General terms of business
General terms of business
1. Scope of application
1. The following terms of delivery and payment shall apply to all contracts for the delivery of goods made between the Buyer and us, and shall apply analogously to any other contracts for work or services made between the Buyer and us. They shall apply to all future business transactions, even if not explicitly agreed upon again. Any deviating conditions on the part of the Buyer which are not explicitly recognized by us shall remain non-binding on us, even if we do not explicitly object to them. The following contract conditions shall also apply, if we, with knowledge of conditions of the Buyer which are inconsistent with or deviate from our Conditions of Sale, execute the Buyer's order without reservation.
2. All agreements made between the Buyer and us in connection with the execution of the Purchasing Contract are laid down in writing in the contracts.
2. Quotation and conclusion of contract
1. An order from the Buyer, qualifying as an offer for conclusion of a sales contract, can be accepted by us by transmission of an order confirmation or by forwarding the products ordered within a period of two weeks.
2. Unless explicitly designated as binding by us, our quotations are without obligation and non-binding.
3. We reserve the right of ownership, copyright and other industrial property rights for all illustrations, drawings, calculations and other documents; said information and documents shall not be passed on by the Buyer to Third Parties unless we have given our approval in writing, regardless of whether or not we have designated such information or documents as confidential.
3. Terms of payment
1. Unless otherwise provided for in the order confirmation, our prices are to be understood ex works, excluding packing. The prices do not include the statutory Value Added Tax, which will be shown separately in our invoice at the rate applicable at the date of invoicing. Even in the case of a provision to the contrary, we shall be entitled to offset any payments made against an older debt of the Buyer, which is due for payment.
2. Deduction of a discount is only permitted if explicitly agreed in writing. Unless otherwise agreed upon, the purchase price shall be due for payment immediately upon receipt of the invoice by the Buyer, to the extent that no different payment term is provided for in the order confirmation. In the event of shipment to a destination outside the Federal Republic of Germany, the purchase price shall be due upon receipt of the order confirmation by the Buyer. Default interest shall be charged at a rate of 8 percent above the respective base rate per annum. We explicitly reserve the right to claim higher default compensation.
3. Payments shall not be regarded as having been made until the amounts involved become available to us. In case of payment by cheque, payment will be deemed to have been made, when the cheque has been cashed.
4. Even when asserting claims for defects or counterclaims, the Buyer shall not be entitled to offset or retain payment, unless the counterclaims have been legally established, have been acknowledged by us, or are undisputed. The Buyer shall be entitled to exercise a right of retention only to the extent that his counterclaim is based on the same contractual relationship.
4. Delivery and performance periods
1. Delivery periods or deadlines which were not explicitly agreed upon in writing as binding are to be regarded as non-binding and for information only. The delivery time specified by us does not start until all technical matters have been clarified and all obligations incumbent upon the Buyer have been duly fulfilled.
2. If the underlying contract of purchase is a transaction for delivery by a fixed date according to § 286, section 2, item 4 of the German Civil Code (BGB) or according to § 376 of the German Commercial Code (HGB), we shall assume liability according to the statutory provisions. The same applies if, as a result of a delivery delay attributable to us, the Buyer is entitled to claim the discontinuance of their interest in the further performance of the contract. However, in such a case, our liability shall be limited to the foreseeable, typical damage or loss, unless the delay is due to a wilful breach of contract for which we are responsible.
3. Likewise, we shall be liable to the Buyer for a delivery delay in accordance with the statutory provisions, if the delay is due to a wilful or grossly negligent breach of contract on our part. Our liability shall be limited to the foreseeable, typical damage or loss, unless the delivery delay is due to a wilful breach of contract for which we are responsible.
4. In the event that a delay in delivery for which we are responsible is due to the wilful or grossly negligent violation of an essential contractual obligation, we shall assume liability in accordance with the statutory provisions, however, with the proviso that in such case, liability for compensation of damages shall be limited to the foreseeable, typical damage or loss.
