Conditions Traders
General Terms and Conditions of Business for Traders
§ 1 Scope of Application
§ 2 Overture and Contract Conclusion
§ 3 Entrusted Documents
§ 4 Pricing and Payment
§ 5 Minimum Order Value
§ 6 Shipping Fees
§ 7 Returns
§ 8 Right to Summation and Retention
§ 9 Delivery Time
§ 10 Transport Risk
§ 11 Reservation of Proprietary Rights
§ 12 Warranty and Notice of Defects, Recourse and Factory Regression
§ 13 Liability
§ 14 Usage of Personal Information
§ 15 Miscellaneous
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General Terms and Conditions
§ 2 Overture and Contract Conclusion
(1) We may accept an order that is seen as an overture, according to § 145 German Civil Code, within two weeks.
(2) Drawings, pictures, measurements, weights and any other performance data are only unconditional if they are strictly agreed upon. The right to changes in colour, shape, construction and other product changes will be reserved during delivery, as long as this does not change the product considerably and complies with the customer in a reasonable manner.
(3) Contracts are finalized with a written Sales Acceptance Notice or by performance engagement.
§ 3 Entrusted Documents
We reserve all propriety and creator rights on any and all documents entrusted to the customer. This includes any and all calculations, drawings, etc. These documents may not be accessible by any unauthorized third party without our written consent. In the event that we do not accept the customers offer within the aforementioned time frame (see § 2), any and all entrusted documents are to be returned to us immediately.
§ 4 Pricing and Payment
(1) Our prices are quoted ex works, packaging excluded, in addition to the individual valid VAT amount, if no other terms have been set in writing. Package fees will be invoiced separately.
(2) The purchase price is to be remitted only to the account found on the back of this page, and/or other business papers and our internet site. A trade discount is not acceptable without a previous agreement set in writing.
(3) The purchase price is to be paid in full within ten days upon receipt of goods, unless other agreements have been made. Default interest will be charged 8% above the base lending rate per annum. The right to claim higher delay damage is reserved.
(4) The right to change prices resulting from changes in wages, material and marketing fees for the deliveries three months or more after contract conclusion is reserved, as long as these comply in a reasonable manner with all parties.
(5) Deliveries and services to and for international customers constitute an agreement that states; the customer will be held liable for any and all fees incurred in the assertion of our legal rights, judicially and extra judicially, that do not exceed legally tolerable limits.
§ 5 Minimum Order Value (does not apply to business end consumers)
Orders with a net merchandise value under 50, - Euro will be charged with a 10, - Euro processing fee.
§ 6 Shipping Fees
Our prices are quoted ex works, unless stated otherwise.
(1) Resellers (with reseller conditions) with a minimum net invoice of 500, - Euro will receive free shipping within Germany. Net invoice totals, delivered within Germany, that do not exceed 500, - Euro will be surcharged a fixed delivery rate of 10, - Euro (plus statutory VAT amount).
(2) Commercial end consumers (buying to regular end consumer terms) with a minimum total invoice (including VAT amount) of 200, - Euro will receive free shipping within Germany. Deliveries within Germany that do not exceed a total invoice of 200, - Euro (including VAT amount) will be surcharged a delivery fee of 6.90 Euro (including VAT amount).
This does not apply to items deemed with special delivery rates due to weight, size or property. Outside Germany, all deliveries are made ex works and are exempt to any free shipping rates. Shipping rates will be charged in accordance to our delivery fee index unless other agreement terms have been made. Expenses incurred for special shipping, as well as express or similar delivery, will continue to be charged in full.
§ 8 Right to Summation and Retention
The Right to Summation is granted to the customer only if counterclaims are legally binding by a court of law or undeniable. The customers Right of Retention may only be practised if the claims result from the same contract relations.
§ 9 Delivery Time
(1) The beginning of our said delivery time is liable to the timely and proper fulfilment of the customer’s responsibilities. We reserve the right to defence of non-performance of contract.
(2) Acts of God, especially strikes, lock out, war, lack of, or, insufficient raw materials and energy, disruptions in operations and traffic for which we shall be liable only in case of intent or gross negligence as well as especially hindering sovereign enactments will suspend the contract obligations of all parties for the duration of the interruption and the breadth of its effects. Suspension will also be made if it is to be expected that the affected business will be rendered uneconomical upon implementation. This also applies if Acts of God befall our carriers, preventing further delivery options, or allowing only such options which present a hazardous risk.
(3) Delays in such cases that exceed a time period of eight weeks give both contract partners, in regard to the affected scope of benefits, the right to withdraw from the contract.
