Herstal (as of May 2016)
1. Field of Application
(1) The following Conditions of Sale, Delivery and Payment (hereafter also referred to as the "General Terms and Conditions") apply to all of our deliveries, services, offers, orders and order acceptances. These General Terms and Conditions apply for the duration of the entire business relationship. These General Terms and Conditions shall therefore also apply to all future deliveries, services, offers, orders and order acceptances, even if we do not explicitly refer once again in the future to these General Terms and Conditions and these General Terms and Conditions are not agreed again separately.
(2) Alternative Terms and Conditions of the customer (hereafter: "Purchaser") which we do not explicitly acknowledge in writing shall not be binding on us, even if we have not explicitly rejected or do not explicitly reject such conditions. These General Terms and Conditions shall also apply in particular if – in full knowledge of conditions of the Purchaser which are contrary to or which deviate from these General Terms and Conditions – we nevertheless execute the delivery to the Purchaser without reservation or if we refer to a letter which contains the General Terms and Conditions of the Purchaser or a third party or which refers to such General Terms and Conditions.
(3) These General Terms and Conditions apply only to our Purchasers insofar as they are entrepreneurs, legal persons under public law or public-law special funds.
2. Conclusion of the Contract
(1) Our offers are always subject to confirmation, unless they are expressly designated as binding. This shall also apply if we provide the Purchaser with documents such as catalogues, brochures, technical documentation (e.g. drawings, illustrations, plans, computations, calculations, references to DIN standards) or other product descriptions (hereinafter also referred to as "Documents")– including in electronic format.
(2) The order for the goods by the Purchaser is considered to be a binding contract offer. We are entitled to accept orders or other contract offers of the Purchaser within a period of three weeks of their receipt. Acceptance of the contract offer will be confirmed by us in writing (e.g. by means of an order confirmation, invoice or delivery note) or by unconditional delivery of the goods to the Purchaser. The Purchaser is obliged to check all of our confirmations of conclusion of the contract immediately upon their receipt with respect to their factual accuracy.
(3) The scope of delivery is defined according to our written confirmation of the order. Deviations with respect to dimensions, weights and/or quantities are permissible within the framework of tolerances which are customary in the trade. In the case of special productions, the delivered quantity may deviate from the ordered quantity by up to 10%.
(4) Every type of description, indications of weights and/or quantities, viz. in catalogues, price lists or documents within the meaning of section 1, are merely indicative or approximate. They do not represent binding indications of properties. Indications of properties submitted verbally shall only be binding if they have been confirmed by us in writing.
(5) Design and shape modifications, variations in colour shades and changes to the scope of delivery by the supplier are reserved, provided that the Purchaser can reasonably be expected to accept these changes or variations when the legitimate interests of both parties to the contract are taken into account. Insofar as we or the supplier use symbols or numbers for the identification of the order or purchased goods, this cannot be taken as a basis for deriving any rights with regard to the specification of the purchased goods or scope of delivery.
(6) The contract is concluded subject to the proviso that we ourselves receive supplies on time and in full. This applies only to cases where we are not responsible for non-delivery, in particular where a congruent hedging transaction has been concluded with our supplier. The Purchaser will be informed immediately that the goods are not available. If applicable, the service in return will then be refunded without delay.
(7) We reserve the right to the ownership of and copyright to all offers and estimates submitted by us, as well as the documents provided to the Purchaser within the meaning of section 1, as well as other resources. Without our written consent, the Purchaser must not provide access to these documents or make them known in any other manner, either as such or in terms of their contents, nor may he use or copy them either himself or permit them to be used or copied by third parties. At our request, the Purchaser shall return these documents to us in full and without delay and shall destroy any copies that have been made if these are no longer required by the Purchaser in the ordinary course of business or if negotiations do not result in the conclusion of a contract.
We reserve the right of ownership and copyright with respect to these documents. The Purchaser must not make the documents accessible to third parties without our express permission.
