General terms of sale, supply and payment
1. Scope of validity
Placement of an order - regardless of the form in which this is placed - is confirmation that the purchaser accepts our general terms of sale, supply and payment for the duration of the entire commercial relationship. These terms also apply to future transactions if they are not specifically enclosed once again with the individual order. General terms and conditions of the sales partner only apply to us if we have expressly confirmed this in writing. The unconditional supply of goods, services or other performance or the acceptance of payments does not indicate any acceptance of terms and conditions on our part, which contradict our terms of sale, supply and payment. These general terms of sale, supply and payment apply not only to the processing of sales transactions but are valid with respect to all contractual relations. The ordering party is only able to transfer entitlements arising from the contractual relationship to third parties with our written agreement.
2. Quotation and contractual conclusion
Offers made by us in brochures, catalogues, etc are always non-binding and subject to change. Order placement must always take place in writing, also by fax. Changes, amendments or ancillary agreements to this contract must be in writing in order to become effective. In the event of verbal order placement any transmission errors or misunderstandings shall be borne by the ordering party. If written confirmation has been issued by us then the scope of the order and its contents shall be governed by this document exclusively.
Unless otherwise agreed the prices listed in quotations, orders, order confirmations, brochures, catalogues, delivery notes and invoices apply ex Horstmar. They do not include packaging, freight, postage, value retention and the legally applicable sales tax. All prices quoted remain subject to change until the contract is agreed. Prices quoted by us only relate to the individual order. Follow-up orders are deemed to be new orders. If, up to the execution of the order, the wage or materials costs or the purchase prices of those goods procured by the vendor should rise then we reserve the right to adjust the prices accordingly.
Upon the vendor making the goods available at the agreed place of delivery, the risk passes to the buyer. The goods travel to the buyer - also in the event of any returns that are not attributable to a rightful complaint - at the cost and risk of the buyer, and in the event of a return the buyer must select an identical form of shipping to that which was selected for the initial dispatch. Furthermore, the buyer must also ensure that the goods are adequately insured. The same also applies to the shipping of the goods to a certain recipient as designated by the buyer, and in the event of post-paid deliveries. The buyer also bears the risk in the event of the goods being dispatched to the same location and with transportation in the form of the vendor’s own vehicles. If the buyer is a company and the goods are being shipped then the risk of accidental deterioration or destruction of the goods passes to the buyer with the handing over of the goods to the shipping company, freight carrier or any other person or organisation tasked with handling the freight. If the buyer is a consumer and the goods are being shipped then the risk of accidental deterioration or destruction of the goods passes to the buyer only once the goods have been delivered to the buyer. The transfer is also deemed to have taken place if the customer is delayed in accepting the goods. Unforeseeable, unavoidable and exceptional circumstances such as operational interruptions beyond the vendor’s control, strikes, lockouts and delays in material deliveries etc, relieve us in full of the delivery deadline for the duration of the effects and result in an appropriate extension to the delivery time or, in the event of delivery being impossible, release us fully from the contract. Quotations, drawings and other documents remain our property, even after dispatch. We reserve all associated copyrights. The documents must not be copied or made available to third parties without our written permission. The delivery period commences when we send our order confirmation, although not before we have received all of the necessary approvals and documents required for executing the order, or before all significant technical questions have been clarified. The buyer is able to withdraw from the contract if we experience a delay and an additional period of six weeks proves insufficient. Withdrawal is to be declared in writing and immediately upon occurrence of the associated grounds. Damage compensation due to delayed delivery or a failure to fulfil is excluded unless this is due to malice or gross negligence. The scope of damage compensation shall be limited to such damages as are foreseeable at the time of contractual agreement. Damages outwith the immediate scope shall not be compensated. The buyer is entitled to part deliveries and part performance at all times. The buyer’s right to withdraw from the entire contract in the event of legal prerequisites existing remains unaffected where partial contractual fulfilment is of no interest to him. If the buyer expresses the wish to return the goods for any reason that the vendor is not accountable for then a returns fee amounting to 15% shall fall payable. Custom goods and products produced to order cannot be returned. Products produced to order include those items in the following product groups: Roofing panels, wind deflection hoods, ventilation ceilings, wind protection nets, curtains and shaped fittings. The right to increased costs is reserved subject to verification. If the buyer does not accept the delivery in whole or part without justification then he shall bear any additional costs arising as a result of this. The vendor is entitled to demand immediate payment and to make alternative use of the delivery goods without affecting any further legal options, and to subsequently supply the buyer at the soonest possible time. Deliveries may exceed or undercut quoted quantities by up to 10%. Transport packaging and all other packaging according to the packaging ordinance are not taken back by us, with the exception of Euro pallets or our own multi-use elements. The buyer is obligated to bear the costs for disposing of the packaging.
