1 General, Scope
1.1 For all contracts with a contractor the following terms and conditions shall apply. Contradictions or deviations from our Terms and Conditions by the buyer shall not be applicable, unless we have expressly agreed to their application in writing. Our terms of sale apply exclusively without reservation even if we know different buyer’s conditions may apply for delivery to the purchaser.
1.2 Our terms of sale apply to all future transactions with the buyer.
2 Offer, services
2.1 Our offers are stand alone and only become binding on written confirmation of order or with our written order confirmation.
2.2 In the case of dyed material, small colour variations are not a defect.
2.3 Technical modifications and design deviations remain reserved, provided they are for technical progress and are reasonable to the buyer.
3 Prices, terms of payment, compensation
3.1 Unless the order confirmation states otherwise, our prices are ex Burgbernheim plus the statutory VAT and plus shipping and packaging, which will be shown separately on the invoice.
3.2 Unless otherwise agreed, the invoice amount is due at 10 days with 2% early settlement discount, or net cash without any discount within 30 days of receipt of the invoice. After this period, the buyer will be in default without further reminder. In case of default by the buyer, we are entitled to charge interest at the legal rate. Our right to prove higher damages remains unaffected.
3.3 We are not obliged to accept bills of exchange and cheques, acceptance is conditional payment. Costs and discount fees are payable by the buyer.
3.4 A discount of freight or other charges is not permitted under any circumstances.
3.5 Compensation and retention rights are only available to the buyer if his counter-claims have been legally established, are undisputed or recognized by us.
4.1 The commencement of the stated delivery period presupposes clarification of all technical questions.
4.2 The agreed delivery period is subject to unforeseen circumstances, for which we are not responsible.
4.3 Correct and timely delivery remains a requirement.
4.4 Partial deliveries are permitted.
4.5 Compliance with our delivery obligation requires the timely and proper fulfilment of the buyer’s obligations.
4.6 If we do not hold to the delivery time, the buyer is entitled and obliged to set a reasonable extension of time for delivery. The grace period must be at least 14 days. If the goods are not delivered after expiry of the grace period, the buyer can withdraw from the contract. In cases of force majeure, both parties can only withdraw after a period of 2 months, unless this is due to exceptional circumstances or this period is unreasonable for one of the parties.
4.7 The buyer may only pursue compensation in place of performance under the statutory requirements of paragraph 6 d) and e), and only then request this, if in setting the grace period, he indicates that he will assert claims for damages for failure to deliver.
5 Transfer of Risk, Shipping
5.1 Unless the order confirmation states otherwise, delivery ex warehouse Burgbernheim is agreed.
5.2 Shipping is carried out in the standard manner and without any right to cheaper shipping, unless specific instructions from the buyer are to hand.
5.3 Delivery is always at the risk of the buyer even if free delivery has been agreed, or shipping is carried out using his own vehicles. If the buyer so requests, we will provide transport insurance for the delivery, the costs are borne by the buyer. When shipped from the factory, the risk passes to the buyer once the goods leave the factory. If the dispatch or delivery is delayed at the request of the buyer, the buyer assumes risk from the date of notification of readiness for shipment.
6 Warranty for defects, damages
6.1 The goods supplied shall be verified by the buyer immediately for completeness and freedom from defects. Complaints must be notified to us immediately, in writing. Otherwise, the goods shall be deemed as accepted, unless there is a defect that was not detected during the inspection. Should a defect reveal itself later, the buyer must then immediately notify the seller upon discovery of such. If he does not fulfil this obligation, the goods shall be deemed to be accepted even in respect of such defect.
6.2 If a timely and justified complaint is made about the goods we are - unless otherwise agreed - entitled to take back the faulty goods at our discretion and to replace the goods with goods as contracted or to rectify the delivered goods.
6.3 If our delivery or service is defective, the purchaser may request, at our option, repair or replacement. Removal and installation costs incurred in the course of repair or replacement, must be borne by the buyer. If a first order deadline that we failed to meet has passed, the buyer sets a further deadline or a requested repair or replacement is faulty, the customer can demand either a reduction or cancellation.
6.4 Claims for damages are our liability, irrespective of the legal reason (including tort claims), as governed by the statutory provisions, unless if the damage is due to intent or gross negligence by our representatives or vicarious agents. Liability for simple negligence is excluded if no culpable violation of an essential contractual obligation exists. The limitation of liability does not apply to injury to life, body and health of a person as well as warranty liability. The mandatory liability under the provisions of product liability law also remains unaffected.
