The customer may transfer claims arising from this contract only with the agreement of the manufacturer.
Retention of title
1. The goods supplied including the packaging shall remain our property (goods subject to retention of title) until all debts from the business relationships with the customer have been paid. In the case of a running account, the property subject to retention of title acts as security for our claim to payment of the balance.
2. It is not permitted to mortgage the goods subject to retention of title or to use them as security in relation to a third party or third parties. If the goods are confiscated, seized or if our rights are limited in any other way by a third party or third parties, the customer must draw express attention to the retention of title and inform us immediately of the situation.
3. Processing of goods subject to retention of title is performed for us as manufacturers in the sense of § 950 BGB (Federal Civil Code), without placing us under any obligation. The processed goods are deemed to be goods subject to retention of title in the sense of these conditions. The material which is used for further processing also remains our property in the sense of this clause. In case of processing or combination of the goods subject to retention of title together with other goods, we shall be entitled to joint ownership of the new item which results, in the proportion of the invoiced value of the goods subject to retention of title to the invoiced value of the other goods which are utilised. If our rights of ownership lapse as a result of combination or processing, the customer already now transfers to us his rights of ownership in the new asset or the new item to the extent of the invoiced value of the goods subject to retention of title. He shall store the goods subject to retention of title free of charge to us. The joint rights of ownership arising according to the above are deemed goods subject to retention of title in the sense of this section.
4. The customer is only entitled to sell on or dispose of the goods subject to retention of title in any other way if they are sold on or disposed of in the course of his normal course of business and as long as he is not in arrears of payment. The customer hereby assigns all claims arising from the onward sale, including any securities, to us in the amount of the claim for the purchase price. If the goods subject to retention of title are sold along with other goods which do not belong to us, assignment of the claims arising from onward sale shall be in the amount of the invoiced value of the goods subject to retention of title. If the customer sells goods subject to retention of title which have been processed along with other goods which do not belong to us, assignment shall be to the value of our proportion of the ownership.
5. The customer is entitled to call in claims for payment arising from the onward sale; however, we are entitled to revoke our permission in this regard at any time. The customer is under no circumstances entitled to assign the claims to a third party or to third parties. Upon our request he shall inform his own customers of the assignment of claims in our favour and shall provide us with the information and documents needed in order to call in the claim ourselves. In addition, we are also entitled to inform our customer's own customers of the assignment of claims at his expense. Enforcement of the retention of title is only deemed to constitute withdrawal from the contract if we expressly state this to be the case in writing, in so far as no other legal provisions necessarily apply.
6. The customer must inform us immediately of all claims which are asserted by third parties with regard to the goods which are subject to retention of title or with regard to claims assigned to the seller. If the retention of title is not effective according to the laws of a country where the goods were delivered by us, the laws obtaining in that country with regard to retention of title or assignment of corresponding securities are deemed agreed between the contractual parties. If the cooperation of the customer is necessary in this regard, the customer shall be obliged to take all measures which are required for the establishment and observance of such rights.
7. The customer hereby grants us the irrevocable right to enter his commercial and factory premises at any time, and to enter his storage facilities, in order that we may identify and bodily take possession of the goods in our ownership.
8. If the value of the securities assigned to us according to the aforementioned terms and conditions exceeds the value of the claims secured by a total of 20%, we will release corresponding securities of our choice to the customer upon request.
1. The customer shall inspect the goods delivered immediately after receipt and shall inform us in writing of any defects or any incomplete items at the latest two weeks following said receipt of the goods. Otherwise the goods shall be deemed accepted. Defects in the goods which occur during transportation by an independent haulage contractor must also be reported to the haulage contractor in accordance with the transport conditions which apply to the transport.