5. Notification of defects
If the buyer is a company then, in the event of defects covered under warranty, we will choose to amend the defect through rectification or a replacement delivery. If the buyer is a consumer then he shall be permitted to choose between having the defect rectified or receiving a replacement delivery. However, we are entitled to decide against one form of supplementary warranty fulfilment if it is associated with disproportionate costs and if the other form of supplementary fulfilment is without significant disadvantage to the consumer and will not affect his use. If the attempted supplementary fulfilment is itself defective then the customer is able to choose between a price reduction (discount) or terminating the contract (withdrawal). However, where the customer has only incurred a minor infringement of the contract - in particular where the defects are only insubstantial - the customer is not entitled to withdraw. Companies must inform us in writing of apparent defects within 2 weeks of receiving the goods, otherwise the warranty entitlement shall be voided. Timely dispatch meets with this period. The company is wholly responsible for providing proof of all conditions of entitlement - in particular of the defect itself, the time of discovering the defect and the timely notification thereof. Consumers must inform us in writing of any apparent defect within two months of determining that the condition of the goods is contrary to the contract. Decisive for meeting with the notification deadline is its time of receipt by us. If the consumer does not inform us accordingly then the warranty entitlement is voided two months after the defect is discovered. The consumer is responsible for providing proof of the time of discovering the defect. If the consumer purchases the goods as a result of the manufacturer’s information being inaccurate then he is responsible for providing proof of the reason for purchase. In the case of used goods the consumer is responsible for providing proof of the goods being defective. If the customer opts for compensation following a failure to provide supplementary performance then the goods shall remain with the customer if this is reasonable. Compensation shall be limited to the difference between the purchase price and the value of the defective goods. For companies, the warranty period is one year from delivery of the goods. For consumers, the limitation period is two years from delivery of the goods. If the buyer is a company then the condition of the goods shall be deemed to have been agreed as per the manufacturer’s product description. Public statements, claims or advertising by the manufacturer and any further erroneous descriptions that are technically infeasible do not constitute contractual statements regarding the condition of the goods. If the customer receives defective assembly instructions then the manufacturer is only obliged to supply error-free instructions. Furthermore, this only applies if the erroneous assembly instructions impede correct assembly. The customer shall receive guarantees in the legal sense from us. Manufacturer’s guarantees remain unaffected.
The agreed conditions are specified on the invoice. A discount for early payment is only applicable where a separate written agreement exists and where payment takes place within eight days of the date on the invoice. Otherwise our invoices are payable within 20 days of the date on the invoice without deduction. In the event of payment arrears the buyer is obliged to add interest of 5% p.a. to the purchase price. If we are able to prove damages due to the arrears that exceed this sum then we are entitled to claim for these. All costs resulting from a late payment - such as reminder costs, collection charges and similar - shall be borne by the buyer. Every reminder of payments in arrears shall be charged at a cost of EUR 10. Where multiple arrears exist, part payments shall be offset against those arrears that offer the least security to the vendor, otherwise these shall be offset against the oldest arrears and where all arrears are of equal age then these shall be offset against the arrears proportionally. The buyer is not entitled to refuse to make payments or retain payments. If justified notifications of defects exist, part of the purchase price can be withheld where this reflects the value of the deficient performance. It is only possible to offset an undisputed or legitimate counterclaim against purchase price claims.
7. Credit checks and compensation for a failure to fulfil
If, following contractual agreement or after delivery of the goods, we become aware that the buyer is not creditworthy (e.g. application for insolvency, protest of bill, etc) then we are entitled to withdraw from the contract or to demand immediate payment for those goods delivered or advance payment of goods to be delivered, including cash cover of hypothetical bills or notes with a later payment date. If the vendor is entitled to demand compensation due to a failure to fulfil contractual obligations then 30% of the intended remuneration shall be agreed as lump-sum compensation. The same also applies if the vendor and buyer agree that the vendor is to take back goods from the buyer because the buyer is unable to make a payment when due, or at a later point in time. The vendor remains entitled to assert claims for damages that exceed this. The buyer is entitled to verify that damages have not been incurred, or that these have been incurred at value less than that of the lump sum.
8. Joint liability
In the event of minor negligence in relation to breaches of duty our liability is limited to foreseeable, contractually typical, direct average damages according to the type goods. This also applies to minor negligence in relation to breaches of duty on the part of our legal representatives and vicarious agents. We shall not be liable to companies for minor negligence in relation to inconsequential breaches of duty. Claims for compensation on the part of the customer as a result of a defect fall time barred after 1 year of the goods being delivered.
Our drafts, samples and similar are our intellectual property and shall not be copied or duplicated in any other way, even where no specified trademark rights exist. This also applies where drafts, samples, models, etc are provided exclusively within the framework of contractual negotiations and where no final contractual conclusion is agreed. Every infringement shall result in the buyer or interested party being liable to us for compensation of no less than the value of customary licence fees. Any further claims remain unaffected.
