Kaiserswerther Markt 11
Phone +49(0)211 940 84 40
Fax 49(0)211 940 84 55
Responsible for content according to § 10 paragraph 3 of this website:
Dirk Hagen Zimmermann
Dirk Hagen Zimmermann
District Court Düsseldorf, HRB 606 81
Sales tax identification number:
General terms and conditions of business, supply and payment
1. Scope of application
Solely the following General Business, Delivery and Payment Terms are valid for all our sales and other deliveries and services in connection with companies, inasmuch as individual variations have not been agreed on an individual basis. All conflicting terms and conditions or conflicting buyer confirmations only oblige us when and if we have agreed to these expressly in writing. In particular, our silence with respect to such conflicting terms and conditions does not imply our acceptance or agreement. Such conflicting terms and conditions or conflicting buyer confirmations are hereby expressly repudiated.
2. Conclusion of contract, scope of delivery
2.1 Our offers are subject to change. The buyer is bound by his order for 30 days. An order is only deemed accepted when we have confirmed the order inwriting or the goods have been despatched by us. In the event of immediate despatch by us, order confirmation can be replaced by our delivery docket.
2.2 Supplementary agreements, guaranties and all other agreements are only effective when they are expressly confirmed in writing by us.
2.3 The scope of delivery is in accordance with our written confirmation. Reference to norms, similar technical regulations, other technical data, descriptions and diagrams of the delivery item in offers and brochures is only a service description and not a quality guarantee. Specific properties of goods are only deemed to be guaranteed by us if we have confirmed this expressly in writing.
2.4 Call-off orders in addition to alterations and additions to such shall be made in writing.
2.5 We reserve the right to undertake technical changes to the goods for delivery if these technical alterations do not impact negatively on the product utilityand if this is not unreasonable for the buyer in all other respects.
3.1 All prices are quoted strictly in Euros including the customary packaging plus any Value-Added Tax to be borne by the buyer in the corresponding amount prescribed by law.
3.2 The prices are quoted ex works from the manufacturer’s manufacturing warehouse.
3.3 Following conclusion of contract, should freight costs, insurance costs or public dues and encumbrances (for example custom duties, export and import charges) be newly set or increased, then we are entitled to add such additional charges to the agreed price, even in the case of carriage-paid or duty-paid deliveries.
3.4 We may incorporate any increase in our materials procurement costs, wages and ancillary wage costs in addition to energy costs in our prices if a period of at least a month lies between conclusion of contract and delivery.
3.5 All deliveries are executed on a freight collect basis.
4. Quantities, dimensions and weights
4.1 Variances in dimensions and weights are permissible within the bounds of tolerances customary in the trade and the relevant DIN standards. Furthermore, in the course of technical development, standardisation and manufacturing possibilities, we reserve the right to undertake changes in dimensions and weights, as long as this does not affect the usability of the order.
4.2 We expressly reserve the right to exercise excess or short deliveries with respect to weight, quantity or surface area up to a variance of 3 %. This applies both to the total contract amount as well as each individual partial delivery.
4.3 The delivery weights and quantities established by us are definitive for calculation purposes.
5. Delivery times
5.1 Scheduled delivery dates and times that are binding must be agreed expressly and in writing. In instances of non-binding or only approximate (e.g. circa, approx. etc.) delivery dates and times, we will endeavour to meet these to the best of our ability.
5.2 Terms of delivery begin with the receipt of our order confirmation by the buyer, however, not before all necessary details for the execution of the order are clarified and all other requirements to be fulfilled by the buyer are on hand; the same applies to scheduled delivery dates.
5.3 Deliveries are permissible before the expiry of the delivery deadline. The date of notification that the order is ready for shipment applies as the delivery day, otherwise the day of dispatch of the goods. We are entitled to make partial deliveries.
5.4 Should we be in default of delivery, claims for compensation and reimbursement of expenses only exist – regardless of reason – in accordance with the stipulations detailed in Paragraph 12.
5.5 We are not in default as long as the buyer is in default in fulfilling obligations with respect to us, even those obligations arising from other contracts.
6. Own supply reservation, Acts of God and other obstructions, import and export licences
6.1 If we do not receive deliveries or services from our suppliers in the correct manner or on time for reasons beyond our control, or if Acts of God occur, we are then entitled to delay the delivery for the duration of the obstruction, or to withdraw from the contract fully or partially with respect to the portion of the contract not yet fulfilled. Acts of God cover strikes, lockouts, official interferences, scarcity of raw materials and energy, transport bottlenecks, delays in transit through no fault of our own (for example due to bad weather, flooding), operational hold-up through no fault of our own (for example damage by fire or water and mechanical breakdown) and all Brandivision GmbH other obstructions, which from an objective point of view were not culpably caused by us. The above stipulations apply even in instances where we are already in default when the specific circumstance occurs.
