Terms of Delivery and Payment
THIS IS A TRANSLATION OF THE ORIGINAL GERMAN TERMS AND CONDITIONS; IN CASE OF ANY DISCREPANCIES, THE GERMAN VERSION SHALL BE BINDING.
§ 1 General
The following terms of delivery and payment shall apply exclusively to all sales transactions. Different conditions of purchase will under no circumstances become part of the contract. Agreements made verbally or by telephone shall not be valid unless expressly confirmed by us in writing. The purchaser shall be subject to the regulations of the German Commercial Code (HGB) for trading activities and registered traders.
§ 2 Quotations and Prices
Unless otherwise agreed in writing, quotations are subject to change and non-binding. The right to prior sale is reserved. Trials and samples shall be considered as approximate illustrative articles for quality, measurements, and color.
§ 3 Delivery and Acceptance
The place of loading the goods shall be the place of fulfillment for the seller's shipment. The purchaser shall bear the risk of delivery. Delivery shall be made to the agreed-upon location. Goods are delivered from stock. In case of late delivery, claims for compensation are generally excluded. Indicated delivery dates are approximate and non-binding. Consignments on approval will be delivered freight forward. Return deliveries must be sent at the expense of the customer. Shipments will only be insured upon special request and at the expense of the purchaser.
Labor disputes or unforeseeable unusual events such as official measures, traffic disruptions, etc. shall release the seller from the obligation to deliver for a period equal to the duration of their impact, or fully in case the delivery becomes impossible.
§ 4 Packaging and Transport Risk
The goods will be packed with greatest care. The seller shall not be held responsible for damages occurring during transport. Shipments shall be made at the customer’s risk.
§ 5 Complaints
All goods must be inspected for defects immediately upon receipt and in particular before they are cut.
In case of any potential claims, the seller shall immediately be notified in writing. Potential claims can only be taken into consideration if they are lodged with the seller within 8 days from the receipt of the goods. Goods may only be returned upon prior agreement and will not be taken back once they have been cut. There may be slight deviations in color and technically-caused deviations in the properties of the goods with respect to their raw materials and composition of materials; this gives no reason for complaint. If the purchaser requires identical coloring, a special reference shall be made.
Damages and missing quantities caused by company or private vehicles must be accounted for in a written statement by the driver and the persons involved in unloading the goods, stating their names and exact addresses; the same applies for deliveries via company trucks of the seller. Breakages and missing quantities must be ascertained in the presence of the driver.
§ 6 Acceptance
Costs and damages resulting from a refusal to accept the goods shall be borne by the purchaser who refuses acceptance, irrespective of the actual reason for the declined acceptance.
§ 7 Payment
Invoices are payable: within 10 days - net cash.
Invoices are issued in electronic form only. Invoices issued in paper will incur an additional fee of €2.50 per piece.
Bills of exchange are accepted on account of payment only and within 30 days after the invoice date. They will be subject to discount charges in conformity with the respective discount rate and payable immediately. In any case, we reserve the right to choose whether to accept payment in acceptances.
In the event of default in timely payment on a due date, all other outstanding payments not yet due shall become immediately payable. Outstanding payments will be subjected to a default interest charge 10 days after the last due date.
If an invoice is not paid by the last due date, the purchaser will be in default of payment without a separate reminder. Starting on the due date of a claim and without a separate reminder, the purchaser shall be obliged to pay default interest in the amount of 6% p.a. above the relevant discount rate of the German Bundesbank and no less than 10% p.a.; the seller will not have to prove the use of bank credit in the process. In the event of default, we reserve the right to make claims for further damages and to make all claims due for immediate payment.
In particular, the purchaser shall be obliged to refund any premium charged by the seller’s credit insurance company for insuring the credit granted to the purchaser, from the day the granted credit period is overrun or the claim becomes due. In accordance with this and the previous paragraph, all claims shall remain due for immediate payment and all and interests payable even if these rights are not asserted immediately or the purchaser continues to be supplied on the basis of new contracts. By accepting a payment, the seller does not waive his rights. If the purchaser is obliged to pay for more than one delivery or for any other legal reason and the payment is insufficient to settle all claims, the decisions of the seller as to which of several claims is settled first shall be authoritative. In case of non-compliance with the terms of payment or circumstances which become known to us after or when concluding a purchase contract and cast doubt on or may reduce the creditworthiness of the purchaser, as well as in case of suspension of payments or a petition by the purchaser to file composition or bankruptcy proceedings, all our claims will also become due immediately, regardless of the maturity of potentially accepted bills of exchange. Moreover, we shall be entitled to demand an advance payment or security for pending deliveries or to withdraw from the contract. We shall also be entitled to demand damage compensation for non-fulfillment, regardless of the right of withdrawal of the goods delivered under the retention of title and assignment in advance at the expense of the purchaser. At the same time any discounts, and other premiums shall be forfeited and the purchaser shall be required to pay the gross prices charged. In any case, the purchaser shall not be entitled to assert any rights of offsetting or retention.
