General Terms of Sale, Delivery and Payment
Section 1 – General
- Our deliveries, services and offers are subject to these terms and conditions. They apply to all future business relations even if not explicitly agreed upon again. These terms and conditions are deemed accepted upon receipt of delivered goods or services. Any requirement for approval by the buyer with reference to their terms of business or purchase are hereby contradicted. Silence on our part shall not be deemed as acceptance. Any subsidiary agreements, changes and additions must be in written form in order to be effective.
- A “consumer” within the meaning of the following terms is in accordance with section 13 BGB (Bürgerliches Gesetzbuch – German Civil Code) every natural person who enters into a legal transaction for purposes that predominantly are outside his trade, business or profession.
- An “entrepreneur” is in accordance with section 14 of the BGB a natural or legal person or a partnership with legal personality who or which, when entering into a legal transaction, acts in exercise of his or its trade, business or profession.
Section 2 – Offers, Prices – Terms of Payment
- Our offers are non-binding and non-committal. Our prices, unless otherwise agreed, are based on the current price list at the day of delivery. They are quoted ex Henstedt-Ulzburg. Orders are not effective until they have been confirmed in written form or executed by us. Our invoice shall be considered as a written order confirmation.
- Statutory VAT is not included in the prices; it shall be stated separately in the invoice at the statutory rate on the day of the invoice.
- Any transportation and shipping costs, unless otherwise agreed, are to be paid by the buyer.
- The purchase price and prices for additional services will be due for payment 30 days after delivery of the goods (ex ramp stock Henstedt-Ulzburg). If the buyer exceeds the allowed payment terms we will charge at least the statutory interest in accordance with section 288 of the BGB.
- In the case of default of any receivables, the seller may prohibit the resale of the goods supplied by him under retention of title. The seller also reserves the right to declare all existing receivables of the business relationship due immediately if the buyer is overdue more than 14 days in settlement of any receivables.
- The buyer can only then offset claims of the seller if the counterclaim of the buyer is undisputed or if there is a legally binding title; a right of retention can only be asserted if this is based on claims relating to the contract of sale.
- The seller may require guarantees of its own choice (e.g. bank guarantee) to ensure its claims.
Section 3 – Delivery
- Delivery dates and delivery periods which can be agreed as binding must be given in writing. Delivery periods begin with conclusion of contract.
- If the seller because of a circumstance, which he or a vicarious agent has to justify, is prevented from delivering the object of purchase at the date agreed upon or within the agreed period (default of delivery), the buyer will be entitled to set an appropriate grace period. The buyer is only entitled to withdraw from the contract or demand compensation instead of fulfilment as no delivery has been made within the set grace period. Compensation instead of fulfilment or for delay in fulfilment shall be excluded both against the seller as well as against its vicarious agents, if the seller or its vicarious agent did not act intentionally or with gross negligence. Any liability is limited to the foreseeable damage at time of contract.
- Force majeure and events which prevent the seller without any fault temporarily from delivering the goods on the agreed date or within the agreed period, entitle the seller to postpone the delivery or fulfilment by the duration of the hindrance plus a reasonable preparatory period. If such disturbances lead to a delay in fulfilment of more than three months, the buyer is entitled to withdraw from the contract. Other rights of withdrawal shall remain unaffected.
- We are entitled to partial deliveries. In case of partial deliveries the buyer is not entitled to withdraw from the contract, unless with the partial fulfilment of the contract the fulfilment of the entire contract is not in its best interest.
- The buyer is obliged to accept the object of purchase. If the buyer is in default of acceptance, the seller is entitled to demand compensation for the resulting damage.
- Design modifications, color changes and changes of the scope of delivery are subject to the manufacturer during the delivery period, provided that these changes or modifications are reasonable for the buyer, taking into account the interests of the seller. If the seller uses signs or numbers for the purpose of identification of the order or the object of sale, no rights can be derived from this fact alone in respect of the concretisation of the object of sale or the scope of delivery.
Section 4 – Liability for Material Defects
- The sale of used goods to an entrepreneur takes place under exclusion of any liability for material defects unless the defect was fraudulently concealed. The sale of used goods to a consumer is subject to a one-year statute of limitations.
- In the case of defectiveness of the object of purchase the seller is entitled to choose between rectification or replacement, as far as the object has been sold to an entrepreneur. If the object was sold to a consumer, the consumer may require only the rectifying of the defect, as far as the replacement would result in unreasonable costs for the seller (analogous to section 439 para. 3 of the BGB). If the repair or replacement should fail the entrepreneur can demand a price reduction or withdraw from the contract. In addition to the statutory provisions, the rectification will always be considered as failed, if and as far as a grace period set has elapsed without rectification by the seller. The prerequisites for exercising the right of withdrawal are determined by section 323 of the BGB.
- The seller is liable under the statutory provisions if the buyer makes a claim for damages based on malice, intent or gross negligence by the seller, its representatives or vicarious agents. If the seller cannot be charged with deliberate violation of contract, the liability is limited to the foreseeable, typically occurring damage. Apart from that, the liability for damages is excluded; in this respect the seller is not liable in particular for damages that have not occurred to the object of delivery, unless it involves an injury to life, body and / or health.