3. Prices - Terms of Payment - Rights in the Event of Default of Payment by the Purchaser
(1) Unless otherwise agreed in a specific case, our list prices in force at the time of conclusion of the contract apply, i.e. ex-works or ex-warehouse. The list prices do not include value-added tax, packaging, freight, postage, customs duties, insurance or other shipping costs. If delivery free of freight/packaging charges has been agreed, this shall apply only within Germany to the receiving station of the Purchaser, excluding cartage but including our standard packaging. Additional costs due to a particular form of shipment and packaging requested by the Purchaser (e.g. express delivery, express freight, air freight/seaworthy packing, etc.) shall be borne by the Purchaser.
(2) We reserve the right to reasonably adjust our prices for that part of the entire delivery that is scheduled for delivery after more than four months from conclusionof the contract if between the contract conclusion date and the scheduled delivery date a change in price of any primary material to be procured by us of more than 5% occurs and if such a price change affects the total cost of the goods. Upon request, we shall provide evidence of this to the Purchaser under consideration of the individual cost elements and their relevance for the total price. Should the price increase by more than 5%, within two weeks after receipt of our respective notification the Purchaser shall be entitled to withdraw from the contract to the extent that any supplies and services are still to be rendered by us.
(3) Payment (net price plus value added tax at the applicable statutory rate) is to be effected without deduction within 14 days of the invoice date, unless a cash payment agreement has been concluded with the Purchaser, in which case the goods are transferred only in return for immediate payment in cash. The date of payment shall be based on the time of its receipt by us. If the Purchaser fails to make payment by the due date, the outstanding amounts shall bear interest from the due date at a rate of 9 percentage points above the respective base lending rate.. We reserve the right to assert claims for further loss or damage caused by the default.
(4) The deduction of any discount requires a separate written agreement. Payment and discount periods granted by us begin on the date of the invoice. If the Purchaser deducts a discount when paying invoices, the discount shall be calculated back accordingly when credit notes are offset. If a discount has been agreed, it shall be permissible to deduct the discount only if the Purchaser has previously fully fulfilled all of his other obligations relating to us.
(5) If the Purchaser is in default of payment, we shall be entitled to declare all receivables as being due for payment immediately. Insofar as the Purchaser fails to pay invoices which are due, exceeds a period allowed for payment that has been granted, makes incorrect or incomplete statements about his creditworthiness or we become aware of circumstances after the conclusion of the contract which place the solvency or creditworthiness of the Purchaser in doubt and as a result of which the payment of our outstanding receivables by the Purchaser from the respective contractual relationship is placed at risk, we are entitled to amend the existing agreements so that we only execute or provide outstanding deliveries or services in return for advance payment or the provision of security and make the entire outstanding debt of the Purchaser due for immediate payment. If the Purchaser refuses to make an advance payment or provide security, we shall be entitled - if we have not yet provided our service –to withdraw from the contract without the Purchaser being able to derive any rights from this. This shall not affect our right to assert claims for further loss or damage. The Purchaser shall retain the right to prove lower damage.
(6) If we withdraw from the contract due to a culpable breach of duty on the part of the Purchaser, we shall be entitled to demand 10% of the contract value as liquidated damages immediately without providing any further proof; however, the liquidated damages will then be offset as the minimum loss or damage against any further monetary claims. In such cases we shall be at liberty to prove a higher level of loss or damage in the same way that the Purchaser has the right to show that either no loss or damage has been incurred, or that the level of such loss or damage is significantly lower.
(7) The Purchaser shall be entitled to offset amounts against our claims or assert a right of retention only if his counter-claim is undisputed or legally established; apart from that, the Purchaser may only assert a right of retention if this is based on claims arising from the purchase contract. Any setting-off against claims of a group company of the Purchaser is excluded in all cases.
(8) Notwithstanding any other provisions of the Purchaser to the contrary, we shall be entitled to offset his payments initially against his older debts. Insofar as costs and interest have already been incurred, we are entitled to offset the Purchaser's payments against the costs first of all, then against the interest and finally against the principal claim.
