Terms and Conditions of Delivery and Payment
§ 1 General
(1) These terms and conditions of delivery and payment are part of all offers and contracts for the delivery of goods by the seller, including current and future business relations.
(2) Differing agreements and business relations are only binding if they are confirmed in writing by the seller.
§ 2 Offers, delivery deadlines
(1) Offers are subject to change without notice and subject to prior sale.
(2) If approximate quantities are agreed on, the seller is entitled to up to 10% production surplus or shortfall.
(3) Delivery deadlines are subject to the correct and timely delivery of supplies ordered. Partial deliveries are permitted.
(4) Samples and test articles shall be considered as an approximate perception of quality, size and color, packaging and appearance; whose properties are therefore not guaranteed.
(5) Packaging costs, rental and deposit fees, and charge for the wear and tear of packaging materials are to be borne by the buyer, as are the costs for returning the packaging materials. Credit will be awarded for the return of returnable packaging within one month of the delivery date. Transportation materials remain the property of the suppliers. After one month, the customer will be billed for not returning returnable packaging.
§ 3 Delivery, delay or impossibility
(1) Sales are transacted from the stock of the seller. The buyer bears the risk for delivery from stock; Delivery ex works is at the risk of the buyer. Any additional transportation costs are borne by the buyer.
(2) Labor disputes or unforeseen, extraordinary, serious events, which are beyond the control of the seller, such as government acts, traffic accidents, etc. exempt the seller of the obligation to deliver for the duration of the aftermath or in the case of inability to deliver.
(3) In case the seller fails to meet his obligation, or he is unable to perform, the buyer’s claim for damages are excluded, unless they are based on intent or gross negligence of the seller, his legal representative or agent.
(4) There is no take-back obligation for goods delivered that are free of defects. If the seller agrees through his goodwill to take back goods that are in faultless condition and in original packaging, there will first be a corresponding product reimbursement, after the goods have been delivered back to the seller and the delivery has been verified by the buyer. Compensation is only awarded once credit has been given.
§ 4 Payment
(1) ) Invoices are payable immediately, and without deductions, unless agreed otherwise.
(2) Settlement of invoice takes place by check or bill of exchange and requires consent of the seller; discounting costs, bill charges and costs are borne by the buyer.
(3) The seller is entitled to charge default interest to the buyer, who is a qualified merchant in terms of the German Commercial Code, commencing from the due date, and to the buyer, who is not a merchant, in the amount payable by him for the cost of borrowing at least 2% above the prime rate plus tax.
(4) The seller’s invoices shall be recognized if they are not expressly contradicted in writing within 30 days after the date of the invoice. The seller shall inform the buyer of each invoice.
(5) The seller’s bank statement on 31 December of each year is regarded as the closing of accounts for the year. The balance is recognized as valid if the buyer raises no objections within two weeks after receipt of the invoice. The buyer is especially advised after that of the remittance of the closing of accounts. This does not affect statutory rights.
(6) The buyer waives the right to enforcement of a lien from previous or other business of his current business relations. The set-off is only permitted insofar as these are undisputed or legally valid.
§ 5 Defects, warranty and liability
(1) The responsibilities under §§ 377 and 378 of the German Commercial Code apply with the proviso that the buyer, who is the qualified merchant in terms of the German Commercial Code, must inform the seller immediately upon receipt of the goods of any recognizable, and the buyer, who is not a merchant, any obvious defects, shortages or incorrect deliveries.
(2) Hidden defects can be invoked within a reasonable timeframe based on the nature of the goods and must be reported to the seller within 24 hours after discovery. The defect must be substantiated by the opinion of an expert.
(3) The buyer has the right, with the exclusion of claims for damages, to make statutory warranty rights claims for timely, justified defects of faulty goods. The warranted qualities as per § 459, Section 2 of the German Civil Code are explicitly identified. Non-binding recommendations of the seller’s or his employees’ goods, as well as the product descriptions of the seller or the manufacturer, are not considered to be warranted qualities.
(4) To fulfill his warranty obligations, the seller cedes his rights – including those which go beyond the statutory warranty claims – to the buyer. If the buyer cannot guarantee the ceded warranty claims outside of court, the seller shall once again take individual responsibility.
(5) The buyer’s claims for damages arising from a positive breach of contract, negligence in negotiating contracts and unlawful acts are excluded, unless they are based on intent or gross negligence of the seller, his legal representative or assistent.
§ 6 Title retention
(1) The delivered merchandise remains the property of the seller until full payment of the purchase price has been received as well as all claims arising from the entire business relations. Upon default of payment, the buyer is obligated, after having received a reminder to pay, to release any retained goods.
(2) If the retained goods have been processed or combined with other goods not belonging to the seller, this is done for the seller without him being obligated; the new items become the property of the seller. For processing goods together with goods which do not belong to the seller, the seller acquires ownership of the new item(s) in proportion to the value of the seller’s goods to the other goods at the time of processing.
(3) If the retained goods from the buyer alone, or together with the goods which do not belong to the buyer, are sold, the buyer then already cedes the further processing of the pending claims in the amount of the value of the retained goods with all ancillary rights to the accepting buyer. The value of these retained goods is the amount invoiced by the seller plus a surety surcharge of 10%, which however remains disregarded, to the extent that the seller would hold the rights of third parties. If the resold retained goods are the joint ownership of the seller, the assignment of the claim thus extends to the amount equal to the share value of the joint ownership. In the case of combining, mixing of blending of the retained goods, the buyer cedes his claims against the owner or owners of movable or immovable property, which are associated with the retained goods, mixed or blended, in the amount of the claims of the materials supplied to the accepting seller. If the buyer acquires sole ownership by combining, mixing or blending, he thus already transfers joint ownership to the seller subject to the proportion of the value of retained goods to other goods at the time of combining, mixing or blending. In these cases the buyer must safely store the items free of charge, which solely or in part belong to the seller. These items are also considered to be retained goods in terms of the following provisions.
(4) The seller is entitled and authorized to resell and use the retained goods only in the usual and ordinary course of business and only provided that the requirements set out in Paragraph (3) are actually transferred to the seller. The buyer is otherwise not authorized to dispose of the retained goods, in particular the pawning or transfer by way of security.
(5) The seller unconditionally authorizes the buyer revocation to confiscate as per Paragraphs (3) and (4) the assigned claims. The seller is not authorized to confiscate the goods, as long as the buyer fulfills his obligation to pay, including third parties. At the request of the seller, the buyer shall name the debtors of the assigned claims and notify them of the sale. The seller is also authorized to notify the debtors himself of the assignment of the debt.
(6) The buyer shall inform the seller without measurable delay by handing over the necessary documents for enforcement measures of a third party in the retained goods or the assigned claims.
(7) Upon cessation of payment, filing or commencement of insolvency proceedings, a court proceeding or out-of-court settlement proceeding, the right to resell, the use of the retained goods and the authorization to collect the assigned claims expires; direct debit authorization also expires with a check or bill of exchange protest.
(8) If the value of the granted securities exceeds 10% of the outstanding debt, the seller is thus obligated in this respect to retransfer or clear the goods at his own option. Upon repayment of all the outstanding debts of the seller’s business relations, ownership of the retained goods and the assigned claims are passed on to the buyer.
§ 7 Court of jurisdiction
If the conditions for jurisdiction agreement under § 38 German Code of Civil Procedure are available, i.e. if the buyer is a qualified merchant, a legal entity under public law or a special fund under public law, the court of jurisdiction, i.e. the location of the seller for the responsible court is Duesseldorf for all claims of the contractual parties, also for actions on a bill of exchange or check.
The agreement is subject to German law.