GTC
1. General
1.1 The following terms and conditions apply exclusively to all deliveries, other services and offers.
1.2 The Terms and Conditions shall therefore apply to all future business relationships, even if they are not expressly agreed again or are not attached to correspondence with the customer in individual cases. These terms and conditions shall be deemed to have been accepted at the latest upon acceptance of the goods or services. Counter-confirmations by the customer with reference to his terms and conditions are hereby rejected. This shall also apply in the event that the customer has prescribed a specific form for the objection. Deviations from these terms and conditions are only binding for us if we confirm them in writing. Delivery of our products shall in no case imply acceptance of any general terms and conditions of the customer.
2. conclusion of contract, information obligations in electronic commerce
2.1 Our offers are subject to change and non-binding. They only become binding with our order confirmation. We reserve the right to make reasonable technical changes and to adapt our products to subsequent standardization.
2.2 The minimum order value is EURO 100.00 (net) for single orders.
If two or more items are listed in an order, an order value of € 100.00 (net) applies per item. If the ordered quantity does not reach the order value of € 100.00 (net), e.g. because the quantity of adjustable feet is not required, machine set-up costs of € 20.00 per order item will be charged.
2.3 By ordering the goods, the customer makes a binding declaration that he wishes to purchase the ordered goods (contractual offer). We are entitled to accept this contractual offer within two weeks from the date of its receipt by us. In addition to a written order confirmation, the contract offer can also be accepted by sending the ordered goods.
2.4 In the case of orders in electronic legal transactions (fax/e-mail/online store), the confirmation of receipt of the order does not constitute a binding declaration of acceptance of the contractual offer, unless acceptance is expressly declared in the confirmation of receipt.
2.5 The conclusion of the contract is subject to correct and timely delivery to us by our suppliers. This shall only apply in the event that we are not responsible for the non-delivery. In particular, if a proper, congruent hedging transaction has been concluded, we shall not be responsible for non-delivery. If we are not supplied correctly or on time by our suppliers, we shall inform the customer of this and reimburse any advance payment without delay.
2.6 We may refuse the performance incumbent on us from the conclusion of the contract in accordance with § 321 BGB if, after conclusion of the contract, it becomes apparent due to the customer’s financial collapse, in particular by notification of the opening of insolvency proceedings, that our claim for consideration is jeopardized by the customer’s inability to pay. We may withdraw from the contract after the expiry of a reasonable period for the provision of consideration or the provision of security concurrently with the provision of our service.
3. Pricing
3.1 Prices are quoted in EURO ex works (50259 Pulheim) excluding freight, insurance and VAT. The prices do not include taxes, fees, customs duties or similar charges incurred outside the Federal Republic of Germany as a result of the conclusion or execution of the order. If we are required to pay such charges, the customer is obliged to reimburse these expenses. The prices stated in our order confirmations plus the applicable statutory value added tax shall always be decisive.
3.2 Confirmed prices of an order are not binding for repeat orders of similar parts.
4. Terms of payment
4.1 Unless otherwise agreed, our invoices are payable to us within 8 days of receipt of the invoice with a 2% discount or within 30 days without deduction. After expiry of this period, the customer shall be in default of payment.
4.2 Notwithstanding the above, 100% of the remuneration shall be paid upon conclusion of the contract (advance payment) if a supply relationship is entered into with the customer for the first time upon conclusion of the contract (first order) or if the customer is repeatedly or persistently in arrears with payments from orders already executed.
4.3 We are entitled to offset payments against older debts of the customer first. If costs and interest have already been incurred, we shall be entitled to offset the payment first against the costs and then against the interest and finally against the principal claim.
4.4 A payment shall only be deemed to have been made when we can dispose of the amount. In the case of payment by paper (check/bill of exchange), which we reserve the right to accept in individual cases, payment shall only be deemed to have been made when the paper has been cashed. The associated costs and expenses shall be borne by the customer.
