These Terms and Conditions of Sale, Delivery and Payment are applicable to all present and future transactions between Vornbäumen Stahlseile GmbH & Co. KG and Vornbäumen Draht GmbH & Co. KG (hereinafter referred to as “we” or “us”) and customers who have their place of business within or outside the Federal Republic of Germany. This is also the case when we do not expressly mention the Terms and Conditions of Sale, Delivery and Payment again to the customer in follow-up business transactions. Our Terms and Conditions of Sale, Delivery and Payment shall also apply to all future transactions within an ongoing business relationship with the customer.
Our deliveries and services shall be effected solely on the basis of the Terms and Conditions of Sale, Delivery and Payment set out below. We do not recognise the customer’s terms and conditions of purchase, unless we have expressly agreed to their validity in writing. Our Terms and Conditions of Sale, Delivery and Payment are applicable even if we deliver unconditionally to the customer in the knowledge that the customer’s terms and conditions conflict with or differ from our Terms and Conditions of Sale, Delivery and Payment.
For the purposes of these Terms and Conditions of Sale, Delivery and Payment, a consumer is any natural person who places an order which predominantely cannot be attributed to either his commercial or independent professional activities (Section 13 of the German Civil Code (BGB)).
For the purposes of these Terms and Conditions, an entrepreneur is a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in the exercise of his or its commercial or independent professional activity (Section 14 BGB). Insofar as the following refers to entrepreneurs, the provision shall also apply to legal entities under public law and special funds under public law.
These Terms and Conditions of Sale, Delivery and Payment shall not apply if the customer is a consumer within the meaning of Clause 1.3 above.
Our offers are conditional and non-binding, unless they have been expressly designated as binding or contain a specific acceptance period.
If a purchase order placed by the customer is to be qualified as an offer in accordance with Section 145 BGB, we may accept it within two weeks of receiving the purchase order. If the purchase order diverges from our proposals or our offer, the customer shall set out the purchase order in writing and mark the deviations.
The contract shall come into effect by virtue of our order confirmation. This usually takes place within six working days. Our order confirmation shall govern the entire content of the contract. This shall also apply, subject to short-term and written objections raised by the customer, if it diverges from declarations made by the customer.
As a rule, we send our order confirmations electronically. In addition, we may also send order confirmations in text form or in writing. In the absence of an order confirmation, the contract shall become effective upon the execution of the order.
We reserve the right to make technical modifications as well as changes as to the shape, colour, length and/or weight within the scope of reasonableness, unless the usability for a contractually agreed purpose, where applicable, requires exact conformity. We reserve the right to make changes and improvements with regard to the construction design, use of material and finish, insofar as this does not impair the contractually required or customary use of the goods. If, in the opinion of the customer, the goods to be delivered are not to be suitable exclusively for customary use or if the customer assumes that the goods are suitable for a certain use or have a certain quality or if the customer plans to use the goods for an unusual purpose, under increased stress or involving a particular risk to life, limb, health or the environment, it is obliged to point out to us the intended use or relevant expectation in writing prior to concluding the contract.
We shall retain property rights and copyright in respect of cost estimates, drawings and other documents. These may not be disclosed to third parties or used for advertising purposes without our express prior written consent. We are entitled to request their surrender by the customer at any time. This shall not apply if the transfer of ownership is expressly the subject matter of the contract.
Any amendments, modifications or subsidiary agreements to the contract require the written form or our written confirmation to be effective. Our employees, commercial agents or other sales agents are not authorised to make supplementary agreements or give any representations or guarantees that go beyond the stipulated content of the contract. Nor are they authorised to waive the requirement of an order confirmation.
Our prices are ex works = EXW Bad Iburg (according to Incoterms® 2020), without transport equipment, packaging, loading, transport and any possible customs, in euro, plus the value added tax legally due, unless otherwise agreed or unless otherwise stated in the order confirmation.
If, between conclusion of contract and the delivery date, there is a significant change in certain cost factors, such as, in particular, the costs of raw material, wages, freight or energy, we may adjust the agreed price to reflect the influence of those cost factors.