6.2 Should a scheduled delivery date or time be agreed to be legally binding and should the agreed delivery date be exceeded by reason of events in accordance with Paragraph 6.1, then the buyer can call upon us to declare within two weeks whether we wish to withdraw from the contract or deliver within a reasonable period of grace. Should we not declare ourselves then the buyer is entitled to withdraw from the unfulfilled part of the contract.
7. Shipment and passing of risk
7.1 If nothing contrary is agreed in writing, shipment is effected by us on an uninsured basis ex works from the manufacturing warehouse of the manufacturer at the risk and expense of the buyer. We reserve the right to select the route of transport and means of transport.
7.2 Risk transfers to the buyer with the hand-over of the goods to the buyer, carrier, forwarding agent or whatever other party is appointed to execute the delivery, at latest however on leaving our factory, warehouse or branch. This applies even if we have taken over execution of the delivery. Damages in transit are to be noted immediately on the delivery docket and to be confirmed by the forwarding agent or in the case of delivery by rail or postage this is to be declared by the rail or postal service for the assertion of a claim for compensation. We only cover transport insurance at the spe-cific request of the buyer and at the buyer’s expense.
7.3 Goods that are announced as being ready for shipment and due for delivery must be called up promptly by the buyer. Should the goods that are ready for shipment not be called up without delay, we can choose to send or to place these goods that are ready for dispatch into storage at the buyer’s risk and expense.
7.4 The return of ordered goods delivered in due form is strictly not permitted. In exceptional cases return may take place following prior agreement in writing.
8. Notification of defects
The buyer or the recipient designated by the buyer shall examine the goods on receipt without delay. Obvious defects – including the lack of guaranteed qualities – are to be notified in writing without delay at latest within 14 days of receipt of goods, hidden defects without delay, however at latest within 14 days of discovery. Should the buyer neglect to notify in the proper form or within the proper time-frame, then the goods are deemed approved. The timeliness of notification is determined by the point in time of receipt ofsuch notification by us.
9.1 In the case of legitimate notifications of defects, we are obliged to supplementary performance at our choice either by means of delivery of a flawless replacement good or by means of rectification of defects, whereupon the rejected parts become our property. We are entitled to decline supplementary performance in accordance with the legal stipulations.
9.2 Should we not fulfil our obligation to supplementary performance, then the buyer can at his choice withdraw from the contract or reduce the price following his having set us a reasonable period of grace, unless this is superfluous under the legal provisions. Withdrawal is however excluded in the case of a minor breach of duty, in particular in the case of minor defects. In the event of withdrawal, the buyer is liable for any deterioration, destruction and non-realised usages of the goods not just with respect to due diligence but also for every form of accountability.
9.3 Further entitlements of the buyer to compensation and reimbursement for damages due to or in connection with defects or consequential damages caused by a defect, irrespective of the legal basis, only exist in accordance with the stipulations in Paragraph 12. In this case too, we are only liable for typical and foreseeable damages.
9.4 Our warranty deed is not applicable if defects are not present in the goods delivered by us, that is in particular if faults are due to violations of operating instructions, maintenance instructions, installation instructions, improper application, erroneous or negligent handling, natural wear and tear, interference by the buyer or a third party to the delivery item or the utilisation of non-approved spare parts from third party sup-pliers.
9.5 Warranty claims against us become time-barred at latest 12 months after delivery of the goods to the buyer or to the handover location designated byhim.
9.6 In the event of fraudulent non-disclosure of a fault or the acceptance of a guarantee with respect to guaranteed qualities, buyer claims are based solely on the legal stipulations.
10. Terms of payment
10.1 Deliveries of goods are to payable strictly net and exempt from postage and charges at latest on the accrual date displayed on the invoice, in the absence of such within 14 days of the invoice date. After the due date on the invoice has passed, interest payable amounting to 5% will be charged and following occurrence of default amounting to 8 percentage points above the base lending rate. The day of payment is deemed to be the date of receipt of payment by us or the crediting of our account. We reserve the right to assert further claims for damages in the event of delay in payment.
10.2 Cheques offered are only accepted based on special agreement and only on a cash basis. Credits for cheques are valid subject to receipt with validation of the date on which we can avail of the equivalent amount.
10.3 Should the payment terms not be observed or circumstances become known to us, which according to our best business judgement lead to reasonable doubts about the credit-worthiness of a buyer, also such facts that were present at the conclusion of the contract, which were not however known to us or need not have been known to us, then we are entitled irrespective of further legal rights, to request suitable securities and following the unsuccessful elapsing of a reasonable period of grace for the provision of such securities, we are entitled to withdraw from the contract or to claim damages due to non-fulfilment. Furthermore, we are also entitled to prohibit the resale or processing of goods that are in our ownership or to which we have co-ownership and to demand that they be returned to us, or to demand the granting of co-ownership at the expense of the buyer. Such a demand does not imply withdrawal from the contract in as far as this is legally permissible.
