ASRE Werkzeugfabrik Arthur Schlieper GmbH & Co. KG, Hastener Str. 137, 42855 Remscheid/Germany, Tel. +49-2191 98 80 13, Fax +49-2191 98 80 13-38, E-Mail: email@example.com
Terms and Conditions of Sale and Delivery
§ 1 Application
- Our conditions shall only apply to entrepreneurs, legal entities under public law or a special fund under public law as defined in § 310 BGB (German Civil Code)
- The following terms and conditions apply to all our contracts, deliveries and other services unless they are amended or excluded with our express written consent. They shall also apply in particular if we carry out the delivery/service without reservation despite being aware of deviating terms and conditions of our contractual partner. General terms and conditions of our contractual partner shall only apply if we confirm them in writing.
- Our terms and conditions shall also apply to all future contracts, deliveries and services, even if their text is not sent to our contractual partner again with our offer or order confirmation.
§ 2 Offer and conclusion
- Our offers are not-binding. Contracts and other agreements shall only become binding upon our written confirmation or upon our delivery/service.
- All agreements between us and our contractual partner must be recorded in writing when the contract is concluded. Agreements made between our employees or representatives and our contractual partner during or after conclusion of the contract require our written confirmation in order to be valid; the power of representation of our employees and representatives is limited to this extent.
- In the case of contracts with entrepreneurs the minimum order value is 60 €. In the case of contracts that are lower than the minimum order value, we charge a lump sum for handling in the amount of 10 €. If the order value is lower than 30 € there won’t be no dispatch of the order. If the registered office of the entrepreneur is abroad, or if the goods ordered by the entrepreneur are to be delivered abroad, the minimum order value is 100.00 €.
§ 3 Prices, price increase and payment
- Our prices apply to delivery ex works Remscheid plus packaging, freight, customs, insurance, postage and statutory value-added tax, whereby we charge the latter in each case at the rate applicable on the day of delivery or performance. The current list prices at the time of the order apply. Amended prices shall be deemed accepted if the customer does not object to them immediately after receipt of the order confirmation.
- If our purchase prices and/or the wage or salary tariff applicable to us between the conclusion of the contract and the execution of the order increase in the case of orders that are to be fulfilled as agreed later than four months after conclusion of the contract or can only be fulfilled later than four months after conclusion of the contract for reasons for which our contractual partner is responsible, we shall be entitled to demand a price that is proportionately higher than the percentage share of the relevant entry price and/or the relevant wage costs in the agreed price.
- Our invoices are to be paid within 10 days after receipt without deduction, unless otherwise agreed or provided for in our offer/order confirmation. If a right to discount has been agreed, it shall only exist in any case if all invoices due at the time of the discount are simultaneously settled. We are entitled to demand payment by cash on delivery or advance payment. Unless otherwise agreed, advance payment shall apply in the export sector.
- We shall be entitled to interest of 9 % above the base interest rate from the due date. Further claims - in particular due to delay on the part of our contractual partner - remain unaffected.
- Offsetting against counterclaims disputed by us and not legally established is not permitted. The assertion of a right of retention due to claims which are not based on the same contractual relationship is excluded if these claims have not been recognized by us and have not been legally established.
§ 4 Deterioration of the contractual partner's assets, doubts about solvency
- If one of the following events occurs or if such an event, which already existed at the time of conclusion of
the contract, only becomes known after conclusion of the contract, we may demand advance payments in the amount
of the agreed price from our contractual partner, revoke agreed or granted payment terms or return current bills
of exchange and demand immediate payment. This applies to the following events:
- A judicial or extrajudicial insolvency or composition procedure is opened or the opening of such a procedure is refused for lack of assets with respect to the assets of our contractual partner;
- There is a written credit report of a bank or credit agency, from which the credit unworthiness of our contractual partner or a considerable deterioration of his financial circumstances results;
- A cheque accepted by us from our contractual partner or a direct debit made by us with the authorisation of our contractual partner is not honoured.
- If our contractual partner does not comply with our justified request for advance payments within a reasonable grace period set by us, although we have declared to him that we will refuse acceptance of further services by him after expiry of the grace period, we shall be entitled to withdraw from the contract or demand damages instead of performance, but only with regard to the part of the contract not fulfilled by us.
