1. Offer and conclusion of contract
1.1 These Terms and Conditions of Sale apply exclusively for our offers, deliveries and services. Any conflicting terms and conditions of purchase of the Customer are hereby rejected. They shall not be recognised even if we do not expressly reject them again after receipt.
1.2 Contracts shall be concluded in writing. All agreements which are reached between us and the Customer for the purpose of executing this contract are set forth in writing in this contract. Unless otherwise expressly stated or referred to in this contract, we have not given any assurances or undertakings to the Customer.
1.3 Verbal collateral agreements, assurances/undertakings or any other additional agreements must be confirmed in writing by the contracting parties.
2.1 Our prices are in euros ex works excluding transport and packaging plus the statutory VAT. Discounts and reductions must be agreed separately for each individual order and only apply if payment is made on time.
2.2 From 1 June 2016 the following current minimum order values apply:
- Semi-finished products (tubes and sections): € 200.00 per order
- for rollers, coatings and service: € 350.00 per order
- for commodities (cleaning agents, brushes, screws, etc.) € 150.00 per order.
2.3 In the event of any changes to the material procurement costs, wage and non-wage labour costs or energy costs, we are entitled to take these into account in our pricing, provided the changes occurred after the conclusion of the contract and there is a period of at least 6 weeks between the conclusion of the contract and the delivery of the ordered goods.
3. Terms of payment, set-off and the right of retention
3.1 Our invoices are payable within 30 days of the invoice date, free of charges and without deductions.
3.2 In the event of default of payment on the part of the Customer, we shall have the right to charge default interest of nine percentage points above the respective base interest rate pursuant to section 247 of the German Civil Code (BGB). The right to assert a claim for further damage caused by default is reserved. Furthermore, in the event of default, all granted reductions, discounts, sales, transport and other allowances/rebates will no longer apply. Section 321 BGB shall apply.
3.3 We are not obliged to accept bills of exchange. Bills of exchange and cheques are only recognised as payment when they have been duly honoured without recourse. Discounting and bill charges shall be borne by the Customer. In the case of bills of exchange and cheques drawn on locations other than Herford we are not liable for timely protest.
3.4 The Customer shall only be entitled to offset if its counterclaims have been finally established in law, are undisputed or recognized by us in writing. It is only authorised to exercise its right of retention insofar as its counterclaim is based on the same contractual relationship.
4. Scope of delivery, delivery times and default in delivery
4.1 The scope of delivery is determined according to the content of our written acknowledgement. Illustrations of the delivery item in offers and brochures merely represent approximate performance specifications and are not an assurance or a warranty, nor do they represent a characteristic of the item. Deviations do not constitute a defect. The same applies to references to standards, any special technical information or technical rules, descriptions or the like. These too are purely informative, descriptive details and on no account characteristics of the item that substantiate a quality defect.
Assurances or warranties for the characteristics of the products only apply if we have expressly confirmed them.
4.2 The observance of our delivery and performance obligations shall always be subject to correct and punctual deliveries to us by our suppliers.
4.3 Delivery times are subject to change. Fixed-date transactions must be expressly confirmed as such by us. Our delivery periods begin with the receipt of our order acknowledgement by the Customer, provided that all the unresolved points of the order execution have been clarified between the Customer and us and any other conditions which have to be fulfilled by our Customer have been met. Otherwise the delivery period shall only commence once the aforementioned conditions have been met. The same applies to the agreement of delivery dates. In the event that delivery times have been agreed, we expressly reserve the right to deliver before the agreed period of time expires. If a specific day of delivery is specified, this means the day of notification of readiness for dispatch or the day when the goods are actually sent to the Customer.
4.4 In the event of force majeure or if unforeseen extraordinary events occur which we could not prevent despite taking the necessary care according to the circumstances of the individual case (also if they occurred at our supplier), e.g. strikes, lockouts, operational disruptions, subsequently occurring difficulties with procuring materials, scrapping of an important work item, official directives, etc., the period of delivery shall be extended for the duration of the events causing the delay plus a reasonable start-up time that meets our operational requirements. If the hindrance persists for longer than 2 months or if the delivery or service becomes impossible through no fault of our own, both parties are entitled to withdraw from the contract.
