GTC
GTC
[General Terms and Conditions]
1. our offers are subject to change. Delivery and invoicing shall be at the prices announced on the day of dispatch or collection of the goods. Significant changes in costs, in particular for raw materials, wages, energy, etc. entitle us to demand the adjustment of prices and to withdraw from the contract in the event of non-receipt. Cartage shall be borne by the recipient. No compensation is granted for self-collection. If accelerated shipment is prescribed (air freight, express freight, express etc.), the customer shall bear the difference between the costs for freight and the higher expenses.
2. the goods travel at the risk of the recipient. We do not provide insurance. If the goods are ready for dispatch and dispatch or acceptance is delayed for reasons for which we are not responsible, the risk shall pass to the customer upon receipt of the notification of readiness for dispatch. We are entitled to demand immediate payment and to store the goods with a warehouse keeper or forwarding agent for the account and risk of the customer or to have them auctioned.
3. the minimum net order value is Euro 150,- within Germany for delivery carriage paid, in export free German border or FOB. For orders under Euro 150,- we charge a minimum quantity surcharge of Euro 12,50. The ordered quantities may be exceeded or fallen short of by up to 10% if the goods are made to order.
4 Unless otherwise agreed, packaging shall not be charged. Special packaging (e.g. crates, steel pallets) will be charged at cost. If the goods are returned carriage paid in usable condition, we will refund the full value of steel pallets and 2/3 of the value of the amount charged for other special packaging. For steel pallets we charge a rental fee of Euro 3.07 per week or part thereof after 4 weeks from the date of dispatch.
5. delivery dates are set in such a way that they are likely to be met. Disrupted operations, in particular cases of force majeure and other disruptive events affecting us, our suppliers or transport companies, such as fire, floods, shortages of labor, energy or raw materials, strikes, lockouts, official measures, shall release us from the obligation to deliver on time for the duration of the hindrance. Claims for damages or other claims arising from delays in delivery or suspension of delivery are excluded to the extent permitted by law. In all other respects, the customer retains the statutory right of withdrawal. In the case of contracts whose fulfillment consists of several deliveries, non-fulfillment, defective or delayed fulfillment of one delivery shall have no influence on other deliveries of the contract.
6. the return of sold goods is generally excluded. If, in exceptional cases, goods in perfect condition and not outdated are taken back, this shall be done at the net price on the day of delivery, unless the net price on the day of return is lower than this. In this case, the latter applies. The freight costs incurred shall be borne by the customer. The above shall not apply in the event that the retention of title is exercised.
7. the filing of bankruptcy or composition proceedings, the submission of an affidavit, the occurrence of payment difficulties or the discovery of a significant deterioration in the financial circumstances of the customer shall entitle us to suspend deliveries immediately and to refuse to fulfill current contracts
8. we reserve the right of ownership and copyright to cost estimates, drafts, drawings and other documents; they may only be made accessible to third parties with our consent. Drawings and other documents belonging to offers must be returned on request and in any case if an order is not placed with us. If we deliver items according to drawings, models, samples or other documents provided by the customer, the customer shall guarantee that the industrial property rights of third parties are not infringed. If third parties prohibit us in particular from manufacturing and supplying such items with reference to industrial property rights, we shall be entitled – without any obligation to examine the legal situation – to cease any further activity in this respect and to demand compensation. The customer undertakes to indemnify us immediately against all claims of third parties in connection therewith.
9. parts provided by the customer for the execution of the order (e.g. metal or plastic parts) must be delivered by him free of charge with an agreed excess quantity for any exclusion in good time and in perfect condition, otherwise we shall be entitled, at our discretion, not to commence or interrupt production and to invoice any costs incurred. This shall not affect our right to compensation.
10. test parts required for testing shall be invoiced in addition to any costs incurred, in particular for molds, tools and devices. If molds, tools and equipment are procured by us for production or manufactured under our direction, we shall invoice the costs for these as part of the production costs. In both cases, the molds, tools and equipment remain our property. Any amortization agreements refer to a maximum term of 3 years. Services not rendered for molds, tools and equipment shall be paid for in cash.
