GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF ABP-BEYERLE GMBH
Status: September 2008
1. Scope of application
These General Terms and Conditions of Sale and Delivery apply to all our offers and contracts for deliveries and services, even if no explicit reference is made to them later in the course of further business relations. The following terms and conditions shall only apply to consumers insofar as consumer protection regulations do not conflict with them. In such a case, the statutory provisions shall apply to consumers. Deviating agreements or the customer's own terms and conditions shall only be binding if expressly confirmed by us in writing. The retention of title in clause 10 is not restricted in any case.
2.1. the basis is the current price list. The prices are per metre or piece plus the VAT applicable on the day of delivery. Deliveries are made exclusively in packaging units.
2.2. the agreed price shall always be payable. If the price has increased at the time the service is provided due to a change in the market price or an increase in the fees charged by third parties involved in the provision of the service, the increased price shall apply. If this is 20% or more above the agreed price, the customer has the right to withdraw from the contract. This right must be asserted immediately after notification of the increased price. Further claims are excluded.
2.3. freight and packaging costs shall be charged additionally to all customers. Delivery shall be carriage forward at the recipient's expense, whereby the cheapest method of dispatch shall be selected for orders not subject to a fixed delivery date.
3. Dimensions and weights
Dimensions and weights are subject to minor deviations due to technical reasons.
Offers are accepted exclusively by means of our written order confirmation. Verbal agreements are non-binding. We are bound to our offer for a fortnight from the date of receipt. In the case of call-off orders, an acceptance period of twelve months from the date of the order confirmation shall apply unless otherwise agreed. If acceptance has not taken place by this time, we shall be entitled to demand advance payment of the purchase price from the customer and to organise the deliveries at our discretion. The alternative option to withdraw from the contract in accordance with § 326 BGB or to demand compensation for non-fulfilment remains unaffected by this.
5. Delivery periods, partial deliveries, delivery quantities for special parts
Delivery dates or delivery periods shall apply in accordance with the order confirmations. They shall be deemed to have been met if the goods leave our works on the agreed date or on the date on which the deadline expires. The delivery period begins on the date of the order confirmation. If the customer is obliged to co-operate, the period shall not begin to run until the customer has fulfilled this obligation. We are also entitled to make partial deliveries to a reasonable extent. Compensation for culpably caused delays in delivery is excluded. This applies in particular to unforeseen operational disruptions, disruptions to transport routes, shortages of production materials and energy, strikes and/or lockouts. If the delivery dates or deadlines are exceeded by more than two weeks as a result, both parties shall be entitled to withdraw from the contract by written declaration. Otherwise, liability is limited to intent and gross negligence. In the case of private consumers, the exclusion of liability only applies to slight negligence. Insofar as the assertion of the customer's rights requires the setting of a reasonable period of grace, this shall be at least two weeks. In the case of customised parts, deviations in quantity and weight of up to 10% of the order quantity are permitted.
6. Transport risk
All deliveries are made at the customer's risk as soon as the goods are handed over to the forwarding agent, the carrier or any other person or organisation designated to carry out the shipment. This also applies if the goods are dispatched in our company's own vehicles. Dispatch of the goods within our company location shall also be deemed to be a sale by despatch under the aforementioned conditions.
7. Notification of defects, warranty, breach of duty, limitation period
Obvious defects must be reported immediately upon receipt of the goods. In the case of hidden defects, the deadline is six months from receipt of the goods. In both cases, the complaint must be made in writing. Defectiveness of a part does not entitle the customer to complain about the entire delivery. Defective goods will be replaced upon return or, if reasonable for the customer, especially in terms of time, repaired. The customer shall only be entitled to demand a reduction in payment or cancellation of the contract after two unsuccessful attempts to rectify the defect or impossibility of replacement delivery.
7.2. breaches of duty
Our liability for contractual breaches of duty and for tort is limited to intent and gross negligence and to compensation for typically occurring damage. This does not apply to injury to life, body and health of the customer, claims for breach of cardinal obligations and compensation for damage caused by delay (§ 286 BGB). In this respect, we shall be liable for any degree of fault. As far as damages are concerned which do not result from injury to life, body and health of the customer, we are only liable for the typically occurring damage.
