Terms and Conditions of Sale and Delivery
General terms and conditions
Terms and Conditions of Sale and Delivery
Version: Effective as of February 1, 2002
I. Offer and Scope of Delivery
Our offers are non-binding. An order is considered accepted only when it has been confirmed in writing by us after the complete clarification of all technical and commercial details. The scope of delivery is determined by our written order confirmation. Side agreements are only valid if confirmed in writing by us. The information contained in our printed materials, such as illustrations, drawings, measurements, and weight specifications, as well as descriptions, are only binding if explicitly stated as such. Changes to technical data and constructions are reserved.
II. Prices
Unless otherwise agreed, the prices are ex works and do not include packaging, freight, postage, value protection, installation, or statutory VAT. The confirmed prices are based on the material prices and wages valid at the time of order acceptance. We reserve the right to invoice the prices applicable at the time of delivery, based on the material prices and wages then in effect.
III. Packaging
Our actual packaging costs incurred will be invoiced and are non-refundable.
IV. Delivery Time
The delivery times provided by us are non-binding. They apply from the date of order acceptance, but not before all execution details and conditions to be fulfilled by the buyer are clarified. The delivery time will be extended appropriately in the event of unforeseen circumstances during production or other obstacles, such as cases of force majeure, transport delays, operational disruptions in our own plant, or in the plants of sub-suppliers. Claims for damages, particularly due to delay in delivery, are rejected. We are entitled to deliver before the confirmed delivery time and to make partial deliveries.
V. Call-off Orders
Goods ordered on call must be accepted within a reasonable period, but no later than 12 months from the date of the order confirmation, unless otherwise agreed. If the acceptance does not occur on time, we may, at our discretion, store the ready-for-shipment goods at the buyer’s cost and risk and invoice them as delivered, including all incurred costs, or ship them after prior notice.
VI. Transfer of Risk
The risk passes to the buyer no later than when the delivery items are dispatched, even if freight-free delivery has been agreed. If shipment is delayed due to circumstances not attributable to us, the risk passes to the buyer from the day the goods are ready for shipment.
VII. Shipping
Shipping is carried out at the buyer’s expense and risk. The method and route of shipment are determined by us at our discretion, unless otherwise agreed in writing. All freight charges, postage, insurance, and other expenses, including any stamp duties, are to be borne by the recipient.
VIII. Right of Withdrawal
The buyer has the right to withdraw from the contract if delivery becomes completely impossible for us, if we are in default and have negligently allowed a reasonable grace period set by us with a threat of withdrawal to expire, if we negligently let an adequate grace period for the rectification of a defect for which we are responsible, as defined in the terms of delivery, expire without result, or if rectification proves to be impossible. Unforeseen events as described in section (IV) that lead to an extension of the agreed delivery time entitle us, excluding any claims by the buyer, to withdraw partially or fully if, since the order was placed, the economic circumstances have changed to such an extent that fulfillment can no longer reasonably be expected from us. This also applies if an extension of the delivery time was initially agreed. Apart from the right of withdrawal mentioned above and the claims specified in section (XV), the buyer may not make any claims for damages or other rights due to any disadvantages related to the delivery contract or the goods supplied, regardless of the legal grounds he invokes.
IX. Order Rescheduling and Cancellation
In the event of an unjustified non-acceptance of the ordered goods within a period to be determined by us, as well as in the case of an order cancellation by the buyer, which in any case requires our consent, the buyer is obliged to pay for the processing costs of the order, the work already performed, including materials procured for the execution of the order, plus a reasonable compensation for lost profit.
X. Drawings and Documents
The recipient shall not disclose any information to third parties. Violations of this obligation will result in full compensation for damages and entitle us to withdraw from all obligations undertaken.
XI. Models and Tools
To the extent that such items are made for special designs, they shall remain our property, even if they are paid for, in whole or in part, by the buyer. We can only agree to reserve specific designs of our delivered goods for a purchaser if they are protected by patents or legally valid industrial property rights (DBGM).
XII. Intellectual Property Rights
It is solely the responsibility of the buyer to ensure that the special orders placed do not infringe upon the intellectual property rights of third parties. The buyer shall indemnify us against any claims arising in connection with such intellectual property rights.
XIII. Retention of Title
(1) The goods remain the property of the supplier until all claims arising from the business relationship with the buyer have been fulfilled. In cases where the payment of liabilities is agreed upon by check or bill of exchange, the retention of title extends to the redemption of the bill of exchange accepted by the supplier by the buyer, including all contingent liabilities, and does not expire upon crediting of the received check to the supplier’s account. All orders are considered as part of a unified business transaction.
(2) The buyer may only sell the goods subject to retention of title in the ordinary course of business, under their usual terms and conditions, and as long as they are not in default, provided that they have agreed on a retention of title with their purchaser and that the claim (final invoice amounts, including VAT) arising from the resale is transferred to the supplier. The buyer is not authorized to make any other dispositions.
(3) The buyer is obligated to handle the goods subject to retention of title with care; in particular, they are required to insure the goods at their own expense against fire, water, and theft damage for their replacement value.
(4) The buyer’s claim arising from the resale of the goods subject to retention of title is hereby assigned to the supplier with immediate effect. This claim serves as security for the supplier’s claims to the same extent as the goods subject to retention of title.
(5) If the goods subject to retention of title are sold by the buyer together with other goods not supplied by the supplier, the assignment of the claim from the resale applies only to the invoiced value of the goods subject to retention of title that were sold. In the case of the sale of goods in which the supplier has co-ownership shares, the assignment of the claim applies to the proportion of the co-ownership shares.
