General terms and conditions
These Terms and Conditions of Sale, Delivery and Payment of norelem Normelemente GmbH & Co. KG shall apply to companies, legal entities
under public law and special funds under public law.
1. General - Applicability
(1) We do not recognise any terms and conditions of the customer which conflict with or deviate from our terms and conditions of sale unless we have expressly agreed to their validity in writing. Our terms of sale apply even if we make unconditional delivery with knowledge of purchaser's conditions that are in conflict with or differ from our conditions of sale.
(2) All agreements reached between ourselves and the purchaser for the purpose of performance of this contract are to be set out in writing.
2. Offer – quotation documents – catalogues
(1) If the purchaser's order is to be classified as an offer in accordance with § 145 BGB (German Civil Code], we can accept it within 4 weeks. Our offers are always non-binding.
(2) We reserve property rights and the copyright for illustrations, drawings, calculations and other documents; these may not be made accessible to third parties. Our express approval in writing is required before they are transferred to third parties.
(3) The descriptions of our products are simply information about product qualities and in no way represent a guarantee of their composition.
(4) Technical modifications to our products which increase or maintain their value may be made at any time and without prior notification.
3. Prices - terms of payment - default
(1) Unless otherwise specified in the order confirmation, our prices are "ex works" excluding packaging.
(2) We shall be obliged to accept returned packaging only if this is a mandatory statutory requirement and the purchaser so requests. In this case, the purchaser bears the separate costs of return.
(3) For special versions, there may be deviations from the order quantity for technical production reasons. Therefore, quantities in excess or shortfalls of up to 10% still represent contractual fulfilment of the delivery obligation unless otherwise expressly agreed in the contract. In this case, it is the quantity actually delivered which is invoiced.
(4) Our prices do not include statutory sales tax, which is shown separately at the rate applicable at the date of invoice.
(5) If payment is received within 10 days of the date of invoice, the purchaser is entitled to deduct a 2% discount.
(6) The purchaser is in default if he/she fails to pay the due amount within thirty days at the latest from receipt of invoice or equivalent request for payment. We reserve the right to declare default at an earlier time by issuing a reminder after the due date. Notwithstanding clauses 1 and 2, the purchaser shall be in default if it has been agreed that the purchase price is to be paid at a calendar date which is or can be specified and the purchaser fails to pay by this date at the latest.
(7) If the purchaser is in default of payment, we shall be entitled to demand default interest at a rate of 9% p.a. above the base interest rate. If we are able to demonstrate higher damages due to default, we shall be entitled to claim for further damage.
(8) The purchaser shall be entitled to set-off rights only if his counterclaims have been legally established, and are undisputed or have been acknowledged by us. Also, he shall be entitled to exercise lien insofar as his counterclaim is related to the same contractual relationship.
(9) For small orders, we make a minimum quantity surcharge (€ 5.00 for goods valued under € 25.00, € 10.00 for goods valued up to € 12.50).
4. Delivery time
(1) The delivery time set by us starts running only if all technical issues have been first resolved. Unless otherwise agreed, delivery times specified by us are not binding.
(2) If we are in default of delivery for reasons for which we are responsible, the liability for damages resulting directly from the delayed delivery shall be limited to the amount of the foreseeable damage.
(3) If we are already in default, and the purchaser sets us a reasonable extension period, he shall be entitled to cancel the contract if the extension period elapses without result. If a reasonable extension period elapses without result, the purchaser shall be obliged, within a period of two weeks, to state whether he wishes to cancel the contract or insist on fulfilment.
(4) If we are also liable for damages in lieu of performance, claims in the case of ordinary negligence shall be limited to the amount of foreseeable damage.
(5) In cases of ordinary negligence, we shall never be liable for consequential damage resulting from delayed or failed performance, or especially for earnings lost by the purchaser or other production downtime costs.
(6) Fulfilment of our delivery obligation requires punctual and proper fulfilment of the purchaser's obligations.
(7) If we can demonstrate that we have not been supplied on time by one of our suppliers, despite careful selection of these suppliers and conclusion of the necessary contracts on reasonable terms, the term of delivery shall be extended by the delay caused by our supplier's failure to supply on time. In the case where delivery by the supplier is impossible, we shall be entitled to withdraw from the contract.
(8) If the purchaser defaults on acceptance or is in breach of other collaboration obligations, we shall be entitled to claim compensation for losses incurred, including any additional expenses. In this case, the risk of accidental loss or degradation of the purchase item shall pass to the purchaser at the point in time at which the purchaser becomes in default of acceptance.
5. Transfer of risk
(1) Unless otherwise specified in the order confirmation, it is assumed that delivery is "ex works". The risk passes to the purchaser once the delivery item has left the factory, even in the case where partial deliveries are being made or we have accepted to provide other services such as shipping costs or delivery and installation. Insofar as an acceptance is to be carried out, this shall be the point at which risk is transferred. Acceptance must be carried out promptly at the delivery date, or alternatively immediately after our notification of readiness for acceptance. The purchaser shall not be entitled to refuse acceptance in the case of minor defects.
