GENERAL TERMS AND CONDITIONS OF BUSINESS
§ 1 Scope of application
Business transactions with our customers are based on these General Terms and Conditions; conflicting or deviating conditions are not binding on us, even if we have not expressly objected to them or have not carried out the delivery without complaint. At the latest upon acceptance of the goods or service, our General Terms and Conditions shall be deemed to have been agreed.
§ 2 Conclusion of contract
Our offers are non-binding; an order is only deemed accepted when we have confirmed it in writing or the order has been executed without confirmation. Information is always non-binding.
§ 3 Prices
Our prices are net prices. They are ex works or the shipping station specified by us (excluding packaging and shipping costs) plus the value added tax applicable on the day of delivery. The price valid on the day of delivery according to our price list shall be charged. Fixed prices require express written agreement.
We reserve the right to adjust the prices agreed in supply contracts in the event of price changes on the world markets for precious metals that occur between the time a customer order comes into being and the agreed delivery date after delivery or on invoicing in the corresponding amount.
Deviating from this, fixed prices for the precious metal shares shall only apply in the event of immediate advance payment of the agreed partial order amount.
§ 4 Scope of deliveries and services
We expressly reserve the right to make changes to the choice of material or production as long as the price and/or the essential functions and/or the delivery time are not changed.
§ 5 Delivery periods
Delivery dates and deadlines are only binding after express written confirmation. The buyer cannot assert claims for damages against us due to delayed or omitted delivery. The customer is obliged to provide all data, documents and other specifications required for the execution of the contract with the order, at the latest however immediately after order.
In the event of unforeseen, extraordinary and unavoidable events, in particular strikes and delayed self-supply, the delivery period shall be extended appropriately by the duration of the hindrance plus an appropriate period of grace or start-up time; or we shall have the right to withdraw from the contract due to the part not yet fulfilled.
The delivery period shall be deemed to have been met if the goods leave the specified dispatch station at the agreed time or if the customer is notified that the goods are ready for dispatch, but the goods cannot be dispatched on time through no fault of ours. The same applies to delivery dates.
§ 6 Transfer of risk, dispatch, packaging
The risk passes to the customer when the goods are handed over to the forwarding agent, carrier or other transport person, at the latest, however, when leaving our company. This also applies to deliveries free domicile or free construction site. Insurance of the goods against damage in transit – even in the case of partial deliveries – shall only be effected at the express written request and expense of the customer. If dispatch is delayed for reasons for which the customer is responsible, the customer shall bear the risk of accidental loss or accidental deterioration of the goods after a request for acceptance, from receipt of the request for acceptance.
Shipment is at the expense and risk of the customer; if no shipping instructions are given by the customer, we select the means of transport and the transport route at our discretion. The costs of packaging are calculated at cost price. Unless otherwise agreed, the packaging itself will not be taken back.
If we are responsible for transport damage, the customer is obliged to notify us in writing of the transport damage immediately upon receipt of the consignment.
§ 7 Acceptance, assumption
We reserve the right to make excess or short deliveries of a maximum of 5 % and for coordination with packaging units and partial deliveries.
The customer shall also be in default of acceptance if the delivery is merely offered to him by us in writing. 294 BGB is therefore waived. The further legal requirements for default of acceptance remain unaffected. In the event of default in acceptance, we may withdraw from the contract and/or claim damages.
In the case of delivery on call, the call within the agreed period represents a major obligation to perform, because of which we are entitled to withdraw from the contract and/or to claim damages.
§ 8 Retention of title, ownership by way of security
All goods ever delivered by us remain our property until full and final payment of all our claims from the business relationship.
We are entitled to assert our rights from the retention of title – in particular the taking back of the goods delivered under retention of title – without prior rescission of the respective purchase contract. Lending or pledging of our property is not permitted. In the event of foreclosures, our goods must be marked as our property and segregated. We must be informed immediately of such measures. The customer is entitled to sell the goods in the ordinary course of business as long as he is not in arrears or in financial difficulties. If the customer sells the goods subject to our retention of title, the claims arising from the sale are already now assigned to us without any express confirmation being required in the event of the sale.
Until final and complete payment of the goods, we are entitled to enter the premises of the customer and take the goods back to us. As long as the delivered goods are the property of the seller, any treatment and processing of the goods, during which a new movable item is manufactured, is carried out on behalf of the seller without obliging the seller in any way.
Through this processing by the customer, the seller acquires a co-ownership share in the new item. The amount of the co-ownership share shall be determined in proportion to the value of the goods subject to retention of title brought into the new item and those objects brought in by the customer or third parties at the time of bringing in or processing. The added value created by machining or processing is not accessed; the customer is entitled to this.
The customer’s right to acquire title to the goods delivered by the seller shall continue in the aforementioned co-ownership share of the seller in the new item. The customer is entitled to dispose of the resulting co-ownership of the seller in accordance with the above provisions. In cases of combination or mixing (§§947, 984 BGB) of movable goods, the seller acquires a co-ownership share in the goods or groups of goods resulting from the combination or mixing in accordance with these statutory provisions, as long as the customer has not yet settled all his liabilities to the seller.
