GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
§1 Area of Application
(1) For delivery by the scissor manufacturer Scherenmanufaktur PAUL GmbH (hereinafter: Seller) the following Terms and Conditions of Sale and Delivery shall exclusively apply, providing that no other conditions have been expressly authorised in writing by the Seller. These Terms and Conditions of Sale and Delivery also apply when the Seller has been informed of contradictory conditions of the Buyer or conditions that deviate from these Terms and Conditions of Sale and Delivery or when the Seller accepts the order without reservation.
(2) The Conditions of Sale and Delivery only apply when the Buyer is an entrepreneur
(§ 14 BGB), a legal entity under public law or a special fund under public law.
(3) These Conditions of Sale and Delivery shall also apply for all future contracts of sale and/or delivery of[nbsp] movables with the Buyer, without the requirement of notification by the Seller for each individual case.
§ 2 Offer, Conclusion of Contract
(1) The offers by the Seller are non-binding and subject to change, unless otherwise stated in the offer.
(2) The order by the Buyer is a legally binding offer for the conclusion of a contract.
(3) A supply contract is first effected by the written order confirmation of the Seller or through the delivery of the goods to the Buyer. Providing that the Seller sends a written order confirmation, its content[nbsp] shall apply for the content of the contract. If the purchaser does not object immediately, the content of the contract is established.
(4) The sales employees of the Seller are not authorised to make additional verbal agreements or verbal assurances, which go beyond the scope of the written contract.
§ 3 Prices / Terms of Payment
(1) Providing that no other agreement has been made, all prices of the Seller are to be understood “ex works” (Incoterms 2000), plus the legally applicable Value Added Tax at the time of invoicing, including packaging.
(2) In principle, the valid list prices on the day of completion of contract are applicable.
Price changes are permissible, if the period of time between conclusion of contract and the agreed upon delivery date is longer than four months. If wages or material costs increase thereafter until completion of the delivery, the Seller is entitled to raise the price to correspond to the increase in costs. The Buyer is only then entitled to withdraw, if the increase in price considerably exceeds the increase of the general costs of living in the period between the order and the delivery.
(3) Payment of invoices is due within 30 days following delivery of goods and receipt of invoice without any deductions. In the case of payment within 7 days after delivery and receipt of invoice, we will grant a discount of 3 %. Nevertheless, the Seller is entitled at all times and without indication of reasons to make a delivery conditional upon payment on delivery.
(4) With expiration of the payment period stated in the paragraph, the Buyer shall be in default. If the Buyer is in default, the Seller is entitled to charge default interest at a rate of eight percentage points above the base interest rate. In the case of application towards commercial partners, our claim to the commercial maturity interest (§ 353 HGB) remains unaffected.
The assertion of further damages shall hereby not be excluded. In addition, the Seller is entitled, in the case of default of (partial) payment by the Buyer, to demand full payment of the principle balance with immediate effect.
(5) The Buyer shall only be entitled to offset amounts of payment if his counterclaim is ascertained as legally binding or undisputed by the Seller. The Buyer is additionally only authorised to exercise a right to retention in the case that his counterclaim is based on the same contractual relationship.
(6) All payments must be made in Euros.
§ 4 Retention of Title
(1) Until payment has been remitted in full, the delivered goods remain the property of the Seller. If the customer is a merchant, the following rules additionally apply: the delivered goods remain the property of the Seller until all legally valid claims of the Seller now and in the future have been fulfilled by the Buyer, including all account balance claims. In the case that the Buyer behaves contrary to contract – particularly if he is in default of payment of a claim for payment – the Seller is entitled to reclaim the reserved goods, after granting the Buyer a reasonable period to perform. In the case that the Seller reclaims the reserved goods, this represents a withdrawal from the contract. The Buyer shall be liable for costs incurred to reclaim the goods. A withdrawal from contract is also given if the Seller distrains the reserved goods. The Seller may commercially exploit reserved goods that are reclaimed.
(2) The Buyer is obligated to insure at their own expense the original value of the reserved goods against damage by fire, water or theft.
(3) The Buyer is entitled to sell and/or process the reserved goods in the course of normal business transactions. The claims of the Buyer from the further sale of the reserved goods shall hereby be assigned to the Seller in the amount of the existing claims at the time of the resale of the reserved goods. The Buyer is entitled to collect the assigned claim, providing that his fulfils his payment obligations.
In the case of default of payment by the Buyer, the Seller is entitled to revoke collection authorisation of the Buyer. In this case, at the request of the Seller, the Buyer is obligated to notify the Seller of all required information relevant to the collection of payment and to allow the inspection of the status of the assigned claim by an authorised representative on the basis of his accounting as well as to notify the debtors of the assignment.