4.5 The customer shall pay interest on a monetary debt during the period of default at 9 percentage points above the base interest rate in accordance with § 247 BGB. We expressly reserve the right to assert further damages caused by default, which must be specifically proven.
4.6 If the customer does not meet his payment obligations, in particular if a check or bill of exchange is not honored or payments are suspended, or if we become aware of other circumstances that call into question the customer’s creditworthiness to an extent that is significant for the business relationship, we shall be entitled to declare the entire remaining debt due, even if we have accepted checks or bills of exchange. In this case, we shall also be entitled to demand advance payment or the provision of security.
4.7 As long as the customer is in arrears with the payment of due invoice amounts or advance payments (including any default interest incurred) within the scope of an existing contractual relationship with us, we shall not be obliged to deliver or to provide any other contractual services of any kind whatsoever.
4.8 The customer shall only be entitled to set-off, retention or reduction – even if defects or counterclaims are asserted – if the counterclaims have been legally established or are undisputed. The exercise of a right of retention is only permissible if the counterclaim arises from the same legal relationship.
5. Delivery times, delays in delivery
5.1 Delivery periods shall commence upon conclusion of the contract, but not before we have been informed by the customer of any specifications, dimensions or documents required for the execution of the order.
5.2 Compliance with the delivery deadlines presupposes the fulfillment of the customer’s contractual obligations.
5.3 We shall not be responsible for delays in delivery and performance, even in the case of bindingly agreed deadlines and dates, if they occur due to force majeure or events for which we are not responsible and which make delivery significantly more difficult or impossible for us (including, for example, strikes, lockouts, official orders, etc.) and these circumstances occur or become known to us after conclusion of the contract. This also applies to such circumstances that occur at our suppliers or their suppliers. In such a case, we are entitled to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time.
5.4 If the impediment to performance lasts for a period of more than 2 months after the originally applicable delivery period, we are entitled to withdraw from the contract in whole or in part due to the unfulfilled part of the contract. In this case, the customer is also entitled to withdraw from the contract. Further statutory rights of withdrawal of the customer remain unaffected. If the delivery time is extended or if we are released from our obligation, the customer cannot derive any claims for damages from this.
5.5 We can only invoke the circumstances mentioned in clauses 5.3 and 5.4 if we notify the customer of the occurrence of these events within a reasonable period of time.
5.6 In the event of a delay in delivery caused by gross negligence, we shall be liable for each completed week of delay within the scope of a lump-sum compensation for delay amounting to 1% of the delivery value, but not more than 5% of the delivery value. Further statutory claims and rights of the customer remain reserved.
6. Supply contracts on call
6.1 In the case of delivery contracts on call, the customer is obliged to determine a call period in consultation with us and to divide the total quantity of the delivery contract during the call period and to call and accept it in corresponding partial quantities. Once the total quantity has been produced, subsequent changes to the ordered goods are not possible.
6.2 If a call-off period is not specified, we shall be entitled, following the fruitless expiry of a period customary for the call-off, to set a reasonable deadline for the call-off according to the circumstances and to demand acceptance and payment of the total quantity following the fruitless expiry of this deadline. Our further statutory rights shall remain unaffected.
6.3 If the total quantity is not scheduled, we shall be entitled to produce the total quantity of the order at any time during the call-off period in accordance with our production planning.
6.4 If a partial quantity is not accepted, the customer shall be in default of acceptance of this partial quantity one week after notification of readiness for dispatch. If the customer is more than one month in arrears, we shall be entitled to demand acceptance and payment of the remaining quantity not accepted at this time within three months. Upon expiry of this period, the customer shall be in default of acceptance of the total quantity. The customer is obliged to compensate us for all costs and damages caused by the delay. Our further statutory rights shall remain unaffected.
6.5 If unforeseen increases in material and labor costs occur during the term of the contract for which we are not responsible, a price adjustment in the same percentage ratio as the cost increase shall be deemed agreed. The agreed prices cannot be changed for other reasons, in particular not in the event of a lower competitive offer.