[B. Retention of title]
1a) We reserve title to all goods delivered by us until all claims, including conditional and future claims, which we have against the customer from the respective business relationship have been fulfilled (§§ 362 ff. BGB). Cash payments, payments by check and bank transfers made against a promissory note issued by us shall only be considered as fulfillment when the bill of exchange has been cashed by the drawee and we are thus released from liability for the bill of exchange.
b) The assertion of the retention of title, in particular by taking back the goods, which is permissible in the event of default of payment or the endangerment of our claim to ownership, shall not be deemed to be a withdrawal from the contract.
c) Notwithstanding the customer’s obligation to pay, we are entitled to return the goods taken back to the customer.
aa) to sell by private treaty and credit the proceeds, or
bb) at the contract price – less all bonuses, rebates and other discounts granted and less a 20% reduction in value (basis contract price).
d) The customer must notify us immediately of any seizure or any other impairment of our property rights by third parties and confirm the property right to both third parties and us in writing. The customer is prohibited from pledging or assigning as security the goods delivered subject to retention of title.
e) Acquisition of ownership of the goods subject to retention of title by the customer in accordance with. § Section 950 of the German Civil Code (BGB) in the event of the processing of the reserved goods into a new item is excluded. Any treatment and processing shall be carried out by the customer on our behalf without any obligations arising for us. The treated or processed goods serve as our security. In the event of combination, mixing or blending with other goods not belonging to us (§ 947, 948 BGB), we shall be entitled to co-ownership of the new item in the ratio of the value of the reserved goods used for the manufactured item to the total of all invoice values of the other goods used in the manufacture. If the customer acquires sole ownership of the new item, the contracting parties agree that the customer shall grant us co-ownership of the new item in proportion to the value of the processed or combined, mixed or blended reserved goods. The resulting new item shall be deemed to be reserved goods within the meaning of these terms and conditions. The customer shall store them for us with due commercial care and undertakes to provide us with the information required to exercise our rights and to allow us to inspect his documents in this respect.
f) The customer must insure the reserved goods adequately, in particular against fire and theft. Claims against the insurance company arising from a claim relating to the reserved goods are hereby assigned to us in the amount of the value of the reserved goods. The customer must inform the insurance company of the assignment of the claim.
2a) The customer’s claims arising from the resale of the reserved goods are hereby assigned to us with all ancillary rights, irrespective of whether the reserved goods are resold without or after processing, treatment, combination or mixing and whether they are resold to one or more customers. If the assigned claim against the third-party debtor has been included in a current account, the agreed assignment also relates to the claims from the current account. The assigned claims serve to secure all our rights and claims in accordance with B.1.a).
b) In the event that the reserved goods are sold by the Buyer together with other goods not belonging to us, whether without or after combination, mixing, treatment or processing, the assignment of the purchase price claim pursuant to B.2.a) in the amount of the contract price of the reserved goods plus 20%, which shall be offset against the interest and costs after receipt of the amount, shall be deemed agreed, whereby the unused additional amount shall be reimbursed.
c) If the reserved goods are used by the customer to fulfill a contract for work and services or a contract for work and materials, the claim arising from the contract for work and services or contract for work and materials shall be assigned to us in advance to the same extent as described in B.2.a) and b) is determined.
d) The customer shall only be entitled and authorized to resell or otherwise use the goods subject to retention of title on condition that the conditions set out in B.2.a) to c) shall be transferred to us. He is not entitled to dispose of the reserved goods in any other way.
e) The customer is authorized to collect the claims from the resale despite the assignment. Our authority to collect shall remain unaffected by the customer’s authorization to collect. However, we shall not collect the claims ourselves as long as the customer duly fulfills his payment obligations. At our request, he must inform us of the debtors of the assigned claims, provide the necessary information and documents and notify the debtors of the assignment.
f) In the cases listed under A.7. The customer’s authorization to resell the reserved goods and to collect the claims assigned to us shall lapse in the cases mentioned above.
3.a) The retention of title in accordance with the above provisions shall also remain in force if individual claims of ours are included in a current account and the balance has been struck and recognized.
b) The retention of title in accordance with the above provisions shall expire when all claims listed above under B.1a) have been fulfilled. Ownership of the goods subject to retention of title is thus transferred to the customer and he is entitled to the assigned claims.
4. if the value of all securities existing for us exceeds our claims
by more than 20%, we are obliged to release securities of our choice at the request of the customer.
[C. Terms of payment]
1. unless otherwise expressly agreed in writing, all invoices are payable within 14 days of the invoice date with a 2% discount, or net within 30 days.
2. our invoices are to be paid free of postage and charges. The invoice date is the same as the date of dispatch.
