Conditions
générales de vente
§
1 - Formation of the agreement
1.
The present and the follow-up business transactions realized with
the customer shall be exclusively based on the present Terms and
Conditions. Any differing Terms and Conditions of the customer shall
not be valid, unless they have been individually agreed upon. Any
differing Terms and Conditions of purchase of the customer shall
not be valid even if they are contained in a confirmation letter
of the purchaser following our order confirmation and we do not
object to it. Our silence shall mean refusal. Our Terms and Conditions
shall be considered as accepted at the latest upon the receipt of
the goods by the customer, in particular in case the order was placed
by telephone. Any differing stipulations individually agreed upon
need to be done in writing.
2.
Delivery contracts shall be entered into by our written order confirmation
following a written order or delivering the goods. Any oral, in
particular any additional agreements made by telephone, as well
as any agreements concerning the execution of the order, shall require
our separate written confirmation in order to be valid.
3.
The documents belonging to the offer such as illustrations, drawings,
weights and dimensions shall be only approximations, unless they
have been expressly qualified as binding. Especially as far as dimensions
of wood as a natural product are concerned, it is agreed upon that
even exactly indicated dimensions are subject to the usual tolerances
and variations resulting from the quality of wood as a natural product.
We reserve the right of ownership and the copyright of cost estimates,
drawings and any other documents; they must not be made available
to third parties.
§
2 - Delivery
1.
The scope of delivery shall be determined by our written confirmation
of order.
2. Unless the contract item is considerably modified and if the
customer can be expected to accept the modifications, we reserve
the right to carry out, during the term of delivery, changes of
the construction or of the form resulting from technical improvements
or prescriptions of the legislator.
3. In case we receive subsequently indications of the customer's
irregular payment transactions, of the filing for or the opening
of a moratorium or insolvency proceedings or of any other deterioration
of his economic situation, we shall be entitled to carry out the
delivery only against the payment of the purchase price in advance
or against cash on delivery.
4. In case the receipt of the goods is refused (also in case they
are delivered against cash on delivery), any transport and postage
charges as well as any additional charges shall be borne by the
customer. Costs of storage and dispatching of ready shipments shall
be invoiced at a general rate of 0.5 % of the value for each commenced
month in case the customer delays the receipt. The customer shall
be free to give evidence of the fact that no damage incurred or
only to an extent smaller than the aforementioned lumpsum. We shall
be free to give evidence of the fact that the damage exceeds the
above mentiond lumpsum.
5. The scope of delivery and the contract items may result - beside
paragraph 1 - from additional specifications to the extent they
became a subject matter of the contractual agreement.
6. We reserve the right to provide a performance of equivalent quality
and price. We reserve as well the right not to provide the promised
performance in case of its non-availability.
§
3 - Delivery time and receipt
1. Any delivery times shall be non-binding. To the extent we are
correctly and timely supplied, however, we shall observe the delivery
times as far as possible.
In the event of problems as to the availability of the goods or
as to their timely availability, we shall be obliged to notify the
customer immediately. In case of a delay exceeding six weeks, both
contracting parties shall be entitled to withdraw from the agreement
by notifying the other party in writing. In this case, performances
that have already been granted have to be reimbursed. There shall
be no further claims, in particular no claims for damages. To the
extent the customer's order contains a fixed deadline for the delivery
and if we mentioned only an approximate date or a calendar week
in our order confirmation, this period shall be considered as the
agreed delivery date, unless the customer objects to that within
one week after receipt of our order confirmation.
2. The time of delivery shall begin with the dispatching of the
order confirmation, but not before the submission of the documents,
approvals, releases to be possibly provided by the customer and
not before the receipt of an agreed down payment.
3. The time of delivery shall be considered as complied with, if
until its expiration the readiness for shipment of the goods has
been notified or if the contract item left our premises.
4.
