- The following agreements hold good for all the contracts entered into between the buyer and us. Differing terms and conditions of the buyer, which we do not explicitly recognize, are not binding for us, even if we do not expressly contradict them. The T&Cs of sale that follow apply even if we execute the order of the buyer without reservation in full knowledge of contrary or differing conditions of the buyer.
- No verbal side agreements were made to this contract. Any change to the contract must be in writing. Even an agreement on deviation from the written form itself must be in writing, insofar as it affects unilateral notifications and declarations of the parties. In all other respects, the option of proving individual verbal agreements remains unaffected.
II. Quotation and contract conclusion
Our offers are subject to change and non-binding unless we have expressly designated them as binding. A purchase order of the buyer, which is to be qualified as a binding offer to conclude a purchase contract, can be accepted by us within two weeks by sending an order confirmation, or by sending the ordered goods within the same period.
III. Terms and conditions of payment
- Our prices apply ex works unless otherwise stated in the order confirmation. Our prices do not include VAT. VAT will be shown separately on the invoice at the applicable rate at the time of invoicing.
- Costs for delivery, transport and packaging are not included in the purchase price. Unless otherwise agreed, they will be invoiced separately to the buyer.
- A discount is allowed only if there is a special written agreement between us and the buyer. The net purchase price (without deduction) becomes due for payment immediately upon receipt of the invoice by the buyer if no other payment terms are indicated in the order confirmation. A payment is deemed to have been made when we can dispose of the amount. In case of check payments, payment will only be deemed to have been made when the check is cashed.
- Even if complaints or counterclaims have been asserted, the buyer is only entitled to offset if the counterclaims are legally established, accepted by us or are undisputed. The buyer is only entitled to exercise a right of retention if his counterclaim is based on the same contractual relationship.
IV. Delivery and performance period
- Delivery dates or periods which have not been expressly agreed as binding are merely and only non-binding information, unless a concrete commitment has been made or something different has been agreed on an individual basis.
- Obstructions caused by force majeure, which affect us or our suppliers, in particular natural disasters, war, strikes, lockouts, operational disruptions, shortage of raw materials or governmental action will extend the delivery time by the duration of the obstruction.
- Correct and timely delivery by our own suppliers is reserved.
- The delivery time (calendar week) stated by us shall be postponed by the period which is necessary after order placement to clarify all outstanding technical questions with the buyer, during which time the buyer must fulfill all obligations incumbent on him in an orderly and timely manner, and insofar as we are not responsible for the delay.
- If the underlying purchase contract is a firm deal within the meaning of § 286 para. 2 no. 4 of the German Civil Code (BGB) or section 376 of the German Commercial Code (HGB), we accept liability in accordance with the statutory provisions. The same applies in case the buyer is entitled, due to a delay in delivery for which we are responsible, to assert his lack of interest in the further continuance of fulfillment of the contract. In this case, however, our liability is limited to the foreseeable, typically occurring damage if the delay in delivery is not due to intentional breach of contract by us, whereby a fault on the part of our representatives or vicarious agents is attributable to us. Likewise, we are liable for late delivery in accordance with the statutory provisions if such a late delivery is due to a willful or grossly negligent breach of contract for which we are responsible, whereby a fault on the part of our representatives or vicarious agents is attributable to us. Our liability is limited to foreseeable, typically occurring damage, if the delay in delivery is not caused by a deliberate infringement of the contract that is attributable to us.
- If a delay in delivery for which we are responsible is based on culpable violation of a fundamental contractual obligation, whereby culpability of our representatives or vicarious agents is attributable to us, we shall be liable in accordance with the legal regulations with the proviso that in this case, the liability for restitution of damage is limited to the foreseeable, typically occurring damage.
- We are entitled to make partial deliveries and render partial services at any time, insofar as this is just and reasonable for the customer.
- If the buyer is in default of acceptance, we are entitled to demand compensation for the resulting damages and for any additional expenses. The same applies if the buyer culpably breaches his obligations to cooperate. In the case of default of acceptance or debtor default by the buyer, the risk of accidental deterioration and accidental loss transfers to the buyer.
V. Passing of risk – shipping/packing
- Loading and dispatch will be effected uninsured and at the risk of the buyer. We will make every effort to take the buyer’s wishes and interests into account with regard to the mode and route of shipping; additional costs resulting from this – even if carriage paid has been agreed – shall be borne by the buyer. At the buyer’s request and expense, we will insure the shipment by means of a transport insurance.
- We do not take back transportation packaging and all other packaging, as laid down in the packaging ordinance; only agreed returns are excluded. It is the responsibility of the buyer to dispose of the packaging at his own expense.
- If the shipment is delayed at the buyer’s request or due to his fault, we will store the goods at the expense and risk of the purchaser. In this case, notice that the goods were ready for delivery constitutes delivery.
VI. Notice of defect
- The buyer must check the correctness of the drawings, dimensions etc. handed over in the course of order confirmation and inform us immediately of any errors and/or necessary changes. Should the customer fail to provide such information, he may not invoke his warranty rights.