(9) We reserve the right to accept cheques, although such acceptance only represents conditional payment in all cases and is subject to the passing-on of all costs and expenses and is performed without any guarantee of their timely presentation and protest. Any costs for charge backs (e.g. in the case of EC, bank or debit card payments) shall be refunded to us by the Purchaser. If the Purchaser makes use of the SEPA Core Direct Debit Scheme, we will inform the debtor no later than 2 calendar days before the due date of the date and amount of the direct debit.
(1) Deliveries are effected ex-works. At the request and expense of the Purchaser, the goods can be shipped to an alternative destination (sale by delivery to a place other than the place of performance = sale by dispatch). Unless otherwise agreed, we are entitled in the event of sale by dispatch to specify the method of shipment (in particular the transport company, dispatch route, packaging) at our reasonable discretion.
(2) The stated delivery times are always approximate. The delivery times, deadlines and dates stated by us are therefore not binding unless alternative arrangements have been explicitly agreed in writing. Deadlines are always workdays; Saturdays are not considered to be workdays. Agreed delivery periods begin upon conclusion of the contract, albeit not before the receipt of an agreed down-payment; this also applies to delivery period changes. The delivery deadline is deemed to have been complied with in the case of orders without assembly work when the item to be delivered has left our factory before the delivery deadline expires. In other cases, the delivery time is considered to have been complied with when the Purchaser has received notice of readiness for dispatch.
(3) The beginning of the agreed delivery period presupposes the clarification of all technical questions. A further requirement is the punctual and correct performance of the contractual obligations by the Purchaser. The delivery period begins not before the time of receipt of all of the documents and materials to be submitted to us for the execution of the contract by the Purchaser. If materials are supplied by the Purchaser, these shall be delivered to us at the Purchaser's expense and risk in good time with a reasonable quantity allowance and in perfect condition.
(4) In the case of collection by the Purchaser or an authorised transport company, the agreed deadlines must be adhered to punctually. In the case of failure to comply with the collection appointment for goods for which notification has been submitted that they are ready for shipment, we are entitled to use the material at our own discretion on the following day. The Purchaser shall bear all costs resulting from the delayed collection or provision of the means of transporting the freight. If in the case of contracts involving the delivery of several partial quantities the agreed delivery periods and dates are not complied with by the Purchaser, we shall be entitled - after unsuccessfully setting a further deadline - to deliver the remaining goods, withdraw from the part of the contract that has not yet been carried out or claim damages for non-fulfilment of the contract.
(5) Our delivery obligation shall be suspended for as long as the Purchaser is in arrears with a liability to a not insignificant extent. Costs incurred by us as a result shall be paid for by the Purchaser. If the Purchaser is in default of acceptance or culpably infringes any other obligations to cooperate, we shall be entitled - without prejudice to any further claims - to demand compensation for loss or damage incurred in this respect, including any additional expenses. We may - without prejudice to our rights arising from default on the part of the Purchaser - demand from the Purchaser an extension of the delivery and performance periods or a postponement of the delivery and performance deadlines by at least the period during which the Purchaser fails to fulfil his contractual obligations towards us. We reserve the right to plead the defence of breach of contract.
(6) We shall be entitled to make partial deliveries and deliveries within the agreed delivery and performance periods if
(7) We are not liable for force majeure or other events which at the time of conclusion of the contract are not foreseeable for us, which are beyond our control and prevent us or our suppliers from supplying the items or providing the services through no fault of our/their own (e.g. strikes, lock-outs, interruptions to business operations, lack of manpower resources, the effects of the weather or traffic problems, difficulties or delays with the supply of raw materials, energy or machinery, war, the use of violence by third parties against persons or property or interventions by public authorities, including currency or trade policy measures). If such events prevent us temporarily from delivering the purchased item on the agreed date or within the agreed period, these events release us for the duration of the disruption - also in the case of a delay that already exists - from our delivery obligation. This also applies in cases where the approvals of third parties required for the execution of deliveries are not received by us on time. In the case of obstacles of a temporary nature, the delivery and performance periods shall be extended or postponed plus allowing for a reasonable start-up period. If such events make the delivery or performance impossible for us or significantly more difficult and the hindrance is not only of a temporary duration, i.e. lasting more than 120 days, the Purchaser shall be entitled to withdraw from the contract. Insofar as the Purchaser cannot reasonably be expected to accept the delivery or performance as a result of the delay, he can withdraw from the contract by means of a declaration that is to be submitted to us without delay and in writing.
