Conditions of sale and delivery

 

The following terms and conditions shall apply to all our offers and sales, including all future offers and sales. Conflicting terms and conditions of the customer which we do not expressly acknowledge in writing are non-binding for us, even if we do not expressly object to them.
Our terms and conditions shall be deemed accepted at the very latest upon acceptance of delivery or partial delivery.

1. Our offers are always subject to change
Agreements between the customer and us require our written confirmation. This also applies to collateral agreements or amendments of any kind. Our agents and representatives are not authorised to make binding statements on our behalf.

2.1 Unless expressly stated otherwise, our specifications regarding dimensions, weights, quality, performance and other properties of the goods offered are only approximate and non-binding. The same applies to the descriptions, figures and technical data in our brochures, price lists and other announcements.

2.2 We shall always be entitled to deviations within the scope of standard tolerances and practices, in particular, deviations in size, weight and quality in accordance with the relevant DIN standards. The word “approx.” before the indication of quantity entitles us to deliver up to 10 % more or less.

2.3 We are always entitled to make partial deliveries.

3.1 If circumstances arise on our premises, on the manufacturer’s premises or on a supplier’s premises through no fault of our own, which have the effect that the delivery of sold goods is impossible or substantially impeded (e.g. operational disruptions, governmental actions, strikes and lockouts as well as all cases of force majeure), we shall be released from our obligation to deliver for the duration of the impediment and its repercussions; we may also cancel the concluded contracts in whole or in part at our discretion. Default or compensation claims of the Buyer, irrespective of the legal basis, are excluded in these cases.

3.2

We always reserve the right to correct and timely self-delivery.

4.1 Delivery times and dates stated by us are always approximate and non-binding. They shall be postponed accordingly if and as long as all details of the transaction and its performance have not been settled, or if circumstances of the kind referred to in Sections 3.1 and 3.2 occur.

4.2 If we are in default with delivery, the Buyer may set us a reasonable period of grace by registered letter, which may not be less than four weeks. After the expiration of this grace period, the customer may withdraw from the contract insofar as the goods have not been notified as ready for dispatch by the expiration of this grace period. Default or compensation claims of the Buyer are excluded.

5.1 If the customer does not accept the goods, we may, at our discretion, either insist on the fulfilment of the contract, i.e. immediate payment of the purchase price, or withdraw from the contract after setting a grace period of two weeks, or demand damages for non-fulfilment. We shall be entitled to the same rights if the Buyer does not call off the goods in due time, in the absence of an agreement to do so at the latest two months after conclusion of the contract, but in any case immediately after the notification of readiness for dispatch, or if the Buyer does not issue an approximately similar call-off in the case of contracts with continuous delivery.

5.2 For the storage of goods which are not accepted or called off in accordance with the terms of the contract, we shall be entitled to charge the Buyer at least the standard commercial costs for storage and handling. The type and manner of storage – including outdoor storage – shall be at our discretion and shall not constitute any liability on our part.

6.1 The risk of unintentional loss or unintentional deterioration shall pass to the Buyer upon handover to the forwarding agent or carrier, at the latest however upon leaving the location or warehouse from which the delivery is made, even if franco, cif, fob or the like has been purchased. If the goods are ready for dispatch and if dispatch is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of notification of the readiness for dispatch.

6.2

We are entitled to freely select the type and method of dispatch and the dispatch route under exclusion of any liability.

6.3

For the interpretation of commercial clauses such as fob, cif, etc., the latest version of INCOTERMS shall apply unless otherwise stipulated in these provisions.

7.1 Our prices are net prices. All incidental and additional costs, such as insurance premiums, costs for special packaging and marking, for protective equipment and the like, as well as value added tax shall be borne by the Buyer.

7.2 Unless otherwise agreed, we shall charge the price applicable at our premises on the day of delivery.

7.3 Unless otherwise expressly agreed, payment shall be made in cash and without any discount within eight days of the invoice date.

7.4 We accept bills of exchange and cheques only on the basis of an express agreement with the value date on the date of crediting of the equivalent value and only as conditional payment.

