Terms and conditions for the sale and delivery of goods

§ 1 General – Preamble

  1. Our terms and conditions shall exclusively apply; conflicting terms and conditions of the customer or such which differ from our terms and conditions for the sale and delivery of goods are not accepted by us unless we would have explicitly agreed to their validity in writing. Our terms and conditions for the sale and delivery of goods apply even if we perform the delivery to the customer, while knowing of the terms and conditions of the customer which conflict or differ from our terms and conditions for the sale and delivery of goods.
  2. Our terms and conditions apply to entrepreneurs and consumers.
  3. Our terms and conditions apply, if the customer is an entrepreneur, equally to all future deals with the customer.
  4. The contractual relationships are governed by and construed exclusively in accordance with German law excluding the UN Convention on Contracts for the International Sale of Goods. This choice of law does not affect the protection afforded to the consumer by mandatory provisions of the country where the consumer has his habitual residence.

§ 2 Fire protection and safety regulations

  1. The verification of and compliance with the safety regulations to be observed at the respective operation site is incumbent upon the customer.
  2. He must particularly ensure that the product characteristics satisfy the requirements on the local conditions or application, in particular that the declared fire protection classification is suitable for the intended use.

§ 3 Offer – offer documents – conclusion of contract

  1. If the order is to be qualified as an offer under § 145 BGB (German Civil Code), we may accept it within two weeks.
  2. The details regarding measurement, weight, physical characteristics, performances, and the like, stated in catalogues, brochures, newsletters, advertisements, illustrations, price lists, or online platforms are only approximately relevant unless they have, as an integral part of our offer, been explicitly approved in writing by us as binding. A suitability of our materials for specific operation purposes is not warranted unless the description explicitly states otherwise. In particular, the classification or presentation of the products in sales categories and the exemplary mentioning of conceivable uses do not warrant a general suitability for specific operation purposes. It is equally applicable that the verification of and compliance with the safety regulations to be observed at the respective operation site is incumbent upon the customer and that he must in particular ensure that the fire protection classification declared for the product satisfies the requirements on the local conditions.
  3. We reserve all property rights and copyrights of illustrations, drawings, product designs, samples, calculations, and other documents as well as shapes and tools; they may not be made available to third parties. This especially applies to written documents labelled as “confidential”; prior to passing them on to third parties, the customer requires our explicit written approval.
  4. The contract is only concluded with our order confirmation.

§ 4 Prices

  1. Unless the order confirmation stipulates otherwise, our prices apply “ex works”, exclusive of packaging, which shall be charged separately.
  2. The deduction of discount requires our separate written confirmation.
  3. Unless the order confirmation stipulates otherwise, the purchase price (without deduction) is due within 30 days from the invoice date. In case of payment default of the customer, we are entitled to demand statutory default interest.
  4. The customer has rights to set off, only if his counterclaims have been determined in a final and absolute judgement, are undisputed, or acknowledged by us. Furthermore, he is entitled to exercise a rejection right as far as his counter claim is based on the same contractual relationship.

§ 5 Notification of consumers in case of distance contracts and notification of the right of withdrawal

The following information and notifications apply only to consumers. In accordance with § 13 BGB (German Civil Code), consumers are natural persons who enter into a legal transaction for purposes that are outside their trade, business or profession.

    1. Identity and address:
      Schaumstoffe Helgers GmbH – CNC Schneidewerk, IGP Industrie u. Gewerbepark, Ernst-Abbe-Straße 12, 52249 Eschweiler, Deutschland
      Director: Herr Michael Mathey
      Telephone: +49(0)2403/83830-22, Telefax: +49(0)2403/83830-13
      Internet: www.aixfoam.com, E-Mail: info@aixfoam.com
    2. The goods will only be delivered upon full payment of the purchase price unless explicitly stipulated otherwise (e.g. in case of purchase on account). We reserve the right to deliver goods of equivalent price and quality. We further reserve the right of revocation of the contract in case the product is not available; after exercising the right of revocation, the customer is not obligated to pay the purchase price. Potentially already paid sums will be reimbursed.
    3. Right of withdrawal and return in case of distance contracts in terms of § 312b I BGB (German Civil Code)

In accordance with §§ 312 g, 355 BGB (German Civil Code), you have the right to withdraw from the contract within fourteen days without stating reasons. However, in accordance with § 312 g para. 2 sent. 1 no. 1 BGB (German Civil Code), the right of withdrawal particularly does not exist for goods that are not pre-fabricated and the production of which is governed by an individual choice of or decision by the consumer, or that are clearly tailored to personal needs of the consumer. We point out that this is – depending on the individual case – the case for a multitude of products because the raw material (depending on the type of the goods and the order) is not only cut to size, but, for example, is further split, milled, profiled, coated, punched, made adhesive, or is cut vertically, respectively because vertical or horizontal contours are cut.

