General conditions of delivery and payment (GCD)

 

§ 1 Area of applicability

1. The vendor‘s deliveries, services and quotes are supplied exclusively on the basis of the following “General conditions of delivery and payment” (GCD). These cancel out any deviating conditions, especially purchasing conditions of the buyer.

2. If the buyer did not receive the GCD together with the quote or on another occasion, they still apply within the context of ongoing business relations between business partners, if the buyer knows or must know them from an earlier business transaction and even if the vendor does not expressly refer to their applicability in individual cases.

 

§ 2 Quotes and concluding contracts

1. The vendor‘s quotes are subject to change without notice and non-binding. They merely respond to requests to present a quote. Quote statements and all orders from the buyer require confirmation in written or text form from the vendor to be legally binding. The performance of the order on schedule is considered to be an acceptance of the order. The invoice is then valid as the order confirmation.

2. Details given in brochures, advertising catalogues, order forms and similar declarations of a promotional nature, especially the drawings, photos, dimensions, weights or other data presented in them, are only binding when this is expressly agreed in writing.

3. Agreements with agents must be confirmed in writing to be valid.

4. If confirmation letters with different terms from the parties overlap, the vendor‘s conditions apply.

 

§ 3 Delivery and performance times

1. Delivery dates or deadlines that can be agreed upon in a binding or non-binding way require the written or text form to be valid. Partial deliveries in reasonable quantities are permissable.
2. The delivery terms are EXW.
3. If delivery or performance of services is delayed for reasons not the fault of the vendor according to No. 3, paragraph 2 of these conditions, the delivery or service performance deadline is extended – also in the case of bindingly agreed deadlines and dates and within the delay period – by the time in which the vendor cannot perform the service plus a reasonable additional time. In these cases, the vendor is entitled to completely or partly pull out of the contract with regard to the part not fulfilled. The buyer cannot demand compensation for any losses that result from the extension of the delivery time or the release of the vendor from the contract.

• The vendor is not responsible for events that occur due to circumstances beyond his control. These include not only force majeure, but also in particular strikes, lock-outs, mobilisation, official orders, delays in operations that are not his responsibility This also applies when these events occur at the vendor‘s suppliers or their sub-contractors.
• The vendor can only invoke the rights from paragraph 1 when he has informed the buyer about the obstacle to performance immediately after it occurs.
• If the obstacle to delivery or service performance exists for longer than three months, the buyer is entitled, after setting a reasonable additional deadline, to withdraw from the part of the contract which has not yet been fulfilled. On demand by the vendor, the buyer is obliged to declare within a reasonable time whether he still insists on delivery or whether he wishes to withdraw from the contract due to the delay.

4.  If the vendor fails to comply with the delivery date or service performance deadline for reasons other than those named in 3, No. 3, the buyer can invoke the rights resulting from this only after a reasonable additional period of at least 14 days.

5. The vendor is liable with regard to prompt delivery only for his own negligence and that of his agents. He is not responsible for the negligence of his suppliers, as they are not his agents. However, the vendor is obliged on request to transfer any claims that he has against his suppliers to the buyer.

6. If the buyer does not accept the goods ordered on the agreed delivery date, or if he refuses to receive the goods, he is obliged to compensate the vendor. The compensation amounts to 25% of the net sales value of the goods. The buyer bears the burden of proving a lesser loss.

§ 4 Transfer of risk

The payment risk is transferred to the buyer with the result that he is obliged to pay the purchase price as soon as the goods have been transferred to the person performing the transport or when the goods have left the vendor‘s warehouse for the purpose of dispatch. If shipment becomes impossible without any negligence by the vendor, the risk passes to the buyer when the readiness of the goods for shipping is announced.

 

§ 5 Payment

1. The invoices from the vendor are payable eight days after issue minus 3% discount or 30 days after issue without discount.

2. The vendor is entitled, despite any deviating terms of the buyer, to initially offset payments against the buyer‘s previous The buyer will be informed of this. The vendor may offset payments initially against costs, then against interest and then against the main debt.

3. The payment only counts as made when the vendor has unrestricted access to the amount. Bills of exchange and cheques are received on account of performance, and performance only comes into effect after they are cashed.

4. In case of material defects, the buyer may only hold back payments to an extent that corresponds with the impaired performance. If this is disputed, an expert appointed by the Chamber of Commerce at the vendor‘s location decides on this extent. The costs for the intervention by the expert are borne equally by the buyer and the vendor.

