A. Conclusion of agreement:
- Our following sales terms and delivery conditions (SDC) are only valid in business dealings with entrepreneurs and are part of all offers and contracts including our deliveries and services. They are also valid for future business with the customer. Individual agreements always have priority.
- Any other terms and conditions of the customer are contradicted hereby. Such conditions are only valid if we approve them in written form.
B. Prices / payments:
- We are price-bound for the duration of 4 months after conclusion of agreement. After this we are entitled to charge current prices.
- We are entitled to charging partial deliveries individually.
- Our invoices have to be paid within 14 days with 2% trade discount or within 30 days net cash, always counting from the invoice date. Trade discount will not be allowed on charged tool fees. The date of receipt of payment is relevant for the payment period, the day the money is noted in our account should you pay by cheque. We do not charge collection fees or fees for transferrals from foreign customers. Should we advance such fees, these are immediately payable, net.
- If the payment times are transgressed, compulsory default times apply without further notice or reminders. We are entitled to charging interests customary in banking from the day of default onwards, a minimum of 8 per cent interest above the respective base interest, however. We reserve the right of asserting further claims. We are able to withdraw from the contract. This is not valid if the customer rejects the goods. Moreover, the total sum is payable immediately, regardless of any payment targets.
- We are entitled to check the customer's solvency for all contracts. In case of doubt we are entitled to only deliver prepaid goods, make all open, and also deferred, amounts from invoices payable immediately as well as demand instant payment or securities. Should we learn of a customer's decreased solvency, we can also demand instant payment if the order has been confirmed according to the conditions of payment mentioned in B 3.
- The customer can only claim his right to retention if it is based on the same contract and the outstanding money is indisputable or legally valid. He can also only amount indisputable or legally valid counterclaims. Concerning notices of defects, which have an undoubtable justification, the customer can only withhold payment insofar as they match the occurred defects. If a wrong notice of defect occurs, we are entitled to demand compensation for our expenses.
C. Delivery /transfer of risks:
- Samples are relevant for the quality and design, which we send to our customers prior to delivery on request for examination. We reserve small alterations in comparison with the samples concerning form, measurements, quality, weight and colour upon delivery.
- We are entitled to make excess or short delivery up to 10% in comparison to the amounts stated; excess amounts have to be taken.
- If not clearly agreed otherwise, delivery is done from the works. Shipping is done at buyer's risk and expense; this is also true for delivery to the place of execution. Goods already delivered have to be taken by the customer without violating his rights from section F, even if they are slightly damaged.
- If delivery free of charge has been agreed upon, shipping is done in a way least expensive for us. Additional costs for special shipping wishes and transport insurance are at the customer's expense.
- If personal pick-up at our works has been agreed upon, the respective customer has to take the goods immediately as soon as we have informed him of the readiness of dispatch of the goods. The risk of accidental loss of accidental demise is transferred to the customer along with this information.
D. Delivery time:
- We always try to meet agreed and confirmed delivery dates. Sometimes we have to reserve an excess of 4 weeks at the most due to important reasons, however.
- For final orders, which have not been accepted fully at the end of the agreed cycle time, we are entitled to either demand the acceptance of the remaining amount and their payment, cancel the remaining amounts or demand compensation due to default.
- Unforeseeable force majeure or other unforeseeable extraordinary events, including errors in material, energy, workforce and transport room, errors in production with the supplier, strike, exceeding of delivery times by the supplier, traffic problems and bureaucratic decisions etc., which render it impossible for us to meet our deadlines, free us from our duty to delivery and liability for the duration of the effects these events have or if it is impossible to deliver. In cases like these, the customer is able to withdraw from the contract without having to compensate and without violating section G. We need to be informed immediately if such a case occurs.
E. Retention of title:
- Delivered goods remains to be our property until all outstanding amounts agreed upon in the contract and outstanding amounts that will occur with the goods have been paid (exertion of proprietary rights over our products).
- Processing, combination or mixing by customers is done upon our instruction without any commitment on our part. If we are not entitled to ownership or co-ownership already by law, the customer will now transfer co-ownership of the subsequent entity with a value of the goods to us and store these for us with tradesman's due diligence.
- Should the customer sell or install the goods in a property of his, he thus already transfers all subsequent outstanding amounts with a value corresponding to the goods to us, including the prior-ranking right to a cautionary mortgage. If the customer is the owner of the property, the assignment in advance covers the sale of the property just as much as it does the outstanding amounts due to the property rights. The assignment in advance also covers the customer's outstanding balance claim.
- Under the condition of the transferral of co-ownership and outstanding amounts as well as under the reserve of revocation, we authorise the customer to sell and process goods in customary business and collect abandoned outstanding amounts. The customer is not authorised to pawning, chattel mortgage or other forms of abandonment. The customer is obliged to immediately inform us if there is any third party access to the goods or the abandoned goods; moreover, he has to provide us with all necessary information for reasons of assertion of our legal rights.
