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General Terms and Conditions
(Status October 2007) |
§ 1 Validity of conditions
(1) The supplies, performances and quotations of the vendor are exclusively carried out on the basis of these general terms and conditions. Contrary confirmations of the customer which are subject to the customer's terms and conditions of business and purchasing are herewith gainsaid.
(2) All agreements concluded between the vendor and the customer concerning the execution of this contract are to put in writing.
§ 2 Quotation and completion of the contract
(1) All quotations of the vendor are non-binding and subject to change. Declarations of acceptance and all purchase orders require for legal effect the written confirmation of the vendor.
(2) Drawings, illustrations, measurements, weights or other performance data are only binding after explicit written agreement.
(3) The salesclerks of the vendor are not authorised to make oral sub-agreements or promises which exceed the tenor of the written contract.
(4) Should there be a change in prices of raw materials we are using, of single components manufactured by a third party or a change in the wages we pay, we are entitled to adjust the stipulated prices appropriately.
(5) We are entitled to diverge marginally from the information concerning measurements, construction, shape, figures, colour and design indicated in leaflets, price lists and quotations. We reserve technical modifications on behalf of constructive enhancements.
§ 3 Prices
(1) As far as not stated otherwise, the vendor is bound to prices contained in his offers, 30 days from the date of the qutotation. Otherwise, the prices mentioned in the order confirmation of the vendor plus the particular value-added tax are decisive. Additional supplies and performances will be charged separately.
(2) As far as not stipulated otherwise, the prices are quoted FOB warehouse (town) including normal packaging.
§ 4 Delivery and performance time
(1) Dates or periods of delivery which can be agreed on bindingly or non-bindingly must be in written form.
(2) Delays in delivery or performance due to force majeure and due to events which make the delivery for the vendor not only temporary more difficult or impossible - to this belong especially strikes, lock-outs, official orders, etc, also if they affect suppliers or sub-suppliers - the supplier does not have to deputize even concerning bindingly agreed periods or days. They entitle the vendor to postpone the supply respectively performance by the durance of the encumbrance plus an appropriate start-up period or to withdraw partially or completely from the contract because of the part not yet fulfilled.
(3) If the hindrance lasts longer than 3 months, the buyer is entitled to withdraw from the contract with respect to the part not yet fulfilled after an appropriate grace period notification. If the delivery time is extended or if the vendor is released from his commitment, the buyer cannot derive any claims for damages from this. The vendor can only refer to the circumstances mentioned, if he gives notice to the buyer immediately.
(4) If the vendor has to represent the default of bindingly agreed periods or dates or is behind the schedule, the buyer is qualified for compensation for damage amounting to 0.5 % for every completed week of the delay, however, a total of 5 % at the most of the invoice value of the supplies and performances affected of the delay. Claims transcending this are excluded unless the delay is due to at least gross negligence of the vendor.
(5) The vendor is entitled to partial supplies and partial performances at any time, unless the partial supply or partial performance is of no interest for the buyer.
(6) The adherence of the commitments of delivery and performance of the vendor calls for punctual and proper fulfilment of the commitments of the buyer.
(7) If the buyer is in default of acceptance, the vendor is entitled to demand compensation for the damage developed from this; with occurrence of default of acceptance, the danger of coincidental deterioration or downfall passes to the buyer. If the buyer does not take delivery of the goods, the vendor is entitled to demand compensation for the non-fulfilment, after setting a period of grace of five working days. In this case, the vendor is entitled to demand either 20 % of the purchase price without evidence of a damage or compensation for the actual occurred damage.
§ 5 Passing of risk
The risk passes to the buyer as soon as the consignment has been surrendered to the person carrying out the transport or has left the warehouse of the vendor to be dispatched. If the buyer wishes to postpone the dispatch, the risk passes to him at the moment of notification of readiness for dispatch.
§ 6 Rights of the buyer concerning defects
(1) The goods are dispatched without defects in fabrication and material; the period for assertion of the rights to claim damages for any defects is one year after delivery of the products. The restraint is not effective in the case of infringement of life, body and health.
