I. Scope
1. All of our current and future deliveries and services are exclusively based on the following business terms and conditions.
2. If deliveries are made without an order confirmation, the invoice or the delivery note is to be seen as an order confirmation based on the general business terms and conditions stipulated therein.
3. Deviating, opposing or supplementary general business terms of the contractual partner shall only insofar constitute a part of the contract if we have expressly agreed in writing that they shall apply. Incidentally, their validity is excluded without this requiring an objection in an individual case.
II. Offers and prices
1. Our offers are without obligation. Prices apply ex warehouse Leinfelden and with acceptance of original packages. They are given in Euro plus the applicable rate of value added tax. In case of partial quantities, we reserve the right to deliver and charge original packages or to charge a reasonably reduced quantity surcharge.
2. Orders placed by our customers with our commercial agents must be confirmed by us in writing in order for the contract to be valid.
3. The minimum net goods value of each order must be at least Euro 100.--.
4. If goods are delivered by our lorries we shall charge a freight fee which is currently Euro 12.50.
5. In case of contracts with entrepreneurs the prices and inflation surcharges valid on the date of delivery shall apply insofar as a price was not stated in writing as a fixed price. In case of contracts with consumers price increases are permitted with deliveries with due date no later than four months after conclusion of the contract, if they are due to changes in factors which form the price and which were not foreseeable when the contract was concluded. The customer must be informed of the price increase within a reasonable period of time. With price increases, which are more than 5 % above the increase of the cost of living price index, the customer shall be entitled to cancel the contract within 14 days after notification of the price increase.
III. Delivery, delivery time, passing of risk and return policy
1. Delivery periods are without obligation insofar as we do not guarantee binding delivery periods in writing or delivery dates are not expressly stipulated as fixed dates. Delivery dates refer to the departure ex warehouse Leinfelden or in case of direct delivery by the producer to the departure from producer. Partial deliveries are permitted to a reasonable extent.
2. Force majeure and other circumstances beyond our control, in particular delays in delivery on the part of our suppliers, lock out and strikes and other interferences to operations, official orders, material or energy deficiencies entitle us to extend the delivery period by the duration of the delay plus a reasonable start-up time or, insofar as this is deemed not reasonable in commercial terms, to cancel the contract either in whole or in part. Claims for damages on the part of the customer due to such a cancellation are excluded.
3. If the permitted delivery period is exceeded by Ferdinand Gross by more than four weeks, the customer shall be entitled to set a reasonable final deadline. If the contract cannot be satisfied within this reasonable final deadline either then the customer shall be entitled to cancel the contract through a written declaration towards us, without however being able to assert further rights, claims or entitlements, no matter of what type, unless we caused this through wilful intent or gross negligence.
4. We reserve the right to make changes to the technical design of our goods– without special notification to the customer – insofar as this does not impair the value and the usability of the offered goods. In case of goods made to special specifications we reserve the right to fall short of or exceed the order quantity by
10 %.
5. The risk shall pass to the customer as soon as the goods leave our house or with direct delivery from our supplier. In case of transport by our lorries our liability and that of our employees is limited to wilful intent and gross negligence and to substitute delivery or improvement by excluding all further claims, unless substitute delivery or improvement fail twice. In the latter case the customer shall be entitled to demand a reasonable reduction of the agreed price or alternatively to cancel the contract by excluding further claims.
6. Returns require our prior written consent. We reserve the right in case goods without any defects are returned in addition to the transport costs to deduct at least 25 % from the invoice value.