- In the case of rectification the seller shall bear all, for the purpose of rectification, necessary expenses, in particular transport, travel, work and material costs to the extent that they are not increased due to the goods being transported to a place other than the place of fulfilment.
- Claims to rectification of defects shall be made in writing to the seller by the buyer.
Section 5 – Entrepreneur’s Recourse in Case of Selling New Goods to Commercial Resellers
- If the buyer resells new sold goods within the scope of his commercial business to another consumer and if he had to take back these goods due to a defect, or if he had to reduce the purchase price, then the buyer can claim for material defects against the seller without setting a period.
- The buyer shall also be able to demand reimbursement of expenses for subsequent fulfilment that have been made in accordance with section 439 para. 2 of the BGB and had to bear vis-à-vis its consumer if the faults asserted by the consumer existed upon passing of risk to the buyer. Expenses are in particular transport, travel, work and material costs.
- The buyer shall hold no claim to compensation in the framework of entrepreneur’s recourse.
Section 6 – Retention of Title
- The seller retains the title to the object of delivery until receipt of all payments from the respective delivery contract. If the buyer is a legal entity under public law or a merchant, for whom the contract belongs to carrying on his commerce, the retention of title applies until fulfilment of all existing claims under the current business relationship, in particular the balance claims due to the seller regardless of the legal ground against the buyer (extended retention of title).
- Combination, processing, transformation and the like of the delivery items always occur for the seller as a manufacturer. If the seller becomes hereby the sole owner of the created object, the seller is not obliged to pay compensation in accordance with section 951 of the BGB for the loss of rights of others. If the ownership of the seller lapses due to combination, processing or transformation, it is hereby agreed that the seller acquires co-ownership of the new item in the ratio of the value of the object of delivery (invoiced value) to the other processed items. The buyer keeps the (co-)ownership of the seller free of charge. Goods which the seller (co-)owns will hereinafter referred to as reserved goods.
- The buyer may sell or process reserved goods delivered by us, but only in the ordinary course of business. Lapses the retention of title for other reasons than mentioned in paragraph 2. (processing, combination, transformation and the like), in particular through resale etc., the retention of title shall be replaced with any and all claims, subsidiary rights and guarantees from the resale etc. entitled to the buyer. At out request, the buyer shall be obliged to inform the third party buyer of our retention of title if the buyer defaults in payment or fails to fulfil its obligations under the retention of title.
- Until fulfilment of all demands (including all demands relating to the current account balance and open account) from the respective delivery contract or against the customer under our current business relationship if the buyer is a legal entity under public law or a merchant, for whom the contract belongs to carrying on his commerce, the aforementioned guarantees shall be granted to us which we shall release on request and at our choice as soon as their value exceeds the total amount of our claims by more than 20 %.
- Due to the prolonged retention of title, the buyer is entitled to collect claims for us until our revocation at any time. These amounts shall be transferred to us immediately. If the buyer defaults this collection authorisation is cancelled without further notice. If the buyer intends with its customers to agree on assignment prohibitions or those already exist we shall be notified about this immediately in writing. The buyer is obliged to send us the necessary information and documents to assert the rights against its buyer.
- The buyer shall not pledge nor transfer the object of delivery as security to a third party. In the case of pledging, seizure or other dispositions taken by third parties the buyer shall notify us without delay.
- If the buyer is in delay of payments or fails to fulfil its obligations related to retention of title, the seller may reclaim the object of delivery from the buyer and, after a written announcement and an adequate period of time, the seller may offer the goods by private sale in the open market to achieve the optimum by appropriating the proceeds of the realisation on the existing claims against the buyer. This return applies to installment payment transactions as withdrawal, unless the buyer is registered as a merchant in the Commercial Register.
- If the seller demands the return of the object of delivery, the buyer is obliged to do so immediately under the exclusion of any rights of retention unless they are based on the contract of sale. For the event of default of payment the buyer hereby grants an irrevocable right to seller to collect the reserved goods immediately and to have unobstructed access to its business premises and store-rooms for this purpose.
- The buyer shall bear all costs of withdrawal and realization of the object of delivery. Without the need for further evidence, the utilization costs shall be 10 % of the utilization proceeds including value-added tax. They will be greater or less if we furnish evidence of greater costs or, however, if the buyer furnishes evidence that the costs were less. The proceeds shall be credited to buyer after deduction of costs and other contract related claims made by us.
Section 7 – Place of Jurisdiction / Fulfilment
- The place of fulfilment is D-24558 Henstedt-Ulzburg.
- German law shall apply exclusively. Application of the United Nations Convention of April 11, 1980 of the International Sale of Goods (Vienna Unicitral Law – “CISG”) shall be ruled out.
- If the buyer is a merchant, legal entity or public special assets under public law or has no general jurisdiction in Germany, Kiel has jurisdiction for all disputes arising from the business relationship, including all claims arising from checks and bills of exchange.