(4) Indemnity claims are excluded from Acts of God.
(5) In the event that the customer is in default of acceptance or otherwise breaks the obligation to co-operate, we will hold the customer liable for any resulting damage as well as any additional expenditures that arise hereof. The right to claim additional indemnities is reserved. If applicable, the risk of loss or deterioration by accident or force majeure of the merchandise lies with the customer as soon as the customer defaults acceptance or debtor.
(6) In the event that the customer does not accept the purchased merchandise within the given time frame, we hold the right to set a new time frame that complies with the customer. Upon expiration of this new time frame, whence the item is decreed otherwise, the customer shall be supplied within an appropriate period of grace.
(7) Our right to withdraw from the contract after setting a new period of grace and to claim compensation for loss suffered remains untouched.
(8) Within the bounds of compensation for loss suffered, we may charge 10% of the agreed price, without sales tax, for compensation without evidence, as long as there is no evidence of any, or, little damage done. We reserve the right to make individual claims in the event that the damage done is especially high, whence we will not charge a fixed tort rate, rather the actual loss will be claimed.
(9) In the event of a possible, unintentional or grossly negligent delivery delay on our part, we will be held liable with a fixed delivery tort rate of 3% of the value of goods to be delivered, yet with no more than 15% of the value of goods to be delivered.
(10) Other lawful pretensions and rights of the customer shall remain untouched.
§ 10 Transport Risk
(1) Risk concerning any consignment passes to the customer the moment the goods are dispatched. We are not liable for any loss or deterioration due to accident or force majeure. This applies regardless if the goods are sent from the place of execution or who must pay freight charges.
(2) If the customer does not state otherwise, the means of delivery will be chosen by us, to the best of our knowledge, with no accountability for the cheapest or quickest export.
§ 11 Reservation of Proprietary Rights
(1) We reserve all proprietary rights of the goods until these have been paid in full and any and all claims arising hereof have been settled. This applies for any and all future deliveries, even if we do not constantly and specifically invoke this notice. We hold the right to demand any and all merchandise is returned if the customer behaves in a manner which does not comply with the contract.
(2) The customer holds the responsibility to take utmost care of the goods, as long as these are not under his/her ownership. The customer must insure the items at replacement value against theft, fire or water damages. If any maintenance or inspections must be done, the customer must see these done in a timely manner at his/her own expense. Until ownership has been transferred to the customer, he/she must inform us immediately and in writing of any chattel mortgaging or any other third party interference. In the event that the third party is unable to compensate our loss for judicial and extra judicial costs, for complaints in accordance to §771 (code of German Civil Procedure), the customer will be held liable for any loss on our part.
(3) The customer is entitled to the resale of conditional goods in normal business dealings. The customer cedes the claims arising from the resale of conditional goods to us in the amount stated in the invoice grand total, including VAT amount. This cession is valid, regardless if the merchandise has been resold prior to or following processing. The customer remains entitled to collect claims, even after these have been assigned. The authority to collect claims ourselves remains untouched. We will not, however, collect claims as long as the customer fulfils his/her payment obligations resulting from collected proceeds, does not delay payments and/or especially does not petition bankruptcy or discontinues payment.
(4) Developing, processing and/or alteration of said goods from the customer are done on our behalf. In this case, the customer continues to pursue his/her expectant right on the remodelled item. If the merchandise is processed with other matters that do not belong to us, we will acquire co-ownership on the new item, in the relation, objective value of our sales item to the other processed items at the time of development. This applies also to blending, as long as the blending occurs in a manner which presents the customers item as a main essence. If this is the case, it is settled as such, that we will be granted proportional co-ownership and the customer will keep our sole or joint ownership in safe custody. To ensure protection for our claims against the customer, the customer will cede such claims that result in relation to conditional goods with property from a third party. We will accept such a cession at this time.
(5) Complying with customer requests, we are under obligation to release collateral owed to us, as long as said collateral has a value of more than 20% of the claim it insures.
(6) If payments that are in accordance with the contract are no longer made, we hold the right to make use of our right to withdraw from the contract and claim compensation for our loss suffered, without infringing any of our rights.
§ 12 Warranty and Notice of Defects, Recourse and Factory
(1) Warranty Rights of the customer require the latter to examine the consignment, in accordance with § 377 German Commercial Code, upon delivery and to notify us in writing of any defects, without delay, no later than 8 days after delivery. We must also be notified in writing of any defects, without delay, after the have been discovered. The written Notice of Defects must contain exact details to telling us what the defect is, where exactly it is and under which circumstances this defect was discovered or noticed.