IV. Claims for defects
1. The assertion of claims for defects by a company presumes that the company has properly satisfied its duty for inspection and complaint acc. § 377 HGB [German Commercial Code]. Entrepreneurs must report complaints due to incomplete or incorrect delivery and complaints due to obvious defects immediately in writing. The entrepreneur has full responsibility for providing proof of all pre-requisites for claims, in particular for the defect itself, for the time when the defect is determined and for the timely complaint. Consumers must report obvious defects in writing within a deadline of two months after the date upon which the condition of the goods which is contrary to the contract was determined. Decisive for meeting the deadline is the receipt of the notification by us. If the consumer fails to give this notification, the warranty rights will expire two months after he has detected the defect. This shall not apply with malice on the part of the seller. The consumer shall be responsible for providing proof of the date upon which the defect was determined. If the consumer was induced to buy the object through incorrect statements made by the producer, he shall be responsible for providing proof of the reasons for his decision to buy.
2. If the customer is an entrepreneur Ferdinand Gross shall initially satisfy the warranty for defects of the goods at our choice either through improvement or substitute delivery.
3. If the subsequent performance fails twice, the customer can principally, at his choice, demand reduction of the payment or cancel the contract. However, the customer shall not be entitled to cancel the contract in the case of a mere insignificant breach of the contract, in particular with just slight defects.
If the customer chooses to cancel the contract in the case of a defect of right or defect of quality after failed subsequent performance, he is not entitled to additional damages due to the defect. If after failed subsequent performance, the customer chooses damages the goods shall remain at the customer. The damages are limited to the difference between purchase price and value of the defect object. This shall not apply if we maliciously caused the breach of the contract.
4. The warranty period for entrepreneurs is one year from the date of delivery of the goods. The statute of limitations for consumers is two years from delivery of the goods. In the case of used objects the statute of limitations is one year from delivery of the goods.
5. If the customer is an entrepreneur only the product description of the producer shall be principally deemed as the condition of the goods. Public statements, praise or advertising of the producers are not deemed as information about the condition of the goods as per contract.
6. If the customer receives faulty assembly instructions, we are merely obliged to deliver faultless assembly instructions and this only if the fault in the assembly instructions impedes proper assembly.
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7. The customer shall not receive any guarantees in the legal sense from us. This shall have no effect on producer guarantees.
V. Restrictions to liability
1. In case of slight breaches of duty, our liability is limited to the foreseeable, direct damages typical as per contract according to the type of the goods. Therefore, in the case of slightly negligent breaches of duty, we assume no liability for damages which were not suffered to the delivered object itself in particular not for missed profits, damages from loss of operation, loss of use and other consequential losses of the customer. This shall also apply with slightly negligent breaches of duty of our legal representatives or employees.
We assume no liability towards entrepreneurs in case of a slightly negligent breach of insignificant contractual obligations.
2. The afore-mentioned restrictions to liability do not have any effect on claims of the customer under product liability. Furthermore, the restrictions to liability do not apply in case of physical injury or damages to health or in the event of death of the customer for which we are responsible. However, insofar as we cannot be accused of any wilful breach of duty, our liability is limited to the damages foreseeable at the time when the contract was concluded.
3. Our liability will cease to apply if the delivered goods are processed or changed, unless the customer can prove that the damages were not caused by the processing or change.
4. Claims for damages of the customer due to a defect shall become statute-barred after one year from delivery of the goods. This shall not apply if we are responsible for malice.
VI. Terms of payment
1. Our invoice amounts shall be due on the 30th day after invoice date without deduction, 2 % cash discount can be deducted with payment within 10 days from invoice date. In the event of default of payment any cash discount, discounts and other payments granted shall cease to apply.
2. In case of default of payment, cheque or protest of a bill, we are entitled to refuse further deliveries or only carry these out against advance payment, to deem all outstanding, also deferred invoice amounts, due and payable immediately, to recall regular bills of exchange and demand cash payment or security payment against their return as well as damages in case of negligence. We are also entitled to take back the reserved goods after giving prior notice – no prior notice is required towards companies - and the customer shall be obliged to hand over the goods.
3. We are not obliged to accept bills of exchange as payment. If these are accepted this shall only be carried out in any case in place of payment even with prolongations, whereby our rights under IX. of the general business terms shall continue to apply unaffected. Costs for bills of exchange and expenses shall be borne by the customer.
