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§
1
Validity of the Terms and Conditions
(1)
The deliveries, performances and offers of the seller shall be carried out
exclusively pursuant to these Terms and Conditions. Thus these Terms and
Conditions shall also apply to all future trade relations, even if they are
not agreed expressly again. These Terms and Conditions shall be deemed to
be accepted at the acceptance of goods or performance, at the latest.
Counter-confirmations by the buyer under reference to its terms of business
or conditions of purchase shall be objected hereby.
(2)
All agreements between the seller and the buyer shall be set forth in
writing at the conclusion of contract. Subsequent deviating agreements
shall be set forth in writing, too. In case the buyer claims any subsequent
alteration or supplement of a contract that is not set forth in writing, it
shall be obligated to furnish proof for the materialisation thereof.
§
2
Offer and Conclusion of Contract
(1)
The offers made by the seller shall be subject to confirmation and shall be
not binding. For their legal validity declarations of acceptance and any
orders shall be confirmed in writing or by telex/teleprinter by the seller.
(2)
Drawings, figures, measures, weights or other performance data shall only be
binding in case this is agreed explicitly in writing.
(3)
The employees in the sales department of the seller shall not be authorised
to make oral sub-agreements or to grant oral warranties exceeding the
content of the written contract.
§
3
Prices
(1)
Unless stated otherwise, the seller shall be bound to the prices stated
within its offers for
30
days from the date thereof. Otherwise the prices stated in the acceptance
of order of the seller plus the respective statutory purchase tax (sales
tax) shall be relevant. Additional deliveries and performances shall be
charged separately.
(2)
Unless otherwise agreed, the prices shall be quoted FOB stock Germany,
including normal packaging.
§
4
Term of Delivery and Performance
(1)
Dates or terms of delivery may be agreed bindingly and non-bindingly. §
1
section (2)
shall be applicable accordingly.
(2)
Even in case of bindingly agreed terms and dates the seller shall not be
responsible for delays in delivery and performance by reason of force
majeure and because of events, which not only temporarily make the delivery
basically difficult or impossible for the seller – hereunto belong
especially strike, lockout, official orders etc., even if they occur at the
suppliers of the seller or their subcontractors. However, the seller may
only refer to the circumstances mentioned if it gives notice to the buyer
immediately. They entitle the seller to postpone the delivery or
performance by the period of the impairment plus an adequate start-up time
or to withdraw from the contract in whole or in part by reason of the still
unperformed part.
(3)
In case the impairment exceeds a period of three months the buyer shall be
entitled after granting an appropriate respite to withdraw from the contract
with respect to the still unperformed part. If the term of delivery is
extended or the seller is released from its obligation, the buyer may not
derive any compensation claims therefrom.
(4)
Provided that the seller is responsible for the non-compliance with
bindingly promised terms and dates or is in delay, the buyer shall be
entitled to a compensation for damage resulting from delay to the extent of
1/2%
for each complete week of the delay, however, altogether not exceeding
5%
of the invoiced amount of the deliveries and performances concerned by the
delay. Claims beyond that shall be excluded, unless the delay is based on
at least gross negligence of the seller.
(5)
At all reasonable times the seller shall be entitled to part deliveries and
part performances, unless the part delivery or part performance is not in
the interest of the buyer.
(6)
The compliance with the obligations to delivery and service of the seller
requires the timely and orderly discharging of obligations by the buyer.
(7)
If the buyer is in default of acceptance, the seller shall be entitled to
claim compensation for the damage incurred to the seller; with the
occurrence of the default of acceptance the risk of the accidental
deterioration and the accidental loss shall pass to the buyer.
§
5
Passing of the Risk
The risk shall pass to the buyer as soon as the consignment is handed over
to the person realising the transport or has left the warehouse of the
seller for the purposes of despatch. In case the shipment is delayed upon
request of the buyer the risk shall pass to the buyer at the time of the
information on the readiness for shipment.
§
6
Rights of the Buyer Due to Defects
(1)
The products are delivered free from manufacturing and material defects; the
term for the enforcement of warranty claims shall be one year as from the
delivery of the products.
(2)
If the operation or maintenance instructions of the seller are not observed,
modifications made to the products, parts are replaced or consumables are
used, which do not comply with the original specifications, the claims by
reason of defects of the products shall be inapplicable, if the buyer does
not prove wrong a corresponding particularised statement that only one of
these circumstances effected the defect.
(3)
The buyer has to inform in writing the management of the after-sales service
of the seller of the defect promptly, however, not later than within one
week after receipt of the delivery item. Defects that cannot be discovered
even in case of careful examination within this period of time shall be
reported to the seller in writing immediately after detection thereof.
(4)
In case of a notification by the buyer that the products have a defect, the
seller will request of its own choice and at its own expense that:
a) the defective part or appliance shall be sent to the seller for repair
and subsequent return consignment;
b) the buyer shall hold ready the defective part or appliance and a service
engineer of the seller will be sent to the buyer, in order to carry out the
repair.
If the buyer demands that rework shall be done at a place determined by the
buyer, the seller may comply with this request, without charging for
replaced parts, while working time and travel expenses shall be paid at the
standard rates of the seller.
(5)
If a rework fails after a reasonable period the buyer may of its own choice
demand reduction of payment or withdraw from the contract.
(6)
A liability for fair wear and tear shall be excluded.
(7)
Only the immediate buyer shall be entitled to claims by reason of defects
against the seller and those claims shall not be assignable.
