As of August 2012
We only sell in accordance with the following conditions of sale, delivery and payment. We hereby expressly reject the purchasing conditions of the buyer. Our General Terms and Conditions apply to the entire future business relationship, unless the buyer is not a merchant within the meaning of the Commercial Code (HGB).
Section 1 Conclusion of contract
Offers by the seller are generally subject to change and non-binding. The delivery agreement shall only be accepted upon our acceptance of the buyer’s order. Block orders (= call orders) require an explicit agreement as does redistribution. For goods purchased on call, the longest period is five months, during which the goods are to be taken off the shelf unless expressly agreed otherwise. Changes to the contract and verbal collateral agreements are only effective if confirmed in writing. Fixed transactions must be specially agreed.
Section 2 Price
The prices are based on the cost structure on the day of the order confirmation. If a binding price agreement has been made, the seller can nevertheless adjust the prices if four months have passed since the conclusion of the contract and subsequently the delivery or performance by additional public charges, additional charges, freight or their increase or other legal measures or a change in the cost factors such Wages or material costs on which the prices of the seller are based are directly or indirectly affected and made more expensive. This does not apply to services provided to a non-merchant. The prices are, unless otherwise agreed, ex the seller’s warehouse. Packaging shall be charged separately and not taken back. All listed prices are exclusive of the respective current legal VAT valid at the time of delivery, which is calculated and indicated separately.
Section 3 Tolerances
Section 3.1 Technical tolerances
For the fulfillment of the technical characteristics of our products the usual tolerances in the polyurethane field apply.
Section 3.2 Volume tolerances for special items
An order shall be deemed to be in quantity by the seller if the delivery was made on the basis of the order quantity of the buyer with a tolerance of +/- 10%.
Section 4 Delivery
With the handing over of the goods to a forwarding agent or carrier, at the latest however with leaving the warehouse or – with distance business – of the delivery work, the danger transfers to the buyer. An insurance is only concluded on the instructions of the buyer, in the buyer’s name and at the expense of the buyer. Delivery times and dates are deemed as having been met if the goods have left our company before expiry of the deadline. They shall only be extended to an appropriate extent in the event of industrial disputes, in particular strikes and lockouts, and in the event of unpredictable obstacles beyond our control, insofar as such obstacles can be shown to have a significant effect on the manufacture or delivery of the goods. This applies even if the circumstances relate to an upstream supplier. We shall inform the buyer immediately of such circumstances. If the execution of the contract becomes unreasonable for one of the parties due to these circumstances, it can withdraw from the contract to the extent they are affected. We are entitled to make partial deliveries to a reasonable extent.
Section 5 Liability for defects
The buyer must inspect the goods received for defects without delay and immediately report any obvious defects to the seller in writing. In the case of complaints which are not made in due form or in a timely manner, the goods shall be deemed to be in perfect condition. In this case, the buyer is not entitled to claims of any kind whatsoever. This does not apply to services provided to a non-merchant. In the case of justified, immediate notifications of defects, we may, at our discretion, either rectify the defect or deliver a defect-free item (supplementary performance). In the event of failure or refusal to provide supplementary performance, the buyer may reduce the purchase price or withdraw from the contract after setting a grace period which expires without success. If the defect is not significant, the buyer is only entitled to reduce the purchase price. Expenses incurred as a result of the supplementary performance shall only be assumed to the extent that they are reasonable in the individual case, in particular in relation to the purchase price of the goods. We do not cover expenses arising from the fact that the goods sold have been moved to a location other than the buyer’s registered office or place of business, unless this corresponds to their contractual use. If the buyer does not give us the opportunity to conform the defect, in particular if the buyer does not provide the rejected goods or samples thereof upon request, the buyer cannot make a claim based on defects of the goods. Further claims are excluded in accordance with Section 5. This applies in particular to claims for compensation for direct damage to the goods themselves (consequential damages). Properly delivered goods shall only be taken back by the seller without acknowledgement of a legal obligation in exceptional cases and within the options available if the goods are in perfect condition and have not been manufactured to order. We are entitled to withhold 25% of the value of the goods, but at least EUR 50.00 to cover the costs incurred.