Unless otherwise stated in the order confirmation, the invoice amount shown shall be due for payment upon issue of the invoice. The prerequisites and consequences of a default in payment by the customer shall be governed by the statutory provisions. For first-time deliveries to a customer and in the case of default in payment for any previous deliveries, we are entitled to request advance payment or security for our claim for payment.
If payment is made in money orders, and especially in bills of exchange, the costs of discounting and collection shall be borne by the customer. Bills of exchange shall only be accepted subject to the possibility of discounting and only on account of performance.
If, after conclusion of contract, we become aware of facts that, after a due assessment of the business circumstances, suggest a significant deterioration in the customer’s financial situation that jeopardises the claim for payment, we shall be entitled to immediately fix a due date for outstanding payments and to refuse to perform any services owed by us until the consideration has been executed or security has been provided for it. If the provision of security is denied, we shall be entitled to withdraw from the contract and, without prejudice to the above rights, to take back the goods delivered under retention of title at the customer’s expense. Partial deliveries that have already been made shall be due for payment immediately, irrespective of any withdrawal.
The customer may only offset payments against undisputed or legally established claims. It shall only be entitled to rights of retention insofar as its counterclaim is based on the same contractual relationship.
During the period of default, the customer shall pay interest on the amount owed at a rate of 9 percentage points above the base interest rate. We reserve the right to prove and claim damages in excess of the additional interest incurred as a result of the default.
Insofar as there is no default in payment, we shall, if the due date is exceeded, be entitled to claim interest on late payments from customers at a rate of 2 percentage points above the base interest rate, but at least at the statutory interest rate in accordance with Section 352 of the German Commercial Code (HGB) (5%).
Weights and measures shall be determined on our calibrated scales or our clocks, and shall be decisive for invoicing.
Unless otherwise stated in the order confirmation, delivery is agreed to be ex works Bad Iburg = EXW Bad Iburg (according to Incoterms® 2020).
The cost of transport (if assumed by us according to the order confirmation), payment transactions, customs duties, etc. shall be invoiced separately to the customer, unless otherwise agreed.
In the event of transport damage, the customer must immediately arrange for the competent bodies to ascertain the facts and must inform us of the transport damage without delay.
The provision of Section 447 BGB shall also apply if we bear the freight costs.
For the interpretation of trade terms, Incoterms® 2020 shall apply vis-à-vis entrepreneurs.
Special agreements are generally required for deliveries abroad. We are not required to deliver goods sold for export abroad to the domestic market and to ship goods destined for the domestic market abroad. We are entitled to request proof of export. The foregoing shall not apply if the customer has its registered office outside the Federal Republic of Germany and the shipment abroad is consequently the content of the order.
Goods shall be packed as is customary in the trade, unless special packaging has been agreed.
Transport equipment, e.g. wooden reels, or steel, aluminium and wooden spools, are included in the sale, unless otherwise agreed. If in this case transport equipment remains our property, it shall be returned to us directly and immediately after their intended use, but no later than two years after being made available. If the customer fails to fulfil its obligation to return the transport equipment within the aforementioned period or despite being requested to do so by a deadline, we shall be entitled to charge the customer the full replacement costs of the transport equipment. We may refuse to accept transport equipment that is returned late or in a damaged condition. In the event of damage, our claims for damages shall also include the cost of disposal.
The delivery time, usually defined by calendar weeks, is set out in our written order confirmation. Adherence to the delivery time requires that the customer fulfils its contractual duties and obligations as agreed. If this is not the case, the delivery time shall be extended accordingly, unless we are responsible for the delay. Binding changes in delivery dates or deadlines require our written confirmation to be effective.
Compliance with the delivery time is subject to the correct and timely delivery by our suppliers, unless we have deliberately or grossly negligently induced the incorrect or late delivery by our suppliers. We shall notify the customer immediately of the non-availability of the goods. Any consideration already paid shall be refunded, unless the customer declares that it agrees to delivery after the delivery time has expired. This paragraph shall apply mutatis mutandis to parts to be provided by the customer, insofar as these are named in our order confirmation.