In the event that the necessary official import or export licences are not granted or if it is impossible to execute the contract due to official import or export bans for which none of us is responsible, we are then entitled to withdraw from the contract even if we took responsibility for applying for the import or export licence. In these cases the Customer has no claims against us.
4.5 If, exceptionally, we default with delivery, the Customer is only entitled to withdraw from the contract if it has first set us a reasonable extension period of at least 2 weeks to no avail. Claims for compensation, no matter on what grounds, due to delayed delivery or non-fulfilment shall exist only subject to the provisions contained in clause 6.
4.6 The occurrence of our default with delivery shall require in each case a reminder by the Customer. For the rest, the statutory provisions shall apply.
5.1 The selection of the transportation means and routing is at our sole discretion. Shipping is at the cost and risk of the Customer. In cases where the shipping is delayed because we exercised our right of retention as a result of the Customer's default of payment, the risk shall pass to the Customer at the latest as from notification that the products are ready for shipment. The same applies to cases where another reason exists for which the Customer is responsible that causes a delay in delivery.
5.2 We have the right to make partial deliveries to a reasonable extent if delivery of the outstanding goods is secured.
5.3 Goods ready for shipment and goods due for delivery have to be called by the Customer immediately. If the Customer fails to call up the order immediately, we shall be entitled to dispatch the goods or place them in storage at the Customer’s expense and at our discretion. Where goods are sold on a call-off order basis, we shall store the goods if the Customer does not specify them within 6 months and then call them. However, this only applies if no contrary agreement has been reached. We are also entitled to store the goods if the shipment cannot be carried out through no fault of ours.
5.4 In the event of delayed acceptance or call by the Customer or a delay in shipment due to circumstances for which the Customer is responsible, we can, after setting an extension period of 14 days, either immediately demand the purchase price, withdraw from the contract, refuse to fulfil the contract or demand damages for non-performance.
6. Rights arising from product defects
6.1 The Customer is obliged to diligently examine the supplied goods for defects and notify us of any obvious and/or recognised defects in writing within 10 working days after delivery. Any defects which only become visible later must be reported to us in writing without delay, at the latest within 10 working days after they are discovered. In the absence of notification of defects, the goods shall be deemed to be approved. The notice of defects is deemed to have been given in due time if it has been dispatched on time.
6.2 In the event that the goods we supply have been produced according to the Customer’s specifications, especially on the basis of drawings or other construction requirements, these specifications shall be deemed the contractually agreed specified quality of the goods; the goods are therefore free of defects if they have been produced according to the Customer's specifications.
6.3 An insignificant deviation of the supplied goods from the agreed or customary quality does not justify any claims for defects on the part of the Customer. No warranty is given for wear and tear or for defects caused by inappropriate or improper operation, handling, storage or use or due to non-observance of usage and application instructions. The Customer shall bear the risk of suitability for the intended purpose. The Customer uses the products we supply on its own responsibility.
6.4 If the delivered item is faulty, we have to, at our discretion, rectify the defect or deliver an item which is free of defects (subsequent performance). The subsequent performance may be made dependent upon payment of the purchase price. The Customer has the right to retain a portion of the purchase price appropriate in relation to the defect. Goods that are the subject of a complaint shall be surrendered to us by the Customer for inspection purposes. In the event of a replacement delivery, the defective item shall be returned to us.
Otherwise, the right to refuse subsequent performance according to the statutory provisions shall remain in effect.
6.5 We shall only bear the reasonable costs of subsequent performance up to the amount of the purchase price, at the maximum. Costs of subsequent performance arising from the fact that the supplied goods are taken to a place other than the Customer’s business address shall be borne by the Customer.
