such changes.
- These Sales Conditions will only be effective if our Customer is an entrepreneur.
§ 2 Offer - Offer Documents
- All our offers shall be free of obligation and without binding to the extent that they are not expressly identified as being binding or they do not contain a certain term of acceptance.
- If the order qualifies as an offer in accordance with §145 BGB (German Civil Code), we will be able to accept it within 2 weeks.
- Our indications as to the goods or services delivered (e.g. weights, dimensions, usage values, load-bearing capacity, tolerances and technical specifications), as well as representations thereof (e.g. drawings and illustrations), only serve as a general reference, to the extent that the usability for the contractually agreed purpose does not require accurate compliance. They are not guaranteed characteristic features, but descriptions or identifications of the items or service delivered. Any deviations in accordance with normal business practice, and any changes pursuant to statutory provisions or that constitute technical improvements, as well as the replacing of parts by equivalent parts are permissible to the extent that they do not affect the applicability for the contractually intended purpose.
- We reserve proprietary rights and copyrights in illustrations, drawings, calculations and other such documents; they must not be made available to third parties. This shall apply specifically to such written documents identified as "confidential"; the Customer shall only make them available to third parties after having obtained our explicit permission in writing. Upon our request, the Customer shall return all such objects to us in their entirety and shall delete any copies made thereof if the Customer no longer needs them for its regular business operations or if negotiations do not lead to an agreement being concluded.
§ 3 Prices - Payment Conditions
- The prices are in EURO ex works, exclusive of packaging, statutory value-added tax, customs duty and charges in case of export shipments, as well as other public charges.
- To the extent that the order confirmation does not indicate otherwise, the purchase price shall be paid net (without any deduction) within 30 days of the date of the invoice.
- The Customer shall only be entitled to rights of set-off to the extent that its counterclaims have been duly established and are not contested by us or have been acknowledged by us. In addition, the Customer shall only be authorised to exercise its right of retention if and to the extent that its counterclaim is based on the same contractual relationship.
§ 4 Delivery Time
- Deliveries will be made ex works.
- Any dates or terms indicated by us for the delivery of goods or the provision of services shall always only apply as approximate dates, unless we have expressly committed ourselves to, or agreed, a fixed date or term. If and to the extent that shipping has been agreed, the delivery deadlines and periods shall concern the time of transfer to the carrier, driver or any other third party engaged in the transport.
- The start of the delivery time stated by us requires the clarification of all technical questions.
- Compliance with our obligation to deliver requires timely and proper compliance with the Customer's obligations.
- We will not be liable for any impossibility of delivery or for any delivery delays to the extent that they were caused by force majeure or by other events that are not our fault and that could not have been foreseen at the time of concluding the agreement (e.g. any type of business interruption, problems affecting the procurement of materials or energy, transport delays, strikes, legitimate lock-outs, a shortage of labour, energy or raw materials, problems obtaining the necessary official permits, government measures or failing, incorrect or late delivery by Suppliers). If and to the extent that such events make it significantly more difficult or impossible for us to deliver the goods or provide the service, and such impediment is not of a temporary nature, we shall have the right to cancel the Agreement. In the event of any obstacles of a temporary nature, the delivery or performance periods shall be extended or the delivery or performance dates shall be delayed by the period of the obstruction plus an appropriate starting period. If, and in so far as, due to the delay, the Customer cannot be expected to accept the item delivered or the service, it can cancel the Agreement by means of a prompt written statement to us.
- We are allowed to make partial deliveries if
• the Customer can use the partial delivery in the context of the contractually intended purpose,
• the delivery of the rest of the goods ordered has been guaranteed and;
• this does not lead to considerable extra expenses or costs for the Customer (unless we state that we are willing to take such costs for our own account).
- If we are in default with a delivery of products or the provision of services, or if delivering products or providing services becomes impossible for us due to any reason whatsoever, our liability for damages will be limited pursuant to § 8 of these Sales Conditions.
