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General Business Terms and Conditions
(This is a translation of the German version. In cases of doubt, the German version shall prevail.)
§ 1 Validity of Conditions
§ 2 Offers and Conclusion of the Contract
All further agreements which are met between the seller and the party to the contract for the purpose of executing the contract have to be put down in this particular contract in a written form. The seller has to authorize additional oral agreements to become effective. Salespersons are not authorized to conclude additional oral agreements, which exceed the contents of the written contract. Oral stipulations require a written confirmation of the seller.
Drawings, illustrations, measures, weights or other service data are only binding if carried out expressively in written form. The seller reserves the copyright of the documents mentioned above. The documents can only be passed on to a third party when the seller has previously provided the authorization in written form. They have to be passed on if requested without delay.
§ 3 Prices
The prices are understood - if not expressively agreed upon differently - ex warehouse of the seller, excluding packing, postage, freight as well as additional delivery expenses - such as, insurance, custom duties and assembly - they will be calculated - if necessary, additionally.
If changes up to the point of risk passing in expenses take place, the seller will be authorized to make an adjustment to the fixed prices.
§ 4 Period of Delivery and Service
If there is a delay in delivery and service due to a force majeure or events which have made it considerably difficult or impossible to deliver the items ? this especially includes strikes, lock outs, official orders, etc. - also in such cases when they occur by the suppliers - or sub-contractor of the seller - the seller does not have to meet the binding deadlines and scheduled fixed terms and dates. The seller is authorized to respectively postpone the delivery or service considering the duration of the delay, including an adequate phase-in time. He can also withdraw partially or completely from the contract because of the partial or - incomplete fulfillment of the contract.
If the delay lasts longer than three months the party to the contract will be authorized to withdraw from the contract - this after having given a grace period notification. If the delivery time is extended or the seller is freed of his obligation, then the contractual partner will not be authorized to receive any damage compensations. If the seller immediately notifies the party to the contract that he will be able to invoke under the above and if the default is based on gross negligence on behalf of the seller, then compensation due to all other fault damages will be awarded.
The seller is authorized to carry out partial deliveries and services at all times.
Keeping the deadlines for obligations of delivery and service are the prerequisites of the seller and other parties to the contract. If the party to the contract gets into default on acceptance, the seller will be authorized to claim replacement for arising damages. At the time of the default of acceptance the risk of possible deterioration and of the demise of the goods is transferred to the party to the contract.
§ 5 Risk Assumption
$ 6 Warranty, Liability
The seller guarantees that the products are free of fabrication- or material defects. In this respect he guarantees the items and products resulting from circumstances prior to the passing of risk - especially made unusable because of a defect in their construction or the application turned out to be unusable or unsuitable. The warranty period is six months and starts on the date of the delivery.
The right of the party to the contract to carry out claims from defects is time limited in all cases at the date of the letter of complaint within six months - however, at the earliest after the deadline of the warranty period. The seller basically owes items of the same type and value. If the quality deviations are caused technically and occur in the range of commercial quality, then the quality deviation compensation in this particular range will be owed.
If the seller sends samples and specimens the future shipping does not give any assurances that the items will have the same characteristics of the original samples and specimens. Technical data in documents sent by the seller only represent approximate indications. They are only recognized as assured characteristics when they have been clearly stated as ?an assured characteristic?. Warranty claims against the seller can only be filed with the immediate party to the contract and are not transferable.
If a verification of the claimed item is impossible through the seller - especially when it is impossible to trace the defect to the delivery procedure of the seller, then it will be prohibited to file complaints.
The party to the contract must file complaints immediately in written form - as far as he is a businessman and party to the contract himself - not later than within a week after the arrival of the delivered items. If defects - even by careful examination - have not been discovered within this particular time limit provided in the contract - the seller will have to be informed immediately after the discovery of the defect. In case of delayed complaints any kind of warranty is excluded.
If the party to the contract makes a notification that the products are not according to the warranty, then the seller can request - according to his choice and his expenses, that:
- the damaged goods or rather damaged products are shipped to repair and then returned to the selling party to the contract. If the execution of the transfer guarantees obligations that are delayed with no fault of the seller, then the liability will expire no later than 15 months after the risk has been passed on.