Subsequent performance includes neither the deinstallation of the defective item nor the installation of a defect-free item if we were not originally obliged to carry out installation. We shall bear the expenses which are necessary for the purpose of inspection and subsequent performance, in particular the cost of transport, tolls, labour and materials (not deinstallation and installation costs), if there is actually a defect. Should the Customer’s request for remedy of a defect turn out to be unjustified, we are entitled to demand a refund from the Customer for costs incurred if the Customer has recognised or negligently failed to recognise that no defect exists.
6.6 If we are not willing or not able to rectify the defect or make a substitute delivery, or if we delay doing so beyond a reasonable time limit set by the Customer of at least two weeks, or if the remedy of the defect or delivery of a replacement is otherwise unsuccessful or is unacceptable for us, the Customer shall be entitled to either withdraw from the contract or reduce the purchase price accordingly, at its discretion. Clause 7.1 of these Terms and Conditions of Business applies to claims for damages.
6.7 If the Customer asserts claims in respect of defects against us based on public statements by us, our suppliers or their vicarious agents, especially in advertising or in the labelling of the item to indicate particular properties (section 434 (1) sentence 3 of the German Civil Code (BGB)), the Customer will bear the burden of proving that the statement concerned was a reason for its decision to purchase. We are not liable for third-party statements or advertisements.
6.8 If the subsequent performance fails or a reasonable time period to be set by the Customer for the subsequent performance has expired without success, or if no such period of grace is required according to the statutory provisions, the Customer will be entitled to withdraw from the purchase agreement or reduce the purchase price. This does not apply in the case of insignificant defects; in these cases there is no right of withdrawal. Claims by the Customer for damages and compensation for futile expenses only apply in accordance with section 7 and are otherwise excluded.
6.9 Claims arising from a defect become statute-barred within one year from delivery of the item. The statutory period of limitation applies for claims for damages which are not excluded under Clause 7.1 of these Terms and Conditions of Business. Otherwise, reference is made to the provisions of Clause 7.6 of these Terms and Conditions of Business.
7. Compensation, withdrawal, statute of limitation, refusal of performance
7.1 Compensation claims against us, our employees, workers, personnel, representatives or vicarious agents are excluded, irrespective of the cause in law, especially on the grounds of impossibility, inadequate performance, infringement of subsidiary contractual obligations or other duties arising from the contractual obligation, or tortious act. This does not apply to damage arising from loss of life, personal injury or illness. This exclusion of liability does not apply to other damage if it is based on an intentional or grossly negligent breach of duty by us or a member of our executive staff, or if an essential contractual duty (cardinal duty – especially a principal contractual obligation to perform -) has been breached or another duty not classified as an essential contractual duty has been breached by simple vicarious agents intentionally or through gross negligence. In the event of the breach of an essential contractual duty and the intentional or grossly negligent breach of another duty by simple vicarious agents, the liability is limited to the amount of the typically foreseeable damage. The exclusion of liability also does not apply to claims under the Product Liability Law or to claims which are covered by a warranty that we have given. Clause 4.2 of these Terms and Conditions of Business shall remain unaffected. Any liability under the provisions of section 478 et seqq. BGB shall remain unaffected thereby.
7.2 Cardinal obligations are essential obligations, i.e. such obligations which characterize the contract and on which the contracting partner is entitled to rely; they are thus essential rights and obligations which are preconditions for execution of contracts and are indispensable for achieving the purpose of the contract.
7.3 We do not, however, accept any liability for claims or damage caused by an error in the Customer’s specifications, especially in drawings or other construction requirements. Should a claim be made against us by a third party for damage caused by such an error in the Customer's specifications, the Customer shall indemnify us against any claims made in this respect.
7.4 The liability exclusions and exceptions or restrictions specified in Clauses 7.1 and 7.2 also apply in the event of culpability in regard to contractual negotiations or in the case of reimbursement of expenses, with the exception of reimbursement of expenses in accordance with sections 439 (2) and 635 (2) BGB. The liability exclusions relating to our liability also apply to our legal representatives and vicarious agents.