6.5 Buyer liability is limited to typical and foreseeable damages. This does not apply to claims based on intentional or gross negligence by us, our legal representatives or vicarious agents. Moreover, the limitation does not apply to liability for damages arising from injury to life, body or health of a person and in cases of strict liability under the provisions of the Product Liability Act.
7 Retention of title
7.1 Current account balance / Balance clause (business relationship clause)
7.2 The Seller reserves title to the goods until all claims by the seller against the buyer arising from the business relationship, including future claims arising from contracts concluded simultaneously or subsequently, are settled. This shall also apply, if individual or similar claims by the seller have been included in a current invoice and the balance is drawn and accepted.
7.3 Prolonged retention of goods on resale with a pre-assignment clause.
The buyer is only entitled to resell the retained goods in the ordinary course of business if he hereby assigns to the seller all claims accruing to him from such resale to customers or third parties. If the retained goods are sold unprocessed or processed and combined with objects, which are the exclusive property of the buyer, the buyer assigns the full amount arising from the resale to the seller. If goods retained by the buyer - after processing / combination - are sold together with goods not belonging to the seller, the buyer assigns the amount arising from the resale to the extent of the value of the retained goods with all ancillary rights and priority over the rest. The seller accepts this assignment. The buyer is also authorized to collect this debt, after assignment. The seller's authority to collect the claim themselves remains unaffected, however, the seller undertakes not to collect the claims as long as the customer fulfils his payment and other obligations. The seller may require the buyer to disclose the assigned claims and provide: their debtors; all information necessary for collection; to hand over the relevant documents and to advise the debtor of the assignment.
7.4 Extended retention of title with contract clause
Any working or processing of the retained goods will be carried out by the buyer for the seller, without the latter assuming liability. In processing, combining or mixing the retained goods with other goods not belonging to the seller of the goods, the seller assumes resulting co-ownership of the new item in proportion to the value of the retained goods to the other processed goods at the time of processing, combining, mixing or blending. If the buyer acquires sole ownership of the new item, the contracting parties agree that the buyer holds the seller responsible in relation to the value of the processed, or collective, mixed or combined retained goods to the new item and hold it securely for the seller without charge.
7.5 Cheque / exchange clause
If, in connection with the payment of the purchase price due by the buyer, a seller’s liability is vindicated, the retention of title as well as the underlying claim of delivery of goods shall not expire before the bill of exchange provided by the buyer as drawee.
7.6 Safeguard clause
If the value of the existing securities exceeds the secured claims by more than 20%, the seller is obliged to require the buyer to release them
8 Ownership and copyright / rights of third parties
8.1 The items used by us to manufacture the contracted products, fixtures, moulds and equipment, remain our property and are not shipped to the client. This is true even if the production of these items is to be invoiced separately.
8.2 The client is responsible for ensuring that, so far as the order is based on its requirements, rights of third parties, in particular, patents, patterns used, labelling law and copyrights are not violated through the execution of his order. The client must indemnify us against any claims that third parties make for infringement of their rights against us.
9 Statute of limitations
9.1 Warranty claims made by the buyer for defects of goods delivered in accordance with paragraph 437 of the German Civil Code expire within a period of one year. The period begins with the delivery of the goods.
9.2 Claims made by the buyer for damages for breach of duty (paragraph 280 German Civil Code) that are not under paragraph a), lapse in a period of one year from the start of the statutory limitation period.
9.3 The limitation provisions in sections a) and b) do not apply in the cases of paragraph 438 No. 1 and 2 of the German Civil Code and paragraphs 478, 479 German Civil Code and claims for damages from injury to life, body or health of a person. They also do not apply in cases of wilful misconduct or gross negligence by the seller, his legal representatives or vicarious agents.
10 Governing law, jurisdiction and place of performance
10.1 These Terms and Conditions and the entire legal relationship between the parties fall under the law of the Federal Republic of Germany (German Civil Code and the Commercial Code in particular), with the exception of private international law and the UN convention on sales.
10.2 If the buyer is a merchant, NEA is the exclusive place of jurisdiction for all disputes arising directly or indirectly.
10.3 Unless the order confirmation states otherwise, our business address is the place of performance.