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Terms of sale

  1. Area of application
  2. Our general terms and conditions are binding. They are applicable solely to the deliveries and performances to entrepreneurs according to § 310 paragraph 1 Federal Law Gazette.
    We do not accept contradictory or deviating conditions of the purchaser unless we have agreed in writing to their application in individual cases. We disagree by now with the inclusion of such conditions of the purchaser. Our general terms and conditions are also binding when we are informed about contradictory terms and conditions and execute unreserved the delivery to the purchaser.

  3. Offers and conclusion of contract
  4. 2.1. Our offers are not binding and without engagement. A contract can be achieved only with the consignment of an order confirmation to the purchaser. An order signed by the purchaser is a binding offer. We are authorized to accept this offer within two weeks by sending an order confirmation.
    2.2. Only orders in written form are valid. An order is regarded as valid when it is confirmed in writing on our part. Additional agreements by telephone or by word of mouth are only binding for us after the written confirmation. In order to observe the requirement of written form in this contract the transmission by fax or e-mail is adequate.
    2.3. For offers from stock we reserve for us the prior sale. Samples of every type and size, specimen, drawings and descriptions are only approximately binding in line with deviations customary in trade.
    2.4. Design changes due to technical progress in order to improve technically are reserved as far as the purchaser does not already assert his special interest in retaining a certain construction before the conclusion of the contract.

  5. Prices and cash discount agreements
  6. 3.1. All offers are without engagement and are valid ex Schnelldorf. The applicable list prices at the date of the conclusion of the contract are valid.
    3.2. Cash discount agreements, discounts or offers are separately applicable to every order. There is no commitment for follow-up orders.
    3.2. If after the conclusion of the contract occur cost increases that are due to price increases of our suppliers, to material price increases or to other measures such as import restrictions, tariff increases or energy crises that are not subject to the reach of our company, a reasonable price adjustment will be carried out not exceeding the emerged cost increase, if the delivery was not agreed within six weeks after the conclusion of contract. If the price increase is more than five per cent of the agreed price, so the buyer has the right to terminate the contract.

  7. Delivery time
  8. 4.1. The commencement of a delivery time that was promised on our part requires the clarification of all technical questions as well as the fulfilment of the contractual obligations of the buyer.
    4.2. The delivery time reasonably extends in case of measures within the scope of labour disputes, particularly in case of strike and lockout as well as when there are unforeseen obstacles that are beyond our sphere of influence, as far as such obstacles considerably and demonstrably influence the completion or the delivery of the delivery item. This is also valid if the circumstances occur with sub-suppliers.
    4.3. As far as there are no precise parameters on the part of the buyer, we choose the mode of dispatch. The delivery takes place for the account and the risk of the buyer.
    4.4. In case we fail to meet the obligation or we represent the impossibility of performance in case of slight negligence the owing claim the client is entitled to is limited according to the legal requirements regarding the foreseeable typical damage that occurs. Any damages in excess thereof are excluded, unless the delay is due to at least gross negligence on our part.
    4.5. Cancellation of contract or compensation due to non-fulfilment the buyer can claim only when having set an appropriate deadline in writing in advance.
    4.6. When selling goods that at the time of the conclusion of contract are not yet in our possession we reserve the right to supply ourselves orderly and timely provided that the circumstances that lead to delays of self-supply are not represented by us.
    4.7. If after the conclusion of the contract is evident that due to a substantial worsening of the financial condition of the orderer our right to claim a return service is at risk, we are entitled to deny the fulfilment of his performance until the orderer will have provided prepayment or a security deposit.
    4.8. If the orderer is in default of acceptance or violates other obligations to co-operate, we are entitled to claim after an unfruitful deadline a lump-sum compensation amounting to 20 per cent of the merchandise value without VAT. Both parties are subject to prove in individual cases a higher or lower damage. The risk of an incidental loss or an incidental deterioration of the delivery item passes over to the orderer at the moment he is in default of acceptance.

  9. Passing of risk
  10. The risk passes over to the orderer at the latest with the dispatch of the parts of the delivery.
    5.2. On request of the orderer we can take out a policy at his expense against theft, breakage, transport damage, fire damage and water damage as well as against other insurable risks.