The delivery time shall be extended in case of measures in the frame
of labour disputes, in particular strikes and lock-outs and upon
the occurence of unanticipated hindrances beyond our control, such
as interruption of service, delays in the delivery of essential
materials, to the extent evidence can be given of such hindrances'
having a considerable impact on the delivery of the contract item.
The same shall apply in case these circumstances are affecting our
subcontractors. The delivery time shall be extended according to
the duration of such measures and hindrances. We shall not be answerable
for the aforementioned circumstances either in case they arise during
a delay that is already existing. In important cases, we shall notify
the customer of the beginning and the end of such hindrances as
soon as possible.
5.
The observance of the delivery time shall be based on the customer's
fulfilling his contractual obligations, also as far as other business
transactions concluded with us are concerned.
§
4 - Packaging and shipment
1. The shipment of the goods (and of any possible return shipments)
shall be realized at the customer's cost and risk, unless otherwise
provided. This shall apply as well to our delivering the goods with
our own vehicles. In each case, we shall be entitled to invoice
supply costs up to the amount of the charges that would incur in
case another kind of shipment was choosen.
2. The choice of the type of shipment shall be effected at our discretion.
We do not assume any liability as to the cheapest way of shipment.
3. We reserve the right to execute the shipment not from the place
of fulfillment according to § 12 para. 1, but from another
place of our choice.
4. Packaging costs shall be invoiced by us separately.
§
5- Prices
1. The prices are to be understood ex manufacturer's works, without
cash discount and without any other kind of discount. The value-added
tax in its respectively legal amount shall be added to the prices.
2. The prices of our price lists and catalogues shall be non-binding.
We shall always invoice the prices that are valid on the date of
delivery. We shall in particular be entitled to price adjustments
in case the prices of the raw materials we need and the related
additional charges such as import duties etc. increase. In the event
the price increase exceeds 25% of the last valid price, the customer
shall be entitled to withdraw from the agreement.
3. To the extent our prices and invoices show cost of tools as a
price component, the payment of these items shall not entitle the
customer to any rights of the tools. These tools are just tools
provided for the supply of the customer and the respective price
components are parts of the overhead costs related to the customer
or the product falling to the customer and invoiced to him. To the
extent the customer's name is mentioned on the tools, this is just
meant to simplify the attribution of the means of production to
the production for the respective customer and does not create the
customer's right of the tools, in particular no right of property.
Nor is a constructive possession being created.
§
6- Reservation of ownership
1. We reserve the right of ownership of the goods supplied with
regard to any debt claims resulting from the present and future
business relationship with the customer (current account reservation).
The integration of individual debt claims into a current invoice
and their balancing out and their acknowledgement do not annul the
reservation of ownership.
2. We shall be entitled to take our conditional commodities from
the customer during his usual business hours in the event he does
not comply with his obligations towards us, in particular in case
his payments are delayed, and to enter for this purpose any storage
and office rooms of the customer. This act of taking away does not
constitute unlawful interference with possession.
3. In case our goods are processed or combined with other products,
we shall acquire the joint ownership of the items resulting from
processing or combination, and the possessor shall keep it in custody
free of charge with the due diligence of a prudent businessman.
Our part in the joint ownership shall be defined according to the
fraction corresponding to the value of our goods in proportion to
the value of the item that has been created.
In case the purchaser acquires by the combination of the products
the sole ownership, he assigns to us right now the joint ownership
according to the proportion of the value of the conditional commodities
compared to the value of the item that has been created. As to the
resale, the below mentioned para. 4 shall apply; the debt claim
resulting from the resale or from any other legal title is assigned
to us right now in the amount of the above mentioned fraction.
4. In case the customer sells the conditional commodities alone
or together with other goods that do not belong to us, the customer
right now assigns to us the debt claim resulting from the resale
in the amount of the value of the conditional commodities with any
ancillary rights and priority above the rest.
We accept the assignment. The value of the conditional commodities
shall be our invoice amount.
5.