(2) If operating instructions or service manuals of the vendor are not adhered to, if modifications in products are made, if components are exchanged or if consumables are used which do not comply with original specifications, the claims concerning the defaults of the products expire, if the buyer does not vitiate a corresponding substantiated claim of only one of these circumstances having caused this default.
(3) The buyer has to inform the vendor's manager of the customer service immediately, however, within one week after receipt of the delivery item at the latest about the defaults in written form. Defaults which cannot be revealed within this period despite thorough verification have to be reported to the vendor in written form immediately after revelation.
(4) If the buyer advises that the products show defaults, the vendor demands on his choice and at his expense:
a) that the component respectively device showing the default is to be sent to the vendor for repair and subsequent reconsignment
b) that the buyer keeps ready the deficient part respectively device and that a service technician of the vendor is sent to the buyer to carry out the repair
If the buyer demands to choose the location of the rectification of defects, the vendor can correspond to this desire, whereas replaced parts will not be charged, but working hours and travelling expenses are to be paid according to the standard cost unite rates of the vendor.
(5) Should the subsequent improvement fail after an appropriate period of time, the buyer can at his own option demand a disparagement of reimbursement or withdraw from the contract.
(6) Liability for normal abrasion is excluded.
(7) Only the end customer is entitled to raise a claim against the vendor concerning defaults. The claims are not transferable.
(8) According to damage caused by rail transport, an official recording of facts is required immediately and the claim has to be handed to the responsible department for dispatch of goods.
§ 7 Retention of title
(1) Until all outstanding debits, which the vendor is entitled to now or in the future on any legal ground against the buyer, (including all outstanding balance claims from current accounts) are fulfilled, the vendor is granted the following securities which he will release on demand at his own option, as far as their value exceeds the outstanding debits sustainable by more than 20 %.
(2) The goods remain property of the vendor. Processing or alteriation are always carried out for the vendor as manufacturer, however, without any commitments for him. If the vendor's right of (co-)ownership expires through connection, it is here and now agreed that (co-)ownership of the buyer to the single commodity shall pass to the vendor. The buyer coffers the (co-)ownership of the vendor free of charge. The commodity of which the vendor has the right to (co-)ownership will be herein after referred to as reserved goods.
(3) The buyer is entitled to process the reserved goods in proper business volume and to alienate them as long as he is not behind schedule. Pledging and chattel mortgages are inadmissible. The outstanding debits (including all outstanding balance claims from current accounts) concerning the reserved goods, arisen from resale or any other legal ground (insurance, unlawful act) are yet assigned from the buyer to the vendor as a precaution to the full extent. The vendor authorises the buyer revocable to confiscate the outstanding debits assigned to the vendor for account of the vendor on his own behalf. This collection authorisation can only be revoked if the buyer does not meet his payment commitments properly.
(4) Should a third party demand to have access to the reserved goods (especially concerning distress), the buyer will point out the ownership of the vendor and inform him immediately, so that the vendor can accomplish his proprietary rights. As far as the third party is unable to reimburse the forensic and extrajudicial costs - arising from this cohesion - to the vendor, the buyer is held responsible.
(5) If the behaviour of the buyer is contrary to contract - concerns especially delays in payment -, the vendor is entitled to withdraw from the contract and to demand the reserved goods back.
(6) The buyer has to insure the reserved goods against fire losses and water damage and transfers yet all claims arising from the insurance contract to the vendor.
§ 8 Payment
(1) Unless agreed otherwise, the invoices of the vendor are payable 30 days after date of invoice without deduction. Despite other regulations, the vendor is entitled to credit the payments of the buyer against other older debts. He will inform the buyer about the way of the settlements carried out. Should costs and interest have been occurred already, the vendor is entitled to credit the payment first against the costs, then against the interest and lastly against the principal service.
(2) Payment is only considered effected, when the vendor has the amount at his disposal. In the case of cheques, payment is only considered effected when the cheque is honoured/cashed.
