Terms and conditions

Terms of delivery and payment of ASTOR Schneidwerkzeuge GmbH (‘ASTOR’)

§ 1 Validity of the Terms and Conditions of Delivery and Payment, Reservation of Right of Amendment

(1) The present Terms and Conditions of Delivery and Payment of ASTOR (hereinafter referred to as ‘GTC’) shall apply to all business relations with customers who are entrepreneurs (§ 14 German Civil Code (BGB)), a legal entity under public law or special funds under public law.

(2) The GTC shall apply in particular to contracts for the sale and/or delivery of movable goods (hereinafter referred to as ‘Goods’), irrespective of whether ASTOR manufactures the Goods itself or purchases them from suppliers (Sections 433, 651 BGB). They shall also apply in their respective version to future contracts for the sale and/or delivery of movable goods with the same Customer, without ASTOR having to expressly refer to them again in each case. In this case, ASTOR shall inform the Customer immediately of any changes to the GTC.

(3) These GTC shall apply exclusively. Deviating, conflicting or supplementary General Terms and Conditions of the Customer shall only become part of the contract if and to the extent that ASTOR has expressly agreed to them.

(4) Individual agreements made with the Customer in individual cases shall take precedence over these GTC. However, only a written contract or ASTOR's written confirmation shall be authoritative for the content of such agreements.

(5) Legally relevant declarations and notifications to be made by the Customer to ASTOR after conclusion of the contract (e.g. setting of deadlines, notifications of defects, declarations of cancellation, etc.) must be made in writing to be effective.

§ 2 Offer and conclusion of contract / Binding nature of the offer

(1) ASTOR's offers are subject to change and non-binding, in particular with regard to prices, quantities, delivery periods, delivery options and ancillary services, unless they are expressly labelled as binding or contain a specific acceptance period. This shall also apply if ASTOR has provided the Customer with catalogues, technical documentation (e.g. plans, calculations, etc.), other product descriptions or documents. ASTOR reserves all property rights and copyrights to all information and documents provided to the Customer.

(2) The Customer's order by telephone, e-mail, fax or letter shall be deemed a binding contractual offer. ASTOR reserves the right to accept this offer within fourteen working days in order to check the current availability of the ordered goods. Confirmation of receipt of the order by e-mail or fax to the Customer does not constitute a declaration of acceptance. The Customer's offer is only accepted and the contract only concluded when ASTOR sends an express order confirmation to the Customer by e-mail, fax or in writing or executes the contract during the acceptance period (= handover to the shipping company or notification that the goods are available at the place of business).

§ 3 Quality of the goods / customised products / processing instructions

(1) ASTOR's information on the goods as well as their presentation (e.g. illustrations, weights, dimensions, utility values and other performance descriptions) in catalogues, on the website and in advertising media are only approximate, unless the usability for the contractually intended purpose requires exact conformity. They are not guaranteed characteristics, but merely descriptions or labelling of the goods.

(2) If the Customer commissions ASTOR with the customised production of cutting tools, he shall inform ASTOR in a comprehensible form of the intended purposes of use, technical requirements and any special features to be observed when using the tools and, if necessary, provide ASTOR with special processing instructions. The information provided by the Customer shall be binding for ASTOR with regard to the target quality of the customised product.

§ 4 Non-availability of the goods after conclusion of the contract, force majeure

(1) If it turns out after conclusion of the contract that the goods are not available at ASTOR due to a lack of self-supply of additional parts, goods or raw materials, ASTOR shall be entitled to withdraw from the contract if it is not able to procure a replacement within a reasonable period of time. ASTOR shall inform the Customer about the non-timely availability of the goods and shall immediately exercise its intention to withdraw from the contract. In the event of cancellation, any payments already made shall be refunded to the Customer without delay.

