General Sales Terms of KGW Gerber Edelstähle GmbH
§ 1 General/Applicability
- Our terms and conditions apply exclusively; we do not recognize contrary terms from the buyer, or terms that deviate from our terms and conditions unless we explicitly agreed in writing to their application. Our Conditions of Sale shall also apply, if we, with knowledge of the Purchaser's conditions which are inconsistent with or deviate from our Conditions of Sale unreservedly carry out delivery to the Purchaser.
- All agreements between ourselves and the customer relating to implementation of this contract must be set out in writing
- Our conditions of sale are only valid in relation to merchants as defined in § 24 AGBG.
- Our sales terms are valid for all future dealings with the customer.
§ 2 Offer/Offer document
- If the order is to qualify as an offer in accordance with s. 145 BGB, we can assume that this is the case within four weeks.
- We retain ownership and copyright to all illustrations, drawings, calculations and other documents; they may not be made accessible to third parties. This shall apply in particular to written documents described as confidential; the Purchaser must obtain our express consent in writing before passing these on to third parties.
§ 3 Prices/Conditions of Payment
- Unless otherwise stated in the order confirmation, our prices are quoted ex works and exclusive of packaging; which shall be charged separately.
- Our prices do not include the statutory VAT; the VAT is stated in the invoice separately at the applicable rate at the date of the invoice.
- The deduction of discounts shall require a special agreement in writing.
- Unless not otherwise provided in the confirmation of order, the net sales price (without deduction) will be due for payment within 30 days after date of invoice. In case the orderer gets into default, we are entitled to demand penal interests of 4% above the minimum lending rate of the Federal Bank. If we are in a position to prove a higher damage caused by default, we shall be entitled to assert this against the customer. The Customer shall be entitled, however, to demonstrate to us that we have incurred a far smaller loss or no loss at all as a result of the arrears of payment.
- The customer is only entitled to set-off when his counterclaims have been legally established, are undisputed, or have been recognized by us. Moreover, he is authorized to exercise a right of retention only in so far as his counterclaim rests on the same contractual relationship.
§ 4 Time of delivery
- The beginning of the delivery period that we stipulate presupposes the clarification of all technical questions.
- Should we fail to deliver on time for reasons for which we are responsible, the buyer shall be entitled to demand a flat-rate compensation sum equivalent to 1 % of the value of the delivery for each full week of delay, this not to exceed a maximum of 5 % of the value of the delivery.
- If, after a delay has already been caused by us, the customer grants us an appropriate grace period with a rejection warning, then he is entitled to withdraw from the agreement after the grace period expires without any success; the customer is entitled to compensation claims due to non-performance in the amount of the foreseeable damage only if the delay was caused due to wrongful intention or gross negligence; for the rest, the liability for damage is out of question.
- The liability limitations according to paragraphs 2 and 3 shall not apply if a business transaction was agreed for a fixed point in time; the same shall apply if the Buyer is able to maintain that its interest in fulfilling the Contract has terminated due to a delay attributable to us.
- Our fulfillment of our obligation to deliver is contingent on the punctual and proper satisfaction of the Customer's obligations.
- Should the buyer be unable to take over the goods on time or should he fail to perform other duties arising from the contract, we shall be entitled to claim for compensation of damage incurred, including possible additional expenses. In this case, the risk of accidental loss or of accidental degradation of the item purchased transfers to the customer at the point at which the customer falls into default of acceptance.
§ 5 Passage of risk
- To the extent that nothing to the contrary can be seen from the order confirmation, delivery "ex works" has been agreed.
- At the Customer's request we will take out insurance to cover the transport of the ordered goods, with the associated costs being for the Customer's account.
§ 6 Warranty of defects and damages
- The ordering party's warranty rights require that the ordering party has properly complied with their obligation to examine the goods and make a complaint in accordance with § 377 HGB (German Commercial Code).
- In case of a deficiency of the merchandise purchased we are responsible for, we have the right to remove the defects or to deliver a replacement according to our choice. In case of defect removal we are committed to assume all necessary expenses, in particular transport, travel, labor and material costs, if they are not increased due to the goods being delivered to a place other than the place of fulfillment.
- If we are not prepared or are unable to remedy the defect / make a replacement delivery, in particular if this is delayed unreasonably for reasons within our control, or if the attempt to remedy the defect fails for any other reason, the customer may elect either to terminate the contract or to demand a corresponding reduction in the purchase price.