(8) In all cases we are only in default after the issue of a written warning after the due date. In all other respects, delay in delivery is deemed to occur - unless otherwise agreed above - in accordance with the statutory provisions.
(9) If we are in default with a delivery or service, or if a delivery or service becomes impossible for whatever reason, our liability for damages is limited in accordance with Section 4 paragraph 10, Section 7.
(10) If we are in default of delivery, the Purchaser may claim lump-sum compensation for his damage caused by default. The lump-sum compensation for each full calendar week of the period of default is 0.5% of the net price (delivery value), but not more than 5% of the total delivery value of the goods which are delivered after a delay. We reserve the right to prove that the Purchaser has incurred no loss or damage, or that the loss or damage incurred is significantly less than the aforementioned all-inclusive lump-sum amount.
5. Transfer of Risk - Packaging
(1) Our deliveries are effected EX WORKS - EXW (INCOTERMS 2010), unless otherwise agreed.
(2) If dispatch of the goods is agreed with the Purchaser, the risk of accidental loss or accidental deterioration of the goods shall pass upon delivery of the goods (with the beginning of the loading process being decisive) to the Purchaser, forwarding agent of carrier, but at the latest to the Purchaser upon leaving the factory or warehouse. The method of dispatch, dispatch route and packaging shall be at our discretion if there are no specific written instructions from the Purchaser. Only at the request, in the name of and for the account of the Purchaser do we take out insurance against theft, breakage, transport, fire and water damage or other insurable risks.
(3) Transport and other forms of packaging are not taken back by us - unless otherwise agreed - with the exception of returnable loaned packaging and pallets. The Purchaser is himself responsible for disposal of the packaging.
(4) Returnable packagings (transport crates, pallets, etc.) are our property and must not be sold. They shall be returned in perfect condition freight prepaid within 30 days of delivery. Otherwise, we can charge for new packagings at the current price or demand rental charges.
(5) If the shipment is delayed due to circumstances for which the Purchaser is responsible, the risk shall be transferred to the Purchaser from the date on which the delivery item is ready for dispatch and we have informed the Purchaser of this. In this case we are entitled to store the goods at the expense and risk of the Purchaser at our discretion and demand payment of the agreed price. For the resulting expenses we may charge an all-inclusive amount of 0.5% of the invoice amount per month or part thereof, up to a maximum of 5% of the invoice amount. Proof of a higher level of loss or damage and our legal rights (in particular the reimbursement of additional expenditure, appropriate compensation, termination) shall remain unaffected; however, the liquidated damages will then be offset as the minimum loss or damage against any further monetary claims. The Purchaser retains the right to prove that we have incurred no loss or damage, or that the loss or damage incurred is significantly less than the aforementioned all-inclusive lump-sum amount.
(6) The delivered goods, even if they display minor defects, shall be accepted by the Purchaser without prejudice to the rights under Article 6. If the Purchaser is wilfully or as a result of gross negligence more than 14 days in arrears from the time of receipt of the notice that the goods are ready for collection, we shall be entitled, after setting a deadline of a further 14 days, to withdraw from the contract or demand damages. The setting of a deadline shall not be required if the Purchaser seriously or finally refuses acceptance or is evidently not capable of paying the purchase price within this time.