(2) ASTOR shall not be liable for impossibility of delivery or for other delays in delivery if these are caused by force majeure or other events not foreseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, difficulties in the procurement of materials or energy, transport delays, strikes, lawful lockouts, etc.) for which ASTOR is not responsible. If such events make the delivery or service significantly more difficult or impossible for ASTOR and the hindrance is not only of a temporary nature, ASTOR shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or service deadlines shall be extended or the delivery or service dates shall be postponed by the period of the hindrance plus a reasonable start-up period.

(3) The rights of the Customer pursuant to § 8 of these GTC and ASTOR's statutory rights, in particular in the event of an exclusion of the obligation to perform (e.g. due to impossibility or unreasonableness of performance/subsequent fulfilment), shall remain unaffected.

§ 5 Transfer of risk, delivery and delivery costs, return of goods, over- and under-delivery

(1) Deliveries shall be made ex works at ASTOR's place of business, which is also the place of fulfilment. The Customer may choose to collect the ordered goods at the place of fulfilment or have them collected by a forwarding agent. Alternatively, ASTOR shall deliver the goods to another destination via a parcel service or a forwarding agent (sales shipment). The Customer shall bear the costs of delivery.

(2) The risk of accidental loss and accidental deterioration of the goods shall pass to the customer at the latest upon handover, whereby the start of the loading process shall be decisive. In the case of sale by despatch, however, the risk shall pass to the customer upon delivery to the parcel service or forwarding agent. Storage costs after the transfer of risk shall be borne by the customer.

(3) The indication of the expected delivery period upon conclusion of the contract is an approximate time within which the customer can expect delivery of the goods. It does not constitute a binding determination of the delivery time. Binding delivery dates require a written agreement and must be expressly designated as such. As soon as the goods are available, ASTOR shall inform the Customer of a delivery date during normal business hours via the forwarding agent commissioned by ASTOR.

(4) ASTOR shall be entitled to make partial deliveries if the partial delivery is usable for the Customer within the scope of the contractual purpose, the delivery of the remaining ordered goods is ensured and the Customer does not incur any significant additional expenses or additional costs as a result (unless ASTOR agrees to bear these costs).

(5) If ASTOR agrees to take back the goods without being contractually or legally obliged to do so, the Customer shall bear the costs associated with the return, including the costs incurred by ASTOR.

(6) ASTOR reserves the right to overdeliver and underdeliver by a maximum of 10 % or at least one piece of the ordered quantity of goods. In the event of an over- or under-delivery, the purchase price to be paid by the Customer shall increase or decrease in accordance with the deviation of the delivered quantity from the ordered quantity of goods.

§ 6 Special features when purchasing via the online shop

(1) ASTOR maintains an online shop. The products offered in the online shop are only intended for entrepreneurs within the meaning of § 1 (1) of these Terms and Conditions of Delivery and Payment.

(2) The contracts with the customer are concluded exclusively in German or English, depending on whether the customer places the order via the German-language page of the online shop or via one of the other pages of the online shop. If the order is placed via the English-, Spanish- or Italian-language page of the online shop, the contract with the customer is concluded in English and the English-language terms of delivery and payment apply.

(3) The presentation and advertising of articles in the online shop does not constitute a binding offer by ASTOR to conclude a purchase contract. By placing an order in the online shop, the Customer places a binding order to which the Customer is bound for a period of two (2) weeks. There is no right of cancellation.

(4) ASTOR shall immediately confirm receipt of the Customer's order placed via the online shop by email. Such an email does not constitute a binding acceptance of the order unless acceptance is expressly declared in addition to the confirmation of receipt. The contract is only concluded when ASTOR accepts the Customer's order by means of a declaration of acceptance or by delivering the ordered goods. If the delivery of goods ordered by the Customer is not possible, ASTOR will not issue a declaration of acceptance. In this case, a contract is not concluded. ASTOR will inform the Customer immediately and refund any consideration already received.