- that the party to the contract who has the damaged item or respectively the supposedly damaged product at hand and a service technician of the seller has been sent to the party to the contract to carry out repairs. If the party to the contract requests to carry out the guarantee work in another place, the seller can comply. However, the parts, spare parts and the working time which fall under the guarantee are not calculated. However, travel allowances are to be reimbursed appropriately by the seller to the party to the contract. If the place of the rectification of defects or the place of repair is located in a foreign country, the seller will assume costs just as far as if they would have originated on the domestic market.
To execute all necessary guarantee measures according to equitable discretion of the seller, the party to the contract has to give the requested time and opportunity or else the seller is to be exempted from the warranty. Only in urgent cases of risk of the business safety and for the defence of inconsiderably large damage - the seller has to be informed immediately - or in case the seller is at fault with the removal of the defect and the grace period for the removal of the defect has been unused, the party to the contract is authorized to remove the defect by himself or by a third party and he has to request the necessary expenses from the seller.
The warranty period for the replacement and the improvement is 3 months. It runs at least up to the date of expiry of the original warranty deadline for the delivered product.
If the rectification of defects fails after an appropriate grace period, then the party to the contract will be allowed to request - according to his choice, either a reduction of the reimbursement or a withdrawal of the contract.
The seller does not have to accept any warranties nor liabilities in the following cases:
- When operational- or maintenance instructions that have been carried out on the goods and products through the contractual partner or third parties without an advanced permission of the seller. If parts have been alternated or consumer material has been applied which does not comply with the original specifications.
Additionally, all further claims of the party to the contract are excluded, especially the conversion, cancelling or minimizing as well as to the substitution of damages which have not occurred on the delivered items themselves. This liability exclusion is not valid when caused by intention or gross negligence of the owner of the selling company as well as the managers and such cases whereby - according to the product liability law the faults on the delivery items for personal or property damage on privately used objects are to be liable mandatory. This is also not valid for the breaching of contractual main obligations as well as the missing characteristics which have clearly been assured just for the purpose of achieving the assurance to insure the damages which have not been caused by the delivered objects themselves.
If on behalf of the party to the contract the seller procures for him these particular products with a predetermined supplier, the seller will not be responsible for any possible liabilities of breaches of industrial protective copyright or patent rights of third parties. If the seller made use of a claim of breaching such as the rights of third persons, the party to the contract will have to indemnify the seller of such particular claims.
The seller is to indemnify the party to the contract and the respective buyer due to claims from the breaching of copyright rights, trademarks or patents unless the design of a delivered object originates from the contractual partner. The indemnification of the seller is limited in the amount of the foreseeable damage. An additional prerequisite for the indemnification is that the seller is able to choose the conduct of the contested matters and that the alleged violation of law excluding the construction of the delivered objects of the seller is accountable without connection or application of other products. The seller has optionally the right to relieve himself from the copyright, trademark- and patent right obligations assumed by him, so that he can either
- procure the required licences referring to the alleged infringed patents or
- provides for the party to the contract with an adjusted delivery object or rather parts of it, that remove the infringing allegation concerning the delivery object in the case of an exchange of the infringing delivered object or rather the respective part.
The above mentioned regulations are valid only for deliveries within the Federal Republic of Germany. The obligation of the party to the contract has to be checked upon delivery to foreign countries whether possible existing proprietary rights of third parties could be infringed upon or not.
The party to the contract bears the application- and usage risk of the purchased goods and products. In this regard only oral or written advice of the seller is considered valid as unbinding suggestions. This is also to be considered in the proprietary rights of third parties. Thus the party to the contract is not released from examination on his own the usability of the goods and products. However, if the seller is liable, the value of the object will be limited to the value of delivered goods and products.
Substituted parts become property of the seller and have to be returned upon request.
The liability of the seller is limited to the assignment of the liability claims on the essential external assignment of the products to which he is entitled against the supplier of outsourced products.
Upon default or impossibility the liability is limited to the additional expenditures for the covering purchase.