With regard to the customer’s expectant right, the aforementioned applies accordingly.
§ 9 Payment, Default
Invoices to credit customers must be paid within 10 days of the invoice date without deduction. Cash discount deduction requires prior written agreement.
In case of default of payment, we charge interest at a rate of 8 percentage points above the base interest rate from the due date as well as all attorney and collection fees incurred. In the event of non- compliance with the terms of payment or in circumstances which become known to us after conclusion of the contract and which call the creditworthiness of the customer into question from a banking point of view, such as an application for the opening of insolvency proceedings or suspension of payments or circumstances which significantly reduce the creditworthiness of the customer and endanger the claim to our owed consideration, all claims – irrespective of the term of any bills of exchange accepted – shall become due immediately after reminder. In this case, we are entitled to execute outstanding deliveries and services only against advance payment or provision of security or to withdraw from the contract after expiry of a reasonable period of grace and/or to claim damages. Evidence of the circumstances determining the creditworthiness is deemed to have been provided by information from a reputable credit agency or bank.
We are entitled to assign the claims arising from our terms and conditions of business, in particular our trade receivables.
§ 10 Liability
We are not obliged to inspect materials made available to us, etc. for defects or other impairments, unless these are obvious defects for us. If we manufacture a new item from the materials made available to us by processing, alteration, etc., we shall only be liable for the damages which have arisen directly as a result of the processing and alteration, but not for damages which are attributable to a material already supplied to us as defective or for defects whose cause is already present in the material made available to us.
If the rectification or subsequent performance fails, the customer is entitled, at his discretion, to reduce the price of the defective goods or to withdraw from the contract.
Our warranty obligation presupposes that the customer has given written notice of recognisable defects immediately after receipt of the goods and that the goods have been inspected with the care of a prudent businessman after arrival at the destination. Any defects occurring at a later date must also be reported immediately in writing.
Further claims, in particular liability for consequential damages of any kind, in particular for claims for damages, for whatever legal reason, do not exist and cannot be asserted by the customer, unless a written guarantee of quality or durability was given or the cause of the damage was based on intent or gross negligence. Any claims for damages based on slight or medium negligence are excluded. In all other respects, liability claims are excluded if, as a result of further shipment or processing of the goods delivered by us or other circumstances on our part, it is no longer possible to check whether the goods are actually defective.
Further claims – insofar as legally permissible – are excluded, this applies in particular to contractual and non-contractual claims for compensation for damage which did not occur to the goods themselves. In the event of subsequent improvement, we may demand that the goods be sent to us or the manufacturer’s works with prepaid freight for the purpose of subsequent improvement or kept ready at our discretion. Unless otherwise agreed, flash rust does not constitute a defect in I a goods either.
Any claims based on paragraphs 2 to 6 shall lapse within the period of § 10 paragraph 7.
The warranty period for new goods or manufactured works is limited to 1 year from the transfer of risk. This does not apply to the purchase of consumer goods.
In general, the warranty conditions for emission partner catalytic converters apply.
The customer assures that documents, plans, construction drawings, etc. made available by him are in his property and that the execution of the work does not interfere with patent, trademark or other property rights of third parties. If claims are nevertheless asserted against us by third parties for infringement of rights, the customer shall already now indemnify us against all claims of the third party.
§ 11 Data protection
The customer and we agree that the data received in the context of the business relations are stored and processed.
§ 12 Final clauses
Offsetting is excluded, unless the counterclaim is undisputed, legally established or acknowledged by us; the same applies to the exercise of a right of retention. The customer is only entitled to assign claims against us to third parties with our written consent.
Amendments and supplements to these GTC must be made in writing to be effective.
Insofar as the parties have assigned claims and rights among themselves in this contract, each party accepts the respective assignment of the other.
In addition to the general terms and conditions, the provisions of the respective operating instructions, safety data sheets and the notes on compliance with the warranty in the most current form shall also apply.
Should any provision of these GTC and the other agreements made be or become invalid, this shall not affect the validity of the remainder of the contract. The parties to the contract are obliged to replace the invalid provision with a provision that comes as close as possible to the economic success of the invalid provision.
The law of the Federal Republic of Germany shall apply exclusively. Place of performance for all obligations, including a claim for withdrawal, is Oldenburg. If the customer is a merchant, a legal entity under public law or a special fund under public law, the court responsible for Oldenburg shall be agreed as the place of jurisdiction for all disputes – including those relating to documents, bills of exchange and cheques. The agreement on jurisdiction shall also apply in the event that the customer does not have a general place of jurisdiction in Germany, moves his place of residence or usual place of abode out of the scope of application of the German Code of Civil Procedure after conclusion of the contract or his place of residence or usual place of abode is not known at the time the action is filed.