7. Shipping, packaging, transfer of risk and acceptance
7.1 The smallest packaging unit is specified for most of our catalog products. If there are no express instructions from the customer for packaging and shipping, we reserve the right to choose the packaging and the transport route. Depending on the total quantity to be delivered, we shall select the most favorable packaging unit and shipping method at our discretion. Packaging material that is not subject to return in accordance with the Packaging Ordinance will be charged at cost price.
7.2 The risk of accidental destruction, accidental damage or accidental loss of the goods sold as well as the price risk shall pass to the customer upon delivery of the goods to the transport company. Transport damage must be reported to the carrier or forwarder immediately upon receipt of the shipment and a certificate issued.
7.3 Unless otherwise agreed, we shall only take out transport insurance within the framework of the provisions of the RVS/SVS.
8. Defects, warranty
8.1 We assume the warranty for the goods delivered by us in accordance with the following provisions, which conclusively contain the warranty rules and which do not constitute a guarantee in the legal sense. In the case of merchandise, any manufacturer’s warranties shall remain unaffected by these provisions. Claims for defects on the part of the customer presuppose that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects (Section 8.4).
8.2 In the case of mass-produced items (bar-turned and stamped parts), excess deliveries or short deliveries of up to 10% of the order or call-off quantity are customary in the industry and are deemed to be fulfillment in accordance with the contract.
8.3 The warranty period is 12 months. It begins on the date of delivery. If our technical instructions are not followed or changes are made to the products, the warranty shall lapse unless the customer proves that the defect complained of is not due to these circumstances.
8.4 The customer is obliged to notify us in writing of any obvious defects immediately, but at the latest within 8 days of receipt of the delivery item, specifying the defect in detail. Defects that cannot be discovered within this period, even after careful inspection, must be reported to us in writing immediately after discovery and must be described precisely. In the event of a breach of these provisions, the assertion of a warranty claim shall be excluded. The customer shall bear the full burden of proof for all claim requirements, in particular for the defect itself, the time of its discovery and the timeliness of its complaint.
8.5 In the event of a justified notice of defects, we may, at our discretion, provide subsequent performance by repair or replacement.
8.6 If the subsequent performance fails after the customer has set a reasonable deadline, the customer may, at his discretion, demand a reduction in the remuneration (reduction), rescission of the contract or compensation for damages. However, in the event of only minor non-conformity of the service, in particular in the event of only minor defects, the customer shall not be entitled to withdraw from the contract or claim damages.
8.7 If the customer chooses to withdraw from the contract due to a legal or material defect after subsequent performance has failed, he shall not be entitled to any additional claim for damages due to the defect. If the customer chooses compensation for damages after subsequent performance has failed, the goods shall remain with the customer if this is reasonable. The amount of compensation shall be limited to the difference between the purchase price and the value of the defective item. In all other respects, the provisions of clause 9 shall apply to compensation.
8.8 Unless expressly agreed otherwise, only our product description shall be authoritative for the quality of our products. In the case of custom-made products, only the approval drawing produced by us and countersigned by the customer or the approval sample produced by us according to the customer’s drawing shall be authoritative. Any samples produced by the customer shall only serve to check the approval drawing; this sample shall not be associated with a specification of quality.
8.9 If we work according to the customer’s specifications, liability for the suitability of the product with regard to the intended use of the goods, their proper construction, compliance with safety regulations and design regulations as well as the suitability of the material is excluded.
8.10 If the customer’s planning contains specifications that we recognize as critical or not feasible in terms of production technology, we shall inform the customer of this and submit a counter-proposal. In this case, the customer is obliged to check the usability of our change proposal in his production on his own responsibility. We do not give any assurances or accept any liability with regard to the suitability of our modification proposal for the customer’s intended use.
8.11 Warranty claims against us are only available to our direct contractual partner and are not assignable.
8.12 Returns of goods that are not due to defects in the goods will only be accepted by us with prior written consent. The costs of the return shipment shall be borne by the customer. We will credit returned goods at the former purchase prices less a deduction of 15% for incoming goods inspection, storage and commercial handling, which is customary in the industry.