§ 7 Reservation of Title
Items and products are under the ownership of the seller. Processing or re-construction are usually carried out by the seller as manufacturer - however without any obligation for him. If the (co-) ownership of the seller by connection or mixing expires ? it will now be agreed upon, that the (co-) ownership of the party to the contract on the unified object is transferred proportionally to the value received (invoice value) to the seller. The party to the contract keeps the (co-) ownership of the seller without any costs. Goods and products, on which the seller is authorized to have (co-)ownership will be called - in the following - reserved goods.
If the party to the contract is not in undue delay, he will be authorized to process and sell the reserved goods in normal business. Pawning or collateral assignments are prohibited. The claims resulting from re-sales or other legal causes (insurance, not allowed action) regarding the claims (including all credit balances of open accounts) resulting for the reserved goods the party to the contract transfers fully - already now covering against loss - to the seller. The seller authorizes him irrevocably to collect the transferred claims for his invoice in his own fiduciary name. If the party to the contract is unable to properly fulfill his payment obligations then this particular direct debit mandate will/can be revoked. The party to the contract has to pay out immediately the collected proceeds up to the payment obligation to the seller, the transferred claims and the respective debtor all requested indications for the collection as well as the assignment of accounts receivable transfers. If the party to the contract is unable to pay his payment obligation to the seller, the seller is authorized to request that the party to the contract informs him about the transferred claims and names his debtor as well as informs the debtor about his transfer.
If third parties gain access to the reserved goods especially pawning, the party to the contract will refer to the ownership of the seller and inform him immediately. By this method the seller will be able to prove his ownership rights. If the third party is not capable to reimburse the resulting in-court or out-of court costs to the seller, the party in contract will be liable.
In a contrary to the terms behaviour of the party in contract - especially default of payment - the seller will be authorized to take back the reserved goods or if necessary ? to request the transfer of the surrendering claims of the party to the contract against third parties. There is not a withdrawal from the contract by the process of withdrawing or pawning the reserved goods by the seller taking place.
§ 8 Payment
Assembly- and repair costs are to be paid immediately without a discount.
Payment is only valid when the seller can dispose of the amount. If checks are used for payment, then the payment will be valid when the checks are credited.
If the partner gets into a default of payment, the seller will be authorized to request interest in the amount of five percentage points above the basic interest rate according to § 1 of the Discount - Transfer - Law dated June 9, 1998 (BGB. I S. 1242) as a flat rate pecuniary damage. The proof of a higher damage caused by the seller is authorized.
If circumstances of credibility of the partner under question become known that put the credibility of the party to the contract in question - especially if the check can not be credited, then the seller will be authorized to make the rest of the owed remaining debt payable on demand - this is also the case if he had already accepted the check. In addition the seller is, in this particular case, authorized to request pre-payments or securities.
If the counterclaims are established legally valid or non-contentious, the party to the contract will be authorized to balance the accounts, withholding or reducing - although lodgings of complaints or counterclaims have already been carried out. The partner of the contract is authorized to withhold, also due to counter complaints out of the same contractual relationship.
§ 9 Right of Rescission
If the seller is at fault with his obliged services and if the partner of contract grants an appropriate extension for the performance of the service connected with the notice ? that in case of a futile expiration of period the service will be rejected and if the seller does not keep the extension in a culpable way, then the contractual partner will be authorized to withdraw from the contract.
If the situation of the impossibility occurs while the receipt delay is taking place, this will remain and be considered as a return obligated for the seller.
In addition, if the seller allows a futile expiration to an appropriate extension to execute the obligated services of a fault carried out by his own fault, the partner to the contract will be authorized to withdraw from the contract. When the fault as well as the liability of the seller have been recognized and proven for this, the extension will begin.
§ 10 Applicable Law, Jurisdiction, Partial Nullity
If the partner to the contract is a registered trader according to the German Commercial Code, a legal person under public-law or a special fund under public-law, then Meppen will be exclusively the jurisdiction for all the indirect or direct resulting disputes. Sole place of performance is Haren (Ems) (Germany)
Should a regulation of these terms and conditions or a regulation in the frame work of further agreements become ineffective or will become ineffective in the future, then the validity of all other regulations will not be touched.
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Last update: Oct 14, 2019 at 11:53 AM