Delivery dates or deadlines shall be postponed or extended accordingly if we are prevented from providing the service within the time agreed due to force majeure within the meaning of Section 7.13 below, industrial action or other circumstances for which we are not responsible. The inability to obtain raw material and means of transport shall be treated in the same way as the cases referred to above. This also applies if corresponding circumstances occur concerning upstream suppliers. We shall not be liable for any damages arising from this on any legal grounds. If the impediment exceeds three months, the customer shall be entitled, following an appropriate period of grace, to withdraw from the contract with regard to the part that has not yet been performed. In this case, it shall not be entitled to any damage claims.
For the rest, the customer is only entitled to rights and claims due to delay if we are responsible for the delay.
If the customer incurs damage due to a delay in delivery for which we are responsible, the statutory provisions shall apply. If we are liable to pay damages thereunder, this shall be limited in amount to 0.5% for each full week of delay, but in total to a maximum of 5% of the value of the part of the total delivery that cannot be used in good time or in conformity with the contract due to the delay. Damage claims in excess of this shall be excluded. We reserve the right to prove that the customer has not suffered any damage or that the damage is significantly less than the aforementioned fixed rate.
The limitations set forth above in accordance with Section 5 shall not apply in the event of intent or gross negligence on our part or in the event of a fixed-date transaction or if the delay in delivery for which we are responsible is based on the culpable violation of a material contractual obligation or if life, limb or health are affected. Except in the case of a wilful contractual infringement for which we are responsible or if life, limb or health are affected, then our liability for damages in such cases shall be limited to foreseeable damage that typically occurs.
If shipping has been agreed, delivery times, delivery deadlines and delivery dates shall refer to the time of transfer to the forwarder, haulier or to any other third party commissioned with the shipment.
If delivery is postponed at the request of the customer, following fruitless expiry of a reasonable grace period we have set, we shall be entitled to otherwise dispose of the goods and to supply the customer within a reasonably extended deadline. The storage costs shall be borne by the customer.
If the customer defaults in accepting performance or culpably breaches any other duty to cooperate, we shall be entitled to request replacement of any losses sustained, including any possible additional expenditure. If stored by us, the storage costs shall be 0.25% of the invoice amount of the items to be stored for each full week. The right to pursue and provide evidence of additional or lower storage costs is reserved. Further claims of compensation for damages remain reserved; the customer may furnish proof that we incurred no or less damage.
If the conditions of Section 8 are met, the risk of accidental loss or deterioration of the goods shall pass to the customer at the latest in the month in which it is in default of acceptance or payment.
We shall be entitled to render partial deliveries and partial performances when
a) the partial delivery can be used by the customer within the contractual intended use,
b) the delivery of the remaining ordered goods is ensured, and
c) the customer does not incur considerable additional expense or costs as a result, unless we agree to bear such costs.
Partial deliveries may be invoiced separately. Complaints concerning partial deliveries shall not release the customer from the obligation to accept the remaining delivery of the goods in conformity with the contract.
In cases of force majeure, the contracting party affected by this shall be released from the obligation to deliver or accept for the duration and to the extent of the effect. Force majeure is any event beyond the control of the contracting party affected that prevents it, in whole or in part, from fulfilling its obligations, including fire damage, floods, epidemics and pandemics, strikes and lawful lockouts, as well as disruptions in operations or official orders for which it is not responsible. Supply difficulties and other disruptions to performance on the part of a party’s upstream supplier shall only be deemed to be a force majeure event if the upstream supplier, for its part, is prevented from providing the service for which it is responsible by an event pursuant to the first sentence. The contracting party affected shall immediately notify the other contracting party of the occurrence and cessation of the force majeure event and shall use its best endeavours to remedy the force majeure event and to limit its impact to the greatest extent possible.
In the event of a force majeure event, the contracting parties shall agree on the further course of action and determine whether, after its cessation, the products not delivered during this period shall be subsequently delivered. Notwithstanding the foregoing, either contracting party shall be entitled to withdraw from the orders affected by such force majeure event if it continues for a significant length of time. The right of each contracting party to terminate the contract for good cause in the event of a prolonged force majeure event shall remain unaffected.
The customer’s rights to claim defects require that it has duly complied with its obligations to inspect the goods and report defects in accordance with Section 377 HGB. To that effect, the customer shall examine the goods immediately after delivery, where this is advisable in the ordinary course of business, and, if a defect is evident, shall notify us immediately. Where such a defect becomes apparent at a later point in time, notification must be given immediately after discovery of the defect. Any notification of defects must be made in writing, stating the type and extent of the deviation from the agreed or customary quality or suitability of use. We shall not be obliged to check whether the goods fulfil the particular purpose intended by the customer or are suitable for doing so, unless the customer has pointed this out to us in writing before concluding the contract.