(5) All prices quoted in the online shop are net prices and do not include the applicable statutory value added tax and any incidental costs incurred, namely transport, packaging, shipping and export costs (e.g. customs and other fees). The additional costs are stated in the prices in the online shop. The price including VAT and ancillary costs - but without any export costs that may be incurred later - is displayed in the order form before the customer submits his order. If the order is fulfilled by partial deliveries, shipping costs are only incurred for the first partial delivery. This does not apply if the partial deliveries are made at the customer's request.

(6) The Customer may choose to transfer the purchase price and ancillary costs to the Customer's account specified in the online shop or on the invoice, authorise ASTOR to collect payment, or pay by EC / Maestro or credit card. A direct debit authorisation issued shall also apply to further orders until revoked.

(7) Any use of the images, films and texts used in the online shop, to which ASTOR holds the copyrights, is prohibited without the written consent of ASTOR.

§ 7 Prices and terms of payment

(1) Unless otherwise agreed in individual cases, ASTOR's current prices at the time of conclusion of the contract shall apply. Unless otherwise indicated, the prices are net prices ex warehouse and do not include the applicable statutory VAT and any transport, packaging, export (e.g. customs and other fees) and shipping costs. ASTOR does not take back transport packaging and all other packaging in accordance with the packaging regulations; it becomes the property of the Customer. Unless otherwise agreed, ASTOR reserves the right to make reasonable price changes due to changes in labour, material and distribution costs for deliveries made 4 months or later after conclusion of the contract. Should this result in a price increase of more than 50% compared to the list prices valid at the time of conclusion of the contract, the Customer shall be entitled to withdraw from the contract.

(2) ASTOR shall be entitled to assign its claims against the Customer to a factoring company for financing purposes. In this case, the assignment shall be indicated in the invoice. The Customer shall then make the payments exclusively to the payee indicated in the invoice and may not make payments to ASTOR with discharging effect (§ 362 para. 1 BGB).

(3) Unless otherwise agreed in writing, payment shall be due in full immediately upon receipt of the invoice and shall be made without deduction no later than 14 days after the due date.

(4) In the event of non-payment, the Customer shall be in default 14 days after receipt of the invoice without the need for a reminder from ASTOR. During the period of default, interest shall be charged on the purchase price at the applicable statutory default interest rate. ASTOR reserves the right to claim further damages caused by default. ASTOR's claim to commercial maturity interest (§ 353 HGB) against merchants shall remain unaffected.

(5) The customer shall only be entitled to rights of set-off and retention to the extent that his claim has been legally established or is undisputed. In the event of defects, the customer's counter-rights shall remain unaffected. In this case, the customer shall only be entitled to a right of retention to the extent that this is in reasonable proportion to the defects and the anticipated costs of subsequent fulfilment.

(6) If it becomes apparent after conclusion of the contract that ASTOR's claim to the purchase price is jeopardised by the Customer's inability to pay (e.g. by an application for the opening of insolvency proceedings), ASTOR shall be entitled to refuse performance in accordance with the statutory provisions and - if applicable after setting a deadline - to withdraw from the contract. In the case of contracts for the manufacture of non-fungible goods (customised products), ASTOR may declare its withdrawal immediately; the statutory provisions on the dispensability of setting a deadline for withdrawal shall remain unaffected.

§ 8 Retention of title

(1) ASTOR shall retain title to the delivered goods until complete fulfilment of all present and future claims against the Customer arising from the business relationship (hereinafter referred to as ‘secured claims’).

(2) During the existence of the retention of title, the Customer is prohibited from pledging or transferring the goods subject to retention of title by way of security. The Customer shall inform ASTOR immediately in writing if and to the extent that third parties have access to the goods belonging to ASTOR.

(3) In the event of a breach of contract by the Customer, in particular in the event of non-payment of the purchase price due, ASTOR shall be entitled to withdraw from the contract in accordance with the statutory provisions and/or to demand the return of the goods on the basis of the retention of title. The demand for the return of the goods does not simultaneously include the declaration of cancellation; ASTOR is rather entitled to demand the return of the goods only and to reserve the right of cancellation. If the Customer does not pay the due purchase price, ASTOR may only assert these rights if ASTOR has previously set the Customer a reasonable deadline for payment without success or if such a deadline is dispensable according to the statutory provisions.