7.5 Stamp duty, discount charges, collection charges and interest must always be paid immediately.

7.6 If payments of any kind whatsoever are not made when due, we may, without the need for a reminder, demand interest from the due date at a rate of 4 percent – however no less than 8 percent – above the respective bank rate of the German Federal Bank. Any further claims and/or rights remain unaffected.

7.7 Should the economic value ratio of the service and consideration change during the time between conclusion of the contract and delivery, or should the exchange rate of a currency in which we purchase goods of the type sold, or have purchased in a special case, to the Deutsche Mark change at our expense, we shall be entitled to withdraw from the order or the unfulfilled part of the order without compensation, unless the Buyer agrees to pay the then reasonable price. The same shall apply if the agreed purchase price is a legally approved or stipulated price, a quoted market price or a list price generally used by us and if these prices are increased.

7.8 The Buyer shall not be entitled to assert or offset rights of retention or reduction against our payment claims unless the counterclaims have been acknowledged by us or have been legally established by a court of law.

8.1 If the Buyer does not meet his payment obligations in whole or in part or does not do so punctually, or if bills of exchange or cheques are rejected, any deferral agreements and pre-performance obligations on our part shall immediately become invalid. We may then, at our discretion – notwithstanding our other rights and claims for damages – demand advance payment or security in respect of all contracts concluded with the Buyer, withdraw from such contracts in whole or in part, refuse performance thereof in whole or in part and claim damages for non-performance, or recover due deliveries. In addition, we may immediately assert all rights arising from the extended and expanded retention of title – hereinafter referred to as Clause 10 – and retrieve delivered goods to which the buyer hereby consents.

8.2 We shall be entitled to the same rights as described in Section 8.1 if, despite a warning, the Buyer ceases to make payments, if circumstances exist which are equivalent to a cessation of payments, if the economic circumstances change, or if the Buyer otherwise fails to fulfil, in whole or in part, any main or ancillary obligations for which he is responsible towards us.

9.1 Packaging which is included in the price will not be returned for credit. Returnable containers must be emptied by the Buyer immediately upon receipt and returned franco to our address or the agreed destination. Repair and cleaning costs for damaged and dirty returnable containers shall be borne by the Buyer, in which case the incoming inspection findings shall be decisive. For containers that are not returned immediately – whether through fault or without fault – we may demand a reasonable rental fee until the return. In the event that the return is impossible, we have the right, at our discretion, to demand a reimbursement or replacement with a corresponding number of equivalent containers. 9.2 If delivery is made in returnable containers belonging to a third party, the latter’s terms and conditions shall apply for charging the Buyer.

10.1 All delivered goods shall remain our property (goods subject to retention of title) until all our claims, irrespective of their legal basis, have been satisfied, particularly our outstanding accounts. This shall also apply if payments are made for specially designated claims.

10.2 The handling and processing of the goods subject to retention of title shall be carried out for us as the manufacturer under the terms of § 950 BGB without any obligation on our part. The processed goods shall be deemed to be goods subject to retention of title as defined in paragraph 1 of this clause.

10.3 The processing, combination or mixing of the goods subject to retention of title with other goods by the Buyer shall entitle us to co-ownership of the new article in the ratio of the invoice value of the goods subject to retention of title to the invoice value of the other goods used. If our ownership becomes void due to combination or mixing, the Buyer shall hereby transfer the ownership rights to which he is entitled to the new inventory or item to the extent of the invoice value of the goods subject to retention of title. He shall keep them for us free of charge. The resulting co-ownership rights shall be regarded as goods subject to retention of title as defined in paragraph 1 of this clause.

10.4 The Buyer may only sell the goods subject to retention of title in the ordinary course of business to his normal business contacts and only as long as he is not in default, provided that the claims from the resale are transferred to us in accordance with paragraphs 5 to 7. He shall not be entitled to any other dispositions of the reserved goods.

10.5 The Buyer’s claims arising from the resale of the goods subject to retention of title are hereby transferred to us in full. They serve as security to the same extent as the goods subject to retention of title.

10.6 If the goods subject to retention of title are sold by the Buyer together with other goods not supplied by us, the transfer of the claim from the resale shall only apply to the amount of our invoice value of the goods subject to retention of title sold in each case.

10.7 In the event of the sale of goods in which we have co-ownership shares in accordance with para. 3, the assignment of the accounts receivable shall apply in the amount of the value of these co-ownership shares.