A material defect in the goods exists if the goods deviate considerably from the design, length, quantity, quality, condition, durability, functionality, compatibility, safety and suitability of use agreed upon in the written order confirmation taking into account the provisions in Section 2 (1), (3), (4), (5) and (7) or, unless otherwise stipulated, from the quality and suitability of use customary in the Federal Republic of Germany. A defect of title to the goods exists if the goods are not free of rights or claims of third parties enforceable in the Federal Republic of Germany at the time of transfer of risk. Statutory exclusions in excess of this or limitations of our responsibility remain unaffected. Unless otherwise expressly agreed upon in the written order confirmation, we are, in particular, not responsible for the goods being free from rights/claims of third parties outside the Federal Republic of Germany. If analyses, DIN [German Industry Standard] provisions, or other domestic or international quality standards are designated by us or if any other details are provided on the quality of the goods, these shall solely serve the purpose of describing the services to be provided by us in greater detail. No acceptance of a guarantee of quality is associated with this.
The product descriptions and product-specific manufacturer information in our catalogue, which are the subject of our order confirmation via the product designation, shall be deemed to be an agreement on the quality of the goods. Public statements, claims or advertisements shall not constitute statements regarding the quality of the goods. If we provide the customer with samples or specimens, or receive samples or specimens from the customer, this shall not constitute a determination of the quality of the goods either. The customer shall not receive any guarantees in the legal sense.
Unless expressly agreed otherwise or required by law, we shall not be obliged to assemble and install goods, to advise the customer, to train or instruct customers, or to deliver accessories or instructions. If we provide such services nonetheless on the basis of separate agreements, these services may be invoiced separately by us.
In the event of legitimate notices of defects, the customer may request supplementary performance in accordance with the statutory provisions. Supplementary performance shall take place at our discretion by eliminating the defect or by supplying faultless goods. The customer shall give us the time and opportunity required to inspect the rejected goods and to provide the supplementary performance that may be due.
In the event of complaints, the customer shall, at our request, return the goods concerned, or samples of them, carriage paid, for inspection. In the event of a justified complaint, we shall reimburse the costs of the most economical shipping route; this shall not apply if the costs increase due to the delivery item being located somewhere other than the place of intended use.
If the supplementary performance definitively fails, the customer may at its discretion choose to request a reduction in remuneration (reduction) or a cancellation of the contract (withdrawal) in accordance with the statutory provisions.
In the case of damages caused by simple negligence, we shall only be liable if a material contractual obligation has been violated. Material contractual obligations are those whose fulfilment characterises the contract and on which the customer may rely. Except in the case of an intentional or grossly negligent contractual infringement for which we are responsible, our liability amount shall additionally be limited to damages that typically occur and that were foreseeable at the time of concluding the contract. In particular, the replacement of indirect damage such as lost profits or loss of production shall be excluded.
Liability arising from culpable injury to life, limb or health shall remain unaffected by the aforementioned limitations in accordance with Section 5. This also applies to mandatory liability according to the Product Liability Act (ProdHaftG), in the context of guarantees and of supplier’s redress (Section 445a BGB).
The limitation period for claims for faults is 12 months from the transfer of risk, or from acceptance of performance in the case of assembly. Damage claims due to intent, gross negligence, in the event of culpable injury to life, limb or health, claims resulting from product liability and in the context of supplier’s redress (Section 445a BGB) shall remain unaffected. Subsequent performance measures shall not lead to an extension of the period referred to in the first sentence, and shall not imply any acknowledgement that triggers a new start of the limitation period. Claims in the context of supplier’s redress shall become statute-barred at the latest five years after we have delivered the goods to the customer, unless they are based on a breach of an obligation to update in accordance with Section 475b BGB.