5. Otherwise, in the event of a delivery delay attributable to us, the Buyer may claim liquidated damages to the amount of 3 % of the delivery value for each complete week of delay, limited, however, to a maximum of 15 % of the delivery value.
6. No further liability will be assumed by us for delayed delivery. Other statutory claims and rights, to which the Buyer are entitled in addition to the compensation claim to which they are entitled in case of a delivery delay attributable to us, shall not be affected by the above.
7. We shall be entitled to make partial deliveries and perform partial services at any time, insofar as this is reasonably acceptable to the Buyer.
8. If acceptance is delayed for reasons due to the Buyer, we shall be entitled to claim compensation for any losses or extra cost incurred as a result. The same applies in case of a culpable violation by the Buyer of their duties of cooperation. From the time that acceptance is delayed, the risk of accidental deterioration or accidental loss shall pass to the Buyer.
5. Passage of risk - Shipment/Packing
1. Loading and shipment shall be made uninsured at the Buyer's risk. This applies regardless of whether the goods are dispatched from the place of performance and of who pays the freight charges. At the Buyer's request and expense, we will take out a transport insurance for the shipment.
2. We shall make every effort to take into consideration the Buyer's wishes and interests with regard to the shipment method and route; any extra costs incurred as a result must be borne by the Buyer – even if delivery carriage paid was agreed.
3. Transport and all other packaging shall not be taken back pursuant to the provisions of the German Packaging Ordinance. It is up to the Buyer to dispose of the packaging at his own expense..
4. If shipment is delayed at the Buyer's request or for reasons, for which the Buyer is responsible, the goods will be stored at the Buyer's expense and risk. In this case, notification that the goods are ready for shipment shall be deemed equivalent to actual shipment.
6. Warranty / Liability
1. The Buyer shall not be entitled to assert claims for defects unless they have duly fulfilled their duties of examination and notice of non-conformity according to § 377 of the German Commercial Code (HGB).
2. If, despite all due care being taken, the goods supplied exhibit a defect, which was already present at the time of passage of risk, we will, at our discretion, repair or replace the goods, provided that notice of the defect was given in due time. In any case, we must be given an opportunity for subsequent performance within a reasonable time. Any claims for recourse shall not be affected by the foregoing provision. The cost incurred in connection with the elimination of the defect shall be borne by us, unless supplementary costs are incurred because the object of the contract was transferred to a location other than the place of performance. If subsequent performance has failed, the Buyer may, at their own discretion, claim a reduction of the purchase price or withdraw from the contract. Subsequent performance shall be deemed to have failed when a second unsuccessful attempt has been made, unless further attempts appear appropriate and can be reasonably considered to be acceptable to the Buyer. Claims for compensation of damages due to the defect under the following conditions can only be asserted by the Buyer, if subsequent performance has failed. The aforementioned provision does not affect the Buyer's right to assert further claims for compensation of damages at the terms listed below.
3. Unless longer periods are provided for by law, warranty claims of the Buyer shall become statute-barred one year after the goods have been delivered to the Buyer, unless we have fraudulently concealed the defect; in this case, the statutory provisions shall apply. The foregoing provisions shall not affect our obligations under Items 4 and 5.
4. Irrespective of the limitations of liability listed below, we shall assume liability for damage to life, body, and health attributable to a negligent or deliberate violation of contractual obligations and for damage covered by our liability in accordance with the German Product Liability Act. In the case of damage not covered by the first sentence and based on wilful or grossly negligent breach of contract, or fraudulent acts, we will assume liability in accordance with the statutory provisions. However, our liability in these cases shall be limited to the foreseeable, typically occurring damage, unless there has been a wilful act on our part. To the extent that we have provided a guarantee of quality or durability of the goods, we will also accept liability within the framework of this guarantee. However, liability for damage caused by the absence of the guaranteed quality or durability, but not occurring directly on the goods as such, will not be accepted, unless the risk of such damage evidently falls within the scope of the guarantee of quality and durability. We shall also assume liability for damage caused by us through ordinary negligence with respect to the performance of such contractual duties which constitute a prerequisite for the proper fulfilment of the contract and on the fulfilment of which the Buyer regularly relies and may rely on. However, our liability shall be limited to damage which is typically associated with the contract and foreseeable.
