All offers, deliveries and services of the seller are exclusively based on these terms and conditions.
The terms and conditions shall therefore also apply to all future business relations, even if they are not expressly agreed again. These terms and conditions shall be deemed accepted at the latest upon receipt of the goods or services.
Counter-confirmations of the customer with reference to his terms and conditions of business or purchase are hereby contradicted.
Deviations from these terms and conditions require the written confirmation of the seller to be effective.
II Offer and conclusion of contract
The offers of the seller are subject to change and non-binding. Declarations of acceptance and all orders require the written or telex confirmation of the seller to be legally effective. The same applies to additions, amendments or subsidiary agreements.
Unless otherwise stated, the Seller shall be bound by the prices contained in its offers for 30 days from the date of the offer. The prices stated in the Seller’s order confirmation plus the respective statutory value added tax shall be decisive. Additional deliveries and services will be charged separately.
Invoices are issued on the day of dispatch of the goods.
Prices are quoted in EURO, plus the statutory value added tax at the time of invoicing.
Unless otherwise agreed, payments are to be made in cash within 10 days of delivery less 3% discount, within 30 days of delivery strictly net.
An open payment term may not exceed 30 days after invoicing. If the payment period is exceeded, interest on arrears shall be payable from the 31st day after invoicing at a rate of 5% above the respective base interest rate of the European Central Bank (ECB).
A payment shall only be deemed to have been made when the Seller can dispose of the amount. In the case of cheques, payment shall only be deemed to have been made when the cheque is cashed.
The acceptance of cheques is only on account of performance. The customer shall bear the costs of collection.
If the Seller becomes aware of circumstances which call into question the creditworthiness of the Buyer, in particular if a cheque is not honoured or if the Seller suspends payments, or if the Seller becomes aware of other circumstances which call into question the creditworthiness of the Buyer, the Seller shall be entitled to make the entire remaining debt due and payable even if he has accepted cheques. In this case, the seller is also entitled to demand advance payments or the provision of security.
Even if notices of defects or counterclaims are asserted, the customer shall only be entitled to offset, withhold or reduce payment if the counterclaims have been legally established or are undisputed. However, the orderer is also entitled to withhold payment because of counterclaims from the same contractual relationship.
In the event of default with more than one liability, all claims against the customer are due for payment immediately.
V Delivery and performance time
Deliveries are made free of charge to the arrival station on the most favorable shipping route for the seller.
Additional costs for special transport requests of the customer shall be borne by the customer.
Orders which do not reach a value of EURO 250,– for a delivery date will be delivered carriage forward.
Orders with a value of less than EURO 100,– will be subject to a surcharge of EURO 3,–.
The risk shall pass to the customer upon dispatch from the seller’s warehouse. This also applies in the case of carriage paid delivery. If dispatch is delayed through the fault of the customer, the risk shall pass to the customer on the day of notification of readiness for dispatch.
Insurance against transport damage is generally subject to the forwarding agent. Additional insurances have to be taken out by the customer himself.
VII Defects of quality
Claims for material defects shall become statute-barred twelve (12) months after the transfer of risk.
The Seller warrants within the statutory warranty period that the products are free from manufacturing and material defects. The warranty period begins with the delivery date.
Obvious defects must be notified to the seller in writing by the purchaser upon acceptance, but at the latest within 1 week of receipt of the delivery. Defects which cannot be discovered within this period even with careful examination must be reported to the seller in writing immediately after discovery.
If the delivery item is defective, the seller reserves the right to make a replacement delivery. If no replacement delivery is made by the Seller within a reasonable period of time, the Buyer may, at his discretion, demand a reduction of the remuneration or rescission of the contract.
Only the direct purchaser is entitled to claims against the seller due to defective delivery and these are not transferable.
The above paragraphs contain conclusively the scope of the warranty obligation for material defects from deliveries and services of the seller, with the express exclusion of further claims of any kind. This shall not apply to claims for damages arising from warranted characteristics which are intended to protect the customer against the risk of consequential damage caused by defects.
