§1 General - Scope of Application
1. Our conditions of sale shall apply exclusively; conditions of the customer, conflicting with or deviating from our conditions of sale shall not be recognized unless we have expressly approved their validity in written form. Our terms of sale shall also apply if we deliver the order to the customer without restriction, being fully aware that the latter's conditions are opposing to or deviating from our terms of sale.
2. All agreements, reached between ourselves and the customer for the purpose of the execution of this contract shall be made in writing in this contract. Commitments, made by our sales personnel and not complying with our general terms of delivery, shall require a written confirmation. Otherwise, these commitments shall not apply.
3. Our terms of sale are valid exclusively for merchants in accordance with §24 AGBG (German law on general terms and conditions).
§2 Offer - Offer-Related Documents
1. If the order is to be qualified as an offer in accordance with §145 BGB (German Civil Code), we shall accept it within 4 weeks by sending an order confirmation. Delivery and invoicing are equivalent to a written confirmation.
2. Designs, samples and models as well as any goods delivered are our intellectual property and are subject to our industrial property rights. Neither is the buyer allowed to copy them nor to use them for reproduction in any other way, even if there do not exist any particular property rights. In any case of an infringement of property rights, particularly in the event of the customer's having our items produced by a third party, the customer undertakes to pay a contractual penalty at an appropriate amount and shall renounce of a continued violation of the contract. The contractual penalty amounts to DM 10.000,00 for each individual case subject to a prior verification of each individual case. We reserve the right to assert any further claims for damages by taking into account a forfeited contractual penalty if necessary.
3. Catalogues and advertising material remain our property. Any reproduction, even in parts or in excerpts, is strictly prohibited. Without our consent, this material shall not be passed into other hands. Older catalogue material loses its validity with every reprint. Images and descriptions are non-binding as practical experiences, improvements in the manufacture, amongst other things, can cause deviations and alterations. As a matter of principle, advertising material provided by us shall be principally used only for the presentation of our own goods.
§3 Prices and Terms of Payment
1. Our prices are calculated ex works excluding postage, packing and insurance which shall be charged separately. Our prices do not include statutory value-added tax (VAT); value-added tax is charged at the statutory amount on the date the invoice is issued.
2. Our invoices are due for payment within 10 days after the invoice date. If the payment target is exceeded, we shall be entitled to charge interest at the rate of 4% above the discount rate of the German Federal Bank p.a. If the payment target set by us is exceeded, the customer shall be in default without reminder. If we are able to verify a higher damage caused by default, we shall be entitled to assert a claim in this regard. The customer, however, shall be entitled to provide proof that no damages or essentially lower damages resulted from the delay inpayment.
3. The setting-off of counterclaims shall be excluded unless they are not undisputed or legally determined.
4. Our representatives are not entitled, as a matter of principle, to accept payment for our goods unless they received an explicitly written approval in individual cases and are able to prove it.
5. Any cash discount is possible only on the value of the goods and not on postage, packing and insurance.
1. Delivery shall be made ex works at the expense and the risk of the customer.
2. Transport packaging and all other packaging, in accordance with the regulation on packaging, will not be taken back. The customer shall be obliged to dispose of packaging at his own expense.
3. If required by the customer, delivery will be covered by a transport insurance, the costs of which shall be paid by the customer.
4. Periods and dates of delivery shall be binding only if we expressly confirmed them in writing in the contract. If delivery is delayed for reasons beyond our control (e.g. intervention of public authority, operational failures, lack of raw material, labour dispute, also at our pre-suppliers) the delivery period shall be appropriately extended. Permanent operational failures in the aforementioned sense entitle us to withdraw from the contract not yet fulfilled.
5. We are in default only if the customer sets a grace period of 14 days in writing as from the agreed or extended delivery date. The customer's right to claim damages in the event of delayed performance or of our being impossible to perform which we are responsible for or of a possible violation of contract which we are responsible for shall be restricted to a) slightly negligent breach of insignificant contract duties as well as b) intentional or grossly negligent breaches of contract by simple vicarious agents.
6. In the event of a forfeiture of assets, occurring after the conclusion of the contract or in case a customer's forfeiture of assets through no fault of his own and already in existence at the time of conclusion of the contract becomes known subsequently, we are entitled to refuse to send all other deliveries until a security deposit has been provided.
7. This also applies to the customer's falling into arrears unless he can prove that he is not to blame.
8. We are entitled to adequate and completed partial deliveries.
§5 Sampled Offers
In the event of sending sampled offers, the whole sent goods are considered as purchased by the consignee if the goods are not returned within the given period of time that is fixed in the letter enclosed with the noted sampled offers. This period shall be not more than 8 days. On handing over the sampled offers to the transport institution the risk of the transport route including the loss through no fault of his own is passed over to the customer. Our delivery and payment conditions also apply to sampled offers.