§ 5 Shipment and transfer of risk, insurance
- The risk of accidental loss and accidental deterioration of the goods shall in any case, irrespective of the place of dispatch, pass to our contractual partner upon dispatch of the goods, even if freight-free delivery and/or assembly has been agreed in exceptional cases.
- If the goods are not to be dispatched or if dispatch is delayed at the request of our contractual partner or for reasons for which our contractual partner is responsible, the risk of accidental loss and accidental deterioration shall pass to our contractual partner upon our notification of readiness to deliver. In this case, the goods shall be stored at the expense and risk of our contractual partner.
§ 6 Delivery and service periods and dates
- Delivery and performance periods and dates shall only be deemed binding if confirmed by us in writing.
- A performance and delivery period determined only in terms of duration shall commence at the end of the day on which agreement has been reached on all details of the contents of the order, at the earliest upon acceptance of the order by us, but not before the provision of all documents, approvals, releases to be procured by our contractual partner and not before receipt of any down payment to be made by our contractual partner.
- Delivery or performance periods or dates shall be deemed to have been met if the goods or, in cases in which the goods are not to be dispatched, our notification of our readiness to deliver has been sent by us by the date/period expiring. In the case of assembly services to be performed by us, we shall manufacture the delivery item ready for acceptance by the deadline or by the expiry of the deadline.
- Deadlines shall be extended and appointments postponed - even within the period of default - appropriately in the event of force majeure and unforeseen obstacles occurring after conclusion of the contract for which we are not responsible, insofar as such obstacles demonstrably have a considerable influence on the delivery of the object sold. In any case, strikes and lockouts shall also be deemed to be obstacles for which we are not responsible within the meaning of this paragraph. The above provisions shall also apply if the delaying circumstances occur at our suppliers or their sub-suppliers. If delivery delays caused in this way last longer than 8 weeks, our contractual partner shall be entitled to withdraw from the contract to the exclusion of any further claims.
- Delivery periods shall be extended and appointments postponed by the period in which our contractual partner is in default with his obligations - within a current business relationship also from other contracts - or does not create the prerequisites for the commencement or continuation of the work to be carried out by him, in particular if he does not provide necessary documents, plans or other specifications. The burden of proof that he has created the necessary prerequisites and provided the necessary documents, plans or specifications shall lie with our contractual partner.
§ 7 Declaration on choice of rights after setting a deadline for subsequent performanceIn all cases in which our contractual partner has set us a deadline for subsequent performance due to non-delivery or improper delivery and this deadline has elapsed, we shall be entitled to demand that the contractual partner declares within a reasonable period whether, despite the expiry of the deadline, he continues to assert the claim for performance/supplementary performance (“Nacherfüllung”) or whether he transfers to the other rights optionally granted to him. If our contractual partner does not make a declaration within the reasonable period of time set for him, the claim for performance/supplementary performance (“Nacherfüllung”) shall be excluded. If our contractual partner informs us within the set, reasonable period that he continues to demand fulfilment/ supplementary performance (“Nacherfüllung”), he shall be entitled to set a new deadline for this and, in the event of its fruitless expiry, to make use of other rights.
§ 8 Delay, exclusion of the obligation to performIf we are in default with the delivery or service or if our obligation to perform is excluded according to § 275 BGB, we shall only be liable for damages under the conditions and to the extent of § 14 No. 3, but with the following additional provisions:
- If we are in default with the delivery and if there is only a case of slight negligence on our part, any claims for damages on the part of our contractual partner shall be limited to a lump-sum compensation for default amounting to 1% of the value of the delivery for each completed week of default, but no more than 8% of the value of the delivery, whereby we reserve the right to prove that as a result of the default in delivery no damage at all or only minor damage has occurred.
- In the event of our default, our contractual partner shall only be entitled to claim damages instead of performance if he has previously granted us a reasonable grace period of at least 6 weeks for delivery, whereby he shall, however, reserve the right to grant us a reasonable grace period of less than 6 weeks if in individual cases a grace period of at least 6 weeks for delivery is unreasonable for him.
- A right of withdrawal to which the contractual partner is entitled and a claim for damages to which the contractual partner is entitled are generally limited to the part of the contract which has not yet been fulfilled, unless our contractual partner is no longer reasonably interested in the part of the contract which has been fulfilled.
