Conditions of sale, delivery and payment

Section 1 General provisions, scope

(1) Our conditions of sale shall apply exclusively. We do not recognize any conditions of sale of the customer which contradict or deviate from our conditions, unless we expressly agreed to their applicability in writing. Our conditions of sale shall also apply if we effect delivery to the customer without prejudice while being aware of conditions of the customer which contradict our conditions or deviate from them. Our offers are always non-binding. Oral agreements and changes shall require our written confirmation in order to be valid, as indicated in Section 1 Paragraph 2.
(2) Any and all agreements concluded between us and the customer with the purpose of executing this Agreement are recorded in writing in this Agreement.
(3) Our conditions of sale shall only apply for entrepreneurs within the meaning of Section 310 Paragraph 1 of the Bürgerliches Gesetzbuch (BGB) [German Civil Code].

 

Section 2 Offer, offer documents

(1) If the order qualifies as an offer pursuant to Section 145 of the German Civil Code, we may accept it within 2 weeks.
(2) We hereby reserve all applicable property rights and copyrights to any images, drawings, calculations and other documents. This shall also apply to any written documents designated as „confidential“.
Prior to disclosing them to any third parties, the customer shall require our explicit written approval.

 

Section 3 Shipping

The place of fulfilment for trading with entrepreneurs is 89364 Rettenbach or the location of the relevant subsidiary. The delivery shall be deemed fulfilled once ready for shipment, after the ordering customer was notified of this and provided it corresponds to the agreed-on conditions of delivery. We shall principally determine the shipment type for free deliveries. Urgency and express surcharges shall be invoiced. Crate packaging for finished products shall be invoiced, special packaging shall be invoiced. Deliveries to third parties (consumer and recipient of goods deviate from ordering customer) shall be subject to a charge. Invoiced disposable packaging shall neither be taken back or credited. In case of orders of less than EUR 100.00, a shipping and packaging flat rate in the amount of EUR 9.80 shall be charged. In case of transport damage resulting from delivery by our trucks, forwarding agent or parcel service, the recipient shall notify us in writing of any complaints within 7 days of receiving the goods. The obligation to indicate any defects in time shall remain unaffected by this.

 

Section 4 Prices, terms of payment

(1) Unless otherwise provided for in the order confirmation, our prices include free delivery plus packaging, which is invoiced separately.
Our prices are net prices via normal freight for entrepreneurs. If the customers desires another type of shipment, they shall bear the price difference for the freight. For orders outside of Germany, the prices are in principle net ex works, duty unpaid. If agreed on in writing, the price may include free delivery to the German border, duty unpaid. Our prices are non-binding. The information supplied in the order confirmation shall apply. The old list shall lose its validity upon the release of a new list. A measurement fee shall be charged for preparing a measurement of all products. The amount of the measurement fee shall conform with the current price list. We shall only assume liability for faulty measurements for a measurement fee.
Orders may be changed subsequently; however, the costs for the already initiated production shall be borne by the customer.
The indicated packaging flat fee of the applicable price list shall apply for the packing of a product of the product group Flylock or Plisseo. If an order is based on an offer or work order, the terms of payment contained in the offer or agreed on in the work order shall apply for this order.
(2) We hereby reserve the right to change our prices in an appropriate manner should any cost reductions or cost increases occur after having concluded the contract, particularly due to collective agreements or changes in material prices. We shall present them at the customer‘s request.
(3) The deduction of a cash discount shall require a separate written agreement.
(4) Unless otherwise provided for in the order confirmation, the purchase price is net (without deductions) and payable within 30 days from the invoice date. The statutory regulations with respect to the consequences of a payment default shall apply.
(5) The customer shall only have offsetting rights provided their counterclaims were legally determined and are undisputed or recognised by us. The customer shall moreover be entitled to exercise a right of retention provided their counterclaim is based on the same contractual relationship.
(6) If an order is cancelled or the goods are returned, we shall be entitled to assert any damage incurred by this against the customer to the full extent.
The statutory provisions shall apply.