Section 6 Limitation of liability and action
In the event of a breach of contractual or non-contractual obligations, in particular as a result of impossibility of performance, delay, culpability during the commencement of contractual negotiations, we, our executives and vicarious agents are only liable in cases of intent and gross negligence and only for typical damage foreseeable at upon conclusion of the contract. These restrictions do not apply in the event of the culpable violation of essential contractual obligations, to the extent that the achievement of the purpose of the contract is at risk, in cases of mandatory liability pursuant to the Product Liability Act (Produkthaftungsgesetz), in case of injury to life, limb or health and also if and to the extent that we have fraudulently concealed or guaranteed the absence of product defects. The rules on the burden of proof remain unaffected. Unless otherwise agreed, contractual claims asserted against us by the buyer on the occasion of or in connection with the delivery of the goods shall expire one year after delivery of the goods. This period also applies to goods that have been used in accordance with their normal use in construction and have caused its defectiveness, unless this use was agreed in writing. This does not affect our liability for intentional and grossly negligent breaches of duty as well as the limitation of liability for legal recourse claims. In cases of subsequent performance, the limitation period shall not be restarted. Our invoices are due for payment within 30 days (due date) after the invoice date. The buyer shall be in default no later than 10 days after the due date of our claim, without the need for a reminder. Discount deductions are prohibited.
Section 7 Payment and default
The buyer is not entitled to withhold or offset counter-claims which are disputed by us or have not been legally confirmed. If the payment deadline is exceeded, at the latest from the date of default, we shall be entitled to charge interest at the respective bank rate for overdrafts, but at least interest at the rate of 8% above the base rate, or for non-traders at 5% above the base rate. We reserve the right to assert further claims for damages.
Section 8 Retention of title
The delivered goods shall remain the property of the seller until full payment of all claims of the seller towards the buyer. The buyer is entitled to resell and process the reserved goods to the extent that this is part of the buyer’s normal business. However, resale is only permissible if the buyer maintains and secures the seller’s retention of title. Pledging or transferring ownership of the goods subject to retention of title by the buyer is not permitted. The buyer hereby assigns the buyer’s claims arising from the resale of the goods subject to retention of title up to the amount of the seller’s total claim to the seller as collateral and shall inform their own buyer about this assignment to the seller on a case-by-case basis. The seller shall accept this assignment. Regardless of the assignment, the buyer is entitled to collect the assigned claim against its buyer as long as it fulfils its obligations towards the seller and does not fall into financial crisis. If the securities existing for the buyer exceed the total owed amount by more than 20%, the buyer is required to release securities to the seller upon request at the discretion of the seller. The buyer is obliged to inform the seller without delay of all circumstances in connection with the resale of the property subject to the retention of title, the assignment of claims, the combination, mixing or processing of the goods, collection of assigned claims, potential enforcement measures by third parties relating to the goods or claims asserted in their place. In the case of the combination, mixing or processing of the goods subject to retention of title with other goods not belonging to the seller, the seller is entitled to the resulting co-ownership share in the new item. If the buyer acquires sole ownership of the new item, the parties to the contract hereby agree that the buyer shall grant co-ownership of the new item to the seller in proportion to the value of the goods subject to retention of title. If the reserved goods are resold together with other goods, either with or without having been combined, mixed or processed, the advance assignment agreed above shall only apply in the amount of the total claims of the seller. In the case of foreclosure measures taken by third parties in relation to the goods subject to retention of title or claims which have taken their place, the buyer undertakes to provide the seller with the documents and information necessary for the assertion of its rights free of charge. The buyer undertakes to return the goods subject to retention of title upon demand if the seller’s rights are put at risk, but only up to the amount of the outstanding claims of the seller.
Section 9 Place of performance, place of jurisdiction, applicable law
It is hereby agreed that the law of the Federal Republic of Germany applies to all business relationships subject to these terms and conditions for orders and deliveries between the seller and foreign customers, irrespective of which business basis they are based on. The UN Convention on Contracts for the International Sale of Goods (CISG) and/or other international law is also excluded for customers who belong to a contracting state. The contractual language for our business relationships is German. The place of performance for all claims under this contract is the headquarters of the seller. The place of jurisdiction for all disputes arising from the contractual relationship as well as for its creation and effectiveness (including bills of exchange and checks) is the registered office of the seller, to the extent that the contracting party is a registered trader, legal entity under public law or special fund under public law.
Section 10 Severability clause
Should one of these conditions be void for any reason, this shall not affect the validity of the remaining conditions. The void clause shall be replaced by a provision which most closely reflects the intention of the parties.
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SpanSet secutex Sicherheitstechnik GmbH assumes no liability for errors or omissions.