- Claims for damages directed against us due to delay or exclusion of the obligation to perform according to § 275 BGB shall become statute-barred one year after the beginning of the statutory limitation period.
- The above provisions shall not apply in the event of damage resulting from injury to life, limb, health or freedom of our contractual partner, or if the damage is due to an intentional or grossly negligent breach of duty by us, one of our legal representatives or vicarious agents, or in the event of default if a transaction for delivery by a fixed date has been agreed.
§ 9 Default of acceptance on the part of the contractual partner
- If our contractual partner defaults on acceptance of our services in whole or in part, we shall be entitled, after fruitless expiry of a reasonable grace period set by us, either to withdraw from the contract or to demand damages instead of performance, but only with regard to the part of the contract not yet fulfilled by us. We shall not be entitled to claim damages if our contractual partner is not to blame for the delay in acceptance. Our statutory rights in the event of default in acceptance on the part of our contractual partner shall remain unaffected.
- In the event of default of acceptance, the contractual partner shall reimburse us for our storage costs, storage rent and insurance costs for goods due for acceptance but not accepted. We are under no obligation to insure stored goods.
- If the delivery of the goods is delayed at the request of the contractual partner or if he is in default of acceptance, we may charge storage charges in the amount of the customary local storage costs at a specialist company after one month has elapsed since the dispatch of the notification of our readiness to deliver, whereby we reserve the right to assert an actually incurred, higher damage.
§ 10 Cancellation of orders, return of goods, compensation instead of performanceIf, at the request of our contractual partner, we agree to the cancellation of an order placed or if we take back goods delivered by us for reasons for which we are not responsible, releasing the contractual partner from his obligation to accept and pay, or if we are entitled to a claim for damages instead of performance, we shall be entitled to demand 15 % of the contract price share which corresponds to the affected part of the delivery item or service item as compensation without proof, whereby our contractual partner reserves the right to prove that no damage or only minor damage has been incurred. Our right to claim higher damages actually incurred shall remain unaffected.
§ 11 Condition of goods
- Our information on the object of performance and the intended use, dimensions, weights, utility value or other properties, whether contained in brochures, price lists, descriptions, illustrations, drawings, sketches, directories or other files, are only approximate values customary in the industry. They serve merely to describe our products and are only binding if this is expressly confirmed by us.
- We reserve the right to deviations in quality, dimensions, weights and other properties, provided that the delivered items are not impaired in their usability and the deviations are not unreasonable for our contractual partner for other reasons.
§ 12 Consultation
- Insofar as we provide general technical application advice, this shall take place in accordance with the current state of the art. The consultation is carried out according to our choice by our own employees or third parties commissioned by us.
- We do not owe any specific success in the context of consulting, but only services. It is solely in the decision-making and risk area of the contractual partner to make the necessary decision on the basis of the advice provided. The consultation does not release the contractual partner from his obligation to carry out his own examination with regard to its suitability for the intended processes and purposes.
§ 13 Compensation instead of performanceIf we are entitled to a claim for damages instead of performance, we may demand 15 % of the contract price share corresponding to the affected part of the delivery item as compensation without proof, whereby our contractual partner reserves the right to prove that no damage or only minor damage has been incurred. Our right to assert an actually incurred higher damage remains unaffected.
§ 14 Liability for defects and damages
- Claims of our contractual partner due to defects of the goods delivered by us shall become statute-barred one year after delivery of the goods. For the claim for damages and reimbursement of expenses pursuant to §§ 437 No. 3, 439 Para. 2 + 3, 634 No. 4 BGB, however, the statutory period shall remain in effect if it concerns damages resulting from injury to life, limb, health or freedom of our contractual partner or damages based on an intentional or grossly negligent breach of duty by us, one of our legal representatives or vicarious agents. The statutory limitation period shall also apply if we have fraudulently concealed the defect. In the cases of §§ 439 para. 2 + 3, 445 a para. 1 BGB, the provisions made therein shall apply; however, the foregoing sentences 1, 2 and 3 shall also apply to the claim for damages.
