§ 1 Preface – Scope of Application
(1) Our terms of sales are valid exclusively. We do not consider terms of customers which are against our sales terms or deviating from them, except we agreed expressively in written form to their validity. Our terms of sales are also valid if we deliver to the customer unconditionally although we know about terms of the customers which are against our terms of sales or which are deviating from them.
Our terms of sales are part of all contracts, which we conclude with our contract partner about our offered deliveries or performances.
(2) All agreements, which are concluded between us and the customer regarding realizing this contract, are noted here in written form in this contract.
(3) Our terms of sales are only valid against companies in the sense of §310 para. 1 Civil Code.
§ 2 Offer – documents of offer
(1) Our offers are not binding as far as they are not mentioned expressively as binding or as long as they do not include a special acceptance time limit. We can accept orders within 14 days after entry.
(2) Our statements about the delivery or performance (for example weight, measurements and mixing relations) are approximate medium values, except those values, which are required according to the Law of Food. They are not guaranteed characteristics, but descriptions or labelling of the delivery or performance. Deviations, like they are not avoidable despite all accurateness when manufacturing the goods and determining the values are excluded expressively.
(3) We reserve our property rights and copyright on figures, drawings, calculations and other documents. This is especially valid for those written documents, which are mentioned as confidential. The customer needs expressively our written confirmation before handing over to third persons. This means the customer may not disclose them, use them himself or copy them. If we ask for he has to hand them out to us. Copies must be destroyed as far as they are no more needed in the proper business development.
§ 3 Prices – terms of payment
(1) As far as nothing else is stated in the order confirmation our prices are valid ex works, inclusive standard packaging or in bulk. Extra packaging is invoiced separately.
We reserve the right to change our prices if there are cost decreases or cost increases especially because of changes in the area of salary or material price change after concluding the contract. If required we will prove these changes to the customer.
The final price orientated at the weight determined be the seller.
(2) The VAT is not included in our prices; it is noted on the invoice separately in official amount at the day of the invoice. The prices are in Euro plus tax, fees and other public charges as well as the tax for the export deliveries.
(3) Deducting cash discount required a special written agreement.
(4) As far as it is not written in the order confirmation the sales price must be paid net (without deduction) within 30 days after the date of the invoice. In case of a delay of payment the legal regulations are valid concerning the consequences.
(5) The customer only has charging rights if his demands are on a legal basis, undoubted and recognized by us. Also he has only the right of keeping good back as far as his demands base on the same contract relation.
§ 4 Delivery time
(1) The start of our mentioned delivery time required the clearing of all technical questions.
(2) Keeping our obligation of delivery required a fulfillment of the obligation of the customer in time and correct manner. Pleading an unfulfilled contract is possible.
(3) If the customer is in default of acceptance or is he guilty hurting other obligation to cooperate, then we have the right to ask for compensation of the damage including the extra expenses. Further demands are possible.
(4) As far as the requirements pf para (3) exists the danger of the accidental perishing or the accidental worsening of the purchased items goes at the time to the customer when the default of acceptance or default of guilty happened.
(5) We are liable after the legal regulations, as far as the based sales contract is a firm deal in the sense of §286 para 2 nr. 4 Civil Coder of §376 Commercial Code. We are also liable after the legal regulations as far as the customer has the right that his interest at the fulfillment of the contract was not considered because of our fault at the delay of delivery.
(6) Further we are liable after the legal regulations as far as the delay of delivery is caused by our default on contract which was deliberately or through gross negligence; the fault of our representatives or assistants is charge to us. As far as the delay in delivery is not cause by our default on contract, our damage compensation is limited to the typical presumable damage that happens.
(7) We are also liable after the legal regulations as far as our responsible delay of delivery is caused by our major default on contract; in this case the damage liability is however limited to the typical presumable damage that happens.
§ 5 Transfer of danger – place of fulfillment
(1) Place of fulfillment for an obligation of the contract is 74572 Blaufelden-Wiesenbach, as far as nothing else is agreed upon.
(2) The delivery or rather the type of sending and the packaging are submitted to our mandatory discretion. The reacceptance and reimbursement of reusable transport container is done by proper return.
The danger is transferred to the customer at the latest when the delivered goods leave the warehouse or the delivering plant. This is also valid when part deliveries are done and / or when we care for the delivery costs. Is the delivery or disposal delayed because of a circumstance caused by the customer, the danger is transferred to the customer on the day when the delivered goods are ready for delivery and when we announced that to the customer.
The delivery “free to delivery address” means the delivery without loading under the condition of a arrival street with can be driven with a heavy truck.
(3) The customer has to charge the transport company or supplier within the presumed time limits for damages. Concluding transport insurances or other insurances is up to the customer. As far as the customer wishes we will cover the delivery with transport insurance; the causing costs are carried by the customer.
§ 6 Liabilities of defects
(1) Claims of defects of the customers require that he fulfilled the terms of his examinations and reproves which are necessary after §377 Commercial Code.
