General Terms and Conditions Act

General Terms and Conditions of Sale and Delivery 07/2009

1. Scope of application

Any orders placed with us for the delivery of goods shall be placed exclusively pursuant to the following terms and conditions. On placing of an order these terms and conditions shall become part of the contract. They shall also apply to all supplementary and follow-up orders as well as all future transactions. The contractual terms and conditions of the client shall expressly not apply.

2. Orders

In the case of goods worth more than EUR500, orders shall be accepted solely by our confirming the order in writing or by written telecommunication. For the conclusion of a contract in electronic commerce, the special requirements of section 312e para. (1) sentence 1 nos. 1 to 3 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) need not be met for the effective conclusion of the contract if the client is an entrepreneur. Unless otherwise agreed, a call-off period of 12 months from the date of order confirmation shall apply to call-off orders. If the goods have not been called off by this time, we shall be entitled to set the client a reasonable grace period of two weeks for calling off outstanding orders and, after expiry of the grace period, to demand either advance payment of the purchase price and to apportion the deliveries at our discretion or to withdraw from the contract in accordance with section 323 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) and claim damages according to sections 280 et seq. of the German Civil Code.

3. Prices
Unless special prices have been agreed in writing, our deliveries shall be made on the basis of the price list valid at the time of conclusion of the contract. If, pursuant to an agreement, delivery is made later than four months after conclusion of the contract, the prices in our price list valid at the time of delivery shall apply. If the price list is still unchanged between conclusion of the contract and delivery but the material and/or raw material prices or other production and operating costs have changed significantly between the time of conclusion of the contract and the delivery, we shall be entitled to demand an alloy surcharge based on the standard market rate if the delivery is to take place as part of a call order or later than 4 months after conclusion of the contract. This shall apply in particular to zinc, aluminium, stainless steel and brass products, of which the raw material prices are subject to constant fluctuations. All prices are quoted per metre or unit plus VAT. Deliveries shall be made exclusively in packaging units. All prices are ex works; freight and packaging costs shall be charged additionally. In the case of a net value of the goods of EUR1,000 or more we shall deliver carriage and packaging paid up to all German destinations/border stations using the cheapest shipping method, as far as such destinations/border stations are not located on an island and as far as they can be reached directly by a public road network. Any extra costs incurred by this shall be charged additionally to the client. We shall not pay in-house freight or delivery fees at the place of dispatch.

4. Weights and dimensions
Information given on weights and dimensions shall be subject to minor deviations for technical reasons.

5. Delivery times and partial performance
Delivery dates or delivery periods shall apply in accordance with our order confirmation. They shall be deemed to have been complied with if the goods leave our works on the agreed date or on the date on which the deadline expires. The delivery period shall commence on the date of order confirmation. To a reasonable extent we shall also be entitled to partial performance. Compensation for damages caused by delays in delivery due to no fault of our own shall be ruled out.
This shall apply in particular in the case of unforeseen disruptions to operations, disruptions of transport routes, shortages of production material and energy, strikes and lockouts (non-availability of performance). If the delivery dates or periods are exceeded by more than 2 weeks due to this, both parties shall be entitled to withdraw from the contract without compensation by giving written notice. We shall notify the client without delay of any non-availability of performance and reimburse any consideration already rendered.
If the client is in default of acceptance or culpably violates other obligations to cooperate, we shall be entitled to demand compensation for the damage incurred to us in this respect, including any extra expenses. Any further claims shall remain unaffected by this.

6. Transport risk
All deliveries shall be made at the client’s risk as soon as the goods have been handed over to the forwarding agent, the carrier or any other person or institution appointed to carry out the shipment. This shall also apply if the goods are dispatched in our company-owned vehicles.

7. Warranty, liability and warranty period
Warranty claims shall be conditional upon the commercial client’s compliance with his or her obligation to inspect and give notice of defects pursuant to section 377 of the German Commercial Code (Handelsgesetzbuch – HGB). Moreover and in particular, the client shall be obliged to inspect the goods immediately upon receipt and to notify us in writing of any defects immediately upon receipt of the goods, otherwise the goods shall be deemed to have been approved.
Defective goods shall be replaced or repaired at our discretion upon return. Only after the remedying of defects has failed twice and delivery of a replacement is impossible, shall the client be entitled to demand a reduction of the price or cancellation of the contract after the expiry of a final deadline for remedying defects, which must be at least 14 days for serial products and at least 2 months for custom-made products. Damages according to sections 280, 281 et seq. of the German Civil Code (Bürgerliches Gesetzbuch – BGB) can only be claimed if the damage was caused by gross negligence or malicious intent on our part or on that of our representatives and/or vicarious agents. Insofar as we are not accused of any intentional breach of contract, we shall only be liable for foreseeable typical damage.
Liability for the culpable violation of essential contractual obligations shall be subject to the statutory provisions; in this case, however, liability for damages shall be limited to foreseeable typical damage.
Liability arising from culpable injury to life, body or health shall remain unaffected; this shall also apply to compulsory liability under the German Product Liability Act (Produkthaftungsgesetz). Unless otherwise agreed above, liability shall be ruled out.
The limitation period for claims for defects of commercial clients shall be 12 months, counting from the transfer of risk. For items within the meaning of section 438 para. (1) no. (2) of the German Civil Code (Bürgerliches Gesetzbuch – BGB), a statutory limitation period of 5 years shall apply by way of derogation. The limitation period in case of recourse against the supplier according to sections 478, 479 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) shall remain unaffected.