VIII Reservation of title
Delivery dates or periods, which can be agreed upon binding or non-binding, must be in writing.
The delivery time is calculated from the day of the order confirmation or the final order declaration until the notification of readiness for dispatch from the seller’s warehouse.
Delivery times can generally only be regarded as approximate and require timely delivery from our suppliers.
The seller shall not be responsible for delays in delivery and performance due to force majeure and due to events which make delivery by the seller considerably more difficult or impossible – this includes in particular strikes, lock-outs, official orders etc., even if they occur at the seller’s suppliers or their sub-suppliers -, even in the case of bindingly agreed deadlines and dates. They entitle the seller to postpone the delivery or service for the duration of the hindrance plus a reasonable start-up time or to withdraw from the contract in whole or in part due to the part not yet fulfilled.
If the hindrance lasts longer than one month, the customer is entitled, after setting a reasonable grace period, to withdraw from the contract with regard to the part not yet fulfilled. If the delivery time is extended or if the seller is released from his contractual obligation, the orderer cannot derive any claims for damages from this. The seller can only refer to the circumstances mentioned if he informs the customer immediately.
The seller is entitled to make partial deliveries and provide partial services at any time.
If dispatch is delayed for reasons for which the orderer is responsible, we are entitled to charge the costs incurred by storage. Furthermore, we are entitled to dispose otherwise of the delivery item after expiry of a reasonable period of time and to supply the customer with a new, extended delivery period.
VI Shipping and transfer of risk
Until the fulfilment of all claims (including all balance claims from current account) to which the Seller is entitled against the Buyer now or in the future for any legal reason, the Seller shall be granted the following securities, which he shall release on request and at his discretion, provided their value exceeds the claims by more than 20% on a sustained basis.
The goods remain the property of the seller. Processing or transformation shall always be carried out for the seller as manufacturer, but without obligation for him. If the property of the seller expires due to combination, it is hereby agreed that the property of the customer in the unitary object shall pass to the seller in proportion to its value (invoice value). The customer shall keep the property of the seller free of charge. Goods in which the Seller is entitled to ownership or co-ownership are hereinafter referred to as goods subject to retention of title.
The orderer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledging or transfer by way of security is not permitted. By way of security, the customer hereby assigns to the seller in full any claims arising from resale or on any other legal grounds (insurance, tort) in respect of the reserved goods (including all balance claims from current account). The Seller revocably authorizes the Buyer to collect the claims assigned to the Seller for the Seller’s account in his own name. This collection authorization can only be revoked if the orderer does not properly meet his payment obligations.
In the event of access by third parties to the reserved goods, the orderer shall point out the ownership of the seller and notify the seller immediately.
In the event of breach of contract on the part of the ordering party – in particular default of payment – the seller is entitled to take back the goods subject to retention of title or, if necessary, to demand assignment of the ordering party’s claims for return against third parties. The taking back or the seizure of the reserved goods by the seller does not constitute a withdrawal from the contract.
IX Limitation of liability
Claims for damages from positive breach of contract, from culpa in contrahendo and from tort are excluded both against the seller and against his vicarious agents and assistants, unless intentional or grossly negligent conduct is involved. This also applies to claims for damages due to non-fulfilment, but only to the extent that compensation is demanded for indirect or consequential damage caused by a defect, unless the liability is based on an assurance which is intended to protect the customer against the risk of such damage. Any liability is limited to the damage foreseeable at the time of conclusion of the contract.
X Applicable law, jurisdiction, partial invalidity
The law of the Federal Republic of Germany shall apply to these terms and conditions and the entire legal relationship between the Seller and the Buyer.
If the customer is a merchant within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, Kirchheim/Teck shall be the exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship.
Should a provision in these terms and conditions or a provision within the framework of other agreements be or become invalid, the validity of all other provisions or agreements shall not be affected.
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