Effective April 2005
1.) The following general terms and conditions are valid exclusively for entrepreneurs. Opposing or conditions not in conformity with the terms and conditions of the buyer will not be agreed to by the seller except that he had agreed to the same in writing.
2.) The terms and conditions of the seller are also valid if he performs the services agreed upon as opposed to the agreed or if the conditions agreed upon are contrary to the conditions of the buyer.
3.) The terms and conditions of the seller also remain valid for all future orders and even when the conditions in a single case are note made exclusively the subject of the agreed upon agreement.
4.) Written documentation that are part of the offer such as copies, drawings and weight indications are insofar only approximate standard if they have not been explicitly declared as binding.
Furthermore we point out, that the raw materials being used are sometimes natural products and we have no influence whatsoever upon its quality.
5.) In order to be effective, all agreements, in particular collateral agreements and supplementary collateral agreements need to be confirmed by the seller and have to be issued in written form in each and every case. This is particularly the case for agreements made verbally, by telephone and agreements with representatives of the seller. When ordering via telephone the seller is only liable when it is confirmed in writing.
II. Offer, Acceptance, Delivery and Receiving
1.) The takeover of all orders is subject to delivery ability. The quotation of the seller remains without obligation until confirmed in writing. If obvious errors such as misspelling or calculation errors occur in the offers or order confirmations and in documentations, drawings and plans of the seller, then no effective offer and/or agreement has been effected.
2.) Changes of the object of performance remain subject to alterations insofar as these changes are in the nature of the materials used and are equitable or customary in trade.
3.) With agreements that have a longer handling duration or with orders on call-forward notice the seller has to be informed in writing as to call-forward orders, dates and the corresponding specifications. If this does not happen, the seller has the right to an intermediate sale. If the dates for acceptance of goods are not being adhered to by the buyer, the seller is then entitled to damages.
4.) Special orders stipulate that the ordered quantities are binding for the buyer and have to be accepted in any case. There is no claim for additional production of smaller quantities.
5.) The performance time span only begins after all details pertaining to the object of performance have been received. The same applies when cooperation of the buyer becomes necessary. The performance time span has been fulfilled with the day of delivery via the seller.
6.) The performance time span is prolonged when unforeseen hindrances occur that lie outside of the realm of the seller, e.g. breakdowns within the company, delay in delivery of essential materials insofar as such delay is manifested to be connected to the delivery of the object of performance to be of substantial influence and do not have to be justified by the buyer. This also applies for the conditions of the suppliers. The performance time span is prolonged as per the duration of such measures and hindrances. The aforementioned circumstances also do not lie within the realm of the seller if they occur during an already ongoing process.
7.) Part performances as indicated by the seller are admissible within the mentioned delivery spans insofar as no disadvantages for usage evolve.
8.) Insofar as the seller does not bring the service due or as owed, the buyer can only ask for compensation for damages instead of service if he has given the seller a period of grace of at least 4 weeks in order to be able to follow up with the pressure that, after a fruitless deadline, to effect a covering purchase for the debit of the seller.
III. Place of Delivery and Shipment
1.) Shipment of the goods is effected ex works if nothing else has been agreed upon.
2.) Shipment is effected in any case, even with return transportation and even with agreement to free-of-charge prices and/or free-of-charge delivery upon hazards for the buyer. The order for a forwarding agent or haulier is done in the name of the customer who also carries the costs. The seller is only liable for own negligence of transport personnel when he or his staff commit malice or are grossly negligent. In the absence of special agreements he is free to choose the form of shipment. Invoicing is effected according to the weight of the goods as per the documentation of the seller. He is entitled to partial shipments.
3.) No guarantee is given for the delivery terms as desired by the buyer or as designated by the seller. Committed delivery terms also have to be viewed as approximate and always remain not binding.
4.) By cancellation of a contract the seller is obliged to refund the payment. Payment of interest is excluded. Further demands, in particular commissions, are ruled out.
5.) If a down payment has been agreed upon the delivery period only begins with receipt of the same. Prior to payment of invoices due the seller is not obliged to further deliveries.
6.) With a substantial impairment of the financial position as well as impending insolvency of the buyer the seller is entitled to effect delivery only via advance payment or to demand a suitable collateral. If this is not effected within an adequate time frame the seller is entitled to withdraw from the agreement without any rights whatsoever for the buyer. At the same time the seller is entitled to ask for compensatory damages due to default.
IV. Prices and Additional Charges
The prices are net prices. The Value Added Tax is being calculated separately within the stipulated level. When fixed prices have been agreed upon the seller reserves the right to increase the prices for deliveries that are effected later than 6 months after conclusion of the agreement, e.g. for higher wages and/or increased prices for materials. These price increases, upon demand, will be documented by the seller to the buyer. The buyer can only withdraw from the contract if the price increases of the general living index between order and delivery terms do increase not only unsubstantially. If not agreed to otherwise, all prices are free loaded ex works.
V. Product Warranty, Liability
1.) The buyer, after receiving the goods, is obliged to inspect the delivered goods for deficiencies. Deficiencies that have been noted are to be reported to the seller immediately, in writing and in detail, at the latest 5 days after receipt of the goods. If this inspection is not effected or no notice of defects within the aforementioned time span is received by seller all liability for the seller do not apply.
2.) Loss of weight during the transport due to drying up of the goods do not represent a claim for warranty. A objection to the delivered goods does not represent the right to reject further deliveries that are already dispatched. These are to be, irrespective of a later arrangement, accepted and unloaded.
