1. Preliminary remark
The general terms and conditions of the seller shall apply for contractual relationships to buyers in connection with deliveries and services and shall be valid as an integral part of the contract unless otherwise agreed in a separate agreement between the seller and the customer in writing.
General terms and conditions of the buyer shall not become part of the contract even if the seller does not explicitly object to their validity. The conditions shall be considered to be accepted as standard and binding by every customer when entering the business relationship with the seller, upon receipt of the goods at the latest, even without explicit declaration for the entire duration of the business relation.
The scope of delivery is exclusively based on the details of the order confirmation. All additional oral agreements and any subsequent amendments made to the contract shall be valid solely together with the firm written confirmation of the seller.
Any details given in brochures, advertisements, price lists or information given in our quotation concerning drawings, pictures, technical data, weight, dimensions and performance aspects shall be understood merely as approximate values. The sales contract shall be concluded when the seller confirms acceptance of the goods described in detail in writing within two weeks or when he has delivered the goods.
Should any of the conditions be or become invalid, this will not affect the effectiveness of the remaining terms.
The quotations of the seller shall be at all times subject to change and non-binding. The prices shall be quoted ex works including packaging. The seller reserves the right to change his prices according to cost decreases or increases based on the changes in material prices. The seller shall provide evidence on request of the buyer.
All additional fees, taxes, freight costs or any increases to these amounts which affect the purchased object shall be borne by the buyer, provided no compelling law prevents it.
Delivery shall be subject to delivery capacity. Delivery time shall be subject to change. Partial deliveries shall be permissible.
Concerning delay of shipment, the buyer shall only be allowed to retreat from the contract if he has previously set an appropriate period of grace. If the delivery is affected within this period of grace, all rights of the buyer shall not apply for delay. Upon expiry of the period of grace, the buyer shall only be entitled to withdraw from the contract. Any claims for damages due to non-fulfilment or delayed delivery shall be excluded.
In any case, damages shall be limited to the value of the complained delivery.
4. Terms of payment
Unless agreed otherwise, payment shall be effected within 14 days from receipt of the invoice without deduction. On expiry of this period, the customer shall be in default. If the buyer is in default the seller shall be entitled to claim default interest of 8% above the relevant base interest rate.
A right of retention based on counterclaims shall only exist if the counterclaim is based on the same contractual relation.
The set-off with counterclaims shall be excluded unless they have been legally determined or agreed between the parties.
Bills of exchange or cheques shall only be accepted on the basis of explicit agreement.
If the creditworthiness of the buyer or that of one of the liable parties from a bill reduces, then the seller shall be authorized to demand immediate payment of all his due debts arising from the business relationship, to make discounted bills available, to demand a guarantee for bills which are still in circulation by bailment, to countermand selling and processing rights of the customer in accordance with section 5 and to take back goods supplied without the buyer’s right of retention existing against this. If the buyer rejects to provide advance payment or security, the seller, following fruitless expiry of a period of grace of 14 days shall be authorized to withdraw from the contract and/or to claim damages. Several buyers are jointly and severally liable.
The seller shall notify the buyer of provision of the supplied item. The buyer shall be obliged to collect the supplied item within 14 days after receipt of the delivery notification. If the goods are not picked up within the time set, the seller may charge, for every day commenced, storage costs of 0.1% of the net value of the goods, not exceeding 5%. If the buyer is in default of acceptance or violates any other duties of contractual cooperation the seller shall be entitled to request compensation for any damages caused including any additional costs. The seller reserves the right to make further claims.
In case of payment default, all debts resulting from the business relationship shall become immediately due even if they are deferred.
5. Reservation of title
The seller shall retain title to the delivered goods until complete fulfilment of all claims resulting from the business relationship. This shall also apply even if the purchase price has already been paid for certain deliveries. The buyer shall only dispose of the goods subject to reservation of title within the framework of proper management.
Until redemption of all claims the buyer shall not have the right to pledge the delivered goods to third parties, to assign them by way of security or otherwise encumber them. If the delivered goods – regardless of the condition of such goods – are sold, processed, mixed or otherwise relinquished to third parties, all claims against the third person shall be immediately transferred to the seller when they incurred and in full amount. The buyer assigns the claims and rights against third parties arising from selling, processing, connecting, mixing or other passing on of the goods to the seller including all secondary and preferential rights. Any entitlement of the buyer to reassignment shall only be granted after full redemption of the liabilities towards the seller. If the buyer’s debt to his customer has already been assigned to a third party, his entitlements to reassignment shall be transferred to the seller against the third party.
