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General terms &
conditions of sale, delivery and payment
§ 1 Scope
| 1.1 | The following terms & conditions form an essential element of all contract proposals and contracts concluded. We shall not accept general terms & conditions of purchase of the buyer, even if we fail to reject them explicitly. Deviating agreements in individual cases shall only be effective if confirmed in writing. |
| 1.2 | These terms & conditions apply only to entrepreneurs within the meaning of Section 14 German Civil Code (BGB). |
§ 2 Offers
| Our offers are without obligation. Orders placed by the Buyer shall only be binding on us through written or printed confirmation or delivery. We may correct typing and calculation mistakes or other obvious errors in any statements we make without negative consequences in law. |
§ 3 Prices and calculation
| 3.1 | Our prices apply ex-works and exclude freight and the statutory value-added tax. |
| 3.2 | The prices valid on the day of delivery are definitive to calculation of the purchase price. |
| 3.3 | Should we increase our prices generally between conclusion of contract and delivery, the Buyer shall be entitled to withdraw from contract with regard to the quantity not yet delivered within seven days of announcement of the price increase. |
| 3.4 | The purchase price is calculated based on the quantities, weights or dimensions determined at the place of despatch. |
§ 4 Payment
| 4.1 | Our invoices are due for payment within a period of 30 days from date of invoice. Tooling invoices are due at 50 percent upon placing of the order; the remaining 50 percent is due without deduction on approval of the outfall sample. |
| 4.2 | The purchase price shall only be deemed paid when the amount is finally available on one of our accounts. Cheques and bills of exchange shall be deemed as payment only after being cleared and after reimbursement of the associated bank charges. |
| 4.3 | On missing the due date, the Buyer shall be deemed in arrears even without reminder. In such cases we shall be entitled to claim interest on the arrears at 10 percentage points above the base interest rate. We reserve the right to assert further damages. In addition, any arrears of payment shall have the effect of calling due all amounts due from the Buyer from the business relationship. |
| 4.4 | In cases of doubt as to the Buyer's ability to pay, especially in cases of arrears of payment, we shall be entitled to revoke any payment periods granted and to demand advance payment or securities for further deliveries. |
| 4.5 | As long as the Buyer is in arrears with a payment due, our duty to deliver shall fall dormant also for partial deliveries not yet called off. |
§ 5 Delivery
| 5.1 | Delivery takes place ex-works. Our duty to deliver is subject to the proviso of correct and timely delivery to ourselves. |
| 5.2 | We shall be entitled to make partial deliveries. Deliveries of up to 5% more or less than the contractually agreed quantity are permissible. |
| 5.3 | If "prompt" has been agreed as delivery deadline, the delivery period amounts to 14 calendar days. |
| 5.4 | In the event of delayed delivery, the Buyer shall set us a reasonable notice period of at least three weeks. |
| 5.5 | The risk passes to the Buyer as soon as the goods have been handed over to the transport company, or in the event of collection by the Buyer when the goods are made ready. This shall apply even when we bear the transport costs. |
| 5.6 | The Buyer must assert claims due to transport damage directly to the transport company within the special notice periods allowed for that purpose. |
| 5.7 | Binding delivery deadlines require our written confirmation. |
| 5.8 | Should we be culpable for exceeding the delivery time, the Buyer may withdraw from contract and demand compensation for damages under exclusion of further rights upon expiry of a reasonable notice period to be set by the Buyer in writing. Claims for damages of the buyer due to delayed delivery or non-fulfilment, however, are limited in terms of their amount to the invoice value of the quantity of goods that were not delivered, or not on time, to the extent we are not fully liable under compelling law due to malicious intent or gross negligence. |
§ 6 Delivery hindrances
| Wars, strikes, lock-outs, lack of raw materials or energy, operating or transport disruptions, official orders and all other cases of force majeure that hinder, delay production or despatch of the goods, or make it uneconomical, shall release us from out duty to deliver for the duration and to the extent of the disruption. If the disruption lasts longer than two months, both sides shall be entitled to rescind under exclusion of all further rights. In the event of partial or complete failure of our procurement sources, we shall not be obliged to cover our needs from other suppliers. In such cases, we shall be entitled to distribute the quantity of goods available as we see fit after accounting for our own needs. |
§ 7 Reservation of title
