I. SCOPE OF VALIDITY OF CONDITIONS
- Sales are solely made to traders according to § 14 BGB. Deliveries, services rendered and offers made are done so on the basis of these general terms and conditions. As such these are valid for all subsequent business transactions, even where this is not once again expressly agreed. These conditions are taken as agreed at the latest when the goods or service are received. We hereby refuse to recognise any counter-confirmation on the part of the buyer with reference to his own general terms and conditions or conditions of purchase.
- Any discrepancies from these terms and conditions will only be valid when the seller confirms such in writing.
- Offers made by the seller are without obligation and are not binding. The acceptance of offers and the issue of orders do not become legally binding until they are confirmed by the seller either in writing or per telex. This is also the case where supplements, alterations or subsidiary agreements are made.
- Drawings, diagrams, measures, weights and comparable performance data are only legally binding when expressly agreed.
- The issue of a new catalogue or price list invalidates all previous catalogues and price lists. Furthermore, catalogue- and price lists are also non-binding until confirmed by the seller. The prices do not include value added tax. The prices are net, ex works. All transport costs will be invoiced to the buyer.
- The delivery date is that stipulated in the written confirmation of order or, where a confirmation of order is not issued, in the seller’s invoice.
- Initial orders are executed against payment in advance.
- Where a considerable change of the costs involved in the order occurs the parties to the contract must agree on an adjustment of the prices. The weights, amounts and volumes determined by the seller are to be used for the relevant calculation purposes, unless the buyer voices his immediate disagreement.
- We expressly reserve the right to make alterations with respect to colour, raw materials and other characteristics. Printing errors or obvious errors in confirmations, offers or price lists do not entitle the buyer to assert any certain claims.
- The dates and periods given by the seller are without obligation unless agreements to the contrary have been expressly made.
- The delivery date is considered adhered to when the goods leave the factory by expiry of this date. It is also considered adhered to when the buyer has been informed that the goods are ready for collection and the goods are not collected by the delivery date.
- Substantial unpredictable breakdowns, failure to comply with delivery dates or failure to deliver on the part of the seller’s suppliers, shortages of raw materials, energy supplies or personnel, strikes, lock-outs, difficulties with organising means of transport, traffic disruptions, legally or state-imposed injunctions and other such cases, e.g. acts of God affecting the seller and his suppliers will extend the delivery period accordingly. The seller will inform the buyer as soon as possible when such hindrances to delivery arise and come to an end.
- Appropriate part-deliveries are permitted. Goods are generally delivered packed to commercial standards. Where this is not the case then commonly-accepted variations from the agreed delivery amounts are permitted.
- Where a fixed delivery date cannot be adhered to because the seller is at fault, then the buyer is entitled to claim for compensation for the delivery once an appropriately extended delivery deadline has expired, or he may rescind the contract, provided he announces on the setting of such a deadline that he will then refuse acceptance of the performance; any further claims are ruled out. Compensation for the delay is calculated at 1/3% for each full week following expiry of the extended deadline up to the value of the part-delivery which was not delivered on time. Any further claims, in particular claims for damages of any sort are ruled out. These restrictions are not valid, if the seller is liable for compensation according to clause VIII. 1. of these General Terms and Conditions.
- The seller’s duty to deliver is suspended when the buyer is in arrears with a payment that remains outstanding despite issue of a reminder for payment.
- Where the goods are to be accepted within a certain time period but little by little then the acceptance, unless explicitly agreed otherwise, is to be divided evenly over the whole period. When the buyer delays in accepting agreed part amounts then the seller is permitted, after setting an appropriate extended deadline, to store the corresponding amount at the cost and at the risk of the buyer and to strike it off the final delivery amount. In the latter case, any concessions allowed on the goods already delivered will cease to apply.
V. DISPATCH, TRANSFER OF RISK, PACKAGING
- Unless otherwise agreed, the seller selects the route and method of dispatch whereby the interests of the buyer must be sufficiently considered. In addition to the dispatch costs the buyer may also opt, at his own cost, to have the seller insure the shipment against theft, breakage, transport, fire and water damage as well as any other insurable risks.
- The danger of destruction, loss or damage to the goods passes to the buyer on dispatch – or in the case of collection – from the point of informing the buyer that the goods are ready for collection. This is also the case for carriage-paid delivery. Where the dispatch is delayed on account of circum-stances for which the buyer is responsible then the risk passes to the buyer from the day the goods are ready for dispatch, the seller however is bound, at the buyer’s request and cost, to effect insurance cover.
- The buyer is bound to accept the goods delivered, including those where negligible faults are apparent, without prejudice to any rights he has from No. VII.
- Invoices are to be paid according to the agreed terms of payment. Bills of Payment will only be accepted for payment purposes when covering all debit and discount charges. Payments are not considered effected until the amount is fully credited to the seller´s account and is accessible for him. The seller also reserves the right to use payments to settle the oldest outstanding invoices including interest on arrears and any other costs are cumulated in the following order: costs, interest, main outstanding ac-count, even when the buyer´s conditions of payment stipulate otherwise. Any outstanding accounts based on a justified complaint are excluded from this provision. Retention and setting-off on account of contentious claims by the buyer against the seller are only permitted, if the buyer´s claims are legally deter-mined or uncontested.
- Non-compliance with conditions of payment or conditions under which, by exercising standards commonly applied by the banks lead to assume a considerable reduction in the creditworthiness of the buyer, will lead to all outstanding accounts of the seller becoming due. Furthermore, the seller is entitled to demand payment in advance for all outstanding deliveries as well as to rescind the contract once an appropriate revised deadline has lapsed, or claim compensation for non-compliance, and furthermore to stop the buyer from selling the goods to third parties and to fetch back goods not yet paid for at the cost of the buyer.