- Should the customer fail to pay or if there are doubts concerning his solvency, the customer hast o give the goods back if demanded as well as present the abandoned outstanding amounts and , due to the subsequent expired direct debit authorization, provide us with all information necessary for the collection of these amounts. In this case, the customer authorises us to inform the clients about the abandonment and collect the outstanding amount ourselves.
- If we take goods back due to our proprietary rights over our products, a withdrawal from the contract only occurs if we clearly state this. We can also cover our expenses by direct sale of the goods.
- We are obliged to give back securities of our choice that have a value of more than 10% of our outstanding amounts if the customer requests.
F. Notices of defects:
- Should reasons for complaint arise in spite of utmost care, obvious defects, differences in amount or wrong deliveries need to be reported back to us immediately but within 4 working days at the latest from the day of delivery onwards; but before combination, mixing or processing in any case. Latent defects are to be reported immediately after discovery; otherwise the goods are seen as accepted.
- Should the delivered goods have a defect that was already present before transfer of perils, in spite of the utmost care, we will rectify the goods in a manner of our choice or deliver substitute goods, but if proper notice of defects is reported. In order to be able to check a complaint we are entitled to demand a sample of the defect. We have to be given the possibility of assessing the complained defects and being present during sample-taking for reasons of material checks. The customer is obliged to cooperation. We have to be given the possibility of rectification within an appropriate time-span. Warranty claims are not valid if the delivered goods do not greatly vary from the ordered ones, if they are only usable in a limited way, if there are natural wear or tear and if defects occur that came about due to incompetent or negligent handling after transfer of perils, excessive operational demands, inappropriate equipment, insufficient construction works or due to other special impacts from the outside, which are not part of the contract. Defect is especially not one if the delivered goods are of no use for the customer in their designated area of application. We are willing to consult him concerning the best for of utilisation of our products to the best of our knowledge (example: check for compatibility etc.).
- If substitute deliveries or rectifications fail or require disproportionate expenses, the customer is able to withdraw from the contract or reduce the payment, without need for compensation. The customer cannot demand compensation for unnecessary expenses.
- The customer has no right to compensation for expenses necessary for rectification, especially costs of transport, work and material as well as tolls, as long as the expenses increased because we needed to transport the goods to a location different from the customer's place of business; unless the transport is due to the goods common utilisation.
- The customer's right of recovery on the basis of § 478 BGB is only valid if the customer has not made further agreements with his client exceeding the legally binding right to claim damages for any defects. Number F 4 is valid for the extent of the customer's right of recovery to us.
- Any extended or other types of compensation by the customer to us or our assistants, which are different to the ones mentioned in this section, are not allowed. For other types of compensation by the customer the conditions of section G apply.
- In case of fraudulent concealment of a defect of in case of a transferral of a guarantee during transfer of perils on the bass of § 443 BGB, the customer's right are only legally based.
- Demands arising from material defects become statute-barred 12 months after the goods have been delivered to the buyer. Other conditions do not apply as long as the law prescribes longer times in §§ 438 paragraph 1 no. 2, 479 paragraph 1 and 634a paragraph 1 BGB.
G. Other claims for damages
- In case of a pre-contractual, contractual and /or non-contractual breach of duty, even in if there has been a defective delivery; we compensate defects and expenses - subject to any further contractual or legal provisions of compensation - only in cases of intent, gross negligence as well as in the case of breach of contract on the basis of muted negligence. Our compensation is reduced, except in the case of intent, to contractual damages foreseeable at conclusion of the contract. Compensation of unnecessary expenses by the customer is not valid.
- We only compensate for expenses due to delay on the basis of muted negligence in with an amount of up to 5% of the agreed price.
- Compensation for muted negligence is not valid for gross breaches of contract. This does not alter the conditions in section G, however.
- The exclusions of liability mentioned in section G1 to G3 are not valid in the case of transfer of warranties concerning the condition of the goods on the basis of § 443 BGB, in the case of fraudulent concealment of a defect, in the case of defects of life, the boy or health as well as in the case of legally binding warranty on the basis of the Product Liability Act. If the customer is entitled to compensation due to this section, they are time-barred until the end of the limitation periods on the basis of section F 8.
Place of performance and jurisdiction
- Place of performance is the location of our company.
- Jurisdiction, also for cheque and certificate trials, is Winsen/Luhe if the conditions of § 38 ZPO are given. This jurisdiction is also valid if the customer does not have a jurisdiction in Germany, moves his place of residence to another country or if his place or residence id unknown at the time of suit.
- German law is applicable to the contract to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Legal language is German.
- Should one of the conditions of these sales terms and delivery conditions be or become invalid, the other conditions are not affected. The invalid condition will be substituted with a valid one that is as close as possible to the content and reason of the invalid one.
GfA-Dichtungstechnik Joachim Hagemeier GmbH
Commercial register: B 3.120 Executive manager: Lars Hagemeier
GfA-Dichtungen für Altbauten und Systeme Joachim Hagemeier GmbH
Commercial register: B1.735 Executive manager: Rita Hagemeier - Lars Hagemeier
GfA-Gerätebau Joachim Hagemeier GmbH
Commercial register: B 1.754 Executive manager: Lars Hagemeier