(1) The Purchaser shall carefully examine the goods delivered by us immediately after delivery to the Purchaser or a third party appointed by him. The goods supplied by us shall be deemed to have been approved if we are not in receipt of a written notice of defects with respect to obvious or other defects which were identifiable by means of an immediate check within 7 working days after delivery of the goods or otherwise within 7 working days after the discovery of the defect, or any earlier date on which the defect was identifiable by the Purchaser during normal use of the product without any closer inspection. At our request, the rejected goods shall be returned to us in order that these can be inspected. If the notice of defects turns out to be unsubstantiated, the Purchaser shall be obliged to reimburse to us the expenditure incurred for the inspection, unless the Purchaser is not responsible for the unsubstantiated notice of defects. In the case of a substantiated notice of defects, we will reimburse the costs of the least expensive dispatch route. The latter shall not apply if the costs increase because the goods are in a location other than the location of intended use and this results in disproportionate costs for us.
(2) In the case of defects of quality to the goods supplied by us, we shall be obliged and entitled - at our discretion, which is to be decided upon within a reasonable period - to initially repair the defect (rectification) or supply an item which is free of defects (replacement delivery). Our right to refuse the selected type of supplementary performance according to the statutory preconditions shall remain unaffected. The Purchaser may only withdraw from the contract or reduce the purchase price by an appropriate amount if the subsequent performance has failed or a reasonable period to be set by the Purchaser for the subsequent performance has passed without success or is not required according to statutory regulations. The subsequent performance is deemed to have failed if two attempts at subsequent performance have proven to be unsuccessful, the subsequent performance is impossible or is deemed unreasonable for the Purchaser.
(3) The rights of the Purchaser referred to in Article 6 Section 1 and Section 2 are excluded in the case of only a minor deviation from the agreed properties, only insignificant impairment with respect to the usefulness of the item, in cases of natural wear and tear or damage incurred after the transfer of risk as a consequence of faulty or negligent treatment, excessive stress or due to particular external influences which are not assumed under the contract. They are also excluded for any faults resulting from the documents submitted by the Purchaser (drawings, samples, etc.), unless the fault also results from circumstances for which we are responsible. This applies in particular to the functioning of articles which are manufactured according to the construction design of the Purchaser or design drawings submitted by the Purchaser.
(4) Claims of the Purchaser for damages or compensation for wasted expenditures which are incurred for reasons for which we are responsible shall only apply in accordance with Article 7 and are excluded in all other cases.
(5) A delivery of used goods agreed in an individual case with the Purchaser is effected to the exclusion of any warranty.
(6) Warranty claims cannot be assigned by the Purchaser.
(7) If claims are asserted against the Purchaser by a consumer or in conjunction with recourse by an entrepreneur due to a defect in the goods, the Purchaser shall inform us of this without delay. Recourse against us shall only be possible to the extent that the Purchaser has a right to assert warranty claims for defects against us in consideration of these General Terms and Conditions. If claims are asserted against the Purchaser by his customer on the basis of provisions which deviate from the aforementioned defect warranty provisions, or if he takes back an article out of goodwill, these agreements shall exclusively apply between the Purchaser and his customer; recourse against us is not possible in this respect.
(8) In the case of night deliveries, the Purchaser must examine the goods delivery in question without delay. Readily identifiable transport damage found during a properly conducted check shall be reported not later than 12 noon on the day of delivery or, when it is a Saturday or public holiday, by 12 noon on the following workday. The aforementioned provisions contained in paragraph 1 apply to other defects.
(1) Our liability for damage or wasted expenditure - for whatever legal reason - shall only apply if the damage or the wasted expenditure
a) has been caused by us or one of our vicarious agents as a result of the culpable infringement of an obligation whose fulfilment is essential for the due and proper execution of the contract and on compliance with which the Purchaser can normally rely (essential contractual obligation), or
b) is attributable to a grossly negligent or wilful breach of duty by us or one of our vicarious agents.
Notwithstanding Article 7 Paragraph 1 a), we shall be liable for any damage or wasted expenditure which has been caused by the provision of advice and/or information which is not to be reimbursed separately only in cases of a wilful or grossly negligent breach of duty, provided that this breach of duty does not represent a defect of quality with respect to the goods supplied by us.