- In the event of delayed acceptance by the Customer or if the Customer violates any other duties to cooperate, we shall be entitled to demand compensation of any damage or loss we have incurred, including any additional expenditure. In this event, the risk of accidental loss or accidental deterioration of the item to be delivered shall transfer to the Customer at the moment when the Customer becomes in default as regards acceptance. In case of delayed acceptance, we shall have the right to charge fixed damages at a rate of 0.25% of the purchase price for the goods not accepted for every calendar day that acceptance is delayed, however to a maximum of 15% of the purchase price of the goods not accepted. The Customer may demonstrate that we did not incur any damage or loss at all or that the damage or loss we incurred was considerably less.
§ 5 Place of Performance, Shipping, Packaging, Risk Transfer, Acceptance
- The place of performance for all obligations arising from the contractual relationship is Bad Oeynhausen, to the extent that nothing to the contrary has been determined.
- The type of shipment and the packaging are subject to our due discretion.
- The risk will transfer to the Customer no later than at the moment when the item to be delivered is handed over to the carrier, lorry driver or any other third party engaged to carry out the shipment. Here, the start of the loading procedure is decisive. This shall also apply if we make partial deliveries or if we have also taken any other services (e.g. shipping) upon us.
- If acceptance is to take place, the item or service to be delivered shall be considered to have been accepted if
• the delivery and, to the extent that the installation is also our responsibility, the installation has been completed,
• we have communicated this to the Customer while referring to the assumed acceptance in accordance with this § 5 (4) and have requested the Customer to perform the acceptance,
• twelve working days have passed since the delivery or installation or the Customer has started to use the item delivered and, in the latter event, six working days have elapsed since the delivery or installation, and,
• the Customer has failed to take acceptance within this period for another reason than due to a defect notified to us which makes it impossible to use the item delivered or significantly affects such use.
- If and to the extent that the Customer so desires, we will take out transport insurance cover for the delivery; the associated costs will be for the Customer.
§ 6 Warranty for Defects
- The item delivered by us is covered by a warranty for defects which can be in the form of repairs or a replacement delivery, such to be decided at our discretion. In the event of repairs, we will be under the obligation to pay all costs required for remedying the defect, specifically transport, road, labour and material costs, to the extent that such costs are not increased by the fact that the item delivered has been taken to another location than the Customer's business establishment. We are not under any obligation to take over the cost of any possible disassembly and reassembly of faulty purchased goods.
- The items delivered shall be inspected carefully immediately upon their being delivered to the Customer or to the third party designated by the Customer. If we have not received any notification of defects in writing within seven working days of delivery as regards obvious defects or other defects which would have been noticed if a careful inspection was carried out immediately, the items shall be considered to have been approved by the Customer. As regards any other defects, the items delivered shall be considered to have been approved by the Customer if we have not received a notification of defects within seven working days from the time when the defect became noticeable; if, in the event of normal use, the defect would have been recognisable to the Customer at an earlier time, this earlier time will be considered to be the starting point of the term for the notification of defects. If we so request, any item delivered about which there is a complaint shall be sent back to us carriage paid. If any claims for defects are justified, we will compensate the costs of the most economic dispatch route; this shall not apply if and to the extent that the costs increase because the item delivered is located somewhere other than at the Customer's business establishment.
- The guarantee period is one year from the delivery of the item delivered or, if acceptance is required, from the date of acceptance.
- In principle, only our product description is considered to have been agreed as a characteristic of the item delivered. Any public statements, claims or advertising shall not constitute a contractual indication of any characteristics of the item delivered.
- If the Customer receives faulty installation instructions, we shall only be under the obligation to supply defect-free installation instructions, and this only if the defect in the installation instructions would negate proper assembly.
- The Customer does not get any warranties from us in a legal sense.
- In the event of defects to parts from other manufacturers that we cannot remedy due to license or factual reasons, we will - at our discretion - effectuate our warranty claims in respect of the manufacturers and suppliers at the Customer's expense, or assign them to the Customer. For such defects, any guarantee claims brought against us only exist subject to the further preconditions and pursuant to these Sales Conditions if the court enforcement of the claims referred to above against the producer and supplier did not bring any success or, for example due to insolvency, is pointless. The limitation period of the relevant warranty claims by the Customer in respect of us shall be suspended during such legal action.