(6) The supplier agrees to release the securities to which it is entitled upon the buyer’s request, to the extent that the value of the securities exceeds the secured claim by more than 20%; the selection of the securities to be released is at the supplier’s discretion.
(7) In the event of a breach of contract by the buyer, particularly in case of payment delay, the supplier is entitled to take back the goods; such return does not constitute a withdrawal from the contract. After taking back the goods, the supplier is authorized to dispose of them; the proceeds from the disposal will be credited to the buyer’s liabilities, less reasonable disposal costs.
(8) The buyer is not entitled to pledge the supplier’s goods or transfer them as security to third parties. In the event of seizure or other interference by third parties, the buyer must promptly notify the supplier in writing and inform the third party of the supplier’s rights. If the third party is unable to reimburse the supplier for the judicial and extrajudicial costs of an objection proceeding, the buyer will be liable for the loss incurred by the supplier.
(9) Any processing or treatment of the goods supplied by the supplier by the buyer is deemed to be carried out for the supplier as the manufacturer pursuant to Section 950 of the German Civil Code (BGB), without obligating the supplier. The processed goods are considered reserved goods as defined in Section 1. In the event of processing, combining, or mixing of the reserved goods with other goods not owned by the supplier by the buyer or its agents, the supplier shall hold co-ownership of the new item in proportion to the invoice value of the reserved goods compared to the invoice value of the other goods used. If the supplier’s ownership is extinguished by combining or mixing, the buyer shall transfer to the supplier the ownership rights to the new goods or item to the extent of the invoice value of the reserved goods and shall hold them in trust at no cost. The co-ownership rights resulting from this shall be considered reserved goods.
(10) If the retention of title or assignment is not valid under the law of the jurisdiction in which the goods are located, the security corresponding to the retention of title or assignment in that jurisdiction shall be deemed agreed. If the cooperation of the purchaser is required in this regard, the purchaser shall take all necessary measures to establish and maintain such rights.
XIV. Payment
Payments are to be made in full, without any deductions, to the supplier’s payment office within 30 days from the invoice date. If no invoices are overdue, we offer a 2% discount for payments made within 10 days of the invoice date. This does not apply to repair and replacement part shipments, which are payable immediately in full. International deliveries will be invoiced according to special agreements. For customers with whom we do not maintain an ongoing business relationship, deliveries are made against cash on delivery of the invoice amount with a 2% discount. Checks and bills of exchange are considered payments only upon their redemption, with the supplier reserving the right to accept bills of exchange. Bill of exchange expenses are borne by the buyer. No discount will be granted for bill of exchange payments. If the agreed payment terms are exceeded, and without the need for a separate reminder, and subject to the assertion of additional rights, default compensation will be calculated based on the applicable bank interest rates and bank charges for outstanding business credit. If the buyer’s financial situation deteriorates after delivery, or if we become aware of such a deterioration after delivery, our claims will become immediately due. Furthermore, we are entitled to deliver any outstanding items only against advance payment and, after a reasonable grace period, to withdraw from the contract. The same applies if the payment terms are not met. The buyer agrees to offset claims against obligations. Withholding payments or offsetting with unrecognized counterclaims by the buyer is excluded. Sales representatives of the supplier are authorized to accept payments only if they have been specifically authorized by the supplier.
XV. Warranty
We are liable for defects in the delivery, including the absence of expressly guaranteed properties, to the exclusion of further claims as follows: All parts that, within 12 months of delivery from the Ruhrgetriebe plant, under 8-hour operation, are proven to become unusable or have their usability significantly impaired due to a circumstance occurring before the delivery date, particularly due to poor material supplied by us or defective workmanship, will be repaired or replaced free of charge at our discretion. The condition for this liability is the fulfillment of the contractual obligations by the buyer, particularly the adherence to the agreed payment terms. Any such defects must be reported to us immediately and in writing. The buyer must provide the necessary time and opportunity for us to carry out any necessary changes or replacement deliveries free of charge. Repairs will only be carried out at our plant. Defective parts must only be returned at our request and at no cost to us. Replaced parts become our property. No liability is assumed for parts that, due to their material composition, type of use, natural wear and tear, improper or careless handling, excessive stress, unsuitable operating equipment, chemical, electrical, or weather-related influences, are subject to damage or premature wear. The performance characteristics of gear units are determined by the results of our testing. We are not liable for malfunctions caused by installation conditions or improper maintenance. Our liability for corrective work or replacement parts is limited to the warranty period of the original delivery. Liability ends if modifications, changes, or repairs are carried out without our prior consent. For third-party products supplied by us, we are only liable to the extent that our suppliers provide warranty for their products to us. Further claims by the buyer, regardless of the legal basis, especially for indirect damages, are excluded. We offer advice to the best of our knowledge, but it is the responsibility of the buyer to carefully assess the suitability of our proposals for their intended use. Warranty claims are excluded in this respect.
XVI. Place of Performance and Jurisdiction
The place of performance for delivery, performance, acceptance, payment, and the place of jurisdiction, including for actions in document and bill-of-exchange proceedings, shall be Mülheim an der Ruhr. German law shall exclusively govern all contractual relationships.
XVII. Invalidity of Provisions
Should any individual provision of these terms be invalid or declared invalid by a final court judgment, the validity of the remaining provisions shall not be affected.