(2) If we are liable according to Article 7 paragraph 1 a) for the breach of an essential contractual obligation without gross negligence or intent applying, our liability for damages shall be limited to the foreseeable damage that may typically occur in such cases. In particular, we shall not be liable in this case for the unforeseeable, not typically occurring loss of profit by the Purchaser nor for any unforeseeable indirect consequential damage. The foregoing limitations of liability pursuant to Clause 1 and 2 apply in the same way to damage caused by our employees or representatives as a result of gross negligence or intent, provided that these are not one or more of our Managing Directors or executives. We shall not be liable for indirect loss or damage of the Purchaser which is incurred by him as a result of the assertion of contractual penalty claims by third parties.
(3) Our liability for slight negligence is limited:
- in the case of damage to property and financial losses which are covered by insurance concluded by the Purchaser: to the level of the disadvantages associated with the claim against the Purchaser's insurance;
- to the amount per case of damage to property of €200,000.00 and for financial losses to an amount of €50,000.00.
(4) The above liability limitations referred to in Article 7 paragraphs 1 to 3 shall not apply insofar as our liability under the provisions of the German Product Liability Act is mandatory or if claims are asserted against us in conjunction with injury to life, body or health. If the article delivered by us lacks a guaranteed property, we shall only be liable for loss or damage whose absence is covered by the guarantee.
(5) Any further liability for damages beyond that provided for in Article 7 paragraphs 1 to 4 is excluded, regardless of the legal nature of the asserted claim. This also applies in particular to claims for damages resulting from culpa in contrahendo ("fault in conclusion of a contract"), a positive breach of contract or tort claims..
(6) Insofar as our liability for damages with respect to the Purchaser is excluded or restricted according to Section 7 paragraphs 1 to 5, this shall also apply with regard to the personal liability for damages of our employees, workers, co-workers, representatives and vicarious agents.
8. Statute of Limitations
(1) Claims by the Purchaser for defects of quality and defects of title with respect to the goods supplied by us or based on services provided by us which are in breach of duty - including claims for damages and claims for the reimbursement of wasted expenditure - shall become statute barred within a period of one year from the start of the statutory limitation period, unless otherwise stated in the following provisions.
(2) If the delivered good is a structure or an item which has been used in accordance with its customary use for a building and has caused it to be defective, the limitation period shall be 5 years from the date of delivery.
(3) The foregoing provisions shall not apply to the limitation period for claims based on injury to life, body or health, nor to the limitation of claims under Product Liability. Other items which remain unaffected are special statutory provisions for claims for restitution in rem of third parties, cases of fraudulent intent by the Seller (and provisions for claims relating to supplier's redress in the case of final delivery to a consumer. In the cases referred to in this Section 8 paragraph 3, the statutory limitation periods apply to the limitation of these claims.
9. Retention of Title
(1) We reserve the right to the ownership of our goods (hereafter referred to as the "goods subject to the retention of title") until full payment of all present or future claims arising from the entire business relationship, including all subsidiary claims and until the redemption of paid-in cheques. This shall also apply if in the case of an open account, the purchase price for certain deliveries of goods designated by the Purchaser has been paid, since the retained ownership serves as security for our outstanding balance.
(2) The Purchaser is obliged to handle the goods with care and maintain them in proper working order. Insofar as maintenance and inspection work is required, the Purchaser must carry this out at his own expense and in good time. In particular, the Purchaser is obliged to insure the goods subject to the retention of title adequately at his own expense against loss, damage and destruction, e.g. against fire damage, water damage and theft, at their replacement value and provide evidence of this to us upon request. The Purchaser hereby assigns his claims under these insurance contracts to us. We hereby accept this assignment.
(3) The Purchaser is not entitled to pledgeor transfer by way of security the goods subject to the retention of title which are owned by us. Access by third parties to our goods subject to the retention of title or to a claim that has been assigned to us, in particular attachments, must be reported to us immediately in writing by the Purchaser. Insofar as the third party is not in a position to refund to us the judicial and extrajudicial costs of legal action, the Purchaser shall be liable to us for the loss incurred by us.