2. The manufacturer shall in all cases be entitled to choose between repair of the defect or a new delivery. Demands on the part of the customer for subsequent fulfilment must be in writing. The manufacturer must be granted a period of grace of six weeks for the subsequent fulfilment. If the delivery is to be improved, then the improvement shall only be deemed to have failed following the second unsuccessful attempt. If the subsequent fulfilment fails, then the customer shall be entitled to a reduction in price or – if a building performance is not covered by the defect liability – to withdraw from the contract, if it so chooses. The legal cases of the dispensability of the setting of a period of grace are not affected. The application of Articles 478, 479 BGB (right of recourse of the enterpriser) is not affected.
3. In particular, no warranty is accepted for damages which arise as a result of unsuitable or incorrect transport, assembly, use, treatment, handling, repair or maintenance or as a result of natural wear and tear.
4. We shall only be liable as regards further claims of the customer, in particular claims for compensation resulting from defects or consequential damages, according to the provisions of § 11 and 12 below.
5. Exclusion of minor defects: Claims for defects shall not be accepted in the case of only insignificant deviation from the agreed properties or in the case of only insignificant impairment of the usability.
Overburdening of the expenses for subsequent fulfilment/costs of unjusified notice of defect
1. The expenses necessary for the purpose of subsequent fulfilment shall be borne by the customer to the extent that they are increased due to deliveries being made to a place other than the manufacturer's branch office, unless said making of the deliveries corresponds to their intended use. The application of Article 478 (right of recourse of the enterpriser) is not affected. Without prejudice to further claims on the part of the manufacturer, the customer must, in the case of an unjustified notice of defect, reimburse the manufacturer for the costs of checking and – if demanded – repairing the defect.
2. Claims for defects shall not be accepted in the case of only insignificant deviation from the agreed properties or in the case of only insignificant impairment of the usability.
Exclusion of liability (without delay/impossibility of delivery)
1. The manufacturer shall be liable in accordance with legal regulations in cases of intent or gross negligence on the part of the manufacturer, his representative or vicarious agents, as well as in the case of culpably caused death, injury or damage to health. The liability of the manufacturer in cases of gross negligence is, however, limited to the damages foreseeable for this type of contract, provided there is not at the same time another of the exceptional cases listed in sentence 1 or sentence 3 of this paragraph. In all other cases the manufacturer shall be liable in accordance with the German Product Liability Act only in the case of a culpable breach of essential contractual obligations, or if the manufacturer fraudulently concealed the defect or gave a guarantee of the properties of the delivery article. The claim for compensation for the breach of essential contractual obligations is limited to the damages foreseeable for this type of contract, if there is not at the same time another of the exceptional cases listed in sentence 1 and sentence 3 of this paragraph.
2. The regulations of the above paragraph 1 apply to all claims for compensation (in particular for compensation in addition to the performance and compensation instead of the performance), regardless of the legal grounds, in particular due to defects, the breach of contractual obligations or unlawful acts. They also apply to the reimbursement of wasted expenditure. The liability for delay and the liability for impossibility are, however, determined according to Article 4 No. 5 of these conditions.
Place of performance, jurisdiction, governing law
1. The place of performance for all debts and obligations arising form this contract is Neuss.
2. The jurisdiction for all conflicts arising from the relationships between ourselves and the customer – including for claims or conflicts relating to bills of exchange and cheques – is Neuss, if the customer is a full merchant in the legal sense, a legal person under public law or a special fund under public law, or if the customer does not have a general jurisdiction in Germany. The same shall apply if the customer moves his domicile or usual place of residence abroad or if his domicile or usual place of residence is not known at the time of commencement of proceedings.
3. The contractual relationships are subject exclusively to the law of the Federal Republic of Germany. The unified laws regarding the international sale of goods and conclusion of other contracts (Hague Conventions Relating to a Uniform Law on the International Sale of Goods) shall not apply.
If one or several of the aforementioned provisions are or become invalid in part or as a whole, the effectiveness of the other provisions shall not be affected. In place of the ineffective provision, another legal provision shall take effect which corresponds to the original commercial intention of the parties.