VII. Set-off and right of retention
The buyer shall only be entitled to set-off against undisputed counter claims which have been declared legally binding. The buyer shall only be entitled to a right of retention due to claims from the same contractual relationship.
VIII. Packaging and transport insurance
The packaging will be charged at self-cost price and not taken back. Transport insurance shall insofar as not customary only be taken out at the request and costs of the customer.
IX. Reservation of title
1. In case of contracts with consumers we reserve the right to the property of the goods until full payment of the purchase price.
In case of contracts with entrepreneurs we reserve the right to the property of the goods until full settlement of all claims from a current business relationship.
2. The customer undertakes to treat the goods carefully. Insofar as service and inspection work are necessary, the customer shall carry these out regularly at own costs. The customer undertakes to inform us immediately if third parties have access to the goods, for example in the event of a seizure, and of possible damage to or destruction of the goods.
3. In the event of behaviour on the part of the customer which is in breach of the contract, in particular with default of payment and if an application was filed for insolvency proceedings to be opened over the assets of the customer we shall be entitled to cancel the contract and demand that the goods be handed over.
4. The entrepreneur is entitled to resell the goods in ordinary business transactions. He hereby now already assigns us all claims in the amount of the invoice, which he has towards a third party through the resale. We hereby accept the assignment of the customer. After the assignment the entrepreneur is authorized to collect the claim. We reserve the right to collect the claim personally as soon as the entrepreneur does not properly satisfy his payment obligations and is in default of payment or an application is filed for insolvency proceedings to be opened over his assets. In this case we can demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for the collection, hands us the relevant documents and informs the debtors of the assignment.
5. The processing of the goods by the entrepreneur is always carried out on behalf of and by order of us. If the goods are processed with items which do not belong to us then we shall acquire the co-ownership to the new object as a ratio of the value of the goods delivered by us to the other processed items. The same shall apply if the goods are combined with other items which do not belong to us.
If the goods are combined to the extent that the customer’s object shall be seen as the main object then it is agreed that the customer assigns us co-ownership pro rata. The customer shall store the sole ownership or co-ownership thus produced on our behalf.
6. In case of payments in cheque-bills of exchange proceedings this shall have no effect on our rights for reservation of title and security which shall continue to exist, until our liability from bills of exchange or cheques has ended.
7. We undertake to release the securities to which we are entitled upon request of the customer insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %; we shall be responsible for choosing the securities to be released.
X. Claims for damages due to breach of duty by the customer
In the event of breach of duty by the customer we shall be entitled to demand 20 % of the total amount of the order as damages without further proof. We reserve the right to assert damages if proof is provided that they are higher.
The customer is permitted to prove that no damages were suffered at all or were far lower than the flat rate.
XI. Place of performance and place of jurisdiction
Place of performance is Leinfelden, Germany. The place of jurisdiction is Stuttgart, Germany, if the customer is an entrepreneur, legal entity of public law or special assets under public law, has no general domestic place of jurisdiction or relocates his place or residence or usual location after conclusion of the contract from Germany or his place of residence or usual location is not known when the action is filed.
XII. Final provisions
1. The law of the Federal Republic of Germany shall apply. The provisions of the UN convention on the sale of goods shall not apply.
2. Should individual provisions of the contract with the customer including these general terms of business be or become invalid either in whole or in part this shall have no effect on the validity of the other provisions. The partial or full invalid regulation shall be replaced by a provision which shall as far as possible satisfy the commercial intention of the invalid provision.
The company is a limited partnership with registered office in Leinfelden-Echterdingen, court of registration Stuttgart HRA 221054. General partner is Beteiligungsgesellschaft mbH with registered seat in Leinfelden-Echterdingen, court of registration Stuttgart HRB 220871.
Managing directors: Dipl.-Volkw. Gerald Hering, Thomas Erb
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