 

Section 5 Delivery time

(1) The start of the delivery time indicated by us shall require that any and all technical queries have been clarified.
(2) Fulfilling our delivery obligation shall further require the timely and orderly fulfilment of the customer‘s obligation. We hereby reserve the right to object to the non-fulfilment of a contract.
(3) If the customer delays acceptance or culpably violates other duties to participate, we shall be entitled to demand compensation for the damage we suffered, including any additional expenses. Any and all further claims and rights shall hereby be reserved.
(4) Provided the requirements of Paragraph 3 apply, the risk of an accidental destruction or an accidental deterioration of the purchased article shall pass to the customer at the time their acceptance or debtor‘s delay has occurred.
(5) We shall only be liable pursuant to the statutory provisions provided the underlying purchase agreement constitutes a sale to be performed at a fixed point in time pursuant to Section 286 Paragraph 2 No. 4 of the German Civil Code or of Section 376 of the Handelsgesetzbuch (HGB) [German Commercial Code]. We shall furthermore only be liable pursuant to the statutory provisions insofar as the customer is entitled to assert that their interest in the continued fulfilment of the contract has ended due to a delay in delivery which we were responsible for.
(6) We shall moreover only be liable pursuant to the statutory provisions insofar as the delay in delivery was due to an intentional or grossly negligent contractual violation we are responsible for; we shall also be accountable for any fault on part of our representatives or agents. Should the delay in delivery be due to a grossly negligent contractual violation which we are responsible for, our liability for compensation shall be limited to the predictable damage typically to be expected.
(7) We shall furthermore only be liable pursuant to the statutory provisions provided the delay in delivery we are responsible for is due to the grossly negligent violation of a material contractual obligation; the liability for compensation shall only be limited to the predictable damage typically to be expected in this case.
(8) We shall moreover only assume any liability in case of a delay in delivery for each full week from the fifth week of the delay in the form of a flat compensation for delay in the amount of 0.5% of the delivery value, yet no more than 5% of the delivery value.
(9) Any and all statutory claims and rights of the customer shall be reserved.

 

Section 6 Transfer of risk, Packaging costs

(1) Unless otherwise provided for in the order confirmation, free delivery is agreed.
(2) Separate conditions shall apply for taking back packaging.
(3) If the customer so desires, the delivery shall be covered by transport insurance; the customer shall bear the costs thus incurred.

 

Section 7 Liability for defects

(1) Claims for defects of the customer shall require that the customer has fulfilled their obligation to properly examine the goods and notify us of any defects pursuant to Section 377 of the German Commercial Code.
(2) If the purchased item has a defect, we are entitled to rectify the situation by remedying the defect or by delivering a new fault-free item at our own discretion. In case of a rectification, we shall bear the required expenses up to the amount of the purchase price.
(3) If the attempts at rectification fail, the customer shall be entitled to demand a withdrawal from the contract or a reduction of the purchase price at their own discretion.
(4) We shall be liable pursuant to the statutory provisions, insofar as the customer asserts claims for damages based on intent or gross negligence, including intent or gross negligence on part of our representatives or agents. Provided we are not charged with intentional contractual violation, the liability for damages shall be limited to the foreseeable damage typically occurring.
(5) We shall be liable pursuant to the statutory provisions insofar as we culpably violate a material contractual duty; the liability for damages shall also be limited to the foreseeable damage typically occurring, however.
(6) If the customer is entitled to receive compensation for the damage instead of the performance, our liability shall also be limited to the foreseeable damage typically occurring within the scope of Paragraph (3).
(7) The liability for culpable injury to life, limb and health shall remain unaffected by this; this shall also apply for the mandatory liability pursuant to the Product Liability Act.
(8) Unless otherwise provided for above, any liability shall be excluded.
(9) The statutes of limitations shall be subject to the statutory provisions.