7.5 In the case of a breach of obligation by us that does not consist in defective performance, the Customer will only be entitled to withdraw from the contract if we have been culpable.
7.6 The period of limitation for claims directed against us on account of defects of quality and title which are not based on intentional behaviour attributable to us is one year, contrary to the general provision in section 438 (1) No. 3 BGB. Special statutory provisions for claims in rem by third parties for the restitution of property (section 438 (1) No. 1 BGB), for fraud (section 438 (3) BGB) and for claims of recourse against the supplier in the case of final supply to a consumer (section 479 BGB) remain unaffected.
7.7 The aforementioned limitation periods under the law governing the sale of goods also apply to the Customer's contractual and extra-contractual claims for compensation based on a defect in the goods, unless the application of the normal statutory limitation period (sections 195, 199 BGB) would result in a shorter limitation period in the individual case. In all cases the limitation periods of the Product Liability Law remain unaffected. Otherwise, the statutory limitation periods apply exclusively for compensation claims by the Customer.
8. Retention of title
8.1 We reserve the title to the goods supplied by us until the purchase price has been paid in full, including any subsidiary claims. If an ongoing business relationship exists, the goods will remain our property until all of our existing and future claims against the Customer have been fully settled including, in particular, the full settlement of any recognised balance on a current account with the Customer. In the case of payment by cheque, our reservation of title shall continue until the amount is credited to our account and the Customer has paid all the ancillary costs. If we take back the item purchased by the Customer, this shall not be regarded as a withdrawal from the contract. We are entitled to resell the purchased item after taking it back. The proceeds from the sale shall be offset against the Customer's liabilities, less reasonable disposal costs.
8.2 The Customer is obliged to treat the purchased item with care; in particular, it undertakes to insure the item against fire and water damage and theft at its own expense, with the insured sum being adequate to cover the replacement value. If maintenance and inspection works are required, the Customer must carry these works out at his own expense in a timely manner.
8.3 The Customer shall notify us in writing without delay if the purchased item is damaged, lost, seized or subject to other interventions by third parties. To the extent that the third party is not in a position to reimburse to us the costs of enforcing our ownership rights in and out of court, the Customer will be liable to us for the deficit.
8.4 The Customer has the right to resell the purchased item in the ordinary course of business; however, the Customer shall herewith already assign to us all claims, in the amount of the invoice total (including value-added tax) of our claim, that accrue to the Customer by reason of the resale to its customer or third party, irrespective of whether the purchased item has been resold with or without further processing. If the Customer enters its claim to the purchase price in a current account maintained with its customer, it also assigns the resulting balance claim to us. We hereby accept the assignment. The Customer shall still be authorised to collect the assigned claim even after the assignment. Our authority to collect the claim ourselves shall not be affected thereby. However, we shall undertake not to collect the claim as long as the Customer meets its payment obligations arising from the collected proceeds, does not default on payment, and especially no application has been filed for the institution of insolvency proceedings and payments have not been suspended. However, if this is the case, we shall be entitled to inspect all the invoices and other documents and to obtain all the relevant information which will enable us to collect the assigned claims directly.
8.5 The processing or modification of the purchased item by the Customer shall always be carried out for us. If the purchased item is processed with other items that do not belong to us, we shall acquire joint title to the new item in proportion to the value of the purchased item (total invoiced amount, including value-added tax) compared with the other processed items at the time of processing. For the rest, the same rules that apply to the purchased item supplied subject to retention of title shall also apply to the item created by processing.
8.6 If the purchased item is inseparably blended with other items that do not belong to us, we shall acquire joint title to the new item in proportion to the value of the purchased item (total invoiced amount, including value-added tax) compared with the other blended items at the time of blending. If the blending occurs in such a way that the Customer’s item has to be seen as the main item, it is agreed that the Customer will transfer joint title to us on a pro rata basis. The Customer shall hold the resultant sole property or joint property in safe custody for us. The above-mentioned provisions apply accordingly to the combination/connection of the purchased item with/to other items that do not belong to us.