(4) Should the ownership of the Seller expire by combination, mixing or processing, and should the Buyer become the owner of the delivery items, then the Buyer hereby transfers to the Seller in advance a proportionate value of the delivery items corresponding to the co-ownership share in the object generated by the combination, mixing or processing. The Seller hereby accepts the offer. The transfer of ownership will be replaced by free storage.
(5) Prior to payment in full of the secured claims, the delivery items subject to retention of title may neither be distrained to a third party nor transferred as a security. The Buyer is obligated to promptly notify the Seller of access by a third party to the property of the Seller
and to independently, and in cooperation with the Seller, take legal action against this at their own expense.
(6) In the case of default of payment of the Buyer, the request for initiation of insolvency proceedings in regard to the assets of the Buyer, a transfer of entitlement to a third party or the transfer of business operations of the Buyer to a third party, the Seller is entitled, in compliance with legal provisions, to withdraw from the contract and to demand the return of the delivered goods. Providing that the Buyer does not remit payment of the due purchase price, the Seller may only exercise these rights if the Buyer has not complied with an appropriate deadline for payment set previously by the Seller, or if such a deadline is not required according to legal provisions. The Seller may enter the business premises of the Buyer for the purpose of demanding the return. Subsequent to taking back the reserved goods, the Seller is authorised to their discretionary exploitation. The receipt of revenue for this exploitation shall be accounted towards the debt of the Buyer (minus appropriate utilisation costs).
(7) On request by the Buyer, the Seller is obligated to release the securities granted in its favour, when the value of this exceeds the value of the claims secured in an amount of more than 10 %. The Seller is entitled to select the securities to be released.
§ 5 Shipping
(1) The delivery of the goods shall be “ex works” in compliance with Incoterms 2000. Shipping and transport are done at the expense and risk of the Buyer. The risk is transferred to the Buyer at the time when the goods are handed over to the freight carrier, but no later than the time that the goods leave the works of the Seller.
On request and at the expense of the Buyer, the Seller takes out insurance coverage against normal transport risks.
(2) Should there be a delay in delivery on request by the Buyer or if, in an individual case, delivery is agreed on call and the Buyer does not retrieve the delivery within two months after notification of provision, the goods shall be safeguarded or stored at the risk and the expense of the Buyer.
(3) Method of shipment and packaging will be selected by the Seller.
§ 6 Deliveries / Delivery Time
(1) Scheduling of deliveries will be agreed upon by the parties. If the parties have agreed upon a delivery period, this shall commence with the date of the order confirmation.
(2) Observance of the agreed delivery and payment deadlines presupposes the timely receipt of all documents to be furnished by the Buyer as well as the timely provision of all required information and the fulfilment of all other obligations by the Buyer. If these prerequisites are not fulfilled in a timely manner, the deadlines will be extended accordingly; this does not apply if the Buyer is liable for the delay.
(3) In addition, the observance of agreed deadlines and delivery dates presupposes the timely delivery to the Seller. In the event that the Seller is not able to meet agreed deadlines and schedules as a result of untimely delivery to the Seller and without any fault on their part, the liability due to delay of delivery shall be excluded. In this case, the Seller pledges to transfer claims for compensation against the supplier to the Buyer. The Seller is, however, entitled to partial deliveries, to the extent that these are reasonable for the Buyer and when no additional costs are thereby incurred by the Buyer.
(4) The delivery period shall be extended for reasons of force majeure, strike, inability to perform not due to negligence and unfavourable weather conditions, for the duration of the temporary delay of performance at no fault of the Seller.
(5) Should the Seller recognise that an agreed upon deadline cannot be met, the Seller shall promptly give notice of this to the Buyer.
§ 7 Reservation of Right of Withdrawal
(1) The Seller is entitled to withdrawal from the contract if force majeure, strike or natural catastrophes or the failing, incorrect or untimely delivery by a preliminary supplier make delivery difficult or impossible and when this impediment is not the responsibility of the Seller or is only temporary in nature.
(2) The Seller is entitled to withdrawal from the contract if the Buyer has provided incorrect or incomplete information about details relevant to his credit worthiness.
§ 8 Warranty / Compensation for Damages / Liability
(1) The Buyer is required to inspect the goods for defects upon receipt.[nbsp] Obvious defects shall be promptly reported to the Seller, at the latest within 10 work days (Monday to Friday) following receipt of delivery; hidden defects shall be reported in writing within 7 work days after detection. Otherwise, the delivery shall be deemed accepted.
(2) The Buyer is required to give the Seller the opportunity to review the complaint; specifically, damaged goods and their packaging shall be made available to the Seller for inspection. On request by the Seller, the goods subject to complaint shall be sent free of freight to the Seller. If the claim of defects is justified, the Seller will reimburse the cheapest method of shipping; this does not apply if the goods are at a location other than the location of intended use.