Invoices of the seller are deemed fully accepted unless a written objection is raised within 15 days after the invoice date.
§ 8 Retention of title
All delivered goods shall remain the property of the seller as reserved goods until all existing claims arising from the business relationship and all claims which will arise in relation to the object of purchase are paid or settled. The suspension of individual claims within an open account and the striking of a balance and its acknowledgment do not rescind the retention of title.
If the reserved goods are processed by the purchaser to produce new movable goods, this shall happen without any resulting obligations for the seller and excluding any acquisition of ownership by the seller according to § 950 of the German Civil Code (BGB); the new goods shall become the property of the seller. If the reserved goods are processed in conjunction with goods not belonging to the seller, the seller shall acquire joint ownership of the new goods according to the value of the reserved goods relative to the value of other goods. If reserved goods are combined, mixed, or blended with goods not belonging to the purchaser according to §§ 947, 948 BGB, the seller shall become joint owner in accordance with the legal regulations. If the purchaser acquires sole ownership through combining, mixing, or blending, they seller shall become joint owner according to the value of the reserved goods relative to the value of other goods at the time of combining, mixing, or blending. In these cases, the purchaser shall at no charge safekeep the goods owned or jointly owned by the seller, which are also deemed to be reserved goods in the sense of the following provisions.
If the reserved goods are sold, on their own or together with goods not belonging to the seller, the purchaser shall assign the receivables arising from the resale in the amount of the value of the reserved goods along with all ancillary rights to the seller and with priority over all other claims; the seller shall accept this assignment. The value of the reserved goods shall be the amount invoiced by the seller plus a security surcharge of 20%, which, however, shall not be charged if in conflict with third-party rights. If the reserved goods are resold and are owned in part by the seller, receivables shall be assigned in accordance with the joint ownership share held by the seller plus a security surcharge of 20%.
If the reserved goods are installed in the property of a third party by the purchaser as a material component, then the purchaser shall assign claims arising from the resale in the amount of the value of the reserved goods plus a security surcharge of 20% with all ancillary rights, including the right to assign an equitable mortgage, and with priority over all other claims. The seller shall accept this assignment. The preceding paragraphs apply accordingly.
If the reserved goods are installed in the property of the purchaser as a material component, the purchaser shall assign claims arising from the sale of the property or from property rights to the seller, in the amount of the value of the reserved goods plus a security surcharge of 20% with all ancillary rights and priority over all other claims. The seller shall accept this assignment. The preceding paragraphs apply accordingly.
The purchaser shall only be entitled and authorized to resell, use, or install the reserved goods within the conventional normal course of business, and only with the limitation that the claims are actually assigned to the seller in the sense of the preceding paragraphs. To dispose of the reserved goods in any other way, the purchaser must name the debtors of the assigned claims and notify them of the assignment; moreover, the seller shall be entitled to inform the debtors of the assignment.
In case of enforcement measures by third parties, pertaining to the reserved goods or the assigned claims, the purchaser must inform the seller immediately and provide the documentation required to enter a counter claim. The right to resell, use, or install the reserved goods and the authorization to collect the assigned claims shall expire upon default, initiation of bankruptcy proceedings, and court or out-of-court settlement proceedings; the authorization to collect shall also expire in the event of a protested check or protested bill of exchange.
If the value of the assigned securities exceeds the claims by more than 20%, the seller shall insofar be obligated to reassign or release the respective value at his or her discretion.
Ownership of the reserved goods and the assigned claims shall be transferred to the customer when all claims of the seller that arise from the business relationship are settled.
§ 9 Jurisdiction and place of performance
For both parties, the place of performance for all deliveries and payments, including those effected via bills of exchange and checks, shall be Lüneburg.
If the conditions imposed by § 38 of the German Code of Civil Procedure for an agreement on jurisdiction are satisfied, the place of jurisdiction for all claims by the contracting parties, including action relating to payment of bills of exchange or checks, will generally be Lüneburg. If the contractual partner is not a qualified merchant according to the German Commercial Code, the place of jurisdiction for collection proceedings will be Lüneburg.
§ 10 Partial removal of terms
In the event that individual provisions of these terms of delivery and payment are removed by law or special contract or are unenforceable or legally invalid, the validity of the remaining provisions shall remain unaffected.
All prices are non-binding. Errors in the price list and on the invoice are excepted.