(2) As far as there is a defect of the purchased items we have the right of the choice of a fulfillment afterwards in form of a correction of the defect or delivery of goods without defect. In the case of a correction of the defect we only carry the efforts until the height of the sales price.
(3) Does the fulfillment afterwards fail then the customer has the right to claim a cancellation or reduction.
(4) We are liable after the legal determinations, as far as the customer claims damage compensation which are caused by intention or gross negligence, including the intention or gross negligence of our representatives or assistances. As far as we are not in charge of a violation of the contract the damage compensation if limited to the predictable, typical damage that happens.
(5) We are liable after the legal determinations as far as we are guilty of a main violation of the contract; in this case however the damage compensation is limited to the predictable, typical damage that happens.
(6) The liability because of the guilt of damaging life, body or health is not touched; this is also valid for imperative liability after the product liability law.
(7) As far as there are no other regulations above the liability is excluded.
The end of the expiry date at the customer after the transfer of danger does not give the right to the customer to claim a fulfillment afterwards, a cancellation, reduction or damage compensation, except there are agreements in a separate contract about different point.
(8) The limitation period of defect claims is 12 months, counted from the transfer of danger.
(9) The limitation period in the case of a delivery regress after §§478, 479 Civil Code is not touched.
§ 7 Joint liability
(1) A further liability of damage compensation, than designed in §6, is excluded- without considering the nature of right of the claim which had been made valid.
This is especially valid for claims of damage compensation when concluded the contract, which are caused by other breach of obligations or tort claims on compensation of item damages according to §823 Civil Code.
(2) The limitation after para. (1) is also valid, as far as the customer demands a replacement of useless efforts instead of damage compensation, instead of the performance.
(3) As far as the damage compensation against us is excluded or limited, this is also valid regarding the personal liability of damage compensation of our employees, worker, staff members, representatives and assistances.
§ 8 Security of reservation of property rights
(1) We reserve the property at the sold items until the full payments from the business connection with the customer. If the customer shows behavior against the contract, especially a delay of payment, then we have the right to take back the sold items. When taking the sold items back the contract is cancelled. After taking back the sold items we have the right to use them, the use revenues is calculated onto the payables of the customers - minus corresponding use costs.
(2) The customer has the obligation to treat the purchased items with care; he has especially the obligation to insure them at his own costs against fire, water and theft damage at the amount of the new value.
(3) At the garnishment or intervention of a third person the customer has to inform us immediately in written form, so that we can claim according to §771 Civil Process Order. As far as the third person is not able to refund us the juridical and non-juridical costs of a claim according to §771 Civil Process Order, the customer is liable for the caused damage.
(4) The customer is valid to sell the purchased items in proper business; he transfers however already now all demands in the final amount of our demands invoice (including VAT), which grown to him from selling against his staff members or third persons and this independent of the fact, if the sold item was sold before or after processing. The customer has also the right of this demand after this transfer.
Our own right of this demand is not touched by that. However we have the obligation, not to demand this as long as the customer does his payment obligations from the received revenues, as long as he is not getting in payment delay and as far as he has not applied for an insolvency proceeding or termination of payment. IF this is the case then we can demand that the customer gives us information about the transferred demands and their debtors, all information to get these demands, the necessary documents and that he informs the debtors (third persons) about the transfer.
(5) The processing or change of the purchased items by the customer is always done for us. Are the purchased items processed with other items, which do not belong to us, then we also get the property of the new item in relation to the value of the sold item (final value of the invoice, including VAT) to the other processed items at the time of processing. For the item created by processing the same is valid as for the item delivered under conditional acceptance.
(6) Is the sold item mixed inseparably with other items which do not belong to us, then we also get the property at the new item in relation of the value of the sold item (final value of the invoice, inclusive VAT) to the other mixed items at the time of mixing. Is the mixing done in a way that the item of the customer is the main item, then the agreement is valid that the customer transfers the part of property to us. The customer stores the created item owned by him alone then or the item owned also by us.
(7) The customer also transfers to us the demands for securing our demands against him, which rise from the mixing of the purchased item with an area of a third person.
(8) We have the obligation to release our securities if the customer asks for them as the realizable value of our security which are more than 10% beyond the demands, which must be secured; we have the choice of the released securities.
§9 Data protection
(1) We have the right to save process and transfer data of the customer to realize the business relationship.
(2) If we perform something before handling the orders, we have the right to get information about solvency at the information offices because of our justified interest, as far as the value of protection of interest of the customer are not higher. To get information about solvency it might be necessary to know the name and birth date as well as the address of the customer. His solvency can be calculated by using the address of the customer. The customer can always ask for information about our saved data.
§ 10 Court of jurisdiction – choice of law
(1) As far as the customer is a businessman the court of jurisdiction is the business site Elmira (Ontario, Canada). However we also have the right to claim against the customer at the place where he lives.
(2) The law of the Federal Republic of Germany is valid; the validity of the UN-Sales rights is excluded.
§ 11 Severability clause
If one regulation is void or becomes void, then the other regulations are not touched by it.