9. Liability
9.1 Subject to clause 8.6, we shall not be liable to the customer for damages.
9.2 The limitation of liability contained in Clauses 8.6 and 9.1 shall not apply to our liability
(a) for guaranteed characteristics within the meaning of § 444 BGB,
(b) for claims for damages resulting from injury to life, body or health which are based on our intentional or negligent breach of duty or an intentional or negligent breach of duty by one of our legal representatives or vicarious agents,
(c) for claims for other damages based on our intentional or grossly negligent breach of duty or on an intentional or grossly negligent breach of duty by one of our legal representatives or vicarious agents,
(d) due to breach of essential contractual obligations (cardinal obligations within the meaning of Section 9.3), or
(e) under the Product Liability Act.
9.3 Cardinal obligations within the meaning of clause 9.2 letter (d) are those obligations whose breach jeopardizes the achievement of the purpose of the contract or whose fulfilment is essential for the proper performance of the contract and on whose compliance the customer regularly relies.
9.4 We shall not be liable (irrespective of the legal grounds) for damages that are not typically to be expected under normal use of the goods. This shall not apply in the event of intent or gross negligence.
10. Retention of title
10.1 We reserve title to the delivered goods until all claims, including future and conditional claims arising from the business relationship – including interest and costs – have been settled in full. At our request, the customer shall be obliged to store and insure the goods delivered subject to retention of title separately, provided that such insurance is usually and typically taken out, and shall provide us with evidence of this upon request. In the event of payment of the purchase price by check/bill of exchange, our reservation of title shall not expire when the customer check is cashed, but only when the last refinancing document is cashed.
10.2 The customer shall be entitled to dispose of the reserved goods – including further processing – in the ordinary and proper course of business. However, the customer shall retain title until the purchase price claim has been paid in full. The customer may not pledge the goods subject to retention of title or assign them as security and must inform us immediately of any seizure by third parties or other access by third parties to the goods subject to retention of title.
10.3 If the customer treats or processes goods delivered by us or combines or mixes them with other goods not belonging to us, the treatment or processing shall be free of charge for us as the manufacturer. Accordingly, we shall acquire ownership or co-ownership in the proportion of our product to the total value of the item created by the processing. The customer shall store the newly created item for us free of charge. If the customer combines or mixes our goods with goods from other suppliers, we shall become co-owner of the new item on a pro rata basis. Insofar as we become the owner or co-owner of new items created by processing, combining or mixing, the provisions applicable to the reserved goods shall also apply accordingly to them or our co-ownership share.
10.4 The customer hereby assigns to us the claims to which he is entitled from the resale, subject to the condition precedent of the time at which they arise. If the goods subject to retention of title are resold after combination – in particular with goods not belonging to us – the assignment shall only be made in the amount of the sales value of our goods subject to retention of title. If the third-party debt is higher than our claim, the claim against the third-party purchaser shall only be transferred to us to the extent that it corresponds to the value of our reserved goods.
10.5 The customer is entitled to collect the claims assigned to us from the third-party purchaser on our behalf. However, he must transfer the collected amounts to us immediately. We reserve the right to collect the claim directly from the third-party purchaser, who must be named to us for this purpose.
10.6 In the event of breach of contract by the customer, in particular default of payment or breach of the obligations under paragraphs 1 and 2, we are entitled to withdraw from the contract and demand the return of the goods, without prejudice to further statutory rights due to this breach of duty by the customer.
11. Property rights, copyright, confidentiality
11.1 The customer shall be responsible for ensuring that goods which we manufacture according to his specifications do not infringe the industrial property rights of third parties. If claims are asserted against us by third parties on the basis of the manufacture or delivery of such articles with the assertion of an infringement of property rights, the customer shall indemnify us against all claims. In such cases, we shall only conduct defense proceedings if the customer requests us to do so with a binding declaration of assumption of costs. In this case, we are entitled to demand security for the legal costs.