10. Retention of title
Once delivered, the goods remain our property until full payment of all receivables owing due to our commercial relationship - including all ancillary claims - has been made and until any cheques have cleared. The retention of title also covers future receivables unless complete payment of all sums owing is made in the meantime. In the event of balance drawing our agreed retention of title applies per the preceding condition as security for our receivables arising from the balance. With financing - regardless of the form that this takes - our retention of title remains intact without consideration of any accounted balancing until the final transaction is complete. The sale of goods under retention by the buyer is only permissible within the framework of orderly commercial transactions and where he is not in arrears. Assigning or pledging the goods under retention as security is impermissible. If the goods under retention at the buyer’s premises are seized or confiscated then we must be informed immediately and any documents required for the purpose of intervention are to be provided to us accordingly (original copy of seizure record, etc). Furthermore, the buyer is also obliged to object immediately to any party involved in seizing or confiscating the goods and to inform the same of our rights as the supplier. A failure to do so shall result in the buyer being liable for compensating us. The buyer is obliged to sufficiently insure the goods under retention at his own cost and to our benefit against loss or damage. The buyer transfers to us any insurance entitlements arising from the goods under retention with immediate effect and we hereby accept this transferral. Our retention of title also extends to any new items produced through modification, processing or combination, which are duly deemed to have been manufactured for us and over which we require ownership or co-ownership according to proportional value of the goods under retention at the time of the modification, processing or combination, without this requiring any separate legal negotiation and without us incurring any associated liabilities. The buyer transfers to us in advance his rights of ownership or co-ownership to the newly created item as well as any entitlements to payments from his customer arising due to the processing of the delivered items in accordance with the proportional value of the processed goods. We hereby accept this transfer. The buyer shall store the item subject to (co-)ownership free of charge. The buyer is entitled to obtain the receivables owed or owing to us as a result of these conditions on a trust basis, insofar as he meets with his payment conditions agreed with us in an orderly manner. Receivables owing to the buyer as a result of the sale of the goods under retention are transferred to the vendor, who hereby accepts the transfer. If co-ownership exists then the transfer shall be proportional to the share in the co-owned item. We undertake to release any securities available to us per our preference and according to the preceding conditions where their value exceeds the receivables for which they provide security by 25%. This applies under the condition that - with the exception of deliveries in actual current account transactions - in individual cases approval shall only take place for those deliveries that have been fully paid for. We are entitled to inform ourselves at all times of the inventory of our goods under retention and of assigned receivables by the buyer. On request, receipts and documents relating to this as held by the buyer shall be presented to us. The buyer is obliged to inform us of any access by third parties to goods under retention or assigned receivables with the submission of any documents necessary for objecting to enforcement measures. If the buyer is in payment arrears, does not meet with liabilities relating to the goods under retention despite reminders or experiences liquidity difficulties then the vendor can demand surrender and collect the object of purchase. The buyer herewith provides permission to access his premises for this purpose. All costs arising in this regard shall be borne by the buyer. Surrender does not equate to withdrawal from the contract. The terms of the German Instalment Purchase Act remain unaffected. The preceding conditions apply in equal measure in the event that we ourselves undertake modification, processing or combination.
11. Data storage
We are entitled to evaluate and store all relevant data in accordance with the Federal Data Protection Act.
12. Place of fulfilment and jurisdiction
The place of fulfilment of deliveries and payments and all other obligations arising from the contractual relationship for both parties is our place of domicile exclusively. The place of jurisdiction for all legal disputes arising from the contractual relationship and regarding its form and effectiveness, also for actions regarding dishonoured bills or cheques, shall be Steinfurt/Westphalia for both parties where the customer is fully commercial, or the place of domicile of the customer if we so choose. The accepted competent court also applies to any fully commercial customer whose place of domicile is abroad. Recipients from EU member states are obliged to reimburse us with compensation for damages arising due to the customer’s tax offences, where acquisition takes place within the community and after the 01.01.1993. This condition also applies where the customer fails to provide information or provides false details regarding his tax status (e.g. with regards to the “purchase limit” or the provision of a false ID number). The contractual relationship is subject to German law for both parties, to the exclusion of the UN convention on the international sale of goods.
If one of the preceding terms of sale, supply and payment should become ineffective then this shall not affect the validity of the remaining terms. The ineffective term shall be replaced in good faith with a term that is reliable and reflects the intentions of the previous term. When our general terms of supply and payment become effective this voids all previously agreed sales, supply and payment conditions. Any existing contracts shall be processed in accordance with the terms of the new terms of sales, supply and payment.
Status: March 2015