3.) If legitimate deficiencies occur, the seller, as per his choice, is entitled to remedy the same or via a substitute delivery (retrospective fulfillment) free of charge. The costs of said retrospective fulfillment that occur when the goods are transported to another location as the stipulated place of fulfillment are to be borne by the buyer. The retrospective fulfillment is only effected if the buyer has paid the total amount less the costs for the deficiency. The retention may not amount to more than the triple amount of the costs for the removal of the deficiencies.
4.) Should the seller, as per his warranty, not be able to remedy the error, or if the retrospective fulfillment has failed or if further trials for retrospective fulfillment are not feasible, the buyer can, in lieu of retrospective fulfillment, withdraw from the agreement or demand reduction
(price reduction). The retrospective fulfillment is not considered to be a failure after the second trial has been carried out.
5.) When a deficiency besides the retrospective fulfillment occurs, the right of the buyer to demand, with reduction of price or withdrawal from the contract, to claim damages (instead of or besides the fulfillment) or as a substitute for fruitless efforts, remains unaffected by the above mentioned stipulations.
6.) The seller is liable and to blame for all and any culpably injury of life, body, or health.
7.) Furthermore the seller is only fully liable for gross negligence and deliberate intent. He is only liable for ordinary negligence, if a duty has been violated whose compliance is of special meaning for reaching the basis of agreement (Cardinal Duty). When the cardinal duty is infringed upon, the liability for such damages is limited to such that have to be typically expected within the framework of the making of a contract and are in any case limited to the fee/purchase price agreed upon by both parties.
8.) In case of ordinary negligence by the seller the right of the customer for the equivalent of deferred damages is limited to 10% of the purchase price agreed upon.
VI. Terms of Payment
1.) Place of fulfillment for payments is Ransbach-Baumbach
2.) Purchase price plus VAT and/or payment for additional services are payable within 30 days after receipt of the invoice.
3.) The seller is relieved of all duties of delivery if the customer does not comply with the terms of payment. Furthermore it remains within the general proviso of the seller to charge interest as per the legally binding interest rates or to charge bank interest charges incurred.
4.) The agreement of the seller is mandatory for payment via bank draft .
5.) Invoices of the seller are considered as acknowledged if no written objection within 30 days has been received.
6.) If the seller is entitled to claims for indemnity due to failure to perform this sums up to 20% of the purchase price including additional payments subject to documented higher damage claims incurred by the seller. The buyer is entitled to prove to the seller that none or a lower failure of performance damage has resulted.
7.) The buyer only has the right to settle if his claims have legal force, are undisputed or are acknowledged by the seller. The same applies in regards to the right to refuse performance by the seller.
8.) If a deficiency of the purchased goods is at issue prior to the claim for warranty becoming barred by the statute of limitations he is not entitled to refuse payment of the total sum due to the deficiency.
9.) The relinquishment of demands that results from the business relations of the buyer to the seller is excluded.
VII. Title Retention
1.) The ownership of the goods delivered remains with the buyer until all claims resulting from the business relation, either for current or future claims, or other legal grounds between seller and buyer have been settled. This also applies to storage of the goods on third-party grounds. If in connection with payment of the purchase price via the buyer an alternative liability arises for the seller, the reservation of ownership does not expire prior to redemption of the bill through the buyer as drawee.
2.) With each and every sale of the goods of the seller the vendor must express explicitly towards the buyer the ownership of the goods of the seller until his claims against the buyer have been fulfilled. Furthermore the buyer already now assigns his claims towards the purchaser to the buyer up to the amount of the claims of the seller to the buyer. Upon demand the buyer is obliged to make public the assignment to his debtors and to give the seller the respective information and documents needed for enforcement of his rights towards his debtors.
3.) Despite the assignment of the claims to the seller, the buyer is entitled to collect such claims for a time span as he is able to pay his financial obligations, also against third parties. However, the seller is entitled the revoke this authorization at any time, to notify the third party of this relinquishment and to affect the claim himself.
4.) If the goods of the seller are mixed or, via installation, become a material part of a property or construction, the seller then rescinds his claim to the buyer towards the owner of the property or structural building up to the value of the material belonging to the seller. The liability resulting from this manifestation is to be passed on by the seller to each and every further purchaser to the resulting follow-up successor.
5.) If the seller, after conclusion of the agreement, gets knowledge of circumstances that inhibit the credit worthiness of the buyer, the seller is then, without hesitation, entitled to demand immediate cash payment or to ask for hand over of the delivered goods.
6.) In order to assort a claim to reserve of property as well as levy of execution via the seller do not stipulate a withdrawal from the contract insofar as the stipulations for the consumer credit law can be applied or this is expressively stated by the buyer in writing. The seller is entitled, contrary to the terms of the contract, to ask for transfer of the right to recover possession of the customer against third parties.
7.) Upon demand of the buyer the seller is obliged to set free the securities insofar as the value of said securities, if not duly paid, do not exceed more than 20% of the value.
8.) The buyer is obliged to insure the goods until payment in full has been received and, upon demand, document this to the seller.
VIII. Place of Fulfillment and Jurisdiction
1.) Place of fulfillment for all services is Ransbach-Baumbach. In case of possible controversies place of jurisdiction is Koblenz within the framework of this contract.
2.) German law applies with exclusion of laws pertaining to international purchase of movables, even if the buyer has his registered office abroad.
1.) Assignments of rights and duties of the seller towards the agreement made with the buyer have to be made in writing.
2.) In case of invalidity of one or more stipulations of this contract the validity of all other stipulations remain unaffected. In this case the parties agree to a stipulation that comes closest to the invalid stipulation.