3. cash account shall only be granted if all due payment obligations from previous deliveries have been fulfilled and the invoice amount has been received by us in cash or credited to our account punctually by the aforementioned due dates. The surrender of a bill of exchange cannot therefore lead to the granting of a cash account. In the case of cashless payment, in particular also in the case of payment by check, the time of crediting shall be decisive in all cases. Discounts cannot be granted for payments or credit notes subject to reservations, conditions or other restrictions. The customer bears the risk of the payment method.
4. bills of exchange and checks will only be credited subject to the correct receipt of the full amount. We reserve the right to accept third-party or own acceptances. Costs and discount charges shall be borne by the customer. We assume no liability for submission and protest. If the customer’s own bills of exchange are protested or if protested third-party bills of exchange are not covered immediately, we shall be authorized to return all bills of exchange still outstanding. At the same time, all our claims shall become due. Postdated checks will not be accepted.
5. after expiry of the due date, we shall be entitled to charge interest on arrears at a rate of 4% above the respective discount rate of the Deutsche Bundesbank. Our right to claim damages for default shall remain unaffected.
6. we reserve the right to cancel the granting of credit at any time, even if this involves the granting of payment terms within the scope of these terms and conditions. We are also entitled to demand sufficient security for an existing claim at any time at our discretion. If our request is not granted, all our claims shall become due immediately.
7 We do not pay interest on advance payments or payments on account.
8. the customer shall only be entitled to offset or withhold payments if his counterclaim is undisputed or has been legally established. Deductions that have not been expressly agreed shall not be recognized.
9. a claim to payment or offsetting of an agreed bonus shall only exist if the customer has paid us all claims on which the calculation of the bonus is based.
[D. Conditions of liability]
1. we only provide a warranty for the products supplied by us in accordance with the following provisions:
a) We shall be liable for not insignificant defects at our discretion by repair or replacement. A claim for rescission or reduction shall only be given if, according to our decision, rectification or replacement delivery cannot take place or the deadline for this has not been met. If the repair or replacement delivery fails or if warranted characteristics are missing, the customer may demand a reduction in payment or, at his discretion, rescission of the contract. Further claims, in particular claims for damages of any kind, are excluded to the extent permitted by law. Insofar as we provide a full or partial replacement in any form, the rejected goods shall become our property.
b) The technical information provided by us regarding the object of performance, intended use etc. (e.g. dimensions, weights, hardness, utility value) relate to the approximate character and type of the goods. They are descriptions and not warranted characteristics. Deviations from samples or previous deliveries will be avoided where technically feasible. Only significant deviations justify a warranty claim in accordance with D.1.a). Manufacture and delivery are generally carried out within the scope of the deviations permitted by DIN 40631. We shall only be bound to fall below the permissible tolerances if we have expressly confirmed this in writing.
c) A defect for which we are responsible does not exist in the case of natural wear and tear, damage due to improper handling, inadequate storage or if the defect is due to a special use of the goods not notified to us in writing upon conclusion of the contract.
d) Complaints of any kind must be made within 10 days of receipt of the goods, in the case of hidden defects within 10 days of discovery. The goods are to be returned to us carriage paid to Wuppertal, unless we expressly waive this.
e) A warranty is excluded for secondary or batch goods.
2. in accordance with a long-standing practice in our branch of industry, claims for damages of any kind and for any legal reason whatsoever, including those arising from culpa in contrahendo, positive breach of contract and tort in accordance with the German Civil Code, are excluded. §§ 823 ff. BGB (German Civil Code) against us, our vicarious agents and auxiliary persons are excluded to the extent permitted by law. This liability regulation also applies to our advice given verbally, in writing, through tests or in any other way; in particular, the customer is not exempt from checking the suitability for the intended use himself.
[E. Place of performance, place of jurisdiction, other agreements]
1. place of performance and jurisdiction for all claims arising from the business relations, in particular our deliveries, is Wuppertal. This place of jurisdiction shall also apply to disputes concerning the formation and validity of the contractual relationship. At our discretion, we shall also have the right to bring an action before the courts having jurisdiction for the customer’s registered office. The law of the Federal Republic of Germany shall apply exclusively, to the exclusion of the Uniform Laws on the International Sale of Goods.
2. our terms and conditions, on which all agreements and offers are based, shall be deemed to have been accepted by placing the order or accepting the delivery. They can be changed by us at any time. Any terms and conditions to the contrary shall be ineffective, even if we do not expressly object to them; they shall only apply if they are recognized by us in writing in individual cases. The invalidity of individual provisions shall not affect the validity of the remaining provisions of these terms and conditions.
3. telephone or verbal agreements require written confirmation to be legally effective.
Status June 2002
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Klebebänder GmbH