§6 Return and Exchange
As a matter of principle, the return and exchange of sold goods is not possible. Any return of goods must be announced subject to our decision of taking them back. The acceptance of the goods still does not mean that we are obliged to take them back. Any returns are at the risk and the expense of the purchasing party. Expressly excluded from return are: Goods made to order, differing from the standard model or having been changed subsequently or those being no longer brand-new.
§7 Retention of Title
1. The deliveries shall remain the supplier's property until each and every claim the supplier has on the customer has been met even if the purchase price for specifically designated claims has been paid. In the event of current account, the goods subject to retention shall be considered as a security for the balance owed to us.
2. Any treatment and processing by the ordering party to the exclusion of acquisition of property according to §950 BGB (German Civil Code) shall always be carried out on behalf of the supplier. The latter remains the owner of the thus created item. These altered goods shall serve as collateral for the securing of the supplier's right according to 1.
3. If the purchasing party processes (combines/mixes) the supplier's goods with goods belonging to the supplier, the provisions according to §947, 948 BGB (German Civil Code) shall apply with the consequence that the supplier's co-owned part of the newly-created item is then considered to be the good subject to retention as defined in these terms.
4. The purchaser shall only be allowed to resell goods subject to our retention under normal business transactions given that he also agrees on a retention of title with his customers in accordance with 1 and 3. The purchaser is not entitled to dispose the goods subject to retention in any other way, in particular pledging or chattel mortgage.
5. In the event of resale, the purchaser agrees at this point of time to assign first to us any and all claims vis-à-vis his customers with all ancillary rights until all claims resulting from further resale have been fulfilled. At the supplier's request the purchaser shall be obliged to provide the supplier without delay with all information and documents that are required for the supplier to assert his rights against the customers of the ordering party.
6. If goods subject to retention are resold after having been converted according to aforementioned 2 and/or 3 or together with other goods which also do not belong to the supplier, the assignation of the purchase price claim according to 5 is valid only up to the amount of the invoice value of the supplier's goods subject to retention.
7. If the value of the securities granted to the supplier exceeds the latter's total claims by more than 20%, the supplier is obliged to release securities to this extent.
8. In case of seizure or attachment of goods subject to retention by a third party, the supplier shall be informed immediately. All incurring costs of intervention shall be at the purchasing party's expense.
9. If the supplier exercises his reservation of ownership in compliance with the above mentioned provisions by repossessing goods subject to retention, he shall be authorized to sell the goods on the open market or have them auctioned. The goods subject to retention shall be taken back at the amount of the earned revenue, but at no more than the agreed delivery prices. Any further claims for compensation, in particular loss of profits, shall be excluded.
1. The customer shall be obliged to examine the delivered goods immediately upon receipt even if they are packed. Open defects must be reported within a week after receipt, hidden defects within a week after detection. The notice of defect must be made in a verifiable manner and in written form.
2. In case of a justified notice of defect we shall deliver a free replacement at our discretion, or repair the item, or offer a reduction in price. The same shall apply in the event of failed rework or replacement delivery. In case of delayed, omitted or once again failed repair or replacement delivery, the purchaser shall be entitled to claim a reduction in payment or a rescission of the contract. §361 and 463, 480 Abs. 2 BGB (German Civil Code) remain unaffected.
3. Any further claims, especially claims for consequential damages, are excluded unless they have been caused by us intentionally or by gross negligence.
4. Colour variations due to the nature of the material or manufacturing engineering (handicraft/artistic design) are not considered a defect and therefore shall not entitle to claims.
§9 Place of Performance, Place of Jurisdiction and Legal System
1. For all orders placed with us German law applies. The application of the uniform UN purchasing law (CISG) is excluded.
2. Place of jurisdiction is Gemünden (Ufr.). The same applies to cases of litigation with respect to documents, bills of exchange and checks. However, we shall be entitled to sue the purchaser at his general place of jurisdiction or at the place of jurisdiction in charge for his registered head office.
3. The place of settlement and performance for all commitments resulting from legal relations with the purchaser is Gemünden (Ufr.). Agreements concerning coast bearing do not contain alterations of the aforementioned rule for the place of performance.
§10 Data Protection
All data arising from this order are stored in countries of the EC. They might be used for business
analysis while taking into account the Federal Data Protection Act (BDSG).
§11 Other Agreements
Should one or more individual parts of this contract be totally or particularly null and void, the validity of the remaining contract shall remain unaffected. Instead, the legal regulation applies. The German version is the legally binding one.