5. Any further liability shall be excluded, without regard to the legal nature of the asserted claim; this shall apply in particular to claims in tort and claims for compensation of futile expenses in lieu of performance; the foregoing provisions shall not affect our liability pursuant to Section IV Item2 to Section IV Item 5. To the extent that liability on our part is excluded or restricted, this shall also apply to the personal liability of our employees, representatives and agents.
6. Any claims for compensation of damages due to a defect on the part of the Buyer shall become statute-barred one year from the delivery of the goods. This shall not apply in cases of damage to life, limb or health, or in event of wilful intent or gross negligence.
7. Retention of title
1. We shall retain title to any goods delivered by us until such time as any and all receivables arising out of the present and future business relationships with the Buyer have been paid in full, including the settlement of all current account balances due (goods subject to retention of title). Such goods subject to retention of title shall be treated by the Buyer with due care. In the event of a breach of contract on the part of the Buyer, e.g. default in payment, we reserve the right to repossess the goods subject to retention of title, after having previously granted a suitable extension period. Repossession of the goods subject to retention of title shall constitute a withdrawal from the contract. Likewise, seizing against payment of the goods subject to retention of title shall also constitute a withdrawal from the contract. After repossessing the goods subject to retention of title, we shall be entitled to sell them. After deducting a reasonable amount to cover the sales expenses, the sales proceeds will be offset against the amounts owed to us by the Buyer.
2. The Buyer shall be entitled to duly sell and/or use the goods subject to retention of title in the course of ordinary business, provided that the Buyer is not in payment default. Pledging or assignment as security of the goods is not permitted. By way of security, the Purchaser already now assigns to us any and all claims arising from reselling or from some other legal basis in respect of the goods subject to retention of title; and we accept such assignment. We hereby authorise the Buyer until further notice to collect the claims assigned to us for his own account and in his own name. This authorisation to collect can be revoked at any time should the Buyer fail to duly fulfil his payment obligations.
3. Any processing or transformation of the goods subject to retention of title by the Buyer shall be performed in all cases on our behalf. In cases where the goods subject to retention of title are processed or combined with other items not owned by the us, we shall become joint co-owner of the new item, in accordance with the ratio of the value of the goods subject to retention of title (final invoiced amount including Value Added Tax) to the other processed or intermixed items at the time of processing. The new item resulting from processing shall be subject to the same provisions as the goods subject to retention of title.
4. In the event that a Third Party asserts a claim on the goods subject to the retention of title, particularly in the event of a seizure, the Buyer must direct the attention of the Third Party to our title, and notify us immediately, so that we can assert our ownership rights. To the extent that the Third Party is not able to reimburse court fees and out-of-court expenses incurred by us in this context, the Buyer shall be liable to us for these costs.
5. We are obliged to release the securities to which we are entitled inasmuch as their realisable value exceeds the total of the claim to be secured by more than 10%, whereby the choice of securities to be released is up to us.
8. Place of performance, legal venue, applicable law
1. The place of performance and legal venue for all deliveries and payments (including cheque and bill of exchange lawsuits) and for the settlement of all disputes arising from the sales contracts made between us and the Buyer shall be our company's domicile. However, we shall be entitled to file a lawsuit against the Buyer at his own residence and or place of business.
2. The relationship between the contracting parties shall be governed exclusively by the law of the Federal Republic of Germany, to the exclusion of the UN Convention on the International Sale of Goods.
GER-64739 Höchst i. Odw.
Phone +49 (6163) 9 39 97-0
Telefax +49 (6163) 9 39 97-22
email: info [at] maschod.de