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General Terms and Conditions

1.   
General Terms and Conditions

1.1.    
Our deliveries and services are carried out exclusively on the basis of the following terms and conditions. We do not recognise the customer's conditions of purchase unless we have agreed to their validity in writing. Our terms and conditions set out below are also valid if we unconditionally execute a delivery to the customer despite the knowledge of regulations to the contrary or that the customer's terms and conditions deviate from our terms and conditions set out below. Our terms and conditions also apply to all future transactions made within a continual business relationship with the purchaser.

1.2.    
In the sense of the terms and conditions set out below, a consumer is any natural person who places an order for a purpose that is neither attributed to his/her commercial occupation or to his/her self-employed occupation.
In the sense of the terms and conditions set out below, an entrepreneur is any natural or juristic person or partnership possessing legal personality who, in concluding a legal transaction, is acting to carry out his/her commercial occupation or his/her self-employed occupation. Insofar as entrepreneurs are mentioned in the following, this regulation also applies to public law juristic persons and special funds under public law.

2.    
Conclusion of Contract

2.1.    
Our offers are subject to change without notice.

2.2.    
Insofar as there is no written confirmation of an order from us or no verbal confirmation from a person with unlimited power of appointment, orders are only deemed to be accepted if they are carried out immediately after receipt of the order or on schedule.
Likewise, subsidiary agreements that have not been made with any of the above-mentioned persons only become effective by our written confirmation.

3.    
Prices and Terms and Conditions of Payment

3.1.    
Unless otherwise agreed upon, our prices are valid ex works and, in the case of inland deliveries, are subject to the statutory authoritative value-added tax.

3.2.    
If certain cost factors, such as in particular the costs for wages, input stock or freight, are subject to significant alteration between the closing of a contract and the date of delivery, the price agreed upon can be adjusted to an appropriate extent in accordance with the influence of the decisive cost factors.

3.3.    
Our invoices are payable within ten days of having sent the invoice (date of invoice) with a 2% discount or within thirty days of the date of invoice net cash. If the purchaser has not paid by then, delay in payment occurs. For first-time deliveries to a purchaser and in the case of a delay in payment for previous deliveries we are entitled to demand payment in advance or a security for our pecuniary claim.

3.4.    
If the payment is made by money order, in particular by bills, the costs of discounting and encashing are to be borne by the purchaser. Bills are only accepted subject to the possibility of discount and only as payment.

3.5.    
If facts become known to us, in particular the purchaser's delay in payment with regard to previous deliveries, following the making of a contract that allow us to assume a considerable deterioration of the financial position in accordance with due commercial discretion, we are eligible to immediately fix a due date for outstanding payments as well as to refuse to carry out services we are responsible for until the consideration has been executed or security has been provided for it. If the provision of a security is declined, we are eligible to terminate the contract. Partial deliveries that have already been made are immediately payable, independent of a withdrawal.

3.6.    
The purchaser may only offset claims that are undisputed or that have been pronounced final and conclusive. He is only entitled to lien insofar as his counterclaim is based on the same contractual relationship.

3.7.    
For our claims we are eligible for securities that are commonplace in type and scope, also if they are conditional or limited.

3.8.    
The statutory provisions regarding delay in payment remain unaffected. During the period of delay, consumers must pay interest on the money debt to the amount of 5% above the basic rate of interest. During the period of delay, entrepreneurs must pay interest on the money debt to the amount of 8% above the basic rate of interest. We reserve the right to prove and assert a higher damage caused by delay. Insofar as there is no delay in payment, we are eligible for payability interest to the amount of 2% above the basic rate of interest, but at least to the amount of the statutory rate of interest in accordance with § 353 of the Commercial Code (5%) if entrepreneurs exceed the time for payment.

4.    
Dimensions, Weights, Quality

4.1.    
Deviations from dimensions, weights and quality are permissible in accordance with EN or, insofar the respective norms are absent, in accordance with DIN, or are permissible if this is standard practice. Other deviations require special agreement.

4.2.    
Weights or dimensions are determined by our calibrated scales or by our meters, and are decisive for the invoicing.

5.    
Forwarding and Transfer of Risk, Delayed Acceptance

5.1.    
Unless otherwise stated in the confirmation of order, it is agreed that the delivery is "free on carrier" ex works from Bad Iburg. Unless otherwise agreed upon, we are free to choose the method, route and means of forwarding. If the purchaser is a consumer, the risk of accidental loss and of accidental deterioration of the goods is only transferred to the purchaser upon delivery of the goods, even in the case of a mail order purchase.