(4) The customer is authorised to resell and/or process the goods subject to retention of title in the ordinary course of business. In this case, the following provisions shall apply in addition:
a. The retention of title shall extend to the full value of the products resulting from the processing, mixing or combining of the goods, whereby ASTOR shall be deemed the manufacturer. If, in the event of processing, mixing or combination with goods of third parties, their right of ownership remains, ASTOR shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
b. The Customer hereby assigns to ASTOR as security any claims against third parties arising from the resale of the goods or the product in total or in the amount of ASTOR's possible co-ownership share in accordance with the above paragraph. ASTOR accepts the assignment. The obligations of the Customer mentioned in § 7 para. 2 shall also apply with regard to the assigned claims.
c. In addition to ASTOR, the Customer shall remain authorised to collect the claims. ASTOR undertakes not to collect the claims as long as the Customer fulfils his payment obligations towards ASTOR, is not in default of payment, does not file a debtor's petition for the opening of insolvency proceedings and there is no other deficiency in his ability to pay. If this is the case, however, ASTOR may demand that the Customer discloses the claims assigned to ASTOR and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment made to ASTOR.
d. If the realisable value of the securities exceeds ASTOR's claims by more than 10%, ASTOR shall release securities of its own choice at the Customer's request.

§ 9 Defects

(1) The statutory provisions shall apply to the customer's rights in the event of material defects and defects of title (including incorrect and short delivery as well as improper assembly or defective assembly instructions), unless otherwise specified below. In all cases, the special statutory provisions for final delivery of the goods to a consumer (supplier recourse according to §§ 478, 479 BGB) remain unaffected.

(2) ASTOR's liability for defects shall be based on the agreement reached on the target quality of the goods. Insofar as the target quality has not been agreed, it shall be assessed in accordance with the statutory provisions whether a defect exists (§ 434 para. 1 sentences 2 and 3 BGB).

(3) A short delivery of up to 10% of the quantity of goods ordered in accordance with § 5 (6) of these GTC shall not constitute a material defect within the meaning of § 434 (3) BGB.

(4) The Customer's claims for defects presuppose that he has complied with his statutory obligations to inspect and give notice of defects (in particular §§ 377, 381 HGB). If a defect becomes apparent during the inspection or later, ASTOR shall be notified thereof in writing without delay. The notification shall be deemed immediate if it is made within two weeks, whereby the timely dispatch of the notification shall suffice to meet the deadline. Irrespective of this obligation to inspect and give notice of defects, the Customer shall notify ASTOR in writing of obvious defects (including wrong and short delivery) within seven working days from delivery, whereby the timely dispatch of the notification shall also be sufficient to meet the deadline. If the Customer fails to duly inspect the goods and/or report defects, ASTOR shall not be liable for the defect not duly reported.

(5) If the delivered goods are defective, ASTOR may initially choose whether to provide subsequent fulfilment by remedying the defect or by delivering a defect-free item. ASTOR's right to refuse subsequent fulfilment under the statutory conditions shall remain unaffected.

(6) ASTOR is entitled to make the owed subsequent fulfilment dependent on the Customer paying the due purchase price. However, the Customer shall be entitled to retain a reasonable part of the purchase price in relation to the defect.

(7) The Customer shall give ASTOR the time and opportunity required for the subsequent fulfilment owed, in particular to hand over the rejected goods for inspection purposes. In the event of subsequent fulfilment by way of replacement delivery, the Customer shall return the defective item in accordance with the statutory provisions. Subsequent fulfilment includes neither the removal of the defective item nor its installation, unless ASTOR was originally obliged to install it.

(8) If a defect actually exists, ASTOR shall bear the expenses necessary for the purpose of inspection and subsequent performance (in particular transport, travel, labour and material costs) with the exception of removal and installation costs. If the Customer's request to remedy a defect proves to be unjustified, ASTOR may demand reimbursement of the resulting costs from the Customer.