8. Terms of payment
Unless otherwise agreed in writing, invoice amounts shall be payable 30 days after receipt of the invoice. A discount of 2 per cent shall be granted for payment within 8 days of receipt of the invoice. If the payment deadlines are exceeded, the client shall be in default without a reminder. Interest of 8 per cent over the respective basic interest rate (section 247 of the German Civil Code (Bürgerliches Gesetzbuch – BGB)) shall be payable on our invoice claim from the date of default; interest of 5 per cent over the respective basic interest rate shall be payable in the case of transactions with the final consumer. This shall not affect our right to claim further damages caused by default. For the second and each further reminder a flat fee of EUR10 shall be charged per reminder. In the case of non-compliance with the terms of payment, in particular after a payment in instalments has been agreed, all claims shall become due immediately. In the event of cheque and bill protests, petitions in insolvency, and other circumstances that indicate a deterioration of the client's financial situation and which could endanger the satisfaction of our claim, we shall be entitled to refuse performance until the client has either provided the consideration or provided a security by means of a bank guarantee or depositing the consideration.

9. Retention of title
The delivered goods shall remain our property until all our current claims against the client have been satisfied as well as future claims insofar as they are connected with the delivered goods. Goods that are subject to a retention of title shall neither be pledged nor assigned as a security.
However, the client shall be entitled to resell or process the goods in the ordinary course of business. This right shall expire upon discontinuation of payments or the filing of a petition in insolvency of the client. Neither shall the client have the right to resell the goods if the client wishes or is compelled to enter into a non-assignment agreement with his or her customer. The client hereby already assigns all claims arising from a permissible resale, regardless of whether the reserved goods are sold without or after processing or whether they are combined with a plot of land or movable item or not. If the reserved goods are resold after processing or together with other goods which do not belong to us, or if they are combined with a plot of land or movable item, the client's claim against his or her customers shall be deemed assigned in the amount of the delivery price agreed between the client and us for the reserved goods. The client shall be entitled to collect this claim even after assignment. This shall not affect our right to collect the claim ourselves; however we undertake not to do so as long as the client duly meets his or her payment obligations.
Upon request, the client shall be obliged to name the third-party debtors and to inform them of the assignment. If the client makes use of the right of collection, we shall be entitled to the collected proceeds in the amount of the delivery price agreed between the client and us for the reserved goods. In the case of seizure by third parties, in particular, attachment of the reserved goods, the client shall immediately notify us in writing and point out the retention of title to the third party. The client shall bear all costs that must be borne to cancel the seizure and effect the return of the goods, insofar as they cannot be reclaimed by third parties. The reserved goods shall be processed or transformed for us, as the manufacturer, pursuant to section 950 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) without incurring any obligation on our part. If the goods owned by us are processed with other objects, we shall acquire co-ownership of the new object in the ratio of the market value of our goods to the value of the other processed objects at the time of processing. The client shall hold the new item in custody for us free of charge with due diligence. We undertake to release the securities to which we are entitled upon request to the extent that their value exceeds the claims to be secured by more than 20 per cent, provided that they have not yet been settled.
If we accept bills of exchange as means of payment, our retention of title shall continue to apply until it has been established that no claims can be asserted against us arising from these bills of exchange.
Bills of exchange received by the client on the basis of the assigned claim shall hereby be assigned to us and endorsed. The client shall keep these endorsed bills of exchange in custody for us.

10.  Catalogues, drawings and samples
Catalogues, drawings and samples shall remain our property. Any imitation, reproduction and distribution is prohibited by copyright and shall be prosecuted under civil and criminal law. Information in catalogues, drawings and samples as well as in assembly instructions are merely product descriptions and neither represent any assurances of a certain quality nor guarantees on our part. We shall only be liable for damage resulting from incorrect information in catalogues, drawings and assembly instructions within the scope of the provisions of clause 7.

11. Place of performance, legal venue and governing law
If the client is an entrepreneur, a legal entity under public law or a special fund under public law, Waldbröl shall be the agreed place of performance and legal venue for all disputes arising between the parties from the contractual relationship. However, we reserve the right to take legal action against the client at the court with jurisdiction at his registered place of business or at any other legally admissible legal venue. This contract shall be governed exclusively by the law of the Federal Republic of Germany.



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