Liability for normal wear and tear as well as damage due to unsuitable or improper use shall be excluded. Bare wires and ropes are subject to an increased risk of corrosion. They must therefore be processed or used immediately after delivery, and can only be stored unprocessed or unused for a short time. The customer must store in a dry place the bare wires and ropes supplied by us. If operating, safety or maintenance instructions, particularly technical data sheets, are not observed; if changes are made to the products; if parts are replaced or consumables (e.g. for regreasing ropes) are used that are not compliant with the original specifications, then any liability for defects shall not be applicable, unless the customer is able to disprove a substantiated assertion that the defect occurred because of these circumstances.
We shall not be liable for defects in parts or components provided by the customer or in parts or components provided by third parties on its behalf or for defects in the end product attributable to the defectiveness of such supply parts, unless the customer is able to disprove a substantial assertion that the defect occurred because of these circumstances.
We provide a warranty vis-à-vis the customer for the goods being free of property rights of third parties in the Federal Republic of Germany.
However, the requirement for this provision of warranty is that the customer informs us immediately of claims arising from property rights asserted against it by third parties and acts in agreement with us when dealing with these claims and pursuing its rights. If one of these requirements is not met, we shall be released from our legal obligations or those assumed under these Terms and Conditions. If a breach of property rights arises for which we are liable in accordance with these Terms and Conditions, and if for that reason the customer is forbidden by law to use the goods, either in whole or in part, we shall, at our own expense and at our discretion
a) procure the customer’s right to use the goods or
b) create the goods free of property rights or
c) replace the goods with another object that does not violate any property rights, or
d) take back the goods and refund the consideration paid by the customer.
Our liability shall not be applicable if the customer makes changes to the goods or blends the goods with other materials, violating the property rights of third parties.
The customer shall not be entitled to any other claims or claims in excess of this due to the infringement of property rights of third parties. In particular, we shall not replace any consequential damages, such as loss of production or use and lost profits. These liability limitations shall not apply if, in cases of intent or gross negligence or the violation of material contractual obligations or the absence of assured qualities, mandatory liability is assumed for foreseeable damage typical for the contract.
Liability for damage compensation in excess of that envisaged under Sections 7, 8 and 9 is excluded, irrespective of the legal grounds.
Insofar as our liability vis-à-vis the customer is excluded according to these General Terms and Conditions, this shall also apply to any personal liability on the part of our representatives, vicarious agents or employees.
The customer’s attention is drawn to Section 254 BGB. In line with this, it undertakes to take appropriate precautions to prevent, as far as possible, any damage from occurring. The obligation laid down in Section 254 BGB shall also be deemed to be an obligation the customer has towards us, within the meaning of Section 280 BGB.
The goods delivered shall remain our property (goods subject to retention of title) until such time as all claims to which we are entitled in the context of the business relationship have been settled, including future claims, also from contracts concluded at the same time or later. If a current account relationship exists between us and the customer, the retention of title shall apply to all balance claims from the current account. If payment of the purchase price by the customer creates a liability for us under a bill of exchange, our reservation of title shall not expire before the bill of exchange is honoured by the customer as the drawee. If the customer acts in breach of contract – in particular, if it is in default with payment of a claim for payment – we shall be entitled to take back goods subject to retention of title after having set an appropriate period of time for performance. The transport costs incurred for taking back the goods shall be borne by the customer. If we take back the goods subject to retention of title, this shall constitute a withdrawal from the contract. If we levy execution on goods subject to retention of title, this shall likewise constitute a withdrawal from the contract. We may realise goods subject to retention of title that we have taken back. The proceeds from the realisation shall be offset against those amounts owed to us by the customer, after we have deducted an appropriate amount for realisation costs.
The customer shall treat the goods subject to retention of title with care. It shall adequately insure them against fire and water damage and theft at replacement value at its own expense.
The customer may only resell the goods subject to retention of title in the ordinary course of business under its normal terms and conditions of business as long as it is not in default. It is not entitled to dispose of the goods subject to retention of title in any other way. The use of the goods subject to retention of title for the fulfilment of contracts for services and of contracts for work and materials shall also be deemed to be a resale.