- The rights of our contractual partner due to defects in the goods shall be determined in accordance with the statutory provisions with the proviso that our contractual partner shall grant us a reasonable period of grace of at least four weeks for subsequent performance, whereby it shall be at our discretion whether we remedy the defect or supply a defect-free replacement item. The goods complained of shall be handed over to us for inspection purposes. Our contractual partner reserves the right to grant us a reasonable period of less than four weeks in individual cases if a period of at least four weeks for subsequent performance (“Nacherfüllung”) is unreasonable for him. If only a part of the goods delivered by us is defective, the right of our contractual partner to demand cancellation of the contract or compensation instead of performance shall be limited to the defective part of the delivery/service, unless this limitation is impossible or unreasonable for our contractual partner. Claims for damages by our contractual partner due to defects in the delivery or service shall be limited to the extent set out in Section 3 below.
- Our liability for damages resulting from injury to life, limb, health or freedom of our contractual partner which are based on a culpable breach of duty is neither excluded nor limited. We shall only be liable for other damages of our contractual partner if they are based on an intentional or grossly negligent breach of duty by us, one of our legal representatives or vicarious agents. If we have caused the damage only by slight negligence, we shall only be liable if it is a matter of breach of essential contractual obligations, limited to the damage typical for the contract and reasonably foreseeable. Otherwise, claims for damages by our contractual partner due to breach of duty, tort or other legal grounds are excluded. The above limitations of liability shall not apply in the absence of warranted characteristics and in the case of guarantees if and to the extent that the purpose of the warranted characteristic or the guarantee was to protect the partner from damage caused to the delivered goods themselves. Insofar as our liability is excluded or limited, this shall also apply to the personal liability of our employees, workers, staff and vicarious agents. The above exclusions of liability also apply to consequential damages in any case. However, the above exclusions of liability do not apply to claims under the Product Liability Act.
§ 15 Manufacturer's liabilityOur contractual partner shall indemnify us against all claims for damages asserted against us by third parties on the basis of the provisions on unlawful acts, on product liability or by virtue of other provisions on account of defects or deficiencies in the goods manufactured or delivered by us or by our contractual partner insofar as such claims would also be justified against our contractual partner or are no longer justified merely on account of the statute of limitations which has meanwhile occurred. Under these conditions, our contractual partner shall also indemnify us against the costs of legal disputes brought against us on account of such claims. If the claims asserted against us are also substantiated or are no longer substantiated merely because the statute of limitations has meanwhile expired, we shall have a pro rata claim for indemnification against our contractual partner, the scope and amount of which shall be governed by § 254 BGB. Our obligations to indemnify, incur expenses and pay damages in accordance with §§ 437 No. 3, 478, 634 No. 4 BGB or on other legal grounds shall remain unaffected by the above provisions; however, the restrictions in accordance with § 14 No. 3 of these Terms and Conditions shall apply to them.
§ 16 Retention of title
For the fulfilment of all claims to which we are entitled against our contractual partner now or in the future,
our contractual partner shall grant us the following securities, which we shall release at our discretion upon
request, insofar as their nominal value sustainably exceeds our claims by more than 20%: Delivered goods remain
Processing or transformation shall always be carried out for us as manufacturer, but without any obligation on our part.
If the goods delivered by us are processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the invoice value of the goods delivered by us to the invoice value of the other goods used at the time of processing.
If our goods are combined with other movable objects to form a uniform object and if the other object is to be regarded as the main object, our contractual partner hereby assigns to us pro rata co-ownership of the new object, insofar as this main object belongs to him, in the ratio of the invoice value of the goods delivered by us to the invoice value of the other goods used at the time of the combination.
Any transfer of ownership or co-ownership which may be necessary for us to acquire shall be replaced by the agreement made now that our contractual partner shall hold the item in safe custody for us as a borrower or, if he does not own the item himself, shall assign to us already now the claim to surrender against the owner. Items to which we are entitled to (co-)ownership in accordance with the above provisions are hereinafter referred to as reserved goods.