- The buyer is also obliged to inspect the goods immediately upon receipt for defects in quality and defects related to intended use. If this inspection is not carried out, the buyer cannot invoke warranty claims. In this regard, we expressly draw attention to the responsibility defined in § 377 of the German Commercial Code.
- If defects or discrepancies are not discovered until after assembly, the costs of disassembly as well as its possible consequences shall be borne by the buyer.
- The buyer is fully and entirely liable for damage resulting from faulty fitting/assembly and/or improper use of the supplied parts, or use not in conformity with intended purpose, and/or non-observance of the operating instructions / instructions for use.
- Packaging materials such as transport packaging, pallets etc. will not taken back, in accordance with the packaging ordinance, and must be recycled or disposed of by the buyer.
We expressly draw attention to the obligation defined in § 377 of the German Commercial Code.
- In the event of defective goods, and under exclusion of the right of the purchaser to rescind the contract or lower the purchase price (reduction), we are obliged to subsequent supplementary performance, unless we are entitled to refuse it based on legal regulations. The buyer shall grant us a reasonable period of time for subsequent supplementary performance. Supplementary performance may, at our discretion, consist of correction of the defect (rectification) or the supply of new goods. We shall bear the necessary expenses involved in rectification of the defect, provided these expenses are not increased because the object of the contract is located at a place other than the place of fulfillment.
- We shall carry out the rectification at the place of fulfillment. If the object of the contract is the supply and assembly of the object of purchase, it is located at the buyer’s registered office. If only the delivery of the object of purchase was involved, it is located at our company headquarters. In the event that the repair is carried out at the buyer’s place of business, we shall bear the associated expenses. If the repair is carried out at our company headquarters, the associated costs are to be borne by the buyer, unless an express agreement to the contrary has been made. The claim for retrospective repair, as such, only refers to the material to be supplied by us.
- If subsequent performance fails, the purchaser may request the reduction of the purchase price (reduction) or the cancellation of the contract at his discretion. The rectification shall be deemed to have failed if it has been attempted twice without success, unless – given the object of the contract – further attempts are appropriate, and reasonable for the buyer.
- Further claims of the buyer, especially for the compensation of damages which have not occurred in the object of purchase itself, are excluded from the scope of the warranty.
- Circumstances and/or changes in the material which are irrelevant for
technical use, in particular
- drawing water from tarpaulins
- wrinkles due to tarpaulin tension and tension peaks
- folds in weld seams and/or other optical deviations do not constitute defects that entitle the customer to assert warranty claims.
- The buyer can only make claims for damages due to defects for which we are responsible under the following conditions if the supplementary performance has failed. The purchaser’s right to assert further claims for damages under the following conditions remains unaffected.
- The warranty claims of the buyer do not refer to damage caused by severe weather/storms and other natural events.
- The warranty claim entitlements of the buyer expire one year after delivery of the goods to the buyer, unless we have maliciously concealed the defect; in which event, the provisions of the law shall apply. Paragraph VIII. no. 1 and 2 remain unaffected.
- We are liable according to the law for damage to life, body and health caused by a negligent or intentional breach of duty by us, our legal representatives or our vicarious agents, as well as for damage that is covered by the German Product Liability Act. For damage that is not covered by clause 1 and which is due to willful or grossly negligent breaches of contract or fraudulent intent by us, our legal representatives or our vicarious agents, we are liable in accordance with the statutory provisions. In this case, however, liability for damages is limited to foreseeable, typically occurring damage, unless we, our legal representatives or our vicarious agents have acted with intent. To the extent that we have given a warranty of quality and/or durability with respect to the goods or parts thereof, we shall also be liable within the scope of this warranty. However, for damage originating from lack of guaranteed quality or durability, but does not directly affect the goods, we are only liable if the risk of such damage is clearly covered by the quality and durability guarantee.
- We shall also be liable for damages caused by simple negligence, insofar as the negligence concerns the violation of essential contractual obligations,compliance with which is of particular importance for achieving the purpose of the contract (cardinal obligations). However, we are only liable if the damages are typically associated with the contract and are foreseeable.
- Any further liability is excluded regardless of the legal nature of the asserted claim; this particularly applies to tort claims or claims for reimbursement of futile expenses in lieu of performance; this shall not affect our liability pursuant to Section IV, para. 2 to Section IV para. 6 of this contract. Insofar as our liability is excluded or limited, the exclusion or limitation also applies to the personal liability of our staff, workers, coworkers, representatives or vicarious agents.
- Claims for damages by the buyer due to a defect shall lapse one year after delivery of the goods. This does/shall not apply in the case of injury to life, body or health for which we, our legal representatives or our vicarious agents are culpable, or if we or our legal representatives have acted intentionally or with gross negligence, or if our simple vicarious agents have acted deliberately.