- Where the buyer is in arrears the seller is entitled, as of the relevant point in time, to claim interest at the rate charged by his business bank for overdrawing a current account, at a minimum rate, however at least of 8 % above the prevailing base rate.
- Any complaints concerning the characteristics or quantities are to be reported immediately, at the latest 7 days after receipt of goods, in writing, quoting the invoice and dispatch number and the description of the product.
- It is the responsibility of the buyer to check that the goods are in good condition. The seller is relieved of all responsibility when the buyer fails to carry out such a check.
- Where a claim has been reported correctly and is justified, the seller is bound, within an appropriate period of time as he sees fit, to replace the goods, send a further consignment, bring the goods in order, cancel the contract or accept a deduction. Where the seller does not fulfill this duty, the buyer has the right to choose between these legal options. The buyer can only claim for damages under the pre-conditions of clauses IV., VIII. of these General Terms and Conditions.
- Where on account of recourse a claim is made on the buyer by his buyer in accordance with §§ 478 f. BGB (German Civil Code) he is legally bound to inform the seller immediately (at the latest within 14 days) and in writing of the intention to claim. Before the buyer takes back the goods or improves these, accepts a deduction or cancels the contract or pays compensation he must offer the seller the possibility of improvement or a new delivery. The buyer must equally impose this rule onto his buyer, unless the buyer is a consumer. The assertion of a claim for damages on account of recourse is ruled out in any event.
- Goods from which the complaint has arisen may not be returned until the relevant term has lapsed as in accordance with No. 3, first sentence, unless the seller explicitly agrees otherwise.
- Claims for any faults prescribe within a year after delivery of the matter. In case of claims for damages for injury to life, body and health as well as in case of claims for damages due to intentional or grossly negligent breach of duty (clause VIII. Of these General Terms and Conditions) the legal regulations for prescription become valid.
- The seller is liable for any damages incurred from injury to life, body and health, as long as these are caused by intentional or grossly negligent breach of duty by the seller or his legal representatives or vicarious agent. The seller is only liable for any other damages, as long as these are caused by intentional or grossly negligent breach of duty by the seller or his legal representative or vicarious agent.
- Notwithstanding clause VIII. 1. of these General Terms and Conditions, the liability for delays of performance is otherwise defined according to clause IV. of these General Terms and Conditions.
IX. RESERVATION OF OWNERSHIP
- The goods will remain the property of the seller until the buyer has met all his obligations towards the seller concerning both present and future business transactions. This is also the case when individual or entire outstanding payments to the seller have been included in a current invoice and the balance drawn and the statement of account accepted. Where recourse for the seller is established through payment of the purchase price by a bill the reservation of ownership does not end until the bill is honoured by the buyer as the payer.
- The buyer is bound to carefully guard the seller’s reserved goods and to cover the costs for insuring replacement or damage and assigns already any claims from insurance contracts in advance.
- The buyer is entitled to sell the goods with reserved ownership to third par-ties where this is within the scope of regular business activity. Any other appropriation of the goods such as pledging or collateral assignment is not permitted. Where goods are not paid for in cash the buyer must agree with his customer the reservation of ownership in accordance with these conditions. This entitlement to sell to third parties ends if the buyer stops payment.
- The buyer assigns here already any demands arising from the passing on of reserved goods as well as all supplementary and collateral rights including bills and cheques to the seller. When goods are sold which belong only in part to the seller the assignment is limited to the part representing the share of the ownership of the seller. Where reserved goods are sold together with other goods as part of a package deal the assignment is limited to that part of the sum on the seller’s invoice (including value added tax) which corresponds to the amount of his ownership.
- If the seller demands, the buyer is bound to inform the purchaser of the assignment and to give the seller information and submit documents for him to make a claim against these purchasers. The buyer is not allowed to make agreements with the purchaser which exclude or restrict the rights of the seller in any way. In particular, the buyer may not enter into any agreements which invalidate the blanket assignment of claims to the seller or restrict these in any way.
- Where the buyer does not fulfill his obligations towards the seller, the seller, having issued a reminder is entitled, without prejudice to any other rights, to demand the return of the reserved goods and/or make direct use of the rights assigned to him. The seller has the right to take possession of the goods himself and may enter the premises of the buyer in order to do so. A return of the reserved goods only then means rescission of the contract when the seller explicitly states such in writing. Any access gained to the reserved goods and assigned claims by third parties must be reported immediately by the buyer to the seller.
- Where the value of the seller’s security exceeds the amount of security to which he is entitled by more than 20 % then he must, at the buyer’s re-quest, release corresponding securities which he, the seller, may determine.
X. CHOICE OF LAW, PLACE OF PERFORMANCE, PLACE OF JURISDICTION, PARTIAL INVALIDITY
- German Law (HGB, BGB) excluding the UN purchase regulations is binding for the complete business relationship between the seller and the buyer.
- Place of performance in the case of delivery is the seller’s corresponding dispatch centre, in the case of payment his registered office.
- The place of jurisdiction for all disputes is Detmold.
- In the event that any individual provisions of these conditions for sale and delivery prove to be invalid, either in part or in their entirety, this will have no effect on the validity of the other provisions. A rule which is invalid is considered as replaced by that which is valid and closest in meaning to the business intention behind the invalid rule.