  11. Reservation of proprietary rights
  12. 6.1. We reserve the property of the sales item until the receipt of all payments of the orderer regarding the sales contract or delivery contract. In case of behaviour contrary to the contract of the orderer, particularly in case of default of payment, we are entitled to take back the sales item. Taking back the sales item on our part does not mean a withdrawal from contract unless we have announced it expressly in writing. Attaching the sales item on our part always means a withdrawal from contract. After having taken back the sales item we are entitled to use it, the proceeds of sale is to be charged to the commitments of the orderer – less adequate exploitation costs.
    6.2.The orderer is obligated to treat the sales item carefully. In particular he is obligated to insure it sufficiently at his own expense at replacement value against fire damages, water damages and theft.
    6.3. In case of attachments or other interferences of third parties the orderer has to inform us immediately in writing so that we have the possibility to start proceedings according to § 771 ZPO. (ZPO = German Code of Civil Procedure)
    As far as the third party is not in the position to refund the judicial and extra judicial costs of the claim according to § 771 ZPO (ZPO = German Code of Civil Procedure), the orderer is responsible for the loss that occurred to us.
    6.4. The orderer is entitled to resell the object of sale within the regular course of business; he transfers to us with immediate effect, however, any outstanding accounts amounting to the grand total of the invoice (VAT included) of our claim that accrue from reselling it to his customers or third parties, this being independent of whether the object is sold without or after being processed. The customer remains authorized to collect this debt even after transfer.
    Our authority to collect this debt remains hereof unaffected. We undertake, however, not to collect the debt as long as the customer performs his duty to pay from the collected revenues, there is no delay in paying the debt and in particular that there is no application to insolvency proceedings or settlement proceedings are opened or he discontinues payments.
    If this, however, is the case, we can demand that the customer communicates to us the assigned claims and his debtors, all details that are necessary for the cashing and gives the respective documents and communicates the assignment to the debtors (third party).
    6.5. The handling or processing of the object of sale through the customer will be carried out for us at all times. In the case that the object of sale will be processed with other objects not belonging to us, so we get the co-ownership regarding the object of sale proportionately to the value of the object of sale toward the other processed objects at the time of processing. For the object that is produced through the processing applies the same as for the object of sale delivered conditionally.
    6.6. If the object of sale will be inseparably compounded with other objects not belonging to us, so we get the co-ownership of the new object proportionately to the value of the object of sale to the other mixed objects at the time of the mixing. If the mixing takes place in a manner that the object of the customer has to be regarded as main thing, it is considered as agreed that the customer transfers the co-ownership proportionately to us. The customer stores the wholly owned or co-ownership developed in this way for us.
    6.7. The customer also assigns to us the claims to guarantee our claims toward him that accrue through the connection with the object of sale with a property toward a third party.
    6.8. We commit to releasing the securities we are entitled to by request of the customer insofar as the realizable value of our securities does not exceed the claims that are to be guaranteed more than 20 per cent; the choice of the securities to be released is of our responsibility.

  13. Terms of payment
  14. 7.1. Unless otherwise specified in the order confirmation, the payments are due within 8 days after the date of invoice with 2 per cent discount or net within 30 days after the date of invoice.
    In case of default of payment of the customer we are entitled to demand for every reminder 7,50 Euro of dunning costs. The customer is subject to prove lower costs.
    7.3. The customer is entitled to set-off rights if his counterclaims are bindingly established, beyond dispute or accepted by us in writing. Furthermore he is only insofar entitled to exercise the right of lien as his counterclaim is based on the same contractual relationship.
    7.4. Payment by check or by note are only accepted on account of payment. Payment by note is subject to previous written agreement and excludes cash discount deduction.
    Encashment charges and discount are at the expense of the customer and are payable immediately. Till the encashment of the note or till the indemnity of our liabilities as drawer of the acceptor’s bills the merchandise comes under – also in case of processing – our prolonged reservation of title.
    7.5. In case of a payment by note is agreed the application of § 449 BGB (§ 449 Federal Law Gazette) with the proviso that the property is first transferred to the customer when not only the purchase price is paid but is also effective in law that we will not be subject to the note.