7.3. limitation period
The warranty period is one year, beginning with delivery of the goods or manufacture of the work. The customer's claims for damages due to a defect shall become time-barred one year after delivery of the goods or manufacture of the work. This shall not apply if we have acted with gross negligence or in the event of injury to life, limb or health. Insofar as liability for damages that are not based on injury to life, limb or health of the customer is not excluded for slight negligence, such claims shall become time-barred within one year, starting from the date on which the claim arises.
8. Terms of payment
The invoice amounts are due immediately after invoicing and must be paid within 30 days of delivery at the latest. After expiry of the aforementioned period, the customer shall be in default of payment. A discount of 2% shall be granted for payment within ten days of the invoice date. The latter shall not apply to payments by bill of exchange and/or cheque. In the event of default, interest of 8 percentage points above the respective base interest rate shall be due without proof in the case of entrepreneurs and 5 percentage points above the respective base interest rate in the case of consumers. A lump sum of EUR 2.50 shall be charged for each reminder. In the event of non-compliance with payment terms, in particular after agreed payment by instalments, all claims shall become due immediately. The same applies to cheque and bill protests, insolvency applications and other circumstances that indicate a deterioration in the customer's assets. The above interest regulation shall apply from the time of default. Cheques and bills of exchange are only accepted on account of performance, bills of exchange only after prior agreement and without guarantee for correct presentation and protest. Discount and bill charges shall be borne by the customer and are payable immediately.
9. Retention of title
9.1. in the case of contracts with consumers, we reserve title to the goods until the purchase price has been paid in full.
9.2. if the customer is an entrepreneur, we reserve title to the goods until all claims against the customer arising from the business relationship have been settled, even if the specific goods have already been paid for.
9.3. if the customer is an entrepreneur, he hereby assigns to us as security all claims arising from the aforementioned transactions and other claims against his customers with all ancillary costs in the event of resale/processing of the reserved goods until all our claims have been fulfilled. In the event of processing, transformation or combination with another item, we shall acquire direct ownership of the manufactured item in the ratio of the reserved goods to the value of the new item at the time of processing and transformation. Upon request, the customer is obliged to name the third-party debtors and inform them of the assignment. The customer's right to resell or process the goods in the normal course of business shall expire upon suspension of payments, application for or opening of insolvency proceedings or insolvency plan proceedings.
9.4. in the event of seizure by third parties, in particular seizure of the reserved goods, the customer must inform us immediately, handing over the documents necessary for intervention; this also applies to impairments of any other kind. Irrespective of this, the customer must inform the third party in advance of the existing rights to the goods. If the customer is an entrepreneur, he shall bear all costs for the replacement of the goods as well as any intervention, insofar as the third party is not in a position to reimburse these. 5.
9.5. if the value of the security for our claims against the customer exceeds our claim by more than 20 %, we shall, at the customer's request and at our discretion, release securities to which we are entitled to a corresponding extent.
10. Samples and drawings, patents
The supplier reserves the right of ownership and copyright to illustrations, drawings, sketches, other documents and samples. The documents must be returned immediately upon request and may not be passed on to third parties without the supplier's consent. Samples must be returned within two months, otherwise the supplier is entitled to invoice them. Customised samples shall only be supplied against invoice.
11. Product liability
If the delivered goods were not produced by the seller himself, all claims relating to product liability will be passed on to the producer. We are happy to mediate between both parties in such cases.
12. Data protection
The customer agrees that his personal data may be processed by us to the extent required by the contractual relationship.
13. Place of fulfilment, place of jurisdiction
If the purchaser is a registered trader, a legal entity under public law or a special fund under public law, it is agreed that the place of fulfilment and place of jurisdiction for all disputes arising between the parties from the contractual relationship is the headquarters of ABP-Beyerle GmbH.
14. Legal validity
Should a provision of these terms and conditions or a provision within the framework of other agreements be or become invalid, this shall not affect the validity of the other provisions or agreements. In place of the invalid provisions or agreements, appropriate provisions that come closest to the purpose of the contract shall be deemed to have been agreed. The same shall apply if a loophole requiring supplementation becomes apparent.
15. Choice of law
The law of the Federal Republic of Germany shall apply exclusively to the legal relationship between us and our customers. This does not apply if special consumer protection regulations in the customer's home country (permanent residence) are more favourable (Art. 29 EGBGB). The application of the UN Convention on Contracts for the International Sale of Goods is excluded.