(2) A defect excludes any errors made by damage, false usage and/or false annexation done by the customer. This also excludes falsities that are based upon Acts of God, such as lightning strikes and mistakes resulting from extensive use, the false usage of electric or mechanical parts, or debasement. Defects also exclude extraordinary mechanical, chemical or atmospheric influences as well as the use of inappropriate lubricating oils or motor fuels.
(3) The right to claim warranty is not valid, if reparations or changes to the item have been made from anyone else other than us or our carriers, unless the customer can verify that this is not the reason for a defect.
(4) The limitation period of warranty claims relating to the article of sale shall be 12 months from the time of delivery to the customer. Used merchandise, or that sold as such is completely exempt from this. The aforementioned conditions are not in command if the following laws are applicable: § 438, Para. 1, sec. 2 German Civil Code (Construction and Matters for Construction); § 479, Para. 1 German Civil Code (right of recourse); § 634a Para. 1 German Civil Code (defects or deficiencies in construction). Our approval must be had prior to returning any goods.
(5) In the event that the goods show defects at the time of risk passing, in spite of our diligence, the merchandise shall be repaired or substituted to the best of our knowledge, provided that a notice of defect has been placed within the grace period stated above. The customer must always grant us a reasonable time frame in which we are given the chance to supplement performance. The right to recourse remains untouched by the aforestated regulations.
(6) If supplementary performance cannot be made, the customer may implement his/her right to withdraw from the contract or decrease payment without infringing on any prior compensation claim rights.
(7) Warranty claims are not categorized as such by irrelevant variations of the agreed composition, irrelevant hindrances to usage, natural abrasion or erosion, or losses sustained after risk passing due to false or negligent treatment, extreme exposure, inappropriate resources, false construction or disassembly/mounting, unsuitable surroundings/premises or certain outside influences that are not in compliance to the contract. In the event that the customer or other third party implements faulty reparations or other changes to the merchandise, warranty claims will not be validated for this or the resulting defects.
(8) Customer claims to supplementary performance expenditures, especially transport, toll, material, and labour costs are not valid as long as the expenditures rise due to shipped goods being delivered belatedly to a place other than the customer’s main seat. Exceptions to this rule are on items, by which moving of goods implies intended use.
(9) The customer’s right to recourse is only valid as far as the customer and his /her recipients have not agreed upon any other mandatory statutory warranty claims conditions. The extent of customer warranty claims against the deliverer is deemed accordingly in paragraph 6.
§ 13 Liability
(1) We will be held liable for intent and gross negligence in accordance with legal regulations.
(2) Vicarious liability for grossly negligent damage is limited to typically predictable losses.
(3) We will only be held liable for simple negligence as far as this breaches imperative contract points and/or presents a considerable risk to life, body and health.
(4) Liability according to the Product Liability Act remains untouched.
(5) Warranty Claims lose validity after a 12 month period from delivery of goods, for whatever legal cause. Exemptions hereof are only in the event that a valid accusation can be made. This may be, due to gross negligence on our part, physical harm or health losses or a loss of customer’s life has occurred.
(6) Constructional processing of our goods by the customer or a third party appointed by the customer may only be done if these comply with all safety regulations and if our executive board has agreed to this in writing. To obtain our approval, you must provide us, upon request, with a modified item along with construction drawings. If the customer changes or modifies the product in any other way, such as endowment, composition or alters the package, as well as altering or removing our warning labels, he/she must have our written permission. Constructional modification and/or alteration as aforementioned or otherwise without our written permission that causes damage or loss to a third party, for which we may be held liable in external relations results in the customer committing to free us in internal relations from any and all liability claims made by the third party.
§ 14 Usage of Personal Data
We hold the right to save personal data that complies with legal regulations and to process this information internally.
§ 15 Miscellaneous
(1) The agreement and all legal relations for both parties shall be governed by Swiss law, without recourse to the UN Convention on Contracts for the International Sale of Goods (CISG). The language of all contracts and of all disputes (contractual language) is German).
(2) The place of jurisdiction and execution for any claims arising from the contract is Kreuzlingen, Switzerland, unless specified differently in the assignment confirmation. Place of execution for any and all contract commitments is the general place of jurisdiction and execution for our company. We reserve the right to also bring action against the customer in his/her general place of jurisdiction and execution.
(3) Any and all deals made to complete this agreement from both parties are set in writing in this contract.
(4) In the event that one or several of these terms of business are invalid wholly or in part, this shall not affect the validity of the remaining provisions.
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