  15. Guarantee, rights in case of defects
  16. 8.1. The rights in case of defects of the customer imply that he has observed the obligations of examination and notice of non-conformity according to § 377 of the German Commercial Code. The obligation to examine includes the examination of the quantity and the type to which it belongs. The typical dimensions (external dimensions, internal diameter, height) must be examined as well as the type designation and the designation of our product (label “OMNIA”).
    8.2. As far as there is a defect of the object of sale for which we are responsible, we are entitled to choose firstly to repair it or to replace it. In case of repair we are committed to bear all necessary expenses for this purpose, particularly transport costs, infrastructure costs, labour costs and material costs that the object of sale has been brought to another place than the place of delivery.
    8.3. The warranty period is one year from the delivery of the merchandise.
    8.4. As condition of the merchandise in principle only the product specification of the manufacturer is valid. Public comments, promoting or advertising of the manufacturer do not represent a conventionary specification of the condition of the merchandise.
    8.5. The exclusion of deviations customary in a trade must be expressly agreed in writing. The same applies to warranties. Our specifications concerning the delivery item and object of services in our catalogues, brochures and price lists only represent descriptions, designations or standard values, as far as not otherwise agreed in the order confirmation. Insignificant, negligible deviations toward the catalogues or goods previously supplied are not considered as defects.
    8.6. The customer himself has to examine if the merchandise ordered at our company is suitable for the purposes he aims for. The unsuitable merchandise represents only a defect in case that we have confirmed to the customer the aptitude in writing.
    8.7. The wear of wearing parts in line with using it with care and attention does not represent a defect.
    8.8. If the customer gets a deficient assembly instruction we are only obligated to deliver an assembly instruction free from defects and this only in case the defect of the assembly instruction is opposed to the orderly assembly.
    8.11. In case our assembly instructions, installation instructions, sales instructions or maintenance instructions are not observed, changes on our products are carried out, parts are replaced or consumption items are used that do not correspond to the original specifications, the customer is entitled to claim only if he provides proof that the defect is not caused hereby but already with the transfer of risks.
    8.12. Warranties legally binding the customer does not get from our company. Manufacturer’s warranties shall remain unaffected.
    8.13. Notice of defects must be claimed immediately and in writing. Damages that are evident and suggest damages due to delivery also of the packaging as such must be communicated in writing upon receipt to the forwarder and the forwarding agency that has charged the delivery.

  17. Limitations of liability, joint liability
  18. 9.1. We are not responsible for, in particular not for claims of the customer to compensation of damages, irrespective of legal basis, in particular not for violation of obligations from the contractual obligations and unlawful act.
    9.2. This does not apply, unless liability is compulsory by law, in particular:
    - for own deliberate violation of obligations or violation of obligations due to gross negligence and deliberate violation of obligation or violation of obligations due to gross negligence of legal representatives or auxiliary persons and in case of fraudulent intent;
    - for the violation of fundamental contractual obligations and if it is impossible for the seller to meet his obligations, delay with firm deals or with obligatory delivery dates and serious violation of obligation;
    - if in case of violation of other obligations in line with § 241 paragraph 2 German Civil Code our performance cannot be expected any more to the customer;
    - in case of culpable injury to life, body and health also through legal representatives and auxiliary persons;
    - as far as we have furnished the warranty for the condition of our merchandise or the existing service provision or a procurement risk as well in case of a liability according to the Product Liability Act.
    9.3. „Essential contractual obligations“ are obligations safeguarding essential contractual legal positions of the customer, which are granted to the customer by contract with regard to its content and purpose; further, essential contractual duties are duties the fulfilment of which is required for the due execution of a contract and of the observance the customer relies on, and may rely on, regularly.
    9.4. In other cases we are responsible for all claims for damages or reimbursement of expenses directed towards us arising from this contract due to culpable violation of obligation, irrespective of legal basis, not in case of slight negligence.
    9.5. In case of preceding liability according to cipher 9.4. and a liability independent of default, in particular with initial impossibility and legal defects we are only responsible for the typically arising and foreseeable damage.
    9.7. A liability from assuming a procurement risk is only the case for us if we expressly have assumed the procurement risk “as assumption of the procurement risk” due to written agreement.
    9.8. The liability for indirect damages and indirect consequential damages is excluded as far we did not violate an essential contractual obligation or we, our managers or auxiliary persons are accused of a deliberate neglect of duty or a violation of duty through gross negligence.
    9.9. Unless otherwise agreed previously the liability is excluded.
    9.10. In case of advice we are only responsible if a special fee has been agreed in writing; unless a possible bad advice is based on an intentional action or action through gross negligence.
    9.11. If any infringement on the part of the customer (or any other person commissioned by him or acting on his behalf) against German VAT regulations or those of other EC states leads to us being held liable directly or indirectly for value-added tax payments, we may discharge this responsibility by payment to the relevant tax authority, without being obliged to check further. In case of such a payment we are entitled to charge to the customer the amount paid by us, together with interest at a rate of 2 percentage
    points above the current base rate, calculated from the date of our payment.

  19. Place of fulfilment, legal venue
  20. 10.1. To the extent that nothing to the contrary results from the order confirmation, the place of fulfilment is Schnelldorf.
    10.2. Exclusive legal venue is Ansbach. We are entitled to file suit, however, deviating from this at the customer’s headquarters

  21. Partial invalidity
  22. Should any particular clause within the contract with the customer, including these general terms and conditions or a regulation in accordance with other agreements between the customer and our company become totally or partially invalid, the remaining terms are unaffected.

  23. Applicable law
  24. Any legal relations are governed by the law of Germany to the exclusion of the UN Convention of Contracts for the International Sale of Goods as well as legal conventions of other countries.

  25. Data protection
  26. According to § 33 Federal Data Protection Act we are entitled to store, send and/or process the data of the customer.