IX. Reservation of ownership
- Until the fulfillment of all claims, on the buyer, including all balance claims from current accounts, to which we are entitled now or in the future, the delivered goods (reserved goods) remain our property. In case of breach of contract by the buyer, for example, default of payment, we have the right to take back the reserved goods after setting a reasonable deadline. If we take back the reserved goods, this will constitute a withdrawal from the contract. If we seize the reserved goods, this will constitute a withdrawal from the contract. We are entitled to utilize the goods as we see fit after we take them back. After deducting a reasonable amount as selling costs, the sales proceeds will be set off against the amounts due to us by the purchaser.
- The buyer will treat the reserved goods with care and insure them at his own expense against fire, water and theft at sufficient reinstatement value. Maintenance and inspection work that becomes necessary must be carried out in a timely manner by the buyer at his own expense.
- The buyer is entitled to dispose of or resell the reserved goods within the ordinary course of business as long as he is not in default of payment. In particular, proper business transactions no longer exist if a reason for insolvency (inability to pay pursuant to § 17 of the German Insolvency Ordinance; over-indebtedness § 19 InsO) exists. From this point in time, any use of the item is prohibited, in particular any use that entails a legal disadvantage for the owner of the reservation of title. This applies in particular in the event that the buyer also uses general terms and conditions of business and the prolonged and/or extended retention of title does not have any effect due to a defense clause (excluding the T&Cs of other parties) contained therein, but only the simple retention of title remains. Pledging of the goods or transferring ownership by way of security is not permitted. Any claims arising from resale or from other legal reasons (insurance, tort) with respect to the reserved goods (including all balance claims from current accounts) are now already assigned in full to us by the buyer; we do hereby accept this assignment. We revocably authorize the buyer to collect claims assigned to us for his own account and in his own name. The direct debit authorization can be revoked at any time if the buyer does not duly meet his payment obligations. The buyer is not entitled to cede this claim, not even for
the purpose of debt collection by way of factoring, unless reasons are simultaneously stated for the obligation of the factor to transfer the quid pro quo in the amount of the claims directly to us, while there are still claims by us against the buyer.
- Any processing or transformation of the reserved goods by the buyer is always carried out for us. If the reserved goods are processed with other goods not owned by us, we will acquire ownership of the new goods in proportion to the value of the reserved goods (final invoice amount including VAT) with respect to the other processed goods at the time of processing. The same applies to the new goods produced by processing as for the reserved goods. In the case of the inseparable mixture of reserved goods with other goods not belonging to us, we acquire co-ownership of the new goods in proportion to the value of the reserved goods (final invoice amount including VAT) with respect to the other mixed goods at the time of mixing. If the goods of the buyer, as a result of mixing, are deemed to be the main goods, we and the buyer agree that the buyer shall transfer proportionate co- ownership to us of these goods; we hereby accept the transfer. The buyer will keep the resulting exclusive or joint ownership of an item in custody by for us.
- In the event of access of third parties to the reserved goods, especially seizures, the buyer will point out our ownership and inform us immediately so that we can enforce our property rights. If the third party is unable to reimburse us judicial or extrajudicial costs arising in this context, the buyer will be liable.
- We are obliged to release the securities due to us to the extent that the realisable value of our securities exceeds the secured claims by more than 10%, whereby we are at liberty to select the securities to be released at our discretion.
X. Flat damages
If the buyer terminates the order before execution, we are entitled to claim 10% of the total order amount as damages. In the event of default of payment on the part of the buyer, we shall be entitled, from the 2nd reminder, to set an amount of 5 € as a reminder fee for each further reminder. Our right to claim higher damages remains unaffected. The buyer is at liberty to prove the absence of damage or a substantially lower damage.
XI. Place of performance, place of jurisdiction, applicable law
- Place of performance and jurisdiction for deliveries and payments (including legal action taken in connection with checks and bills) as well as for all disputes arising between us and the buyer from the purchase contracts signed between us are our company headquarters. This agreement applies exclusively to merchants. This agreement does not apply to consumers.
- The customer may transfer his contractual rights to third parties only by mutual agreement, whereby purchase price claims and other monetary claims remain unaffected.
- The relations between the contracting parties shall be governed exclusively by the law applicable in the Federal Republic of Germany; the UN Convention on Contracts for the International Sale of Goods is excluded. The application of the uniform law on the international purchase of movable goods and the law on the conclusion of international sales contracts for movable goods is excluded.
- If any provision of this contract should be deemed to be or become wholly or partially invalid or not feasible, this shall not affect the validity of the remaining provisions of the contract. The same applies in the event that this agreement contains a loophole.
- The contracting party shall replace the invalid provision by one which, in a legally effective manner, approximates as closely as possible the meaning and purpose of the provision that became invalid. The same applies to any contractual omissions.
As on 21-06-2018
Baur Folien GmbH
Tel. 00 49 8334 99 99 1- 0
Baur Folien GmbH
Tel. 00 49 8334 99 99 1-99