Sales and Delivery Conditions

For use with private and commercial customers (referred to in the following as the “Customer”). Insofar as the Customer is a consumer in the meaning of § 13 BGB (German Civil Code), that is, is a natural person who concludes a legal transaction for a purpose not attributable to either his/her commercial or self-employed professional activities, any deviations and distinctions will be clearly marked in bold in the text. Persons who are agriculturists as their main occupation or spare-time occupation and receive earnings from their activities are not consumers in the meaning of these regulations. All agreements, offers and deliveries take place exclusively on the basis of these general terms and conditions. These shall apply also to future commercial relationships even where this is not separately agreed. Divergent, conflicting or supplementary general terms and conditions will not be accepted as part of the agreement, even if acknowledged, unless they have been explicitly agreed in writing. 

§ 1 Delivery agreement
Our offers are subject to change. Technical changes as well as changes and differences in shape, colour and/or weight are subject to change within reason.
Dimensions, weights, illustrations and drawings, including all information and illustrations in brochures and catalogues, are only binding if this is expressly agreed in writing.
By ordering any item of goods, the Customer declares with binding force his/her willingness to purchase the goods ordered. We are entitled to accept the offer of agreement contained in the order within two weeks of receipt by us. Acceptance of the order may be confirmed in writing or by delivery of the goods to the Customer.
Insofar as the consumer orders the goods by electronic means, the text of the contractual agreement will be stored by us and will be sent to the Customer together with the current GTC upon request.
The quality of the goods is based exclusively upon the agreed technical delivery instructions. Should we be required to deliver according to drawings, specifications, samples, etc. of our Customer, the latter shall be responsible for any lack of suitability for the intended use. Of crucial importance for the condition of the goods in conformity with the contract is the point in time of the passing of the risk. Insofar we shall only be liable for the appropriate workmanship. Unless explicitly agreed to the contrary, no liability is assumed for determining the quality of the materials nor for corrosion damage.
Should the Customer unjustifiably cancel an order already placed, without prejudice to our right to assert a claim for actual higher damages, we shall be entitled to 25% of the sales price for costs incurred in processing the order and for loss of profit. The customer shall have the right to provide proof of lesser damages.

§ 2 Term of delivery
Delivery periods (term of delivery) are only binding if they have been expressly stated as binding by us and have been confirmed in writing.
The delivery period begins with the dispatch of the order confirmation but not before receipt of those documents, authorisations, releases to be provided by the Customer, if any, nor before receipt of an agreed payment. If there are any subsequent technical discrepancies or errors in the Customer’s order documents or drawings, the delivery period shall start anew once these have been remedied.
The delivery period shall have been adhered to if notification of readiness to dispatch is made before expiration of the delivery period or the delivery item has left the works.
Part deliveries are only permissible within the delivery periods stated by us insofar as they do not cause disadvantages for the use.
Should a failure to meet the delivery time be due to force majors, to industrial disputes or other events that are outside the control of the supplier, the delivery time shall be extended fairly and reasonably. The supplier shall inform the Customer of the start and the end of any such circumstances as soon as possible.
The agreement shall be concluded subject to our obtaining supplies ourselves correctly and timely from our suppliers. This shall apply only in the event that we are not responsible for failure to receive such delivery, in particular in the event of a congruent covering transaction with our supplier.
If dispatch is delayed at the request of the Customer or for reasons that are the responsibility of the Customer, beginning one month from notification of the readiness to dispatch costs incurred for storage and financing will be charged at a minimum of 0.5% of the invoice amount for each month or part month. The right to assert further claims due to delay remains unaffected. It is up to the customer to provide evidence of lesser damage/lower costs.