- The warranty will be invalidated if the Customer changes the item delivered or has it changed by third parties without our permission and this makes remedying the defect impossible or unreasonably more difficult. In any event, the Customer shall pay for any extra costs of remedying defects caused by such change.
- If, in particular cases, delivery of used goods has been agreed with the Customer, such goods will be delivered subject to any and all warranties for defects being excluded.
§ 7 Proprietary Rights
- Pursuant to this § 7, we warrant that the item delivered is free from industrial property rights or copyrights of third parties. If any claims for violation of such rights have been brought against the notifying Party, either Party will immediately notify the other Party in writing.
- If the item delivered violates an industrial property right or a copyright of a third party, we will - at our discretion and at our own expense - change or replace the item delivered to the effect that no third-party rights are violated any longer and the item delivered still fulfils the contractually agreed functions, or we will provide the Customer with the usage right by entering into a license agreement. If we do not manage to do so within an appropriate period of time, the Customer will be authorised to cancel the Agreement or to reduce the purchase price proportionally and appropriately. Any claims for damages by the Customer shall be subject to the limitations of § 8 of these Sales Conditions.
- If any rights are violated by any products of other manufacturers that we have delivered, we will - at our discretion - assert our claims in respect of the manufacturers and their suppliers at the Customer's expense, or assign them to the Customer. Pursuant to this § 7, claims against us will only exist if the court enforcement of the claims referred to above against the producers and their suppliers did not bring any success or, for example due to insolvency, is pointless.
§ 8 Liability Limitations
- Our liability for damages, regardless of their legal basis, specifically due to impossibility, delay, defective or faulty delivery, breach of contract, breach of obligations on the occasion of contractual negotiations and wrongful acts, to the extent that it matters in these cases who is to blame, will be limited pursuant to this § 8.
- We will not be liable in the event of simple negligence on the part of our bodies, statutory representatives, employees or other vicarious agents, to the extent this does not concern a violation of obligations that are essential to the Agreement. Essential to the Agreement are the obligation of timely delivery and installation of the item delivered, its being free from defects that affect its functionality or suitability for use more severely than to an insignificant extent, as well as duties to give advice, protect and exercise proper care which should enable the Customer to make use of the item delivered in accordance with the agreement, or that serve to protect the Customer's personnel against physical or lethal injury or to protect their property against significant damage or loss.
- If and in so far as we are liable for damages on the grounds of and in accordance with § 8(2), such liability shall be limited to any damage or loss that we anticipated as a possible consequence of a breach of contract when concluding the agreement or that we should have anticipated by applying due care and attention. Direct damage or loss and consequential damage or loss resulting from defects to the item delivered shall also only be liable for compensation to the extent that such damage or loss can typically be expected when using the item delivered for its intended purpose.
- In the event of liability for ordinary negligence, our duty to pay damages for material damage or loss and any resulting further property loss shall be limited to an amount for every individual case of damage or loss that matches the relevant order volume, even if a breach of material contractual obligations is concerned. If the order volume is less than EUR 10,000, our liability will be limited to an amount of EUR 10,000.
- The above exclusions and limitations of liability apply to the same extent to the benefit of our bodies, statutory representatives, employees and other vicarious agents.
- To the extent that we give technical information or that we give advice and such information or advice are not part of the contractually agreed scope of delivery that we have to provide, such information or advice will be given for free and to the exclusion of all liability.
- The limitations of this § 8 shall not apply to our liability due to intentional action, to guaranteed characteristic features, any fatal or bodily injury or harm to people's health, or pursuant to the German Act on Product liability (Produkthaftungsgesetz).
§ 9 Reservation of Title
- The reservation of title agreed below serves to safeguard any and all of our existing and future claims on the Customer resulting from the delivery relationship (inclusive any balances due from a current account relationship limited to this delivery relationship) existing between the Parties.
- The item delivered to the Customer by us shall continue to be our property until full payment has been made of all claims safeguarded. The item delivered as well as the goods delivered are subject to reservation of title that takes the place of the item delivered in accordance with the following provisions that shall hereinafter be referred to as "reserved goods".