8.7 To secure our claims, the Customer shall also assign to us the claims against a third party that accrue to the Customer through the connection of the purchased item to land/real estate.
8.8 We undertake to release, upon request, the security to which we are entitled according to the above-mentioned provisions to the extent that its value exceeds the secured claims by more than 20%; we shall be responsible for selecting which security to release.
9. Copyrights, other documents and drawings
9.1 Drawings, drafts and other documents which we submit to the Customer for contractual negotiation or contractual execution purposes are our intellectual property and must not, without our express written approval, be made available to third parties, nor reproduced, nor used for any other than the agreed purpose. We shall be entitled to demand the free-of-charge return of the aforementioned documents - including any reproduced copies - if the Customer no longer needs these documents or if we become aware of any misuse of these documents. A right of retention by the Customer thereto is excluded.
9.2 The Customer accepts fault-based liability for ensuring that we do not infringe the rights of third parties through the use of submitted drawings, samples and models. If a third party, citing industrial property rights, prohibits us in particular from manufacturing and delivering such items, we shall be entitled to suspend all further activity and to claim damages without being obliged to check the legal situation. The Customer shall also indemnify us against any disadvantages that affect us as a result, in particular claims to damages by third parties.
10. Occupational safety
We are not responsible for ensuring that the machines in which our products are installed or the objects which are affixed to products from us are sufficiently operationally safe, and especially that they comply with the occupational health and safety regulations. The Customer has the sole responsibility and obligation to establish the occupational safety of the machines and devices it sells by setting up appropriate protection measures. Should a claim be made against us by a third party for damage caused by a lack of occupational safety of the machines and devices sold by the Customer, the Customer shall indemnify us against any claims made in this respect.
11. Coating orders
11.1 If we manufacture products for the Customer according to its specifications or if we coat parts which it supplies, all the provisions listed in these General Terms and Conditions of Sale and Delivery shall apply accordingly unless otherwise expressly agreed. The same applies in the event that repairs or other processing has to be carried out on such products.
11.2. Unless otherwise agreed, the parts required to carry out the order, such as items to be coated, semi-finished products, tools, add-on parts and holding/fixing devices shall be provided by the Customer in good time within the scope of the respective valid terms of delivery in flawless condition and in the required quantity. If the agreed items are not provided on time or not in a flawless condition, we can, at our discretion, either not commence production or interrupt it. Additional costs incurred as a result shall be borne by the Customer.
11.3. Any costs incurred for test parts required for trials, especially for moulds and tools, shall be invoiced separately. If moulds, tools and other devices and/or equipment are produced or procured by us for the manufacturing process, we shall invoice the costs for this as a proportion of production costs. In regard to our design services, the aforementioned items shall remain our property.
11.4. The goods to be coated shall remain at our premises for a maximum of 12 weeks until the final coating or repair service has been clarified. Should a decision not have been reached by then, the goods shall be sent back to the Customer at the Customer’s expense.
12. Place of performance, place of jurisdiction, applicable law
12.1 The place of performance and place of jurisdiction for both contracting parties is Herford.
12.2 The law of the Federal Republic of Germany shall apply to all legal relations with the Customer; application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
13. Final provisions
Should individual provisions of these Terms and Conditions of Sale and Delivery be invalid or become invalid in the future, the validity of the remaining provisions shall not be affected thereby.
INOMETA is a company belonging to the AVANCO Group
The AVANCO Group is known for outstanding technology, forward-looking innovation and enduring quality. In order to operate at this very high standard, we pursue a value-based corporate policy in which reliability, fairness, respect and strict compliance with regulations and laws are key elements.
To guarantee the observance of these values and provide a binding guideline for acting with integrity, the management of the AVANCO Group has developed a code of conduct. Adherence to this code of conduct is mandatory for all employees. Each individual is called on to abide by this code of conduct in all their decisions and activities, and to actively contribute to the implementation of this guideline in their area of responsibility.