(9) If the subsequent fulfilment has failed or a reasonable deadline to be set by the customer for the subsequent fulfilment has elapsed fruitlessly or is dispensable according to the statutory provisions, the customer may withdraw from the contract or reduce the purchase price. In the case of an insignificant defect, however, there is no right to withdraw from the contract.

(10) Claims of the customer for damages or reimbursement of futile expenses shall only exist in accordance with § 9 of these GTC and are otherwise excluded.

§ 10 Other liability

(1) Unless otherwise provided for in these GTC including the following provisions, ASTOR shall be liable in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory provisions.

(2) ASTOR shall be liable for damages - irrespective of the legal grounds (in particular due to impossibility, delay, defective or incorrect delivery, breach of contract, breach of obligations during contract negotiations and unauthorised action) - in cases of intent and gross negligence. ASTOR shall only be liable for simple negligence
a. for damages arising from injury to life, limb or health and
b. for damages resulting from the breach of an essential contractual obligation (obligation whose fulfilment is essential for the proper execution of the contract and on whose compliance the Customer regularly relies and may rely); in this case, however, ASTOR's liability shall be limited to compensation for foreseeable, typically occurring damages.

(3) The above exclusions and limitations of liability shall apply to the same extent in favour of the organs, legal representatives, employees and other vicarious agents of ASTOR. However, they shall not apply if ASTOR has fraudulently concealed a defect or has assumed a guarantee for the quality of the goods. They also do not apply to claims of the Customer under the Product Liability Act.

(4) Insofar as ASTOR provides technical information or acts in an advisory capacity and this information or advice is not part of the contractually agreed scope of services owed by ASTOR, this shall be done free of charge and to the exclusion of any liability.

(5) The Customer may only withdraw from or cancel the contract due to a breach of duty that does not consist of a defect in the goods if ASTOR is responsible for the breach of duty. A free right of cancellation of the Customer (in particular according to §§ 651, 649 BGB) is excluded. Otherwise, the statutory requirements and legal consequences shall apply.

§ 11 Statute of limitations

(1) Notwithstanding § 438 para. 1 no. 3 BGB, the general limitation period for claims arising from material defects and defects of title shall be one year from delivery or, if acceptance is required, from acceptance. This shall not affect special statutory provisions for claims in rem for restitution by third parties (§ 438 Para. 1 No. 1 BGB), in the case of fraudulent intent (§ 438 Para. 3 BGB) and for claims in supplier recourse in the case of final delivery to a consumer (§ 479 BGB).

(2) The above limitation periods of sales law shall also apply to contractual and non-contractual claims for damages of the Customer which are based on a defect of the goods, unless the application of the regular statutory limitation period (§§ 195, 199 BGB) would lead to a shorter limitation period in individual cases. They generally do not apply in the case of intent or fraudulent concealment of the defect or insofar as ASTOR has assumed a guarantee for the quality of the services. Furthermore, they shall not apply to claims for damages in the event of a grossly negligent breach of duty, in the event of culpable breach of essential contractual obligations and in cases of culpably caused injury to life, limb or health. The limitation periods of the Product Liability Act remain unaffected in all cases.

§ 12 Final provisions

(1) The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of international private law and the UN Convention on Contracts for the International Sale of Goods.

(2) Should individual provisions of these General Terms and Conditions be or become invalid, the validity of the remaining provisions shall remain unaffected.

(3) If the Customer is a merchant, a legal entity under public law or a special fund under public law or if the Customer has no general place of jurisdiction in the Federal Republic of Germany, the place of jurisdiction for all possible disputes arising from the business relationship between ASTOR and the Customer shall be ASTOR's place of business. ASTOR may also sue the Customer at his general place of jurisdiction. Mandatory statutory provisions on exclusive places of jurisdiction shall remain unaffected by this provision.