The customer shall be entitled to resale, use and to install the
conditional commodities only within his usual and due course of
business. The customer shall not be entitled to dispose of the conditional
commodities in any other way, and shall in particular not be entitled
to pledging and assigning them as security. In case of payment by
cheque or bill of exchange, the reservation of ownership shall extinguish
only upon the encashment of the bill of exchange / cheque and the
crediting of the invoice amount.
6. The authorization to resale, use or install the conditional commodities
shall not be valid if the customer concludes an agreement according
to the conditions of a third party that do not entitle him to assign
to us debt claims to third parties.
7. Subject to revocation, the customer entitles us to collect the
assigned debt claims. We shall not make use of our authorization
to collect as long as the customer complies with his duties to pay.
Upon our request, the customer shall give us any required information
as to the stock of the goods that are our property and the debt
claims and rights assigned to us and he shall inform his clients
about the assignment. We shall be entitled, but not obliged, to
inform the customer's clients at any time about the assignment and
to assert assigned debt claims in our own name. The enforcement
of the assigned rights shall be done at the customer's expenses
and risk; however, we shall not be obliged to do so and the customer
shall not be able to hold us liable for that.
8. The customer shall notify us immediately of any third-party compulsory
execution measures as to the conditional commodities or the assigned
debt claims by submitting to us the documents that are required
for objection.
9. We undertake to disclose the guarantees we are entitled to upon
the customer's request to the extent the value of the debt claims
they are meant to guarantee, in case they have not been settled
yet, exceed more than 20 %.
10. The pledging and assigning of the conditional commodities as
security or of the rights we are entitled to as well as any other
dispositions of the customer affecting our rights shall not be admissible.
11. In the event a third party is getting access to the conditional
commodities, to the debt claims assigned by us or the rights that
have been created according to the preceding paragraphs, the customer
shall make it aware of our ownership and notify us immediately by
submitting any documents required for intervention.
The taking back of the conditional commodities and their pledging
by us shall not constitute a withdrawal from the agreement; the
said measures are only meant to guarantee our claims.
We do not agree to the resale of the conditional commodities in
case judicial conciliation or insolvency proceedings are opened.
§
7- Payments
1. Unless otherwise agreed upon, invoices have to be settled at
the latest 30 days after the invoice date.
2. Any payments have to be made to our location, free of charge.
To the extent additional charges are charged to us by the bank or
any other institutes on the occasion of the customer's payment,
they shall be borne by the customer and we shall charge them to
him.
3. The payment by letter of exchange shall be excluded, unless otherwise
expressly agreed upon in writing. The exceptional acceptance of
letters of exchange shall be considered as a deferment of the purchase
price only to the extent no negative changes occur or become known
as far as the economic situation of the customer is concerned. The
payment by letter of exchange shall not be considered as a cash
payment. The discount charges and any other charges related to the
letter of exchange shall be paid immediately by the customer; in
any case upon submission of the letter of exchange. We shall not
assume any liability as to the timely presentation, notice of dishonor
and / or charges for returned letters of exchange. The acceptance
of cheques shall not be done in place of performance, but on account
of performance.
4. We shall invoice interests on defaulted payment at 8 % p.a. above
the base interest rate. They can be calculated at a higher or lower
percentage, in case we can give evidence of a burden at a higher
interest rate or if the customer can give evidence of a smaller
burden.
5. The customer shall not be entitled to retain payments on account
of any of his counter-claims that have not been recognized by us
or that have not been validly determined, and shall not be entitled
to balance them against such counter-claims.
6. In the event the terms of payment are not observed or if we become
aware of facts that would suggest that our claims for the purchase
price are endangered due to the customer's liquidity problems, we
shall be entitled to carry out further deliveries only against advance
payment or the giving of securites.
§
8 - Passage of risk
In any case, the risk shall pass on to the customer when the consignment
leaves our premises or at the moment the shipment is delayed, the
goods being ready for shipment, upon the customer's request. We
shall not cover any transport damages or the loss of the goods.