The withdrawal period is fourteen days, commencing on the day on which you or a third party named by you, who is not the carrier, took the goods in possession.

To exercise your right of withdrawal, you must inform us (see para (1) of this section) of your decision to withdraw from the contract through unambiguous declaration (e.g. a letter sent by post, a telefax, or an E-Mail). For this purpose, you may also electronically fill in and transmit the model withdrawal form or another unambiguous declaration on our website. If you make use of this option, we will immediately send you a confirmation (e.g. via E-Mail) of the receipt of such a withdrawal declaration.

To comply with the time limit, it is sufficient to dispatch the declaration regarding the exercise of the right of withdrawal in good time.

Consequences of the withdrawal

If you withdraw from the contract, we must immediately and at the latest within fourteen days from the day on which we received the declaration of your withdrawal of the contract, pay back all payments which we received from you, including the delivery costs (with the exception of the additional costs which result from you choosing a different form of delivery than the most inexpensive standard delivery offered by us). For this repayment, we will use the same payment method that you used for the original transaction unless something else has explicitly been agreed with you; you will under no circumstances be charged with a fee for this repayment. We may deny the repayment until we have received the goods or until you have provided evidence that you have sent the goods back, depending on which is the earlier point in time.

You must send the goods back or return them to us immediately and in any case at the latest within fourteen days from the day on which you informed us of the withdrawal from this contract. The period is complied with if you dispatch the goods prior to the expiry of the period of fourteen days.

You bear the costs of the return shipment of the goods.

You must compensate any diminished value of the goods only if this diminished value results from the handling of the goods in a manner that is not necessary to examine the nature, characteristics, and functioning of the goods.

§ 6 Delivery period

  1. The commencement of the delivery period stated by us requires the clarification of all technical questions.
  2. All delivery periods stated by us are to be considered as approximately only and commence only from the day of complete clarification of the order (transmission of our order confirmation, respectively – if this is required on the order confirmation – the confirmation of the order confirmation by the customer). An obligation of compliance with the delivery period is only assumed under the condition of an undisturbed manufacturing process with us or our sub-supplier. Consequences of force majeure, official measures, transport difficulties, material defects, as well as all unforeseen circumstances which considerably complicate the manufacturing or delivery of goods by us or our sub-suppliers, entitle us to withdrawal from the contract and furthermore entitle us to cease the delivery without granting indemnity and without obligation to redeliver.
  3. If the customer sets a reasonable period, subsequent to our being in default, he may withdraw from the contract after the fruitless expiry of the set period. The customer has claims to damages in lieu of performance to the amount of the foreseeable damage only if the delay is based on intent or gross negligence; in all other cases, the compensation liability is limited to 50 % of the loss incurred. This limitation of liability does not apply if a commercial transaction for delivery by a fixed date was agreed; the same applies if the customer can argue due to the payment default we are responsible for, that the immediate enforcement of the claim to compensation of the damages in lieu of the performance is possible.
  4. The compliance with our delivery obligation requires the seasonable and due fulfilment of the customer’s obligations.
  5. If the customer is in default of acceptance or if he violates other cooperation obligations, we are entitled to claim the damages we suffered, including possible extra expenses. In this case, the risk of accidental destruction or an accidental deterioration of the purchased good also passes to the customer at the point of time in which he is in default of acceptance.

§ 7 Passing of risks

  1. Unless something else arises from the order confirmation, the delivery is agreed “ex works”
  2. (2) If the customer is a consumer, divergent hereof, the risk of accidental destruction and of accidental deterioration passes to the customer only if he has commissioned the carrier or other person or institution designated to execute the shipment and we did not previously name this person or institution to the customer.