(3) Should the buyer fall behind schedule, the vendor is entitled to demand interest - as from the concerning date - amounting to 8 percentage points beyond key interest rate as overall compensation. Should the buyer prove a lower debiting, the interest is to be downgraded; the vendor proving higher damage is inadmissible.
(4) If the vendor becomes acquainted with certain circumstances which question the creditworthiness of the buyer, especially not honouring a cheque or ceasing payments, or if the vendor becomes acquainted with other circumstances which question the creditworthiness of the buyer, he is entitled to call due the entire remainder of the debt even if he accepted cheques. In this case, the vendor is also entitled to insist on preliminary payments or collateral securities.
(5) The buyer is only entitled to summation, withholding or diminution - even if notices of defect or counterclaims are asserted - if the counterclaims are declared final and undisputable. However, the buyer is entitled to withholding also because of counterclaims from the same contractual relationship.
§ 9 Changes in design
The vendor reserves the right to undertake changes in design at any time; however, he is not bound to undertake such changes in design concerning products which are already surrendered to the customer.
§ 10 Patents
(1) The vendor is going to dismiss the buyer and his sub-purchasers concerning claims from infringements of copyrights, brands or patents, unless the design of a delivery item derives from the buyer. In this case, the buyer undertakes the warranty that commercial and industrial trademark rights of a third party will not be hurt by manufacture and delivery of the items according to drawings, models and samples and he dismisses the buyer from all claims of a third party. The indemnification of the vendor is limited according to the amount of the predictable damage. Additional condition for the indemnification is that conducting of legal disputes is to be left to the vendor and that the stated infringement concerns exclusively the construction of the delivery items of the vendor without connection or usage with other products.
(2) The vendor has the optional right to acquit himself from the undertaken commitments (stanza 1) by
a) either providing the necessary licences concerning the reputedly hurt patents
b) or by putting a modified delivery item respectively parts of it at the buyer's disposal, which in the case of replacement for the hurt delivery item respectively the part of it remove the accusation of infringement concerning the delivery item.
§ 11 Secrecy
If not agreed expressly otherwise in written form, the information submitted to the vendor in connection with orders is not confidential.
§ 12 Liability
(1) Claims for indemnity are independently excluded from the type of the breach of duty, including unlawful acts, as long as there are no damages arising from the violation of life, body or health based on a negligent breach of duty of the user or based on an intentional or negligent breach of duty of a legal agent or a vicarious agent of the user and as long as there are no damages based on a grossly negligent breach of duty of the user or based on an intentional or grossly negligent breach of duty of a legal agent or a vicarious agent of the user.
(2) Concerning infringement of essential contractual obligations, the vendor is liable for any negligence, however, only up to the height of the predictable damage. Claims to lost benefits, saved expenditures, from indemnity claims of third parties as well as other collateral and subsequent damage cannot be asserted, unless a characteristic of state guaranteed by the vendor is aiming at ensuring the buyer against that damage.
(3) The corporate veils and disclaimers as in stanza 1 and 2 are not aimed at claims caused by malicious behaviour of the vendor as well as liability for guaranteed characteristics of state and claims according to the product liability act.
(4) As far as the liability of the vendor is excluded or restricted, this is also valid for clerks, employees, representatives and vicarious agents of the vendor.
§ 13 Applicable law, court of jurisdiction, severability
(1) For these terms and conditions of business and the entire privity of the contract between the vendor and the buyer, the right of the Federal Republic of Germany is valid. The regulations of the United Nations Convention on Contracts for the international sale of goods are not being used.
(2) As far as the vendor is merchandiser, legal entity of the public international law or separate estate under public law, Münchberg is the exclusive court of jurisdiction for all disputes arising collaterally or directly from this contractual relationship. This is also valid for claims from cheques and bills of exchange.
(3) Should a regulation of these terms and conditions of business or a regulation within other agreements be or become invalid, the impact of every other regulations or agreements will not be touched hereby.
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