To the extent claims can be asserted towards liable third parties
and/or insurers (insurances only upon request of the customer and
at his expenses), the customer's claim towards us shall be limited
to the assignment of the claim to him.
§
9 - Warranty
1. To the extent we did not produce ourselves the goods delivered
to the customer, but bought them from a subcontractor, we shall
assign to the customer any warranty claims towards the subcontractor.
The customer shall be obliged to assert the assigned claims at our
subcontractor. To the extent the claims cannot be enforced out-of-court,
our warranties shall be governed by the provisions of the below
mentioned paragraph 2.
2. The quality of the supplied goods shall be that of the product
description or the merchantable quality. Declarations as to the
quality shall not represent a guarantee, unless expressly designated
as such. In general, no guarantee shall be assumed beside the warranty
according to the present provisions and pursuant to law.
The customer shall check the goods received immediately for defects
and shall examine their quality. Defects have to be notified to
us in writing within one week after delivery. Independently, the
customer's right to lodge a complaint shall expire, in case he already
changed, processed or combined the goods bought from us already
before the expiration of the aforementioned period. Any further
legal provisions shall remain unaffected. Hidden defects have to
be notified to us in writing at the latest within one week after
their discovery.
In the event a defect is discovered, the customer shall provide
us with the goods he complains about at the latest one week after
he sent his written complaint in order to enable us to examine them.
In case he culpably refuses to do so, any claims shall be cancelled.
The aforementioned duty to notify shall apply as well in case the
buyer notified the customer of defects of the goods or parts supplied
by us.
If the customer's complaint is justified, he shall be entitled to
ask for rework or a substitute delivery as an additional performance.
We shall be entitled to refuse the kind of additional performance
the customer chose in case it can be realized only with unreasonable
costs or if the kind of additional performance the customer chose
is more expensive than the other one, but does not lead to considerable
inconvenience for the customer compared to the other possibility
of additional performance. In the event of additional performance
by rework, our right to rework shall be limited to three trials
as regards one and the same defect and to a total of six trials
with regard to the whole number of defects.
In case the purchased item has to be brought, after the execution
of the additional performance, to another place than the initial
place of delivery, the additional costs incurred shall be borne
by the customer. The same shall apply in case the customer returns
to us the defective item from a place other than his location /
the place of delivery for the purpose of additional performance.
The customer shall be entitled to assert any further warranty claims
only after having agreed with us a reasonable period for the execution
of the rework or the substitute delivery and in case this period
expired without results.
In case the defect is of insignificant importance only, the customer's
right to withdraw from the agreement shall be excluded. The right
of a reduction of the purchase price shall be unaffected.
3.
There shall be no warranties in case
a)
the defect has to be attributed to improper use, operation,
service or insufficient maintenance, erroneous assembly and
putting into service or to violent effects, to any other external
influences or to storage or transport related circumstances
to the extent we are not answerable for,
b) the defect has been caused by an improper modification of
the contract item, in particular the use of inappropriate, especially
third-party spare parts, and if the damage is causally connected
to the modification or use,
c) the defect is due to the characteristics of wood as a natural
product and the natural changes of the raw state resulting thereof
both during and after its processing, even in case such effects
become manifest only in the final product,
d) the defect has been caused by the quality or defects of partial
products or components of our products (e.g. HPL), that the
customer defined to us and that he bindingly asked us to use.
Natural
wear and tear and damages that can be attributed to negligent or
improper manipulation or treatment shall be excluded from warranty.
4. The goods complained about have to be sent to us together with
the original delivery note or a photocopy of it. In the frame of
negotiations about complaints we do not renounce to the objection
that the complaint was not lodged in time or not in the due manner.
5.
The customer shall be entitled to withhold payments by invoking
claims resulting from a defect only to the extent that this is reasonable
according to good faith, taking into consideration the defect he
complained about, i. e., up to a maximum of the partial amount of
the purchase price of the item that he exactly qualified to be defective.
6.
