Standard Terms and Conditions
§ 1 Application of the Standard Terms and Conditions
Any offer and/or delivery by the Seller shall be carried out exclusively on the basis of these Standard Terms and Conditions. The Standard Terms and Conditions shall also apply for all future business operations between the Seller and the Buyer, even if they are not expressly agreed upon again. The Standard Terms and Conditions shall at the latest be considered as accepted by the Buyer upon receipt of the delivered goods. Any conflicting confirmation by the Buyer referring to own terms and conditions, are hereby expressly objected. Any deviation to these Standard Terms and Conditions shall only be binding if expressly agreed in writing by the Seller.
§ 2 Offers, Orders and Conclusion of Contract
The Seller ́s offers are non-binding and subject to change. Any order or acceptance shall only become valid if the Seller confirms them in writing. The same shall apply to any changes, amendments or additional agreements. A confirmation by fax or e-mail shall be sufficient. The Seller ́s employees or agents shall have no authority to make additional oral agreements, representations or warrants concerning the goods which exceed a respective written agreement between the Seller and the Buyer.
§ 3 Prices
If not otherwise agreed in writing, the prices of the respective price list shall apply. The Seller reserves the right to change the prices of the price list at his discretion. The prices shall be in Euro currency. If not otherwise agreed in writing, the prices shall be ex works including the usual packaging and plus the applicable VAT.
§ 4 Delivery and Delivery Time
Delivery dates, which may be agreed as binding or non-binding, must be agreed in writing. Deliveries shall be FCA; the Incoterms 2020 shall apply. In case the Buyer is in default of acceptance or in breach of his duty to cooperate, the Seller shall be entitled to claim damages, including any additional expenses, resulting herefrom. In that case the Buyer shall bear the risk of accidental deterioration or perishing of the goods from the date of the default or breach of duty onward. In case the Seller is in default of delivery, the Buyer may claim a compensation for damage resulting from that default amounting to a 1⁄2 percent for each week of delay, but up to a maximum of 5% of the invoiced amount of the delayed delivery. Further claims for compensation shall be excluded, unless the Seller is in default of delivery due to gross negligence or wrongful intent.
If the Seller fails to perform or execute his contractual duties due to the occurrence of force majeure, such as but not limited to, act of god, declaration of mobilisation, war, terrorist acts, strike, lockout or decisions by the official authorities, which may obviate or totally cease the production, sales, transportation or distribution of the products, the Seller shall not be deemed as in breach of contract. In such case, the Seller shall be exempted from his contractual obligations for the time of the delay or impossibility of performance.
If the interruption period exceeds three months, the Buyer may rescind from the not yet executed parts of the agreement with immediate effect. As a result of this rescission, the Buyer shall not be entitled to any compensation due to the occurrence of force majeure.
§ 5 Passing of the Risk of Deterioration or Perishing
The risk of accidental deterioration or perishing of the goods shall pass to the Buyer with their delivery to the person who shall carry out the transport or at the point when the goods have been provided for collection.
§ 6 Retention of Title
The delivered goods shall remain the Sellers’s property (products subject to reservation of title) until the Buyer has performed all his payment obligations to the Seller. This shall include all future payment claims, even if the Seller does not expressly refer to it in every single case. The Buyer shall be entitled to resell the goods even before the acquisition of property; in this case the Buyer shall already now assign to the Seller all his future payment claims from the resale up to the amount invoiced by the Seller.
The Buyer shall be entitled to collect his receivables from the sale of the goods, even after assignment of these payment claims. The Sellers authorisation to do so shall remain unaffected by this. Yet the Seller shall not collect the assigned receivables while the Buyer discharges all payment obligations without default of payment, and has not filed for insolvency.
On the Buyer ́s demand the Seller shall release the securities he is entitled to, if these exceed the receivables to be secured by more than 10 %. The Buyer shall not be entitled to pledge the goods under retention of title or in any way charge them by way of security.
§ 7 Terms of Payment
The payment shall exclusively be made to one of the Seller ́s bank accounts specified on the invoices. If not agreed otherwise, the invoices are, without deduction, due within 30 days as of the invoice date.
Notwithstanding the Buyer ́s other provisions, the Seller shall be entitled to credit the Buyer ́s payments first to previous debts. If there have been accrued interests and/or expenses, the Seller shall be entitled to credit the Buyer ́s payment first to the expenses, then to the interests and last to the principal claim.
In case of such an allocation the Seller shall inform the Buyer respectively. Payment shall be considered as effected when the Seller has got the money at his disposal. In case of payment by cheque, payment shall be considered as effected when the cheque has been cashed.
In case of a default of payment the Seller shall be entitled to charge interests amounting to 5% above the ECB base rate mature on exceedance of the agreed term of payment plus VAT. The default interests shall be decreased if the Buyer proves lower damages.
In case the Seller receives knowledge about circumstances questioning the Buyer ́s creditworthiness, the Seller shall be entitled to demand immediate payment of all accumulated receivables. Then the Seller shall, at his discretion, be entitled to request payment in advance or a bail. The Buyer may only demand a set-off, a retention or a reduction if his counterclaims are undisputed or finally established by court. The Buyer may only exercise these rights if his counterclaims result from the same contractual relationship.
§ 8 Warranty /Limitation of Liability
The Seller warrants that the goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from delivery respectively from providing the goods for collection.
The Seller shall be under no liability in respect of any defect in the goods arising from any drawing, design or specification supplied by the Buyer. The Seller shall be under no liability in case the goods deviate insignificantly from the agreed quality or utility. Neither shall the Seller be under any liability if the goods are wrongly applied, stored or altered in any way.
In case of defects which occur despite all reasonable care and existed already at the passing of the risk of deterioration or perishing, the Seller shall remedy the defect or make a replacement delivery at his own expenses and discretion, given that the Buyer has notified the Seller about the defect in writing, latest within eight days from dis- covery of such defect, and has given proof of the defect as well as reasonable time to remedy or replace the defective goods. The Buyer may only send back defective products, if the Seller has given his prior written consent.
Claims for damages resulting from breach of duty prior to contract (“culpa in contrahendo”), default in performance of contract or tortuous liability are excluded if the Seller or his employees did not act deliberately or grossly negligent.
§ 9 General
These Standard Terms and Conditions as well as any contract concluded between the Seller an Buyer shall be governed by and construed in accordance with the laws of Germany, excluding CISG. The parties herby submit to the exclusive jurisdiction of the German courts in Mainz. In the event that one or several provisions of these Standard Terms and Conditions as well as of any contract concluded between the Seller an Buyer are invalid, the validity of the remaining provisions hereof shall remain unaffected.