10.8 If the goods subject to retention of title are used by the Buyer to fulfil a contract for work and/or materials, paragraphs 5 and 7 shall apply accordingly to the claims arising from this contract.

10.9 The Buyer is entitled to collect accounts receivable arising from the resale until we revoke this right. Generally, we shall make use of the right of revocation only in accordance with Section 9 (1) and (2) of these General Terms and Conditions or if other important reasons exist. Under no circumstances shall the Buyer be entitled to assign the accounts receivable or make other dispositions. At our request, he shall be obliged to inform his customers immediately of the assignment of credits to us – insofar as we do not do this ourselves – and to provide us with all information required for the collection as well as to allow inspection of his relevant documents.

10.10 If the value of the existing securities exceeds the secured accounts receivable by more than 10% in total, we shall be obliged to release securities at our discretion at the buyer’s request. The Buyer must notify us immediately of any distraints or other impediments by third parties.

10.11 If the retention of title or the assignment is not valid according to the law in the area where the goods are located, the security corresponding to the retention of title or the assignment in this area of law shall be deemed agreed. If the cooperation of the Buyer is required, he shall take all measures necessary to establish and maintain such rights.

11.1 Any defects in the delivery, including the lack of guaranteed specifications, must be reported to us in writing immediately upon receipt of the goods, at the latest within one week, and accompanied by appropriate documents and samples. Defects that cannot be discovered within this period even after careful inspection – which is mandatory on the part of the Buyer – must be reported immediately after discovery, but no later than 3 months after receipt of the goods.

11.2 Warranty claims of any kind are excluded if the goods have been resold in whole or in part or have been processed or used, even if the defect was discovered by the Buyer or could have been discovered by careful inspection. The same shall apply if the Buyer has inspected or accepted the goods before dispatch, or if he has expressly or actually waived an agreed inspection or acceptance.

11.3 Insofar as warranty claims are made in the correct form and period and – taking into account the aforementioned restrictions – are justified, we shall assign the warranty claims which we have in respect of our supplier to the Buyer. Alternatively, we may – always at our discretion – take back the defective goods and replace them with new ones or pay compensation in respect of the reduced value. Other or further rights and/or claims of the Buyer, irrespective of their legal basis, are excluded; in particular, we shall under no circumstances be liable for indirect or consequential damages. § 276 para. 2 BGB remains unaffected.

11.4 If an individual delivery is defective, the Buyer shall not be entitled to reject further deliveries or to complain about the entire delivery.

11.5 All claims for defects on behalf of the Buyer shall become statute-barred one month at the latest after our written repudiation of the notice of defect or the claims for defects, unless an earlier statute of limitations applies according to law or the contract.

11.6 All the above conditions shall also apply if goods other than those agreed upon have been delivered.

12.

Claims for damages by the Buyer arising from inability to perform, default, positive breach of contract, default at contract conclusion and tortious acts shall be excluded; this shall not apply if and to the extent that our executives or we are guilty of intent or negligence.

13.1 Place of performance for the delivery is the respective place of dispatch of the goods. Ebnat-Kappel shall be the place of performance for all other transactions.

13.2 The exclusive place of jurisdiction for disputes of any kind, including disputes over bills of exchange and cheques, shall be Ebnat-Kappel. However, we shall also be entitled to notify the Buyer of any legal action against the Buyer at any other place of jurisdiction at our discretion in accordance with the law.

13.3 The Swiss Code of Obligations shall apply. The Standardised Laws on the International Sale of Goods and on the Conclusion of International Sales Contracts do not apply.

14.1 If individual provisions of these terms of delivery or delivery transaction are or become invalid, or if the application of individual provisions is excluded by special contractual agreement, the validity of the remaining provisions shall not be affected. The ineffective provisions shall then be replaced by provisions which are legally possible and which come closest to the intended purpose.

14.2 The guideline of Clause 14.1 shall also apply, in particular if individual clauses of these terms and conditions of delivery violate provisions of the law regarding the regulation of the general terms and conditions. This law then takes precedence, provided that the clause in question can and will only be invoked by us under the restrictions which the law prescribes as mandatory.