In case the customer or a third party executes improper rework,
we shall assume no liability as to the consequences resulting thereof.
The same shall apply to modifications of the contract item that
are carried out without our previous written approval.
7.
In addition, paragraph 10 shall apply to claims for damages.
8.
To the extent the scope of delivery contains software or any other
goods or rights that might be protected by copyright, the customer
shall be granted a non-exclusive right to use the supplied software
including the related documentations.
The customer shall be entitled to use and process the software only
in the extent legally admissible and shall not remove the manufacturer's
data and shall not modify it without our previous written approval.
The customer shall not be entitled to assign the software or its
rights to a third party - e.g., by license - without our previous
written approval.
9.
The warranty period for material defects shall be one year as of
the delivery of the goods. This shall not apply in case we are liable
due to intention or to the fraudulent concealment of a defect that
is known to us; in these cases, we shall be liable according to
the legal stipulations. A shorter period shall apply if the defect
is related to a product the wear and tear of which regularly and
typically becomes manifest after a period of less than one year.
10.
The customer shall not be entitled to use advertising measures that
have not been approved by us in the frame of the distribution of
the goods produced by us. In case clients of the customer assert
warranty claims based on the non-conformity of the goods bought
as compared to the advertisement of the distribution partners, the
latter shall not be entitled to deduce claims towards us from this
circumstance.
§
10 - Liability
1. 1. We shall be liable for the customer's damages independently
of the legal argument, in particular due to non-compliance with
duties under the agreement and due to unauthorized acts, only in
the case of intention and gross negligence, unless
a)
liability is provided for the injury of life, the body or of health,
b)
liability is provided for the con-compliance with essential contractual
duties.
2.
The claim for damages due to the non-compliance with essential contractual
duties, however, shall be limited to the damages that are regulary
predictable and typical for the agreement.
3. The same shall apply to cases of liability for defects.
4. The restrictions of liability mentioned in §§ 9 and
10 shall apply as well with regard to the possible liability due
to erroneous advice, incorrect assembly instructions and any other
non-compliance with accessory obligations.
5. Any further claims for damages shall be excluded.
6.
§ 9 para. 9 shall apply accordingly to the prescription of
the aforementioned claims.
§
11 - Offset / right of retention
1. The customer shall be entitled to set off counter-claims against
our debt claims only in case the counter-claims are uncontested
or have been validly determined by court.
2. Unless otherwise provided in the present General Standard Terms
and Conditions, the same shall apply as well to the assertion of
rights of retention.
§
12 - Place of fulfilment and place of jurisdiction
1.
Bad Wörishofen…. shall be the place of fulfilment. Differing
from that stipulation, we shall be entitled in individual cases
to define the place of production of works to be supplied as the
place of performance.
2. As regards any litigation resulting from the contractual relationship
and in case the customer is a full merchant, a legal person under
public law or a special fund under public law, actions have to be
lodged at the court that is competent for our headquarters. We shall
also be entitled to lodge an action at the place of the customer's
headquarters.
§
13 - Applicable law
Exclusively German law shall be applicable to the exclusion of the
laws on the international purchase of mobile goods, even in case
the customer's company seat is located abroad.
§
14 - Agreements on the form
Any modifications, amendments and ancillary agreements relating
to the present General Terms and Conditions and to individual agreements
need to be done in writing in order to be valid. This shall apply
even in case the stipulation prescribing the written form is to
be cancelled in the case of modifications.
§
15 - Miscellaneous
1. The assignment of rights and duties of the customer resulting
from the agreement concluded with us shall require our written consent
in order to be valid.
2. Should individual provisions of the preceeding GTC partially
or fully be or become void, contestable or invalid, this shall not
affect the validity of the remaining provisions of the agreement
and of the agreement as a whole. The contracting parties shall then
execute the agreement with a valid substitute regulation coming
next to the economic purpose intended by the cancelled provision.
Version of : 14.02.2003 - Bad Wörishofen
|