§ 3 Payment
If no agreement to the contrary exists, prices shall apply ex works plus packaging and value added tax where applicable.
For items manufactured to order, we may request appropriate partial payments on the following due dates:
1/3 of the agreed payment is due upon placing the order
1/3 of the agreed payment is due upon notification of readiness for shipping
-    1/3 of the agreed payment is due upon delivery/collection.
Services (commissioning, maintenance, installation and service work) are charged separately as a rule. These invoice amounts are due and payable immediately upon completion of the respective work.
Credit instruments are not accepted.
The invoice amount is due and payable immediately. Should there be a delay in payment by the Customer, we reserve the right to demand payment of interest on the amount owing in an amount of 8% above the base interest rate for the period of the delay. In addition we reserve the right to prove or assert a claim for further damages caused by the delay.
The Customer may only exercise his/her right of retention if his/her counter-claim is based on the same contractual relationship. He is entitled to compensation only if his counter claims have been determined in law or judgement-free or have been acknowledged by us.
Non-compliance with the agreed terms of payment and circumstances that we first become aware of after conclusion of the agreement which indicate that the Customer will not pay timely (e.g. refusal to provide cover by a trade credit insurer), shall entitle the supplier to demand the immediate provision of security - pre-payment or bank guarantee – for all payment claims arising out of the delivery agreement irrespective of the due date of payment and to cease all work on the delivery item until receipt of the security.
At the Customer’s request we will draw up a cost estimate for the work to be performed. Cost estimates that do not result in the conclusion of an agreement must be compensated at cost.

§ 4 Price changes
Price changes are permissible if there is a time lapse of more than three months between the conclusion of the agreement and the agreed date of delivery (also for part deliveries and partial payment invoices issued). If following this and until completion of the delivery there is an increase in wages, the costs of materials or the cost prices relating to the market, we shall be entitled to increase the price in relation to and commensurate with the cost increases. The Customer shall only have the right of rescission (withdrawal) if the price increase is significantly greater than the increase in the general cost of living between the time of placing the order and delivery.
If the Customer is a merchant/trader, a legal entity under public law or a special fund under public law, price changes in accordance with the above regulations are permissible if there are more than six weeks between conclusion of the agreement and the agreed date of delivery.

§ 5 Confidentiality
Each contractual party will use all documents (this includes all samples, models and data) and all knowledge that they have obtained out of this business relationship only for their joint contractual purpose and maintain secrecy with respect to third parties with the same due care that they would apply to their own documents and knowledge if the other contractual party has declared such documents and knowledge to be confidential or has an obvious interest in maintaining their secrecy.
This obligation shall not apply to documents and knowledge that are generally known or were already known to the contractual party upon receipt and where the contractual party was not under an obligation of secrecy, or where they are subsequently conveyed by a third party who is authorised to pass on such documents or information, or where the documents or information have been developed by the receiving contractual party without exploitation of any documents or information of the other contractual party subject to the obligation to maintain secrecy.

§ 6 Packaging and Transport
Packaging will become the property of the Customer and is charged by us as packaging costs according to paragraph 3 nos. 1 and 2 of these terms. We will use our best judgment in choosing the method of transport.
In the event of damage in transit or missing quantities the Customer shall notify the parcel service/forwarding agent/carrier without negligent delay and shall inform us.
With the transfer of the goods to the parcel service/forwarding agent/carrier or other person or entity charged with the transport, the risk of accidental loss or accidental deterioration of the goods passes to the Customer.
Delay in acceptance on the part of the Customer shall be equivalent to transfer.
Freight-paid prices and agreed transport costs apply on condition of free movement of the appropriate means of transport on the rail, road and waterway transport networks. Dead freight charges shall be charged to the Customer’s account.