The customer hereby assigns to us its claims from the resale of the goods subject to retention of title, including all ancillary rights. We hereby accept the assignment. They shall serve as security to the same extent as the goods subject to retention of title within the meaning of these Terms and Conditions. If a current account relationship exists between the customer and the buyer, the assignment shall also refer to the recognised balance.
he customer is entitled to collect the claims on its account even after the assignment, as long as we do not revoke this authorisation. Our right to collect these claims ourselves shall not be affected by this; however, we shall not assert the claims ourselves and shall not revoke the authorisation to collect as long as the customer duly complies with its payment obligations. If, however, the customer acts in breach of contract – in particular, if it is in default with the payment of a claim for payment – we may request the customer to disclose to us the assigned claims and their debtors, to provide us with all of the information required to assert the claim, to surrender all corresponding documents to us, and to notify the debtors (third parties) of the assignment.
The goods subject to retention of title may be machined or processed by the customer on our behalf, as the manufacturer, within the meaning of Section 950 BGB, without any obligation on our part. The machined and processed goods are deemed to be the goods subject to retention of title within the meaning of these Terms and Conditions.
If the customer processes, combines and blends goods subject to retention of title with other goods, we shall be entitled to co-ownership of the new item in the ratio of the invoice value of the goods subject to retention of title (final invoice amount including value added tax) to the invoice value of the other goods. If our ownership expires as a result of combining, blending or processing, the customer hereby transfers to us the ownership or expectant rights to the new product or item to which it is entitled to the extent of the invoice value of the goods subject to retention of title, in the case of processing in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used; it shall store them for us at no charge. Our co-ownership rights shall be deemed to be goods subject to retention of title within the meaning of these Terms and Conditions.
In the event of the attachment of goods subject to retention of title by third parties or of other interventions by third parties, the customer must draw attention to our ownership and must immediately inform us in writing so that we can assert our property rights. If the third party does not reimburse us with the court or out-of-court costs incurred in this connection, the customer shall be liable to pay them.
We are required to release the securities to which we are entitled at the customer’s request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%; we are responsible for selecting the securities to be released.
If the goods subject to retention of title are resold by the customer together with other goods, the claim from resale shall be assigned to us in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods. In the event of the resale of goods to which we have co-ownership shares in accordance with the above paragraphs, a part of the claims corresponding to our co-ownership share shall be assigned to us.
If the customer has already assigned to third parties claims from the resale of the product delivered or to be delivered by us, particularly on the basis of non-recourse factoring (purchase of accounts receivable where the factor assumes the del credere function) or recourse factoring (purchase of accounts receivable as a credit transaction where the risk of non-recovery remains with the seller of the receivables / customer), or has entered into other agreements on the basis of which our current or future security rights under this Clause 11 may be impaired, the customer must notify us of this without delay. In the event of recourse factoring, we shall be entitled to withdraw from the contract and to request the return of delivered goods. The same applies in the case of non-recourse factoring if, according to the contract with the factor, the customer cannot freely dispose of the purchase price of the claim.
In the event of deliveries outside the Federal Republic of Germany that we undertake at the initiative of the customer, and if the aforementioned security rights in rem cannot be effectively agreed, such security rights in rem shall be deemed to have been agreed in respect of all outstanding claims arising from the business relationship between the customer and us which are closest to the above security rights and which are permissible and possible according to the relevant legal system. This also applies in particular to transactions with customers located outside of the Federal Republic of Germany.
All contracts shall be subject exclusively to the law of the Federal Republic of Germany, under exclusion of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (UN Sales Convention / CISG).
If the customer is an entrepreneur, a legal entity under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes arising from this contract is Bad Iburg. The same applies if the customer has no general place of jurisdiction in the Federal Republic of Germany or if his place of residence or common whereabouts are not known at the time of commencing an action. However, we are entitled to sue the customer at its general place of jurisdiction.
The place of performance, payment and fulfilment for all obligations arising from the business relationship is our company’s place of business.
The rights of the customer arising from contracts concluded with us are not transferable.
The legal invalidity of individual provisions of the contract or of the above Terms and Conditions shall not affect the validity of the remaining Terms and Conditions or agreements. The wholly or partially invalid provision shall be replaced by a provision whose economic success comes closest to that of the invalid provision.
All products and a lot of information about wire, rope and wire rope hoist can be found in our catalog.
Johannes and Wilhelm VORNBÄUMEN, the founders of the company, gave utmost priority to developing the company and improving production and technology right from the beginning