 

§ 6 Liability for faults

1. The vendor provides a warranty that the products sold are free of material defects.
2. If the vendor‘s installation and assembly instructions are not followed, changes are made to the products, parts are replaced or consumption materials used that do not meet the original specifications, all liability for material defects is excluded, unless the buyer can prove that it is not the case that one of these circumstances caused the defect. The buyer promises to pass on the vendor‘s installation instructions in full and unchanged to other customers, especially to the consumer who is the final customer.
3. The buyer must immediately check the goods received to ascertain the correct quantity and Applicable here are §§ 377, 378 German Commercial Code, with the provision that the buyer must notify the vendor in writing and in detail of any faults within 10 days after receipt of the goods at the place of destination. If the buyer finds a material defect of the goods, he may not utilise them, i.e. they may not be divided up, sold on or further processed, until agreement has been reached on how the claim will be settled.
4. In the case of justified complaints, the vendor is entitled to decide on how to retrospectively fulfil the obligations (replacement delivery, repair), taking into account the nature of the material defect and the justified interests of the buyer. The buyer must allow the vendor a reasonable period of at least 14 days in which to retrospectively fulfil the obligations. If the vendor fails to fulfil his obligations, the buyer is entitled to assert the legal warranty rights.
5. The buyer must inform the vendor in writing without delay of any warranty case notified to him. This information must include the name and address of the consumer, the place at which the material supplied by the vendor is located, an exact description of the fault complained about as well as the time of the transfer of the material to the customer.
6. Warranty claims against the vendor are only permitted by the direct buyer and are not transferable.
7. Due to different climatic conditions, the vendor is not liable for the condition of products coated with melamine resin when they are used outside of Germany, unless the vendor was informed in writing beforehand of the intended use and the country in which the product was to be used and the vendor confirmed the suitability of the material in writing.

§8 applies for compensation claims.

 

§ 7 Reservation of ownership

1. Up to fulfilment of all demands (including all demands from open accounts) owed to the vendor by the buyer on legal grounds due to the business transaction, the following securities are granted to the vendor which he will release on demand and at his discretion when and in as far as their value permanently exceeds the total demands of the vendor from the business transaction by more than 20%.

2. The goods remain the property of the vendor. Processing or conversion are always undertaken for the vendor as the manufacturer, but without any obligations on his If the ownership of the vendor is cancelled out by incorporation, it is already agreed that a proportional value (invoice value) of the buyer‘s ownership of the common object is transferred to the vendor. The buyer holds the (jointly owned) property of the vendor at no charge. Goods to which the vendor has joint ownership are in the following called conditional commodities.

3. The buyer is entitled to process the conditional commodities in proper business transactions and to sell them as long as he is not in arrears. Pledging or assignment as security are not permitted. As a precaution, the buyer already transfers the demands that result from selling on or from any other legal transaction relating to the conditional commodities (including all balance demands from the current account) to the vendor in The vendor authorises him, subject to retraction, to obtain in his own name the payments transferred to the vendor on the vendor‘s account. This direct debit authorisation can only be withdrawn when the buyer does not correctly fulfil his payment obligations.

4. If third parties gain access to the conditional commodities, especially in the form of orders of attachment, the buyer will point out the ownership of the vendor and inform him immediately so that the vendor can enforce his ownership If the third party is not in a position to refund the vendor the court or out-of-court costs connected with this, the buyer is liable for them.

5. If the buyer violates the contract – in particular by defaulting on payment – the vendor is entitled to repossess the conditional commodities or if necessary to demand transfer of the buyer‘s rights to recover possession from third parties. The repossession or attachment of the conditional commodities by the vendor do not represent a withdrawal from the contract.

 

§ 8 Liability limitation

1. Compensation and repayment of expenses claims of the buyer (in the following called compensation claims), for whatever legal reason, especially because of violation of obligations from a debt relationship and non-permitted action, are ruled out. This does not apply in cases of the transfer of a warranty or a procurement risk. In addition it does not apply as far as legal provisions absolutely require liability, especially according to the product liability law, in cases of gross negligence, risk to life, personal injury or risk to health as well as the violation of major contractual obligations. However, compensation claims for the violation of major contractual obligations are limited to losses that are typical for the contract and foreseeable, in as far as there is no gross negligence or liability due to risk to life, personal injury or risk to health. This does not change the burden of proof to the disadvantage of the buyer.

2. This provision applies correspondingly to the buyer.

 

§ 9 International terms

All disputes will be decided according to the substantive law of the Federal Republic of Germany. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11 April 1980 is ruled out.

 

§ 10 Place of performance, jurisdiction and partial invalidity

1. The place of performance and exclusive place of jurisdiction for all disputes that may arise between the parties is Rüthen.

2. Should any term of the GCD or a term of any other agreements be or become invalid, this does not affect the validity of all other terms of the agreements.

3. We reserve the right to make technical changes and assume no responsibility for errors.

 

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