§ 7 Warranties
Any material defects arising out of improper or inappropriate use, a location not in accordance with the instructions, defective installation or commissioning by the Customer or third parties, normal wear and tear, excessive stress, improper or negligent handling or non-compliance with the maintenance requirements and maintenance intervals, are excluded as are the consequences of unsuitable modifications or repairs undertaken by the Customer or third parties without our approval. The same shall apply to defects that only reduce the value of the goods or their fitness for their intended use to an insignificant level.
We must be given the opportunity to assess the defect notified. The goods complained of must be returned to us immediately upon request. In the event of the Customer failing to observe these obligations or carrying out modifications to the goods complained of without our consent, the Customer will lose any claims for material defects. We may refuse any form of supplementary performance if such supplementary performance is unreasonable, in particular, if this would incur unreasonable costs.
With respect to commercial Customers, for defective goods we may choose to make improvements to the goods complained of or provide a replacement, as the case may be by exchanging function units. If no other conclusion is appropriate with regard to the nature of the thing or of the defect or of other circumstances, we shall have the option to make at least two attempts to correct the defects or provide replacement.
If the supplementary performance fails, as a rule the Customer may choose either to demand a lowering of the price (reduction in price) or rescind the contractual agreement (rescission). For minor contractual deviations, in particular for minor defects, the Customer shall have no right of rescission.
If the Customer is a consumer and the goods have defects he may choose either to have the defect corrected under the warranty or to have a replacement delivery. If no other conclusion is appropriate with regard to the nature of the thing or of the defect or of other circumstances, we shall have the option to make at least two attempts to correct the defects or provide replacement. We may refuse the supplementary performance requested by the consumer if this is unreasonable, in particular if this incurs unreasonable costs.
For used goods we shall only be liable for defects if this has been explicitly agreed in writing with the commercial Customer.    
The warranty on used goods for consumers is valid for 12 months from the date of delivery.
The customer’s warranty rights are predicated on the former having correctly fulfilled his examination and complaint obligations under § 377 German Commercial code.
If the customer is a consumer, then we must be notified immediately in writing of evident deficiencies, but not later than 10 days from receipt of the goods; otherwise assertion of the claim in respect of rectification of deficiencies is excluded. Timely dispatch is sufficient to meet this period of notice.
If in the event of a legal or quality defect following unsuccessful supplementary performance the Customer wishes to rescind the contract, the Customer shall not be entitled to any further claims for compensation for damages. If the Customer requests compensation for damages following unsuccessful supplementary performance, the goods shall remain with the Customer if this is reasonable. The claim for compensation shall be restricted to the difference between the purchase price and the value of the defective products. This shall not apply for a fraudulent breach of contract on our part. For companies the period of warranty shall be for one year from delivery of the goods. This shall not apply if the Customer has not informed us timely of the defect (No. 7 of this paragraph).




As a rule only the product description of the manufacturer shall be the agreed composition of the goods. Public statements, sales talk or advertising by the manufacturer (of the product or of a component part of the product) shall not form part of the contractually agreed properties and composition of the goods. If the Customer receives inadequate assembly instructions, we shall only be liable for delivery of assembly instructions free of faults and this shall only apply in the event that the fault in the assembly instructions affects the proper assembly.
The Customer shall not receive guarantees from us in the legal sense. Any manufacturers’ guarantees remain unaffected.

§ 8 Limitation of liability
For slight negligible breach of duty, our liability shall be restricted to the immediate, predictable, average damage that might be encountered with the type of product. This shall also apply to slight negligible breach of duty committed by our legal representatives and vicarious agents. We shall not be liable for slight negligent breach of insignificant contractual duties. In particular any other and further claims of the Customer towards us are excluded. This shall apply in particular to claims for damages arising out of breach of duty of contractual obligations and for unauthorised actions. We therefore do not accept any liability for damages that do not arise out of the goods delivered themselves. Above all we do not accept any liability for loss of profit or other financial loss on the part of the Customer. This liability limitation is invalid in the event of breach of essential contractual obligations (cardinal obligations).
The limitations of liability above do not affect product liability claims of the Customer. Further, the limitations of liability shall not apply to non-attributable physical injury or damage caused to health or loss of life of the Customer.
Claims for damages for defect on the part of the Customer shall expire one year from delivery of the goods. This shall not apply in the event we have fraudulently concealed the defect.

