I. Scope of Application
These terms of delivery apply exclusively to all and any business with our customers. They also apply if they have not been explicitly mentioned in previous or future contracts. With this contract the customer confirms the reasonable possibility of having acknowledged our general terms and conditions and its being part of the contract. Any terms and conditions of the customer are objected to and will only be considered effective if we explicitly acknowledged and confirmed them in writing. Otherwise the German Forwarder´s Terms and Conditions of Trading (ADSp) as amended will apply in addition for all applications related to these ADSps.
II. Orders and Offer Documents
All offers made by us are non-binding.
Orders directed to us are deemed valid only if they have been acknowledged by us or by our representatives in writing within 14 days from receipt of order or upon first fulfillment action from our side. Our written oder confirmation exclusively determines the scope of delivery as well as the specification of our services. It is the customer’s responsibility to specify ordered deliverables in such a way that the order can be executed as per contract. This applies in particular to requests for packaging, material or assembly of individual components. In order to do so, the customer will receive offer documents and price lists upon request which contain the necessary information for specification. We reserve the right to change service descriptions in as much as technical or legal requirements need to be considered, if the changes do not lead to substantial alterations of the order itself and the changes are considered appropriate. We reserve the right to employ subcontractors for fulfillment of order.
III. Terms of Delivery
Agreed terms of delivery become effective with dispatch of order confirmation, however, not before agreed down payments have been made or open contract issues have been clarified or any other obligation for the customer to cooperate has been fulfilled, and this also applies when goods are ready for collection through the customer or a third party authorized by the customer or when goods have been delivered to us. Delivery time is also deemed kept when we send out a ready for dispatch notice at deadline day. In cases of unforeseen service impediments which are beyond our control, in particular industrial conflicts, malfunctions, machine failures or cases of force majeure, the delivery time is extended according to the duration of such measures or impediments. Conditions as described above are not supported by us even with regard to a delay incurred. This also applies to our suppliers for delays of the kind as described above. During agreed delivery dates we allow for part deliveries provided that no disadvantages are incurred with regard to usage. In case of default of acceptance on the part of the customer we reserve the right to give evidence to damage incurred therein and to make claims; the risk of accidental loss or accidental deterioration shall transfer to the customer.
If the customer is entitled to a right of revocation and return as per §§355,356 BGB (German Civil Code), we reserve the right to service only after expiry of this right. In the case of delayed service at our fault the customer is entitled to compensation instead of service delivery only in so far as the delay is the result of malice aforethought or gross negligence.
Dispatch of packaged goods will be at the expense and risk of the customer, if not agreed otherwise. Costs for dispatch will be added to the invoice. We reserve the right to choose the mode of dispatch, unless other agreements were made,at our own discretion and with regard to customer interests. We are not obliged to insure dispatch. However, insured dispatch can be ordered by the customer at his own expense. In case of loss or damage during insured transport we are responsible only for paying the sum as agreed in the insurance contract.
V. Passing of Risk
The customer is responsible for accepting delivered goods. Unless goods are delivered to our premises, the danger passes over to the customer as soon as goods are handed over to the person assigned for dispatch (not valid in the case of consumer sale) or, if the customer has delayed acceptance of goods, with the availability of goods for the customer. Unless goods are delivered to our premises, risk passes over to the customer with our notice of readiness of goods for collection. If delivery is made by us passing of risk becomes effective at the day of dispatch. Day of dispatch is the day when goods are being delivered to customer.
VI. Security ownership, Lien
Property of material utilized by us remains in our ownership until payment has been made in full to us including any separate costs pursuant to Clause IV. Additionally, we reserve the right to reclaim goods in case of violations of the contract through the customer, in particular in case of payment delay upon reminder. Execution of this right to ownership does not denote our withdrawal from contract unless provisions for consumer credit apply. Customer can continue to use and resell goods until payment of remuneration has been made in full. However, any payments received from sale (including any insurance payments) must be relinquished to us. It is the customer’s right to assert such claims regardless of any rights to claim we may have to the customer for late payment. The customer may neither pawn sales objects nor transfer objects as guarantee until goods are fully paid. In case of distraint or confiscation of goods by a third party, the customer is obliged to indicate our ownership and to report this to us forthwith in oder to assert our rights. If third party is incapable of remunerating judicial and extra-judicial costs incurred as a result , the customer has to assume responsibility. In the case that manual work was carried out on items we are entitled to a contractual lien on such items brought inside due to our right for work wage compensation including other claims pursuant to Clause IV. The customer shall pass over ownership of these brought-in goods to us as security for contractual remuneration including other claims in the case that above mentioned lien expires as a result of return of goods. Aforementioned paragraphs 3 to 7 apply accordingly.
VII. Guarantee, Warranty
We, ourselves, will not give guarantee but offer a right to claims in warranty cases. Guarantees can exist on the part of the manufactures. In case a guarantee from the manufacturer exists, the customer has to contact the warrantor directly. We can not assume responsibility for any liability on the part of the warrantor. The customer is entitled to warranty claims besides the guarantee.
We are liable for defects under the following conditions: The customer must check goods received immediately upon receipt and claim any defects. The customer carries the risk of selection and specification of service and any results thereof. In case of defects the customer is entitled to supplementary delivery or remediation of defects. If we can not provide supplementary performance or removal of defects or subsequent defect removals are not tolerable for the customer or supplementary performance fails, the customer can choose to claim a discount or withdraw from the contract.
If the customer did not follow our instructions or made improper alterations, no claims of material defects may be asserted if the defect is a result thereof.
Because of further claims and rights, except in cases where damages for causing death, injury or damages to health apply, we are liable only in cases of malice aforethought or gross negligence, also from our assistants. Any further liability is ruled out. Should an inspection of the goods prove that there are no defects, we are entitled to charge a general inspection fee of 50 Euros.
VIII. Prices, Terms of Payment, Offset
The price is the price stated in our order confirmation. The price is net and VAT has to be paid in addition. Price changes are permissible, if there are more than four months between the conclusion of the contract and the agreed delivery deadline. We are therefore entitled to increase the price as is permissible as a result of general price developments which are beyond our control such as currency fluctuations, customs amendments, or substantial increase of costs for material and production.
The price and any costs for further claims are payable at handover, where passing of risk applies to other reasons pursuant to Clause V. payable at this point in time. Payments made by check or bill of exchange are invalid. If the customer does not comply with his duty of payment at due date, we reserve the right, after end of deadline or after the time set in our invoice has passed without result, to either withdraw from the contract and if required to suspend any outstanding deliveries to the customer notwithstanding his duty of payment . We are entitled to charge the customer a fee of 15 Euros for every required reminder.
Our claims can only be cleared by the customer with indisputable and legally valid counter claims.
IX. Place of Performance, Applicable Law, Place of Jurisdiction
The place of performance is Mainz. If the customer is a general merchant, a legal person under public law or a special property under public law, the court competent for our place of business will have the exclusive jurisdiction for all disputes arising from contractual relationship. Only the law of the Federal Republic of Germany applies.
X. Severability Clause, Final Clause
In the case that one of these provisions is not included in the contract, either in part or as a whole, or becomes null or void, the validity of the other provisions is not affected by this. Any changes to these provisions or other agreements related to the contract have to be carried out in writing. The same also applies for any alterations or the annulment of the written form clause as well as for any alterations or annulment of this clause. Passing over any rights and any obligations of the customer resulting from the contract with us to third parties requires our written consent.
Mainz, Juni 2010