(3) In the event that the item is defect, it is at the discretion of the Seller to decide whether subsequent fulfilment will be made in the form of removal of the defect or by delivery of a new, defect-free item.
(4) If subsequent fulfilment or replacement delivery by the Seller is not possible or is refused or is not complied with within a period specified by the Buyer or fails for other reasons for which the Seller is liable, the Buyer can choose to either withdraw from the contract or reduce the purchase price. Here, there is no mandatory provision of a deadline for cases where this is not required by law.
(5) Additional claims of the Buyer, particularly for compensation of damages in lieu of performance and[nbsp] in lieu of performance and for replacement of other direct or indirect damage – including concomitant or consequential damage, irrespective of legal ground – are excluded.
i. This is not applicable if the Seller has fraudulently concealed a legal or material defect or has provided a warranty for their absence or the condition of the goods;
ii. if the defect is a result of wilful intent or gross negligence on the part of the Seller, one of their legal representatives or vicarious agents or is a negligent breach of essential contractual obligations by the Seller or these persons; essential contractual obligations are understood as those obligations whose fulfilment is mandatory for the proper execution of the contract to be at all possible and the observance of which the contractual partners regularly rely upon;
iii. if a breach of duty on the part of the Seller or their legal representatives or vicarious agents led to bodily injury or damage to health;
iv. if there is mandatory liability according to the German Product Liability Act.
In the event of simple negligence, the duty of replacement shall be limited to the foreseeable level of damage which is typical for the contract.
(6) The regulations for the items above apply correspondingly for direct claims against the legal representative and vicarious agents of the Seller.
(7) The Buyer can demand contractual penalties (penalties, flat-rate damage compensation, etc.), to which the Buyer is subject from third parties – independent of other prerequisites –only as damage compensation from the Seller if this was expressly agreed in advance between the Buyer and the Seller prior to conclusion of the contract, or if there was previous notification in writing of the (potential threat of) contractual penalties between the Buyer and a third party.
(8) In all cases, the legal provisions for final delivery to an end customer (supplier recourse in compliance with §§ 478, 479 German Civil Code, BGB) remain hereby unaffected.
§ 9 Implementation of Preliminary Distributors
If in the case of a defect in the delivery item, it is a product that the Seller has obtained in whole or in part from a third party, the Seller is entitled to transfer its warranty rights for material defects against the preliminary supplier to the Buyer and to advise the (legal) action by the Buyer against the preliminary supplier. In this case, a claim can only be made against the Seller for the defectiveness of the item, when the claims against the preliminary supplier are not enforceable despite timely (legal) action or if the action in the individual case is not reasonable. This does not apply if,
i. the Seller has fraudulently concealed a legal or material defect or has provided a warranty for their absence or the condition of the goods;
ii. if the defect is a result of wilful intent or gross negligence on the part of the Seller, one of their legal representatives or vicarious agents of the Seller;
iii. if a breach of duty on the part of the Seller or their legal representatives or vicarious agents led to bodily injury or damage to health;
iv. if there is mandatory liability according to the German Product Liability Act;
v. a case pursuant to § 478 German Civil Code/BGB (supplier recourse) exists.
§ 10 Limitation
(1) All claims of the Buyer, independent of any legal grounds, are subject to the statute of limitations – to the extent permitted by law – after 12 months subsequent to delivery of the goods. In the event that acceptance is agreed upon, this period commences with acceptance.
(2) This does not apply for damage claims pursuant to § 8 (5).
(3) The period of limitation in the case of supplier recourse pursuant to §§ 478, 479 German Civil Code/BGB remains hereby unaffected.
§ 11 Copyright / Nondisclosure
The Seller retains any property rights, copyrights and rights of use for all offers and cost proposals the Seller has issued, drawings, illustrations, calculations, brochures and other documents provided by the Seller to the Buyer. The Buyer may not give access of these items as such or in content to a third party, release these in a publication or otherwise, or duplicate these.
§ 12 Data Protection
In regard to the business relationship, the Seller will handle data received about the Buyer in compliance with the German Federal Data Protection Act, whether this data has been provided by the Buyer or by a third party.
§ 13 Place of Fulfilment / Place of Jurisdiction / Applicable Law / Miscellaneous
(1) Providing that no other agreements have been made, the place of business of the Seller is the Place of Fulfilment.
(2) Exclusive Place of Jurisdiction for all disputes pertaining to the supply relationship is
Harsefeld. The Seller is also entitled to sue the Buyer at his Place of Jurisdiction.
(3) The law of the Federal Republic of Germany shall be deemed here as agreed upon. The application of the CISG is excluded here.
(4) Should one of these Terms and Conditions or a part of one of these Terms and Conditions be or become invalid, the remaining Terms and Conditions or the part of the Terms and Conditions shall remain in effect.