10.4 Rights of retention or set-off rights of the buyer only exist with respect to such counterclaims that are not contested or are legally established. We also reserve the authority to offset for the event that reciprocal outstanding debts are payable in different currencies. The applicable conversion rate shall be the official middle rate of foreign currencies on the Frankfurt foreign currency market on the day of the set-off statement.
11. Retention of title
11.1 We reserve ownership of our goods until all bills outstanding from the business relationship with the buyer are settled including demands that will arise in the future as a result of contracts agreed at a later point in time and including any recourse or indemnity claims from bills and cheques. The same applies to a balance in our favour when individual bills or all outstanding bills are included in a current account (on an open item basis) and the balance is struck.
11.2 The buyer shall insure the goods that are subject to retention of title sufficiently, in particular against fire and theft. Insurance claims with respect to damages to an item that is subject to retention of title are hereby assigned the value of the goods subject to retention of title.
11.3 The buyer is not permitted to mortgage, pledge ownership or commit funds with respect to the goods that are under retention of title. The buyer shall inform us without delay of any third-party seizure or any other access of third parties to the goods under reservation of title, as well as the opening of insolvency proceedings with respect to his property and other legally relevant events that could impact on our rights.
12. Disqualification and limitation of liability for compensation and reimbursement of expenses
12.1 In relation to all claims asserted against us for compensation and reimbursement of expenses due to a neglect of duty for which we are accountable, irrespective of the legal basis, in the event of minor negligence we are only liable with respect to the breach of significant obligations that endanger the subject of a contract. In all other respects we are excluded from liability for minor negligence.
12.2 In the event of liability according to Paragraph 12.1 and a liability independent of negligence, we are only liable for typical and foreseeable damages. The assertion of buyer claims for useless expenditures is inadmissible.
12.3 For damages caused by delay, in the event of minor negligence we are liable up to an amount of 5% of the order value.
12.4 The buyer decides self-dependently on the utilisation of the goods other services delivered by us. If we have not confirmed in writing specific qualities and suitability of the products for a contractually specific intended use, then application technology consultations are non-binding in each case. We are also only liable in compliance with Paragraph 12.1 for consultations carried out or omitted, which do not refer to the qualities and usability of the product delivered.
12.5 The exemption from liability in accordance with Paragraphs 12.1 – 12.4 applies to the same degree for the benefit of our companies, legal representatives, executive and non-executive staff and other vicarious agents.
12.6 The regulations in 12.1 – 12.5 do not apply for claims against us in accordance with the law for the liability for defective products – The Product Liability Act – where liability exists for damages arising out of death, injury to body or health, and also in the event of acceptance of guaranteed qualities or in the event of fraudulent non-disclosure of a defect.
12.7 All claims for compensation and reimbursement of expenses against us become time-barred 12 months after delivery of the goods, and in the event of tortious liability from the point in time of knowledge or grossly negligent ignorance of the circum-stances resulting in the claim or the person of the liable persons. This does not apply in cases of intent and in the cases described in paragraph 12.6.
13. Place of fulfilment, court of jurisdiction, applicable law
13.1 Düsseldorf is the place of fulfilment for all contractual obligations. The exclusive jurisdiction for all disputes including legal action with respect to drafts and cheques is the responsible court in Düsseldorf. We are however also entitled to take the buyer to court at his own general court of jurisdiction.
13.2 Solely the laws of the Federal Republic of Germany apply for all legal relations between us and the buyer.
14. International contracts
If the buyer is based outside Germany, the UN Convention on Contracts for the International Sale of Goods (CISG) applies with the following special regulations:
14.1 Alteration or cancellation of contract shall be in writing. This also applies to agreements concerning the waiving of this stipulation requiring the written form.
14.2 In the event of delivery of goods contrary to contract, the buyer is only entitled to cancel the contract or to replacement delivery, if claims for damages against us are excluded or it is unreasonable for the buyer to utilise the goods that are in breach of contract and to claim for the remaining damages. In such instances we are firstly entitled to rectification of defects. Should the rectification of defects fail and/or should this lead to an unreasonable delay, then the buyer is entitled at his own choice to declare the cancellation of the contract or demand replacement delivery. The buyer is also entitled to this should the rectification of defects cause unreasonable inconvenience or should there be any uncertainty regarding the reimbursement of any buyer expenditure.
15. Partial invalidity
In the event of individual terms of this contract becoming invalid, the remaining provisions remain fully effective. In lieu of invalid provisions, by implication a regulation applies that comes as close as possible to the intended spirit and purpose of the invalid clause within the bounds of legal possibility.
Düsseldorf, April 2014
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