5.2.    
If the purchaser fails to comply in due time with his obligation to collect or accept the goods, or if he does not request delivery of ordered goods that have been announced to be ready for shipment within the agreed period of time, we are eligible to put the goods in store at the risk of the purchaser at our discretion, and to write an invoice for the goods deemed to be delivered. If the purchaser delays in accepting, collecting or requesting delivery, the risk of accidental loss or of accidental deterioration of the goods is transferred to him. Furthermore, we are eligible to claim from entrepreneurs a contractual penalty to the amount of 1% of the value of the goods for every started month, up to a maximum of 30% of the value of the goods, unless the actual storage costs are proven to be higher. If the purchaser fails to collect goods that have been announced to be ready for shipment or if he does not request delivery of the goods within the agreed period of time, we are eligible to set the purchaser a suitable deadline for the execution of his participatory action, and if passed without having been complied with, to terminate the contract and demand part of the payment in accordance with services rendered. The statutory provisions regarding delayed acceptance remain unaffected.

5.3.    
In the case of damage in transit, the purchaser must immediately ensure that a statement of facts is made with the respective authorities and to inform us immediately about the damage in transit.

5.4.    
The provisions of § 447 of the German Civil Code also apply to orders placed by entrepreneurs if the shipment is carried out by our own means of transport or from a location deviant from the place of performance, or if we bear the freight costs.

5.5.    
The Incoterms 2000 are valid for the interpretation of the trade stipulations with regard to entrepreneurs.

5.6.    
The purchaser is required to accept partial deliveries, insofar as this is reasonable.

5.7.    
Special agreements are required on principle for deliveries abroad. We are not obliged to deliver goods sold as exports inland or to send goods intended for inland abroad. We are eligible to demand an export certificate.

6.    
Packaging, Transit Aids

6.1.    
Standard packaging is provided, unless a special type of packaging is agreed upon.

6.2.    
We can determine deposit values for transit aids such as, e.g. wooden reels, steel, aluminium and wooden spools. Independent of the payment of a deposit, however, the transit aids remain our possession and, unless otherwise agreed upon, are to be returned to us directly and immediately after their appropriate use, at the latest, however, within two years of their delivery. If the purchaser fails to fulfil his obligation to return them within the above - mentioned deadline or despite being requested to return them by a certain date, we are eligible to bill the purchaser for the full costs of replacing the transit aids. We are able to refuse to accept transit aids that have been returned late or in a damaged condition. In the case of damage, our claim for compensation also includes disposal costs.

7.    
Delivery Times, Delays in Delivery

7.1.    
The time of sending the delivery ex works is decisive for compliance with delivery times.

7.2.    
The stipulated delivery times are extended by a suitable period of time, taking the needs of our production process under consideration, as long as the delivery is delayed due to unforeseen ambiguities for which we are not responsible with regard to the condition of the product to be manufactured by us. This also applies - without prejudice to our rights regarding the purchaser's delay - if the purchaser does not fulfil contractual obligations, in particular participatory or accessory obligations, such as opening a letter of credit, procuring inland or foreign certificates, making prepayments, or similar activities, in good time. The delivery time is extended for the same period of time that the purchaser is in delay.

7.3.    
In the case of industrial strife at the seller's works, riots, Acts of God or any other unforeseeable and unpreventable damaging events for which we are not responsible, the stipulated delivery time is extended by the length of the duration of the disturbance, in addition to an appropriate starting period, insofar as the disturbance is proven to have had a considerable influence on the delivery of the sold products. This also applies if these circumstances happen to our suppliers or their subsuppliers. If the disturbance lasts for longer than one month, once the originally stipulated delivery date has passed the purchaser can exercise his rights given in § 326 sections 1 and 3 to 5 of the German Civil Code and § 376 of the Commercial Code. His right of cancellation only applies to the parts of the contract that have not yet been fulfilled. If, however, executed partial deliveries are unusable to the purchaser, he is entitled to cancel the whole contract. In these cases, compensation for damages cannot be claimed.

7.4.    
Notwithstanding the above regulation, we are liable, in accordance with statutory provisions, insofar as

  • the underlying sales agreement is a short sale in the sense of § 376 of the Commercial Code, § 361 of the German Civil Code,
  • as a consequence of a delay in delivery for which we are responsible, the purchaser is entitled to assert that his interest in the continued fulfilment of the contract has disappeared,
  • the delay in delivery is due to an intentional or grossly negligent breach in the contract for which we are responsible, or
  • the delay in delivery for which we are responsible is due to the nonaccidental breach of a significant contractual obligation.