- If the customer acts in violation of the agreement and we cancel the Agreement, we will be entitled to demand that the reserved goods be returned.
- The Customer shall treat the reserved goods with care; it shall specifically be under the obligation to insure them adequately, at its own expense, at their original value, against damage or loss due to fire, water or theft. If any maintenance and inspection activities are required, the Customer shall implement them at its own expense and in good time.
- In the event of seizure or similar interventions by third parties, the Customer shall immediately notify us in writing, so that we can file an action pursuant to § 771 ZPO (German Civil Process Order). To the extent that the third party is not able to compensate us for the judicial or extra-judicial costs of an action in accordance with § 771 ZPO, the Customer shall be liable for any loss we may incur.
- The Customer shall have the right to resell the reserved goods as part of its regular business operations; it hereby assigns all accounts receivable up to the grand total of our invoices, including value-added tax, accrued by it from the resale against its clients or third parties, regardless of whether the reserved goods were resold without or after being processed. The Customer will continue to be authorized to collect the accounts receivable even after the assignment. This will be without prejudice to our authority to collect the accounts receivable ourselves. However, we undertake to not collect the accounts receivable for as long as the Customer fulfils its payment obligations from the revenues it receives, is not in default of payment, no application has been lodged to open insolvency proceedings, and no suspension of payments applies. However, if this is the case, we can demand that the Customer communicates the assigned accounts receivable and the corresponding debtors to us, provides all the information that is relevant for collection, submits the corresponding documents, and notifies the debtors (third parties) of the assignment.
- Any processing or conversion by the Customer of the goods delivered subject to reservation of title will always be done on our behalf and for our account. If goods which have made available under reservation of title are processed together with other objects not owned by us, we shall obtain the co-ownership of the new product on a pro rata basis of the value of the goods made available under reservation of title compared to the other objects processed at the time of processing. Furthermore, the goods that are the result of such processing shall be subject to the same conditions as the goods delivered under reservation of title.
- If goods which have made available under reservation of title are mixed inextricably with other objects not owned by us, we shall obtain the co-ownership of the new product on a pro rata basis of the value of the goods made available under reservation of title compared to the other objects mixed at the time of mixing. If the goods are mixed such that the Customer's product should be considered to be the main item, it shall be considered to have been agreed that the Customer has transferred the proportionate co-ownership to us. The Customer shall maintain the sole title or co-title thus accrued on our behalf.
- If the reserved goods are connected to a premises, the Customer shall also assign the accounts receivable to safeguard our claims in respect of the Customer, and which accrue in respect of a third party, to us.
- We undertake to release the collateral we are entitled to upon the Customer's request to the extent that our collateral exceeds the claims which it safeguards by more than 25%; it is up to us to select the collateral that will be released.
§ 10 Final Provisions
- Only the purchase contract entered into in writing, inclusive of these Sales Conditions, is authoritative for the legal relationships between the Parties. This contains a full presentation of all agreements between the Parties about the object of the Agreement. Any oral undertakings by us prior to the conclusion of this Agreement shall not have any legally binding effect and any oral agreements between the Parties shall be replaced by the written Agreement, unless the written Agreement explicitly shows that they continue to be effective. Amendments and changes to the agreements made, including these Sales Conditions, shall be laid down in writing, otherwise they will not have any legal effect. Except for any directors or people vested with general commercial power of representation, our employees are not authorised to make any oral agreements that deviate from these conditions. Transmission by means of telecommunication, specifically by fax or email, shall suffice in order to fulfil the requirement that amendments and changes to the agreements made shall be laid down in writing, provided that the copy of the signed statement is transmitted.
- German law shall apply. The provisions of the Vienna Sales Convention (CISG) shall not apply. In case of any contractual relationships with parties outside Germany, it shall be possible to send written statements in German.
- Any disputes resulting from this Agreement shall be adjudicated by the competent court in Bad Oeynhausen. However, we shall have the right to also bring an action against the Customer at their place of general jurisdiction.