(4) In the case of behaviour that is in breach of contract by the Purchaser, in particular default of payment, we are entitled - after the unsuccessful expiry of a reasonable period that the Purchaser has been set and without prejudice to any further claims (for damages) to which we are entitled - to mark - or have marked - the goods subject to the retention of title as our property, to prohibit their further use, withdraw from the contract and take back the goods subject to the retention of title. To this end the Purchaser shall irrevocably grant us access to his premises. The Purchaser shall be obliged to surrender the goods. The legal provisions regarding the dispensability of setting a deadline remain unaffected. In other cases of breach of duty, in particular those which put the existence of the goods subject to the retention of title at risk, we are entitled to demand that they be taken back even without withdrawing from the contract.
(5) After we have taken back the goods subject to the retention of title, we are entitled to sell them. The amount realised from the sale shall then be offset against the liabilities of the Purchaser - less reasonable sales costs. The sales costs shall be 10% of the amount realised from the sale in all cases, unless we are able to prove higher costs or the Purchaser can demonstrate that the costs are lower.
(6) The Purchaser is permitted to sell on goods owned or co-owned by us as part of his ordinary business operations. The foregoing entitlement shall not apply insofar as the Purchaser has assigned or pledged to a third party in advance the claim against his contractual partner - effective in each case - arising from the resale of the goods or has agreed a prohibition of assignment with him.
(7) All processing work of the reserved goods carried out by the Purchaser is performed on our account and always on our behalf, without placing us under any obligation. In the case of the processing, connection or inseparable mixing of our goods subject to the retention of title with other objects which do not belong to us, we shall acquire co-ownership of the newly created object in the ratio of the invoice value of the goods subject to the retention of title to the other items at the time of processing, combination or mixing. The resulting jointly owned article shall be deemed to be an article subject to the retention of title within the meaning of paragraph 1. The same rules shall apply accordingly to the item created by means of processing, combining or mixing goods that apply to the goods subject to the retention of title. If our ownership of the item lapses as a result of the aforementioned combination or mixing process, the Purchaser hereby transfers to us his rights of ownership to the new goods to the extent of the invoice value of our goods and shall store them for us without charge. In the ordinary course of business, the Purchaser is entitled to dispose of the products which have been newly created by processing, converting, combining or mixing, as long as he fulfils his obligations arising from the business relationship with us in time. However, under no circumstances is the Purchaser authorised to sell on or dispose of the new goods in any other way by agreeing a prohibition of assignment with his customer, nor is he entitled to pledge or transfer these new products by way of security. The Purchaser hereby assigns to us as collateral his receivables from the sale of these new products to which we hold rights of ownership to the same extent as our share of ownership of the sold goods. If the Purchaser connects the supplied goods to a large item, he hereby assigns to us his claims against the third party up to the amount of the value of the goods. In order to safeguard our claims against the Purchaser, the Purchaser also assigns to us those claims accrued by him against a third party as a result of the connection of the goods subject to the retention of title to a plot of land. We hereby accept each of the above assignments.
(8) In order to ensure the fulfilment of all of our claims referred to in Article 9 paragraph 1, the Purchaser hereby assigns to us all - including future and conditional - claims against his customers resulting from the resale of the goods subject to the retention of title with all ancillary rights to the level of the value of the supplied goods and with priority before the remaining share of his claims. Insofar as we are only entitled to co-ownership of the goods sold, the Purchaser shall assign the claim according to the ratio of our co-ownership. We hereby accept the aforementioned assignment. If the Purchaser so requests, we are obliged to release the collateral to which we have a claim to the extent that their realisable value exceeds the value of our outstanding claims against the Purchaser by more than 10%. We hereby declare the release of this collateral. The choice of the collateral to be released shall be our responsibility. The collateral shall be released in the form of a transfer of ownership or re-assignment.