- To the extent not stated differently below, the buyer is not entitled to any further claims irrespective of their legal basis. This means that we shall not be liable for damages which are not incurred on the object delivered itself; in particular, we shall not be liable for lost profit or other damage to the assets of the customer.
- The aforementioned indemnity from liability shall not apply insofar as the damage is attributable to intent or gross negligence. This also is rendered invalid if the customer asserts a claim on non-fulfillment according to § 463, 480, section 2 BGB (German civil code) due to a promised missing feature of the contract.
- The warranty period is 6 months from the passing of the risk. This period constitutes a statutory period of limitation and is also valid for claims for consequential damages insofar as no claims are asserted from an illicit act.
§ 7 Total liability
- A more extensive liability for damages than is envisaged in Clause 6, paragraph 4 to paragraph 5 - without taking into account the legal nature of claim made - is excluded.
- The provision according to paragraph (1) shall not apply to claims in accordance with § 1, 4 product liability law, nor to cases of unenforceability.
- To the extent that our liability is excluded or limited, this applies equally to the personal liability of our employees, workers, personnel, legal representatives and vicarious agents.
§ 8 Security of the reservation of title
- We reserve title to the object of purchase until receipt of all payments from the delivery contract. In the event of a breach of contract by the buyer, especially a default in payment, we are entitled to take back the goods. Our taking back the sold goods does not constitute a cancellation of the contract unless we explicitly consented to it in writing. The garnishment of the merchandise purchased by us, however, does always mean a withdrawal from contract. After the return of the goods, we shall be entitled to dispose of the goods; the earnings from the disposal less reasonable disposal costs - shall be offset against the accounts payable by the customer.
- The buyer shall treat the goods with due care; in particular, he shall adequately insure it at the replacement value at the time of purchase against fire, water and theft damages.
- With attachments or other interference by third parties, buyer shall notify seller without undue delay in writing so that seller can file an action pursuant to § 771 Code of Civil Procedure ("Zivilprozeßordnung", "ZPO") or can undertake other appropriate measures. Unless third parties are incapable of reimbursing us judicial and extrajudicial costs for an action as per § 771 ZPO, the customer shall be liable for any expenses defrayed by our company.
- The customer has the right to resell the purchased goods in the ordinary course of business; however, the customer assigns to us, already now, all demands in the amount of the final commercial invoice (including value-added tax if applicable) of our demand that accrue to the customer by reason of the resale to its customer or third party, irrespective of whether the purchased goods are sold with or without processing. The Buyer shall remain entitled to collect this claim even following the assignment. Our authorization to collect the receivable ourselves shall remain unaffected by this. However, we undertake not to collect these accounts receivable as long as the customer meets his payment obligations from earnings received from the sale, does not get into arrears with payment and in particular does not make application to start insolvency proceedings or ceases to make payments. If, however, such is the case we may demand that the customer notifies us of the assigned claims and the respective debtors, gives all information necessary for the collection, provides the documentation thereto and notifies the debtor (third party) of the assignment.
- The processing or transformation of the purchase item by the customer shall always be done for us. If the ordered item is processed with other objects not belonging to us, we acquire the joint ownership of the new resulting item in proportion to the value of the ordered item in relation to the value of the added objects at the time of the processing. The goods generated by processing shall be subject to the same rules as goods that were delivered subject to retention of title.
- If the object of sale is indivisibly mixed with other objects not belonging to us, we shall acquire part ownership of the new object in the same ratio as the value of the object of sale stands to the value of the other objects used at the time they were mixed. In case the commingling is effected in such a way that the purchaser's asset shall be regarded as the prime asset, it is agreed that the purchaser shall transfer title proportionately. Purchaser shall store for us the sole property or joint property so generated.
- The Buyer also assigns to us, as security for our receivables from the Buyer, the receivable accruing to him from a third party as a result of the goods sold being connected to a piece of land.
- At the request of the customer, we undertake to release the securities to which we are entitled insofar as the realizable value of our securities exceeds the claims to be secured by more than 20%; we shall be responsible for selecting which securities to release.
§ 9 Place of jurisdiction/place of delivery
- Where the customer is a fully qualified merchant, it is agreed that our business seat be the legal venue; however we are also entitled to sue the customer at the location of his own residence or place of business.
- Unless anything else has been stated on the order confirmation, our business location is place of delivery.
KGW Gerber Edelstähle GmbH
status as of 08.06.2011