§ 9 Reservation of title
We reserve the right to retain title to the goods until full payment has been made for any claims arising out of a current business relationship irrespective of the cause in law. For running accounts the reservation of title shall serve as security for our respective balance claims. This shall also apply if the Customer payment is made in respect of specific claims.
The Customer shall handle the goods with care. If any maintenance and inspection work is required, the Customer shall have these performed regularly at his own cost.
Processing or alteration of the reserved goods shall always be deemed as being performed for us as manufacturer without incurring any liability for us. When processing or modifying the reserved goods with goods not delivered by us, we shall be entitled to co-ownership of the new items in relation of the value of the reserved goods to the value of the processed or altered goods at the time of processing or alteration . In the event that our title to the reserved goods should expire through re-assembling or combining, the Customer hereby transfers to us his right of (co-)ownership in the new items or the combined stock to the extent of the invoice value of the reserved stock and stores this for us free of charge. The new item that results from the processing, alteration, re-assembling or combining (in the following referred to as “New Item“), respectively our entitlement to or according to No. 2 of this paragraph the (co-)ownership rights to be transferred to us to the New Item shall serve as security for our claims in the same way as the reserved goods under No. 1 of this paragraph. Insofar as there is no deviation from these terms in the subsequent term of this paragraph, the same shall apply to the New Item.
The Customer may only sell the reserved goods in the ordinary course of business and at standard business terms and conditions and only if he fulfils his obligation to pay us timely. Likewise the Customer may only sell the reserved goods under reservation of title and shall ensure that the payment claims from such sales can be transferred to us.
The Customer’s payment claims from a resale of the reserved goods are hereby assigned to us. We accept the assignment. The payment claims shall serve as security for us to the same extent as the reserved goods. If the Customer sells the reserved goods together with other goods not delivered by us, the assignment of payment claims shall only be in an amount equal to the sum of the invoice amount that results from the re-sale of our reserved goods. For the sale of goods according to paragraph 2 or the statutory requirements on the re-assembling and combining of the items that we have co-ownership in, the assignment of the payment claims shall apply in the amount of our ownership share.
If the Customer includes payment claims from the re-sale of reserved goods in the Customer's existing current account with his/her purchasers, the Customer shall hereby assign any resulting accredited or final balance in their favour in the amount of the payment claim to us, which corresponds to the sum total of the payment claim from the re-sale of our reserved goods in relation to the current account. Insofar the previous term shall be applied commensurately.
The Customer is entitled to collect payment on the claims assigned to us from the re-sale of the reserved goods. The Customer shall not be entitled to an assignment of the claims from the re-sale even within the scope of a factoring agreement.
We may cancel the collection authorisation at any time for late payment, suspension of payment, transfer of the Customer’s business operations to a third party, or if the credit worthiness and confidence in the Customer is adversely affected or the Customer’s company is dissolved or for a breach of contract on the part of the Customer under No. 3 of this paragraph. In this event the Customer shall inform his/her customers of the assignment of the payment claim to us and shall surrender to us all the necessary information and documents required for the collection of payment. In addition, in this event the Customer shall also surrender or transfer to us any securities that the Customer is entitled to for customer payment claims.
If the convertible value of our existing securities exceeds our secured claims by more than 15%, at the request of the Customer we shall be prepared to release securities of our choice to the corresponding extent.
The Customer shall inform us immediately of any attachment or any other or actual impairment or risk to the reserved goods or to any other securities being held for us.
The Customer shall ensure the reserved goods are sufficiently insured, in particular against damage caused by fire, water, storm, lightning and theft. The Customer hereby assigns his claims under the insurance policies to us.
Upon breach of contract on the part of the Customer in particular for payment delay or for breach of duty under this paragraph, we are entitled to rescind the contract and to demand the return of the goods. In this event the Customer hereby agrees that we may remove or instruct others to remove any reserved goods found with the Customer or – insofar as we have the sole right of ownership – the New Item in the meaning of No. 2 of this paragraph. To carry out these measures, as well as for a general inspection of the reserved goods or New Item, the Customer shall grant access at any time to us and to any person authorised by us. 

§ 10 Protection of data
We are authorised according to the regulations of the German federal act on the protection of data to obtain and to use personal data relating to the Customer insofar as this is necessary within the business relationship. The data will not be passed to third parties without prior approval of the Customer, unless under a legal or official reporting duty.

§ 11 Final clause
The law of the Federal Republic of Germany shall be applicable. The United Nations Convention on the International Sale of Goods shall not apply.
For all disputes arising out of this contractual relationship when the Customer is a merchant or trader, a legal entity under public law or special fund under public law, the exclusive jurisdiction for all disputes arising out of this agreement is the court at our main place of business. We shall also be entitled to file suit in the jurisdiction of the Customer’s principal seat. The same shall apply if the Customer does not have a general legal venue in Germany or the Customer’s residence or usual place of residence at the time of filing the suit is unknown.
The place of fulfilment is Mülheim an der Ruhr.
Should any of the provisions of the contract with the Customer or any of the provisions of these general terms and conditions be or become ineffective in part or in whole, this shall not affect the effectiveness of the remaining provisions. The whole or partly ineffective provision shall be replaced by a provision designed to most closely meet the business intent of the ineffective provision.
The transfer of any rights and duties of the Customer arising out of the agreement concluded with us requires our prior written agreement to be effective.


August 2006