§ 8 Warranty due to defects

  1. If the customer is a consumer, the general legal provisions apply insofar.
  2. If the customer is an entrepreneur, the following applies:
    1. The warranty rights of the customer require that he has duly fulfilled his duties to examine and complain under § 377 HGB (German Commercial Code).
    2. If a defect in the purchased good exists which we are responsible for, we have the right to cure through remedy of the defect or through substitute delivery at our choice. In case of the remedy of the defect, we are obligated to bear all expenses necessary for the purpose of remedying the defect, in particular costs for transport, driving, work, and materials, as far as these are not increased as a result of the product having been brought to a different location than the location intended by the contract.
    3. The failing of the cure is, depending on the nature of the defect, usually to be assumed after two failed repair attempts (with regard to the specific defect). If the cure fails, the customer is entitled to declare the revocation or to demand an appropriate reduction of the purchase price (Minderung).
    4. Unless something else arises from the provisions below (lit. e. and f.), further rights of the customer – regardless of the legal basis – are precluded. We are therefore not liable for damages that do not emerge in the delivered item itself; in particular, we are not liable for lost profits or other pecuniary losses.
    5. However, if the cause of the damage is based on intent or gross negligence, we are liable in accordance with the statutory provisions. This equally applies if the customer demands damages in lieu of performance due to the absence of a quality, guaranteed by us.
    6. As far as we culpably violate an essential contractual obligation, the liability is limited to the typical contractual damages; otherwise it is precluded in accordance with lit. d. A contractual obligation in the context of these terms and conditions may be deemed “essential” whenever we culpably violate such obligations on which due fulfilment the customer may rely on as a feature of the contract.
    7. The warranty rights expire after 12 months, commencing with the passing of risks.

§ 9 Joint liability

If the customer is an entrepreneur, the following applies:

  1. A more extensive liability for compensation than intended in § 8 para. (2) lit. d. to f. is – without regard to the legal basis of the asserted claim – precluded.
  2. The provision under para. (1) does not apply for claims under §§ 1, 4 ProdHaftG (Product Liability Act). It equally does not apply if we are liable for an injury to body or health on a different legal basis.
  3. Unless a limitation of liability is applicable in accordance with § 8 para. (2) lit. f. for claims from the manufacturer liability under § 823 BGB (German Civil Code) for material damages, our liability is limited to the compensation of the insurance. Insofar as this does not or does not fully cover the damages due to reasons based on the internal relationship between us and the insurer (e.g. due to the violation of insurance contractual duties), we ourselves are liable up to the amount of the sum insured.
  4. The provision under para. (1) equally does not apply in case of inability ab initio or impossibility for which we are responsible.
  5. As far as our liability is precluded or limited, this equally applies to the personal liability of our executive bodies, employees, workers, staff, representatives and persons used to perform an obligation.

§ 10 Retention of title

  1. We retain the title of the purchased goods until receipt of all payments from the contract. In case of behaviour in breach of the contract by the customer, in particular in case of payment default, we are entitled to take back the purchased goods. In taking back the purchased goods, we do not declare the revocation of the contract unless this is explicitly expressed in writing. After taking back the purchased goods, we are entitled to realise the goods, the realisation proceeds shall be set off against the debt of the customer under deduction of appropriate realisation costs.
  2. The customer is obligated to treat the purchased goods with care; in particular, he is obligated to sufficiently insure the goods at his own expense against damages from fire, water, or theft at replacement value.
  3. In case of a pledge or other infringement by a third party, the customer must immediately inform us, so that we may file a suit in accordance with § 771 ZPO (German Civil Procedure). To the extent to which the customer is not able to reimburse our court and out-of-court expenses of a lawsuit in accordance with § 771 ZPO (German Civil Procedure), the customer is liable for our loss resulting from this.
  4. The processing or transformation of the purchased goods by the customer is always performed for us. The customer’s expectant right (Anwartschaftsrecht) in the purchased goods continues in the transformed goods. If the purchased goods are processed with other goods which do not belong to us, we acquire the co-ownership of the new thing in proportion of the objective value of our purchased goods to the other processed goods at the time of the processing. Besides this, the thing emerged from the processing is subject to the same provisions as the purchased goods delivered with retention.
  5. To secure our claims against him, the customer will also assign us his claims against a third party arising from the combination of the purchased goods with a plot of land.
  6. We obligate ourselves to release the securities we are entitled to upon request of the customer to the extent to which the realisable value of our securities exceeds the secured claim by more than 50 %; the selection of the securities to be released shall be left to us.

§ 11 Intra-community delivery

If the customer is an entrepreneur, the following applies: In case of intra-community deliveries, whereby the customer purchases the goods for his company and whereby the goods are subject to the provisions of the value-added tax in other countries of the EU, the customer already confirms the export of the goods upon the conclusion of the contract. He is obligated, if necessary, to provide written proof of the export and indemnify us for all claims against us arising from the omission or poor performance of this obligation.

§ 12 Direct debit

The owed payment can, if the customer discloses his bank details to us, be collected through direct debit. For this purpose, the customer will issue a direct debit authorisation for the bank account disclosed by him.

§ 13 Place of jurisdiction

If the customer is an entrepreneur, the following applies:

  1. We are subject to jurisdiction at the place of our registered office; we are, however, additionally entitled to sue the customer at the court of his place of residence.
  2. Unless something else arises from the order confirmation, the place of our registered office is the place of performance.

As of: January 2017