(2) In the event of delay or failure of shipment or acceptance due to circumstances for which we are not responsible, the risk shall pass to the purchaser from the day of notification of shipment or readiness for acceptance.
(3) Partial deliveries are permitted insofar as these are acceptable to the purchaser.
(4) If no shipping instructions have been given, the most favourable transport method will be selected. All shipments will be covered by transport insurance.
Delivery is performed ex works (exw), according to Incoterms 2010.
6. Claims for defects - limitation period
(1) The purchaser's rights require that he has correctly fulfilled his inspection and notification obligations in accordance with § 377 HGB.
(2) If a defect for which we are responsible is found in the purchased item, we shall be entitled either to correct the defect or supply a defect-free replacement item.
(3) If we are not prepared or not in a position to correct the defect or supply a replacement, or if this is delayed beyond a reasonable period for reasons for which we are responsible, or correction of the defect or the supply of a replacement fails for some other reason, the purchaser shall be entitled either to cancel the contract or demand a reduction of the purchase price. If a reasonable extension period elapses without result, the purchaser shall be obliged, within a period of two weeks, to state whether he wishes to cancel the contract or insist on fulfilment.
(4) Unless otherwise specified below, other claims by the purchaser - irrespective of legal grounds - are excluded. We shall therefore not be liable for damages not related to the delivered item itself; and in particular, we shall not be liable for loss of earnings or other financial loss on the part of the purchaser. If liability for such damages nevertheless becomes effective, claims for damage compensation shall not exceed the extent of the foreseeable damage.
(5) The above exclusion of liability shall not apply if mandatory statutory regulations establish liability, and particularly if the damage is due to intent or gross negligence, or if claims are made for loss of life, physical injury or damage to health as a result of negligence. It also does not apply if we have guaranteed a specific quality in the goods and this quality is not present.
(6) If we are in breach of an essential contractual obligation due to negligence, our liability shall be limited to the foreseeable damage.
(7) The warranty period is 1 year starting from the date of delivery of the goods. This is a period of limitation and also applies to claims for compensation for consequential damage, provided the claims are not made as a result of unlawful acts.
7. Retention of title
(1) We reserve ownership of the item purchased until all payments resulting from the business relation with the purchaser have been received. With every breach of contract on the part of the purchaser, in particular default of payment, we shall be entitled to exercise our statutory rights and repossess the purchased goods. After repossession, we shall be entitled to re-sell the purchased item, the proceeds from such sale being set off against the purchaser's debts - minus reasonable selling costs.
(2) In the event of seizure or other action by third parties, the purchaser must notify us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). If the third party is not in a position to reimburse our judicial and extrajudicial costs for legal action, the purchaser will be liable for the costs incurred.
(3) The purchaser shall be entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to us all debts to the value of the final invoice amount (including sales tax) accruing to him from the resale to his purchasers or third parties, irrespective of whether the purchased item has been resold without or after subsequent processing. The purchaser shall remain authorised to collect these debts even after they have been so assigned. Our authority to collect debts shall remain unaffected. However, we undertake not to collect debts as long as the purchaser meets their payment obligations from the proceeds received, is not in default of payment and, in particular, has not filed for insolvency or suspension of payments. If this is the case, we may demand that the purchaser informs us of the assigned debts and their debtors, provides all information required for collection, and surrenders the relevant documents.
(4) Processing or reforming of the purchased product by the buyer or third party is always done on our behalf. If the purchased item is combined with other items not belonging to us, we shall acquire co-ownership of the new item in the proportion of the value of the purchased item to the other processed items at the time of machining. The same condition applies for items created by machining as for products delivered with reservation of title.
(5) At the request of the purchaser, we undertake to release sureties to which we are entitled insofar as the realisable value of these sureties exceeds the debts to be secured by more than 20%; we shall be responsible for selecting which sureties to release.
8. Return of goods:
(1) In general, goods that have been sold and properly delivered cannot be taken back. Exceptions can be made only in special cases and after prior agreement.
(2) The costs of the return delivery shall be borne by the purchaser. Only items that are in perfect condition will be accepted and credited.
(3) Returns can be accepted only if accompanied by a copy of the delivery note.
(4) In general, returns are excluded for special versions.
9. Court of jurisdiction
(1) If the purchaser is a company, the place of jurisdiction is in Ludwigsburg. However, we shall also be entitled to sue the purchaser in a court at his place of residence.
(2) Unless otherwise specified in the order confirmation, the place of jurisdiction is Markgröningen.
(3) This contract is subject exclusively to the laws of the Federal Republic of Germany.
Status as of 04/07/2013