§
7
Reservation of Title
(1)
Until the satisfaction of all claims (including all claims from balances in
open accounts), which the seller is entitled to from any legal ground
against the buyer, now or in future, the following securities shall be
granted to the seller, that it will release on request of its own choice, as
far as their value exceeds the claims by more than
20%
sustainably.
(2)
The goods shall remain property of the seller. Any processing or
remodelling shall be carried out always for the seller as the manufacturer,
but without any obligation on the part of it. If the (joint) ownership of
the seller becomes extinct by association, it is already now agreed that the
(joint) ownership of the buyer of the unitary property shall pass to the
seller pro rata (in proportion to the invoice value). The buyer shall store
the (joint) property of the seller free of charge. The goods, in which the
seller is entitled to (joint) ownership, are hereinafter referred to as
reserved goods (Vorbehaltsware).
(3)
The buyer shall be entitled to process and sell the reserved goods within
the ordinary course of business as long as it is not in default. Pledges or
transfers by way of security (Sicherungsübereignungen) shall not be
permitted. By way of security the buyer shall hereby already assign the
claims arising from the resale or from another cause in law (insurance,
tort) with regard to the reserved goods (including all claims from balances
in open accounts) to the seller in full. The seller grants to the buyer
revocable authorisation to collect the receivables assigned to the seller
for the seller’s account in the buyer’s own name. The power of collection
may only be revoked, if the buyer fails to duly meet its payment
obligations.
(4)
In the event of seizures of the reserved goods by any third party,
especially in case of levies of execution, the buyer shall bring to the
knowledge of such third party the fact that the seller holds the title to
such goods and shall notify the seller immediately, so that the seller can
enforce its rights of ownership. Unless the third party is able to refund
the judicial or extrajudicial expenses arising in this connection to the
seller, the buyer shall be liable therefore.
(5)
In case of the buyer acting in breach of contract – especially default in
payment – the seller shall be entitled to withdraw from the contract and to
reclaim the reserved goods.
§
8
Payment
(1)
Unless otherwise agreed, the invoices of the seller shall be payable
immediately, net after invoicing without any deduction.
Notwithstanding any other provisions of the buyer, the seller shall be
entitled firstly to count payments against its unredeemed debts and shall
inform the buyer of the type of offsetting carried out. If already costs
and interests have been incurred, the seller shall be entitled firstly to
count the payment against the costs, then against the interests and last
against the primary obligation.
(2)
A payment shall only then be considered to be effected, when the seller may
have the amount available. In case of cheques the payment shall only be
considered to be effected, when the cheque is paid.
(3)
If the buyer is in delay, the seller shall be entitled to demand default
interest to the extent of
8
percentage points above the base lending rate as a lump-sum compensation for
damage as from the date concerned. Those percentage points shall be rated
lower, if the buyer proves an inferior surcharge; the proof of a higher
damage by the seller shall be allowed.
(4)
If circumstances come to the seller’s knowledge, which cast doubt on the
creditability of the buyer, especially if the buyer does not pay a cheque or
stops its payments, or if other circumstances come to the seller’s
knowledge, which cast doubt on the creditability of the buyer, the seller
shall be entitled to call due the total remaining debt, even if the seller
has accepted cheques. In this case the seller shall also be entitled to
request payments in advance or provision of security.
(5)
Even if deficiency claims or counter claims are raised, the buyer shall only
be entitled to offsetting, retention or reduction, if the counter claims are
found absolutely or if they are indisputable. However, the buyer shall also
be entitled to retention by reason of counter claims from the same
contractual relationship.
§
9
Design Modifications
The seller reserves the right to make modifications to the design at all
reasonable times; however, it shall not be obliged to make such
modifications also to products that are already delivered.
§
10
Liability
(1)
Damage claims shall be excluded, regardless of the type of the breach of
duty, including torts, unless wilful or grossly negligent actions are at
hand.
(2)
In the event of breach of material contractual obligations the seller shall
be liable for any negligence, but only up to the extent of the foreseeable
damage. Any claims for loss of profit, for expenses saved, from damage
claims by any third party as well as for other indirect and consequential
damages may not be demanded, unless a characteristic feature guaranteed by
the seller just purposes to safeguard the buyer against such damages.
(3)
The limitations and exclusions of liability in the sections
1
and
2
shall not be applicable to claims, which arose by reason of malicious
conduct of the seller as well as in case of a liability for guaranteed
characteristic features, claims according to the Product Liability Law (Produkthaftungsgesetz)
as well as damages by loss of life, bodily harm or injury to health.
(4)
As far as the liability of the seller is excluded or limited, this shall
also be applicable to employees, persons in dependent employment,
representatives and servants of the seller.
§
11
Applicable law, Place of Jurisdiction, Severability Clause
(1)
For these Terms and Conditions and the entire legal relations between the
seller and the buyer the law of the Federal Republic of Germany shall apply.
The provisions of the United Nations Convention on Contracts for the
International Sale of Goods shall not apply.
(2)
Subject to the buyer being a merchant, juristic person under public law or
special fund under public law, Saarbrücken / Germany shall be the exclusive
place of jurisdiction for all disputes directly or indirectly resulting from
the contractual relationship.
(3)
Should any provision of these Terms and Conditions or any provision made in
the context of other agreements be or become invalid, this shall not affect
the validity of all other provisions or agreements.
BB
Automotive Components, owner Benedikt Beck
as at:
October
10th
2005
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