If the goods are processed, connected or mixed, reservation of title shall also extend to the new goods produced. The handling or processing of the goods subject to reservation of title shall be deemed executed on behalf of the seller without any liabilities arising for the seller. The seller shall be considered as manufacturer in the sense of § 950 BGB. The buyer shall already now assign the right of ownership or co-ownership to the processed, connected or mixed goods or any claims of return to the seller. The buyer shall keep the parts that are in his possession and under reservation of title for the seller free of charge. If the goods subject to the reservation of title are used for animal feeding, the rights of ownership of the seller shall extend to the animals fed with the goods.
In the event of access of third parties to the goods under reservation of title the buyer has to inform the third parties immediately on the existing rights of the seller and to inform the seller completely. The costs incurred due to any intervention of the seller shall be reimbursed by the buyer.
The buyer shall be obliged to provide information as to the whereabouts of the goods under reservation of title as long as any claims of the seller have not been fulfilled. If the seller makes use of his right to have the goods returned, the buyer shall immediately transfer to him the ownership rights to the goods under reservation of title without recourse to legal action and for this purpose enters the place at which the goods are located.
The buyer shall be obliged to keep the goods under reservation of title carefully and insure them adequately against loss and damages. The buyer shall also bear the risk of loss, damage and destruction of the goods under reservation of title.
6. Shipment and transfer of risk
The risk shall be transferred to the buyer as soon as the delivery is handed over to the person carrying out the transport or has left the seller’s warehouse for the purpose of delivery. Any shipment requested by the buyer occurs at his expense, always from the supplier’s works and at the buyer’s risk. The seller shall not honour any warranty of shipping instructions given. Transport and any other packaging that complies with the packaging ordinance will not be taken back by the seller. The buyer shall be obliged to ensure the proper disposal of such packaging at his own expense.
7. Warranty and notice of defects
The seller shall guarantee flawless quality of the goods ex works. Upon their receipt, the buyer has to immediately examine the goods delivered with respect to their defects. The obligation to examine shall refer to the entire delivery. Notice of defects of any kind must be given to the seller – not a representative - immediately, but at the latest within 14 days for obvious defects and 1 year for hidden defects after receipt of the goods, in any case before passing them on, using or handling or processing with precisely stating the individual defects asserted. Notices of defects which do not comply with these requirements or made only while or after using or handling or processing the goods, shall not be taken into consideration so that a warranty shall not apply in this respect. The buyer shall bear the burden of proving that the claimed defect was already present at the time when risk was transferred and did not only appear afterwards.
Provided the notice of defects is placed in time and legitimate, the seller shall take back the defective parts of the goods provided they are still in the condition in which they were delivered and replace them subject to the delivery capacity by other goods free of charge. However, the seller shall be entitled to reimburse the purchase price instead of a replacement delivery. If the replacement goods are also defective, the buyer, at his option, is entitled to claim an appropriate reduction of remuneration or a cancellation of the contract.
Any further claims for e.g. replacement of transport, travel, labour, material and other costs which incurred without the seller’s explicit consent as well as claims for the replacement of delay damages or other direct or indirect damages are excluded. If the exclusion of claims for damages is legally ineffective due to the specific circumstances of the case, the liability for damages is limited to the maximum amount of the rejected goods.
Warranty claims shall become statute barred at the latest after one year following delivery of the goods. The buyer shall bear the risk as long as he possesses the goods – irrespective of the legal grounds.
The seller shall only be liable for damages caused by intent or gross negligence. Otherwise liability is excluded. The exclusion of liability shall not apply to damages arising from injury to life, body and health based on a negligent breach of duty of the seller.
9. Data protection
The seller processes personal data as far as these are necessary for performing the services offered. Personal data are detailed information about economic and factual circumstances of a certain person. This includes for example name, address, postal address. The personal data shall only be saved and used if indicated in the order or registration. Otherwise, the standards of the German BDSG apply.
10. Place of jurisdiction
Bad Grönenbach shall be the place of jurisdiction for all rights and obligations arising from or being related to the contract. The place of jurisdiction is Memmingen. The same place of jurisdiction applies if the buyer has no general place of jurisdiction in Germany or moves his place of residence or everyday domicile outside of the territory of Germany after signing the contract, or his place of residence or main residence are not known at the time of institution of legal proceedings.
Any disputes arising from the contract shall be governed solely by the law of the Federal Republic of Germany.