7.5.    
Insofar as the delay in delivery is not due to an intentional or grossly negligent breach in the contract for which we are responsible, our liability towards entrepreneurs is limited to foreseeable, typically occurring damage. The preceding limits of liability do not apply to damage from injury to life, body or health. The right of the purchaser to withdraw following the fruitless passing of a suitable additional period set by us remains unaffected.

8.    
Defects in the Goods, Guarantee

8.1.    
We do not undertake a guarantee for defects that arise from natural wear and tear, operating time-related or in any other way wear-related wear and tear, incorrect or negligent treatment, unsuitable or improper use and storage or nonobservance of the instructions for processing and use. The purchaser has no guarantee rights for goods that have been sold as degraded material - e.g. so-called seconds material - with regard to the given errors and such with which he must usually reckon. Bare wires and ropes are subject to an increased danger of corrosion. For this reason, they are to be processed immediately after delivery and can only be stored unprocessed for a short period of time. The purchaser must store the bare wires and ropes we have delivered in a dry place. We do not undertake a guarantee for defects that arise from constructions and materials that are inappropriate for use, if these are set by the purchaser.

8.2.    
If the purchaser makes a claim for a defect, he must immediately give us the opportunity to convince ourselves of the defect, in particular to make available the rejected goods, or samples thereof, upon demand.

8.3.    
In the case of a defect to the goods, the purchaser can demand a remedy of the defect or a replacement delivery, as he chooses. If the remedy of the defect proves to be a failure following a suitable deadline, he is entitled to further statutory guarantee rights. If he chooses to terminate the contract he is not entitled to compensation for damage due to the defect. If only one part of the delivered goods is defective, the purchaser can only terminate the whole contract if he is not interested in the remaining part of the delivery.

8.4.    
Unless the following conditions stipulate other dates for entrepreneurs, the statutory periods of warranty apply, i.e. two years or, for building constructions and items for building constructions (building materials), five years. A period of warranty of one year applies to used goods. Within this period of time the period of warranty lapses if the goods are further processed (e.g. fabrication).

8.5.    
If the purchaser is an entrepreneur, the following conditions apply to the claims and rights regarding defective goods:

a)    
The entrepreneur's guarantee right prescribe that he has properly complied with his inspection and claim duties in accordance with § 377 of the Commercial Code. After completion of a stipulated acceptance it is not possible to complain about defects that were determinable upon acceptance.

b)    
Insofar as there is a defective good for which we hold responsibility, we are entitled to the choice between making a replacement delivery or repairing the goods. In our choice of fulfilment we must take the type of defect and the justified interests of the entrepreneur into consideration.

c)    
In the case of subsequent fulfilment of our deliveries, we are obliged to bear the costs, in particular transport, passage, labour and material costs, required for the purpose of subsequent fulfilment. Additional costs that are incurred by taking the delivered goods to a location that is not the headquarters of the commercial establishment of the entrepreneur will not be borne by us, unless bringing them there is in accordance with the due use.

d)    
The entrepreneur can only exercise the claims and rights he has with regard to a defective good within a period of warranty of 12 months from the delivery of the goods. This also applies to factory works from the time of their acceptance. The period of warranty for bare wires and ropes is three months. These deadlines do not apply insofar as the law stipulates longer deadlines in accordance with § 438 section 1 No. 2 of the German Civil Code for building constructions and items for building constructions (building materials), in accordance with § 479 section 1 of the German Civil Code for recourse claims and in accordance with § 634 a section 1 No. 2 of the German Civil Code for construction defects.

e)    
The statutory provisions regarding the beginning of the periods of warranty remain unaffected. If the purchaser is in delay with the acceptance, collection or request of the delivery of the goods (Section 5.2), the period of warranty deviates from this and commences at the latest on the date that we set after the stipulated day of delivery for the purchaser to collect or request the delivery of the goods.

9.    
Reservation of ownership

9.1.    
In contracts with consumers, the delivered goods remain in our ownership (conditional goods) until the fulfilment of our claim.

9.2.    
In contracts with entrepreneurs, the delivered goods remain in our ownership (conditional goods) until the fulfilment of all claims eligible to us within our business relationship, including future claims, also from contracts made simultaneously or at a later date. If mutual accounts exist between us and the entrepreneur, the reservation of ownership refers to the recognised balance. If a rotation liability is warranted by the payment of the purchase price by the entrepreneur, our reservation of ownership does not cease to exist before the entrepreneur as drawee has met the bill.

9.3.    
In the case of a negligent breach of important contractual obligations on the part of the purchaser, in particular in the case of delay of payment, we are eligible, if the conditions for terminating the contract are given, to take back the goods, if necessary to enter the purchaser's works and seize the goods. Furthermore, we can prohibit the further processing of the delivered goods. If we take back the goods, the contract is terminated. In the case of a seizure of the goods by a third party, the purchaser must immediately inform us in writing, or in the case of apprehended danger, in any other suitable manner.

