The conditions as listed below are the basis for all our deliveries, if no other individual agreement has been made in writing. These conditions will be considered as accepted by the purchaser for present and for future deliveries, if the purchaser does not reject these conditions immediately in writing. Any conditions of the purchaser that diverge from our conditions are only valid after our written confirmation.
1. Conclusion of contract
Our quotations are not binding. Contracts will only become valid after our acceptance of the order or by execution of the order. Additional oral agreements and subsequent changes of the contract must be confirmed in writing by us to become valid. We cannot take over any liability for errors with regard to orders accepted by telephone, telefax etc.
2. Delivery time
It is our concern to meet delivery dates as agreed upon. In case of delays of delivery the purchaser can only cancel the order, if delivery is not effected without any justifying reason within one week. Force majeure or any occurrence beyond our control that infringes our delivery possibilities like e.g. strikes, war, fire, water, defect of machines, scarcity of raw materials or fuel, traffic obstacles or measures taken by authorities - independent of the fact whether these occurrences refer to our company or the company of one of our suppliers – will cause the delivery time to be extended accordingly. If this infringement lasts longer than two weeks every party has the right to withdraw from the contract within a period of one week. Any further claims of any kind, e.g. claims for damages for failure to perform are excluded. Remaining claims for damages of the purchaser are limited by our claims towards our insurance of which we will grant proportional cessions. Claims toward us are in any case limited to the double of the invoice amount of the paid merchandise. Cypher 8. of these General Terms of Trade remains unaffected.
3. Transfer of risk
The purchaser carries the risk of the consignment ex works respectively ex warehouse. If the consignment is damaged, destroyed or stolen during transport or at the purchaser’s site any claims for damages are excluded except risks that are covered by insurance policies. The liability of the purchaser to pay the full amount of the purchase price remains unchanged. If there is a delay in delivery due to circumstances beyond our control the risk has to be carried by the purchaser from the date of readiness for dispatch.
4. Prices and terms of payment
The invoice for the order will be issued in Euro plus VAT at the prices valid on the day of delivery. Delivery by us or by our carrier will be effected free of charge. Additional costs for express delivery or special modes of delivery as requested by the purchaser must be borne by the purchaser. Packing except means of transport (pallets, containers) is included in the price. If not agreed differently our invoices are to be paid within 2 days, net without discount, from date of dispatch. Payments are to be effected by bank transfer only, if no other mode of payment was agreed upon. Bills of exchange and cheques can only be accepted in lieu of performance and without any bank charges. Incoming payments are used for the amount that has been due the longest time. Payments to employees are only effective if there is a written authorisation confirming collecting power of the respective person or if the receipt was issued by a person that is authorised to represent our company. In case of delays in payment we are entitled to claim interest at a rate of 9 percentage points above the respective base interest rate p. a of 9 percent. If a purchaser is in delay with his payment or if he becomes insolvent then all open invoices become due for payment. The purchaser can only balance our claims by counterclaims or claim reservation of title, if the counterclaim is beyond dispute of if a legal entitlement exists for this claim.
5. Promotion measures
The purchasers undertake to promote the products supplied by us only in an appropriate way. They are aware that incorrect advertising with regard to certain features may lead to warranty claims. The purchasers undertake to except us from any consequences caused by such advertising and to pay compensation to us for damage created by infringement of this commitment, if this incorrect promotion was not based on statements by us or was not authorized by us.
6. Reservation of title
The merchandise remains our property until full payment of all claims resulting from this business relation, for former and future deliveries. The purchaser is entitled to sell these goods that are under our reservation of title in normal business. He must sell the goods under reservation of title. He is not entitled to pawn these goods without uncovering our claim or to grant protective conveyance. The purchaser already today irrevocably grants cession of his rights from the sales, especially the rights to payment and to reservation of title towards his customers. In the case of sales the reservation of title is transferred from the merchandise to the sales price which has to be kept in custody separately and has to be paid to us upon request, even if it is not yet due. In case of damage, destruction or theft of our merchandise it is replaced by a claim to insurance policies or a claim towards third parties. The purchaser is, until revoked, entitled to demand the claim from his customers. In case of delayed payments by the purchaser we are entitled to disclose our claims including cession to the customers of the client. Upon request the purchaser is obliged to state his customers as well as amounts and reasons for his claim. The purchaser has to inform us immediately about any access of third parties to goods that bear a reservation of title or any other transferred claims or rights, a substantial deterioration of his financial standing, e.g. impending or commencing insolvency procedures. In this case the purchaser is no longer entitled to sell the merchandise. Moreover, we have the right to claim the goods back. This also refers to overdue payment. If the value of all security rights in our favour exceeds the value of all existing security rights by more than 10% we will, upon request of the purchaser, release an appropriate proportion of the security rights.
Complaints regarding our goods can only be recognized if they are claimed immediately and, with regard to detectable flaws within 3 days after delivery by the latest. Complaints must be presented in writing, stating reasons. Rejected goods have to be stored separately and properly until we have examined these goods. Sending back the goods is only acceptable, if we have demanded it. If the complaint is justified the purchaser can only claim delivery of flawless replacement. Any other claims are excluded, if no other provisions have been made below. If delivery of replacement is not possible or if two attempts to deliver replacement have failed the legal right of the purchaser to cancel the order or to depreciate the value is activated. The purchaser has to examine the goods immediately upon receipt with regard to deviations of quality and quantity. Any deviations have to be identified immediately upon receipt of the goods and to be noted on the acknowledgement of receipt. In this case the purchaser has only the rights as mentioned in the paragraph above. In case of belated complaints any claims are excluded. We reserve the right to the mode and design of our packages.
On principle we exclude the right of the purchaser to claim damages. We, however, are liable for damage resulting from the injury of life, body or health, if we are responsible for a breach of duty. We are liable for other damage, if it is the result of an intentional or grossly negligent breach of duty or a breach of substantial duties of the contract. In the latter case this liability is limited to damage that can typically be expected. In case a warranty is granted on quality or shelf life, liability for consequential damage and lost profits is excluded, if this was not agreed in writing in a separate contract. If our purchaser is held liable for material defects the following conditions are applicable: a) On principle claims for damages of our customers are excluded. b) Our purchaser has to give us the opportunity to effect delivery in compliance subsequently.
9. Place of jurisdiction
The place of jurisdiction is Memmingen, Germany for all summary, bill of exchange, cheque and certificate proceedings, if the purchaser is a merchant, a legal entity of public legal separate property. We may also choose the place of jurisdiction to be the location of the purchaser or the location where the goods are to be delivered or where they are to be picked up.
Each and any legal relations between us and the purchaser are governed in accordance with the German law under exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CIGS).
The inoperativeness of one or several provisions of this General Terms of Trade does not affect the validity of the remaining provisions. In such case a provision is applicable which meets best the legal and economic aim of the inoperative provision.