(9) The Purchaser shall remain entitled to collect the claims assigned to us in the ordinary course of business. However, the Purchaser is not entitled to agree a current account relationship or prohibition of assignment with his customers with respect to these claims, nor is he entitled to assign or pledge them to third parties. Our authorisation to collect the claim ourselves shall remain unaffected by this. However, we undertake not to collect the claim for as long as the Purchaser meets his payment obligations from the collected revenues, is not in default of payment and in particular no application has been submitted for the commencement of insolvency proceedings and payments have not been suspended. However, if this is the case, the Purchaser shall provide us immediately upon request with a list of the receivables assigned to us, stating the address of the customer as well as the level of the claim. Furthermore, upon our request the Purchaser is obliged to inform the customer of the assignment and provide us with the information required to assert our rights and/or surrender any necessary documents.
(10) In the case of the cessation of payments or the over-indebtedness of the Purchaser, or if an application is submitted for insolvency or composition proceedings against the Purchaser's assets, we are entitled - at our discretion - either to assert the aforementioned rights or to withdraw from the contract in accordance with the statutory provisions.
10. Return of the Goods
(1)The Purchaser is entitled to return defect-free and clean goods to us in their original unopened packaging at his own expense if these have been purchased from us and if we agree to this. The Purchaser shall have no legal right to return non-defective goods. We shall not have to provide reasons why we refuse to agree to take back the goods. Returns with a net value of less than EUR 20 (small parts, bulbs, etc.) and special orders are not taken back as a matter of principle.
(2) We can make the agreement to take back non-defective goods subject to the proviso that we will check the goods at the expense of the Purchaser. In particular, no consideration shall be given to the required consent to take back the goods if the goods contain wearing parts such as rubber, oils or greases which have a negative impact on the reusability of the goods. If after checking the goods we do not agree to take them back, we will send the goods back to the Purchaser at the Purchaser's expense.
(3) If the goods have been duly supplied by us in accordance with the order and are capable of being returned, the Purchaser may - in exceptional cases, which require our explicit consent - be provided with a credit note upon the return of the goods up to the amount of the purchase price. Depending on the time of the return of the goods (difference in days between the purchase and notification of return), it is possible that charges of up to 20 per cent of the net purchase price will be incurred for putting the goods back into storage, which shall be deducted from the credit note.
11. Export Control
If licences are required for the export of our products, the Purchaser shall obtain these at his own expense and on his own responsibility. We are not liable in the event of the non-issuance of a required export licence. Insofar as claims are asserted against us by third parties in the case of an infringement of export regulations, the Purchaser shall indemnify us with respect to these costs, as well as for the costs incurred in connection with the protection of our rights.
12. Final Provisions
(1) The place of performance for all obligations associated with the contractual relationship is the registered office of our company in Hagen (Germany), unless expressly agreed otherwise. This is also the place of performance and delivery within the meaning of 7 Nr. 1 lit. b) Brüssel Ia-VO(2) For all disputes arising out of the contractual relationship, the exclusive place of jurisdiction is Herstal, provided that the Purchaser is a registered merchant under Belgian law, a legal person under public law or a public-law special fund and this is not in conflict with compulsory statutory provisions. In the aforementioned cases we are also entitled to sue the Purchaser at his own general place of jurisdiction.
(3) These General Terms and Conditions and the entire legal relationship between the Purchaser and ourselves are subject exclusively to the substantive law of Belgium, in the same manner as it applies between Belgian merchants. The provisions of the regulations pertaining to the International Sale of Goods (CISG - United Nations Convention on Contracts for the International Sale of Goods) shall not apply.
(4) Transfers of rights and obligations of the Purchaser under the contract concluded with us must be agreed by us in writing to take effect.
(5) All additions and amendments to the agreements concluded between the parties, including these General Conditions for Goods Deliveries, must be made in writing to take effect. Transmission by facsimile and email is sufficient to comply with the written form requirement.
(6) We store the data of the Purchaser as part of the mutual business relationship in accordance with the provisions of the German Federal Data Protection Act (BDSG).
(7) Insofar as individual provisions of these General Terms and Conditions are invalid or unenforceable or contain an omission, this shall not affect the validity of the remaining provisions. The invalid, impracticable or incomplete provision shall be replaced by a complete and permissible provision which comes closest to what the parties would have agreed if they had known of the invalidity, unenforceability or incompleteness of the provision concerned.