9.4.    
Treatment and processing of the conditional goods by an entrepreneur take place for us as the manufacturer in the sense of § 950 of the German Civil Code without binding us. The treated and processed goods are deemed to be the conditional goods in the sense of these provisions.

9.5.    
If the purchaser, who is an entrepreneur, processes, combines and mixes the conditional goods with other goods, we are entitled to common ownership of the new object to the proportion of the invoice value of the conditional goods (invoiced final amount including value-added tax) to the invoice value of the other goods. If our ownership lapses due to combination, mixing or processing, the entrepreneur now has to transfer to us his ownership or expectant rights to the new stock or object to the extent of the invoice value of the conditional goods, or in the case of processing, to the proportion of the invoice value of the conditional goods to the invoice value of the other used goods, and must keep them for us free of charge. Our common ownership rights are deemed as conditional goods in the sense of these provisions.

9.6.    
The purchaser may only resell the conditional goods in the ordinary course of business to his usual terms of trade, as long as he is not in delay. He is not entitled to any other disposition of the conditional goods. The use of the conditional goods for the fulfilment of contracts to manufacture and cost-plus contracts are also deemed to be reselling.

9.7.     
If the purchaser is an entrepreneur, he now assigns his claim from the reselling of the conditional goods, including all additional rights, to us. We accept the assignment. They serve as a security to the same extent as the conditional goods in the sense of these provisions. If mutual accounts exist between the entrepreneur and the purchaser, the reservation of ownership also refers to the recognised balance and also, in the case of the purchaser's insolvency, to the then existing "causal" balance.

9.8.    
If the conditional goods are resold by the entrepreneur together with other goods, the claim from goods the reselling is assigned to us to the proportion of the invoice value of the conditional to the invoice value of the other goods. If goods, in which we have part common ownership in accordance with the above paragraphs, are resold, a part of the claim proportional to our part of the common ownership is assigned to us.

9.9.    
If the purchaser is an entrepreneur, he is also entitled to collect claims after assignment. Our power to collect claims ourselves remains unaffected by this, we are, however, obliged not to collect claims as long as the purchaser fulfils his obligations to pay, does not make default and, in particular, no application is made for the institution of bankruptcy proceedings regarding his assets or he has stopped payments. If this is the case, however, we can demand that the purchaser makes known to us the assigned claims and their debtors, provide all details required for their collection, hands over the respective documents and gives notice of the assignment to the debtors (third parties).

9.10.  
The purchaser does not have the power to assign the claims: an assignment by way of real factoring is permitted on the assumption that the purchaser announces this via notification through the Factoring Bank and the accounts kept there, and that the proceeds from factoring exceed the value of the secured claim.

9.11.  
We are obliged, upon the demand of the purchaser, to release securities due to us to such an extent that the realisable value of our securities exceed the claims to be secured by more than 10%; it is incumbent upon us to choose the securities to be released.

10.  
General Limitation of Liability

10.1.  
Our liability is exclusively oriented to the stipulations made in these terms and conditions. Claims for compensation by the purchaser from negligence at the making of the contract, the breach of contractual obligations or unauthorised dealings are inadmissible, unless they are based on intent or the gross negligence of our legal representatives or one of our vicarious agents. If significant contractual obligations are breached, we are also liable in the case of slight negligence; in this case, however, our liability towards an entrepreneur is limited to the replacement of foreseeable, typically occurring damage. These and all other limits of liability stipulated in these terms and conditions do not apply to claims under the product liability law or from guarantees regarding the quality of the goods, nor from damage from injury to life, body or health.

11.  
Applicable Law

11.1.  
The law of the Federal Republic of Germany applies, to the exclusion of the agreement of the United Nations on Contracts for International Sale of Goods of 11 April 1980.

12.  
Concluding Provisions

12.1.  
Unless otherwise expressly stipulated, the place of performance for both contracting parties is Bad Iburg.

12.2.  
If the purchaser is an entrepreneur, a public law juristic person or special funds under public law, the jurisdictional venue is Bad Iburg. We are, however, entitled to take legal proceedings against the purchaser at his general jurisdiction.

12.3.  
The purchaser's rights from contracts made with us are nontransferable.

12.4.  
The legal invalidity of individual provisions contained in this contract or the preceding terms and conditions does not affect the validity of the remaining terms and conditions or agreements.

Status: July 2005


Terms of Purchase
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