GENERAL TERMS AND CONDITIONS OF TRADE
Version: February 2014
The deliveries, services and offers of our company shall be based exclusively on these Terms and Conditions. They also apply to all future business with the customer, even if such are not expressly and/or separately agreed.
Any deviations from these Terms and Conditions shall only be effective if made in writing by the company.
The company shall consider the customer’s business and purchasing conditions invalid unless such have been expressly agreed by the company.
The prices indicated in the company’s sales documentation are effective at the time of publication. Any price changes shall after this date shall remain in force apart from contracts that had been signed prior to the change.
Unless otherwise agreed, the company invoices shall be due within 10 days after billing and with no discounts applied. The company shall be entitled to offset payments against older debts, notwith-standing any contrary stipulations of the customer. Should any costs and interest have already been incurred, the company reserves the right to offset the payment initially against costs, then the inter-est and finally against the principal performance.
A payment shall be considered effected when the company can dispose of the amount. In the case of checks, payment shall be deemed effective when such have been cashed. Similar to checks, bills of exchange shall be accepted by prior arrangement only and subject to their eligibility for discount. Discount charges shall be calculated from the due date for payment of the invoice amount.
Should the customer fall into arrears, the company reserves the right to charge interest from the ap-propriate point in the amount of 8 percentage points (5 percentage points for consumers) above the prevailing base rate. The proof and enforcement of a higher claim for damages caused by a delay in payment shall remain reserved.
Should customers fail to meet their payment obligations and, in particular, if checks cannot be cashed (chargeback), if customers cease payments, or should the company become aware of circum-stances that would jeopardize the customer’s creditworthiness, the company shall be entitled to de-mand full payment of the remaining debt, even if checks have already been accepted. In addition, the company reserves the right to request advance payments or a security deposit upon the relevant notification to the customer.
The customer may only offset counterclaims against payments if such have been legally established, are undisputed or which have been acknowledged by our company. A right of retention is excluded unless such right is based on the same contract.
III. DELIVERY/TRANSFER OF RISK
The risk of destruction, loss or deterioration of the item and the price risk shall be transferred to the customer when the goods have been handed over to the person(s) designated to transport such, or when the goods have left our premises for the purposes of shipment. Should the shipment be de-layed at the customer’s request, the risk shall be transferred to such customer upon the notification to the customer of the readiness of shipment of such.
Any dates and deadlines indicated by the company shall not be binding unless expressly agreed otherwise.
Events of force majeure shall entitle the company to postpone deliveries for the duration of the hin-drance for a reasonable period or to withdraw from the contract without incurring damage for the contractual part that has not been fulfilled. Force majeure includes strikes, lockouts or other circum-stances that would make delivery considerably more difficult or impossible, and regardless if such occur at the premises of the company or those of a contractor. The customer may request the com-pany to state whether the company intends to cancel the contract or will deliver within a reasonable period of time. If such declaration is not made within five working days following the receipt of the request, the customer shall have a right of withdrawal.
Claims for damages for the non-fulfillment of the contractually agreed delivery deadlines or deliv-ery dates shall be excluded unless such arise from gross negligence or malicious intent.
All deliveries, delivery deadlines and delivery dates on the part of our suppliers shall be subject to a punctual delivery to us.
We reserve the right to make partial deliveries and any additional costs arising from such shall be borne by our company.
IV. RETENTION OF TITLE
Until all the current or future claims our company may have against the customer on legal grounds have been fulfilled (including all balance debts on current accounts), the company shall be guaran-teed the following securities that it will release at its discretion upon request, if their value sustaina-bly exceeds the claims by more than 20%.
The goods shall remain the property of the company, and any processing or transformation shall al-ways be carried out for the company as the manufacturer, but shall not be an obligation of the com-pany. Should the (co)ownership of the company expire following an amalgamation, it is hereby agreed that the (co)ownership of the customer in the concern shall be transferred to the company in a proportional value (invoice value). The customer shall preserve the (co)ownership of the company without charge. Goods in which the company has (co)ownership, will hereinafter be referred to as reserved goods.
The customer shall be entitled to process and dispose of the reserved goods within the scope of or-dinary business activities provided he is not in default. Pledges and collateral assignments are not permitted. The customer shall hereby cede any claims in full arising from the resale or on any other legal grounds (insurance, tort, etc.) with respect to the reserved goods (including all balance debts on current accounts) by way of a security to the company. The company authorizes (consent may be revoked) the customer to collect the receivables assigned to the company in his own name. This au-thorization may only be revoked if the customer fails to fulfill its payment obligations.
Should any third parties seize the reserved goods, the customer shall refer to the ownership of the Should any third parties seize the goods, the customer shall refer to the ownership of the company and notify the company immediately.
Should the customer act in violation of the contract - in particular default of payment - the company shall be entitled to reclaim the reserved goods or, where appropriate, to demand the transfer of the customer’s claims for surrender against third parties. The redemption and seizure of the reserved goods by the company does not essentially mean a withdrawal from the contract.
The company guarantees that the products are free of defects until the use-by date has expired. No guarantee can be provided for the flawless condition of the goods beyond the use-by date. The cus-tomer should bear the use-by date in mind when purchasing products and, if necessary, enquire about such.
The warranty claims and claims for damages shall expire one year after the delivery of the goods. The company must be immediately notified in writing of any notices of defects, and obvious de-fects must be reported no later than two weeks following the receipt of the goods, as otherwise the assertion of any warranty claims shall be excluded. A timely dispatch of the goods is sufficient to meet such deadline. The burden of proof shall lie with the customer. The written notification of de-fects must include a precise description of the reported defect. The company must be immediately notified in writing of any defects that could not have been detected within this time period even upon careful inspection of the goods once such defect(s) have been discovered.
In the event of justified notices of defect, the company shall be obliged to remedy the defect or to replace such defective goods at its discretion. Should the company fail to meet this obligation with-in a reasonable period the customer may, in accordance with the relevant legal provisions, either withdraw from the contract or reduce the remuneration for such.
Warranty claims against the company apply to the direct customer exclusively, and are not transfer-able.
Any further claims are excluded. This does not apply to claims for compensation arising from prop-erty assurances, which are designed to guarantee the customer against the risk of consequential damages.
Any claims for damages arising from breach of contract and tort against the company and the com-pany’s vicarious agents and persons performing an obligation for the company shall be excluded, unless such actions were malicious or grossly negligent. Liability shall therefore be excluded for any minor violations of duties, in particular an impossibility to execute or a delay in executing such du-ties and for dereliction of duties of care arising from minor negligence. This shall not apply in the context of a breach of cardinal obligations. In the event of a minor negligent breach of such duties, the liability borne by our company shall be limited to typically foreseeable damage.
The aforementioned limitations and exclusions of liability shall not apply in the event of liability without fault, e.g. in accordance with product liability legislation and for physical injury, harm to health or loss of life.
VI. PLACE OF PERFORMANCE/PLACE OF JURISDICTION/APPLICABLE LAW/SEVERABILITY
The place of performance for both contracting parties is Grabfeld, OT Queienfeld.
To the extent permitted by law, Meiningen shall be agreed as the exclusive place of jurisdiction for disputes between the customer and the company that arise directly or indirectly from the contractual relationships. This also applies to any claims arising from checks and bills of exchange.
These Terms and Conditions and all legal relationships between the company and the customer shall be governed by the law of the Federal Republic of Germany to the exclusion of the regulations of international trade law.
Should any provision in the contract between the customer and the company, including these Gen-eral Terms and Conditions, be or become invalid in whole or in part or should a loophole arise here-in, the validity of the remaining provisions shall be unaffected.