11.2 The customer has the contractual obligation to use documents and drawings provided to him as well as constructive services and suggestions made by us for the design and manufacture of our products only for the agreed purpose. He is prohibited from making them accessible to third parties or making them the subject of publications without our consent.
11.3 Like us, the customer is obliged to treat all commercial and technical details which are not in the public domain and which become known to each other through the business relationship as business secrets. Drawings, models, templates, samples and similar objects may not be handed over or otherwise made accessible to third parties. The reproduction of such items is only permitted within the scope of operational requirements and copyright regulations.
12. Production equipment, tools
12.1 Means of production (tools, production equipment) are all items that are manufactured for the production of ordered VERMAY products based on drawings or samples and whose purpose is to serve the production process of the ordered parts. If it has been agreed that the customer will bear all or part of the costs of their manufacture, these costs will be invoiced separately from the product price.
12.2 The costs for maintenance and proper storage as well as the risk of damage to or destruction of the means of production shall be borne by us up to a total output quantity to be agreed upon conclusion of the contract. Clause 12.1 shall apply to the manufacture of replacement means of production that have become necessary due to wear and tear.
12.3 We shall generally store the means of production free of charge for two years after the last delivery to our contractual partner. After expiry of this period, we shall give our contractual partner the opportunity to comment on further storage within 6 weeks. The retention period shall end if no statement is made within the 6 weeks or no new order is placed. If a new order is placed within this period, this clause shall apply again.
12.4 The customer shall not acquire ownership of the production tools manufactured by us, even if he bears the costs in whole or in part. However, the customer shall be entitled to withdraw the tools if inferior quality has been repeatedly delivered despite warnings or if we are unable to deliver after setting a reasonable deadline.
13. Data protection
In order to process the business relationship, the customer’s data (address, delivery products, delivery quantities, prices, payments, cancellations, etc.) as well as any personal data of its employees transmitted in the course of the business relationship shall be collected, processed and used for the purpose of conducting the business relationship. The data is stored until the end of the business relationship and only passed on to third parties entrusted with the execution of the business relationship (e.g. payment service providers). In particular, we observe the provisions of the Federal Data Protection Act.
14. Place of performance, place of jurisdiction, severability clause
14.1 The place of performance for delivery and payment is 50259 Pulheim. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship, including actions on bills of exchange, is the court responsible for Pulheim. We are also entitled to bring an action before a court which has jurisdiction for the registered office or a branch of the customer.
14.2 The invalidity of individual clauses shall not affect the legal validity of the remainder of the contract.
15. Business relationships with customers based outside the Federal Republic of Germany
In addition, the provisions of this Section 14, which shall take precedence over the other provisions of these Terms and Conditions, and German law shall apply to business relationships with customers domiciled outside the Federal Republic of Germany, whereby the UN Convention on Contracts for the International Sale of Goods (UN Sales Convention) shall apply subject to the following provisions.
15.1 Delivery shall be EXW in accordance with Incoterms 2010.
15.2 Unless otherwise agreed, payments shall be made in EURO. Any bank charges shall be borne by the customer.
15.3 The delivered goods must be inspected immediately. Complaints about non-conformity of the goods must be made immediately. In any case, a preclusion period of 6 months from receipt of the goods shall apply to the notification of non-conformity, even in the case of hidden defects.
15.4 All claims of the customer due to non-conformity of the goods shall become time-barred after 6 months, beginning on the day of the timely complaint in accordance with clause 15.5.
15.5 If the goods are not in conformity with the contract, we shall be entitled, notwithstanding Art. 46 of the Convention, to supply a replacement instead of repairing the goods. In this case, the customer shall make the non-conforming goods available to us at our expense.
15.6 We shall only be liable for damages due to non-conformity of the goods if we are at fault with regard to this non-conformity. The amount of the claim for damages shall be limited to EUR 25,000.