- Our contractual partner is entitled to sell the reserved goods in the ordinary course of business and to combine or process them with other goods. The contractual partner hereby assigns to us any claims arising from the sale, combination, processing or any other legal basis with regard to the reserved goods in whole or in part in the proportion in which we are entitled to co-ownership of the sold, processed or combined object. If such claims are included in current invoices, this assignment shall also include all balance claims. The assignment takes precedence over the remainder. Subject to revocation, we authorise our contractual partner to collect the assigned claims. The contractual partner must immediately transfer the collected amounts to us as far as and as soon as our claims are due. Insofar as our claims are not yet due, the amounts collected shall be recorded separately by the contractual partner. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claims as long as our contractual partner fulfils his payment obligations from the proceeds received, does not fall into arrears and, in particular, as long as no petition for the opening of insolvency or composition proceedings has been filed and payments have not been suspended. At our request, our contractual partner shall be obliged to inform us of the assigned claims and their debtors, to hand over the associated documents to us and to provide us with all information required for collection. If we are entitled to collect the claims, our contractual partner is obliged to provide us with all information necessary for collection and to notify the third debtors of the assignment, whereby we are entitled to notify the debtor of the assignment ourselves. Upon cessation of payments, application for or opening of insolvency proceedings, judicial or extrajudicial composition proceedings, the rights of our contractual partner to resell, process or combine the reserved goods and the authorisation to collect the assigned claims shall expire even without our revocation.
- Our contractual partner must inform us immediately of any third party access to the reserved goods and to the assigned claims. Any costs of interventions or their defence shall be borne by our contractual partner.
- Our contractual partner is obliged to treat the reserved goods with care, in particular to adequately insure them at their replacement value against fire, water and theft at his own expense.
- In the event of conduct contrary to the terms of the contract on the part of our contractual partner - in particular default in payment - we shall be entitled to take back the reserved goods at the expense of our contractual partner or to demand assignment of the contractual partner's claims for surrender against third parties without having to declare our withdrawal from the contract beforehand or at the same time. In particular, our taking back or seizure of the reserved goods does not constitute a withdrawal from the contract unless we have expressly declared this in writing.
- Should our retention of title lose its validity for deliveries abroad or for other reasons or should we lose ownership of the goods subject to retention of title for any reason whatsoever, our contractual partner shall be obliged to immediately provide us with another security for the goods subject to retention of title or another security for our claims which is effective under the law applicable to the registered office of the contractual partner and comes as close as possible to the retention of title under German law.
§ 17 Ownership of documents, secrecy
- Illustrations, drawings, calculations, samples and models remain our property. This applies in particular to documents which are marked as confidential. Our contractual partner undertakes not to make such objects accessible to third parties in any form whatsoever without our express permission. For each case of culpable infringement of the aforementioned obligations, our contractual partner promises us a contractual penalty of 6,000.00 € in each individual case. Our right to demand compensation for damages actually incurred in excess of the contractual penalty shall remain unaffected.
The contracting parties mutually undertake to treat all commercial and technical details of which they become
aware as a result of the cooperation and which are not obvious as their own business secrets and to maintain
absolute secrecy in relation to third parties. For each case of culpable infringement of the aforementioned
obligations, the contracting parties promise themselves a contractual penalty in the amount of 6,000.00 € in
The right to claim compensation for damages actually incurred in excess of the contractual penalty shall remain unaffected.
§ 18 Industrial property rights
- If the goods are to be manufactured according to drawings, samples or other information provided by our contractual partner, the contractual partner shall be responsible for ensuring that any rights of third parties, in particular patents, utility models, other industrial property rights and copyrights, are not infringed as a result. The contractual partner shall indemnify us against any claims by third parties arising from any infringement of such rights. In addition, our contractual partner shall bear all costs incurred by us as a result of third parties asserting the infringement of such rights and we defend ourselves against this.
- Should results, solutions or techniques arise in the course of our development work which are in any way patentable, we are the sole owners of the resulting property rights, copyrights and rights of use and we reserve the right to file the corresponding patent applications in our own name and in our own name.
§ 19 AssignmentOur contractual partner shall only be entitled to assign claims of any kind directed against us with our written consent.
§ 20 Place of performance, place of jurisdiction, applicable law
Place of performance and exclusive place of jurisdiction for deliveries, services and payments, including
actions on cheques and bills of exchange, as well as all disputes arising between the parties from and in
connection with the contractual relationship shall be Remscheid, provided that our contractual partner is a
However, we shall also have the right to sue our contractual partner at another place of jurisdiction applicable to him pursuant to §§ 12 ff. ZPO (German Code of Civil Procedure).
- The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany to the exclusion of international sales law, in particular UN sales law and other international agreements for the standardization of sales law.
- In case of differences the German Version of the Terms and Conditions of Sale and Delivery shall prevail.