| 7.1 | The goods delivered remain our property until full payment of all amounts due from the business relationship. |
| 7.2 | In the event of the conditional commodities being processed, we shall be deemed manufacturer and acquire title to the newly created products. If the conditional commodities are processed, connected or mixed together with goods, which are the property of third parties, we acquire co-title to the products thus created in the proportion of the invoice value of the conditional commodities to the invoice value of the other materials. If the conditional commodities are processed, connected or mixed together with a main item, which is the property of the Buyer, the Buyer hereby assigns his property rights to the new item to us. |
| 7.3 | The Buyer hereby assigns all accounts receivable from the sale of goods, to which we hold title or co-title, to us to the extent of our share of title by way of security. Assignment elsewhere, also within the context of a factoring transaction, is prohibited. |
| 7.4 | The Buyer shall be obliged to store the conditional commodities at its expense with the due care of a prudent merchant and to insure them against the usual storage risks. It hereby assigns its claims from the insurance policies to us. |
| 7.5 | As long as the Buyer properly fulfils the obligations existing vis-à-vis us, it shall be entitled to dispose of the conditional commodities in the normal course of business and to collect accounts receivable from resale of the conditional commodities. The Buyer, however, shall not be entitled to pledge the conditional commodities or the assigned receivables to third parties or transfer them by way of security. |
| 7.6 | The Buyer shall notify us of any claim by third parties to the conditional commodities or the assigned receivables immediately upon learning of same. |
| 7.7 | If the Buyer is in arrears of payment, we shall be entitled, without serving notice or rescinding the contract, to demand surrender of the conditional commodities. Furthermore, upon first request, the Buyer shall provide us with all the information and documents needed concerning the status of the conditional commodities and the assigned receivables, and notify its customers forthwith of the assignment of the receivables. |
| 7.8 | If the value of the securities exceeds the total receivable by more than 20%, we shall release the excess securities at our discretion at the request of the Buyer. |
§ 8 Defect claims, warranty
| 8.1 | The Buyer shall inspect the goods immediately upon delivery and report any material defects, incorrect deliveries or impermissible quantity deviations in writing forthwith, but at the latest with 14 days of delivery. In the event of partial deliveries, this obligation of the buyer relates to each single partial quantity. Should the Buyer fail to live up to its duty to inspect and report within those 14 days, the goods shall be deemed accepted. |
| 8.2 | The Buyer shall report concealed defects in writing immediately upon detecting the defect, but at the latest within 6 months of delivery. |
| 8.3 | A complaint shall not entitle the Buyer to withhold payments due or to refuse acceptance of further deliveries. |
| 8.4 | In the case of timely and justified complaints, the defect claims of the Buyer shall be limited to the right to subsequent fulfilment. To the extent permissible in law, further rights of the Buyer are precluded. This applies in particular to compensation for damages not related directly to the goods themselves. |
| 8.5 | If the Buyer explicitly orders lower qualities (not 1A quality), any and all guarantees are precluded unless the goods delivered deviate from the agreed lower quality. |
§ 9 Compensation for damages
| 9.1 | Contractual and extra-contractual claims for compensation of damages by the Buyer arising from a breach of duty in simple negligence by us, our management staff or our other vicarious agents, are precluded. This shall not apply where a duty has been breached that was of major significance in achieving the purpose of contract: our liability, however, shall be limited to the foreseeable loss typical to the type of contract and amounts to a maximum of twice the invoice value of the goods concerned. |
| 9.2 | We shall be liable for indirect damages and for damages not foreseeable at the point in time of conclusion of contract only in cases of gross culpability on our part or of our management staff. |
| 9.3 | The above limitations shall not apply to damages from injury to life, limb or health. Compelling statutory provisions concerning liability remain unaffected. |
§ 10 Closing provisions
| 10.1 | Place of performance for payment is Marktoberdorf. |
| 10.2 | Place of jurisdiction is Kempten. The law of the Federal Republic of Germany applies. Any application of the United Nations Convention on Contracts for International Sale of Goods (UNCITRAL) is precluded. |
| 10.3 | Should any of the above terms & conditions transpire to be ineffective, in part or in full, that shall not detract from the effectiveness of the remaining provisions. |
© 2019 CERA GmbH vom 01.04.2019