 

Section 8 Total liability

(1) Any further liability for damages in addition to the provisions of Section 6 shall be excluded without consideration for the legal nature of the asserted claim. This shall in particular apply to any claims for damages due to negligence when concluding the contract, due to other violations of contractual duties or due to legitimate claims to having material damage compensated pursuant to Section 823 of the German Civil Code.
(2) The limitation in accordance with Paragraph (1) shall also apply insofar as the customer demands compensation for useless expenditure in lieu of the performance instead of a claim for having the damage replaced.
(3) Insofar as our liability for damages is excluded or limited, this shall also apply for the personal liability for damages of our staff members, employees, personnel, representatives and agents.

 

Section 9 Retention of title

(1) We shall retain the title to the purchased item until we have received all payments arising from the current business relationship. If the customers acts contrary to contract, particularly in case of payment defaults, we shall be entitled to take back the purchased item. Our taking back the purchased item shall constitute a withdrawal from the contract. After taking back the purchased item, we shall be entitled to exploit it, and the proceeds thereof shall be set off against the customer‘s liabilities minus appropriate exploitation expenses.
(2) The customer shall undertake to handle the purchased item with care; they shall in particular undertake to insure it sufficiently against fire, water and theft at its original value and at their own expense. If any maintenance and inspection work is required, the customer shall perform such work in time and at their own expense.
(3) In case of garnishments or other third party interventions, the customer shall immediately notify us in writing in order for us to be able to file a suit pursuant to Section 771 of the Zivilprozessordnung (ZPO) [German Code of Civil Procedure]. If the third party is unable to reimburse us the judicial and extra-judicial expenses of a suit pursuant to Section 771 of the German Code of Civil Procedure, the customer shall assume the liability for our incurred losses.
(4) The customer shall be entitled to resell the purchased item within the ordinary course of business; they shall, however, already now assign all claims in the amount of the final invoice amount (including VAT) of our claim which the customer shall receive from their buyers or third parties for the sale, irrespective of whether the purchased item was resold without or after being processed. The customer shall remain entitled to collect this claim after the assignment. Our power to collect this claim ourselves shall remain unaffected by this. We shall, however, undertake to not collect the claim as long as the customer fulfils their payment obligations from the earned revenue, does not default on payment and in particular as long as no request for opening settlement or insolvency proceedings was filed or a cessation of payment is in place. If this is the case, however, we may demand that the customer disclose to us the assigned claims and their debtor, send us all information required for the collection, submit the relevant documents to us and inform the debtor (third party) of this assignment.
(5) The processing or remodelling of the purchased item by the customer shall in each case be performed for us. If the purchased item is processed with other items not in our possession, we shall acquire co-ownership of the new item in proportion of the value of the purchased item (final invoice amount including VAT) to the other processed items at the time of the processing. The same which applies to the purchased item delivered with reservation shall apply to the item generated by the processing.
(6) If the purchased item is inseparably mixed with other items not in our possession, we shall acquire co-ownership of the new item in proportion of the value of the purchased item (final invoice amount including VAT) to the other processed items at the time of the mixing. If the items are mixed in such a way that the customer‘s item can be considered the main item, it is hereby agreed that the customer shall transfer proportionate co-ownership to us. The customer shall hold the sole ownership or co-ownership thus created for us.
(7) The customer shall also assign to us the claims intended for securing our claims against the customer which arise against a third party through combining of the purchased item with a property.
(8) We shall undertake to release the collateral due to us at the customer‘s request if the realisable value of our securities exceeds the claims to be secured by more than 10%; we shall have the right to select the collateral to be released.
Section 10 Place of jurisdiction, place of performance

 

Section 10 Place of jurisdiction, place of performance

(1) Insofar as the customer is an entrepreneur, our place of business is the place of jurisdiction; we shall, however, also be entitled to sue the customer at the competent court at their place of residence.
(2) The law of the Federal Republic of Germany shall govern; the applicability of UN sales law is precluded.
(3) Unless otherwise provided for in the order confirmation, our place of business is the place of performance.

 

Rev: 11/2014
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