Standard Terms and Conditions
Out of the blue KG
§ 1 General:
All supplies of goods and services by us both now and in future are exclusively subject to these Terms and Conditions. Agreements and subsidiary terms deviating from these Standard Terms and Conditions will only be effective if we confirm them expressly in writing.
§ 2 Offers, conclusion of contracts, size of orders:
1. Our offers are not binding on us.
2. A contract will come into existence when we acknowledge the order concerned in writing.
Our dispatch of an invoice also constitutes acknowledgement of the order.
§ 3 Prices, terms of payment:
1. Prices are quoted in euros and are subject to the addition of value added tax at the statutory rate applicable
on the date when the invoice is issued. The list prices applicable on the day of delivery apply.
2. Invoices must be settled within 30 days of their date. Otherwise the Purchaser will be regarded as having fallen into arrears. From that date the Purchaser will be under an obligation to pay interest at the statutory rate applicable to arrears, currently 8% above the base rate. We reserve the right to enforce more far-reaching claims. If the Purchaser pays the full invoice amount into our account within ten days of the date of the invoice, he will receive a discount of 2%.
3. We reserve the right to apply payments to the settlement of those invoice items longest overdue together with the associated costs and interest on arrears in the following order: costs, interest, principal debt.
§ 4 Method of payment:
Payment must be made in cash or by bank or postal giro transfer. Cheques and bills of exchange will only be accepted as conditional payment and on condition that they are free of any costs or expenses to us. Payments by cheque or bill of exchange will be credited, subject to receipt, with value date on the day on which we are finally able to dispose of the proceeds.
§ 5 Offsetting, right to withhold:
The Purchaser will only be entitled to offset or withhold if his counterclaims are legally final and binding, undisputed or recognised by us. The Purchaser is furthermore only entitled to exercise a right to withhold if his claim is based on the same contractual relationship.
§ 6 Failure to accept:
If the Purchaser does not accept goods supplied, and if we waive our entitlement to enforce our right to deliver, the Purchaser will be under an obligation to pay us a contractual penalty equivalent to 15% of the value of the order concerned. However, we reserve the right to enforce a claim for any more far-reaching loss, subject to the offsetting of the contractual penalty.
§ 7 Delivery:
1. If we fall into arrears with delivery, the Purchaser must grant us a reasonable extension of deadline, generally four weeks.
2. Adherence to any delivery deadline is subject to our receiving correct and punctual deliveries from our suppliers.
3. We are entitled to make part deliveries to the extent that it is reasonable to expect the Purchaser to accept this.
4. Force majeure of any kind, unforeseeable operational, transport or dispatch hold-ups, strikes, lockouts, war or civil unrest which delay or prevent delivery of goods by us or make it unreasonable to expect us to deliver will relieve us of our obligation to deliver for the duration and to the extent of the hold-up. If as a result of a hold-up a delivery time of eight weeks in total is exceeded, either party will be entitled to cancel.
§ 8 Transport:
1. In all cases goods will be transported at the expense of the Purchaser.
2. Goods are transported at the risk of the Purchaser. We will only arrange transport insurance at the express request and at the expense of the Purchaser.
§ 9 Claims in the event of defects:
1. If the Purchaser is a merchant as defined by German law (Kaufmann), he will only be entitled to claim for defects if he has properly complied with his trade law obligations with respect to inspection and notification of defects.
2. The Purchaser must submit a complaint for an apparent defect within three days of the delivery of the goods and for a concealed defect within seven days of its discovery. The complaint must be in writing and include the customer number, the invoice number and the date of the invoice. The date of our received stamp will be decisive for the purpose of these deadlines.
3. No complaint may be made on the basis of variations in quality, shape, colour, size etc. which it is technically impossible to avoid and which are either usual in the trade or negligible in extent.
4. We will at our discretion either repair or replace defective goods or credit the Purchaser with the amount concerned.
5. Defective goods must be returned to us within ten days of delivery, but in order to avoid unnecessary expense this may only be done with our prior express approval.
§ 10 Limitation of liability:
1. We are liable for our own deliberate action or gross negligence and for the deliberate action or gross
negligence of our executive staff. We are also liable for breaches of guarantee, if the procurement risk has been assumed, for culpable injury to life, limb or health and under the terms of the German Product Liability Act.
2. We are generally liable for any culpable breach of a substantial contractual obligation and for gross
negligence by non-executive staff. This liability is limited in amount to compensation for typical, foreseeable losses.
3. Any more far-reaching liability on our part is hereby expressly excluded.
4. § 10 Subsections 1 to 3 apply as appropriate to our liability to pay compensation for futile expenditure.
5. Where our liability is excluded or limited, the same applies to the personal liability of our employees, staff, representatives and vicarious agents.
§ 11 Reservation of title:
1. We reserve title to goods supplied until all claims, including subsidiary claims for interest, expenses
associated with bills of exchange etc., due at the time when the contract was concluded and all present and future claims arising out of the business relationship have been paid finally and in full.
2. The Purchaser is entitled to dispose of goods subject to our reservation of title (reserved goods) in the normal course of business; however, he hereby assigns to us with immediate effect all claims accruing to him against his customers or third parties out of any such disposal up to the amount of the final invoice amount (including value added tax). The Purchaser remains entitled to collect the debt himself even after the above assignment. This is without prejudice to our right to collect the debt ourselves, but we undertake not to collect the debt as long as the Purchaser continues to meet his payment obligations from the proceeds obtained. If the Purchaser is no longer entitled to collect a debt, he must supply us with the name and address of the third-party debtor immediately and notify the latter of the assignment of the claim.
3. The Purchaser is not entitled either to pledge reserved goods or to assign them as security. In the event of
seizure or any other interference with such goods by a third party, the Purchaser must inform us
immediately in writing and supply us with all of the information and documents that we require to
protect our rights. The attention of any publicly appointed enforcement agent and any third party must be drawn to our title. The Purchaser must bear all costs that have to be incurred to reverse the effects of any interference and to regain possession of reserved goods, if they cannot be obtained from third parties.
4. No assignment of the Purchaser’s claims against its customers is permissible, unless it is for the purpose of true factoring which is notified to us and of which the proceeds exceed the amount of our secured claim. In such a case the Purchaser assigns to us with immediate effect his claim against the factoring bank up to the amount of the share due to us in the particular case and must instruct the factoring bank to pay the relevant proportion of the claim directly to us.
§ 12 Place of performance, legal venue, jurisdiction:
1. The place of performance for all liabilities arising out of the supply agreement is Lilienthal.
2. If the Purchaser is a merchant as defined by German law (Kaufmann), a public law legal entity or a public law special fund, or if the Purchaser has no general legal venue in the Federal Republic of Germany, the courts which have jurisdiction for the place where our registered office is located will have jurisdiction for all disputes arising out of the contract. The same will apply if the Purchaser’s place of residence or current whereabouts are unknown at the time when action is brought.
3. German law applies. The UN Convention on Contracts for the International Sale of Goods is hereby excluded.
§ 13 Concluding terms:
Should individual provisions of these Terms and Conditions be or become invalid, in whole or in part, this shall not affect the validity of the remaining provisions. In such a case the parties undertake to commence negotiations with the aim of replacing any invalid provision with a provision which comes as close as possible to achieving what the parties from the commercial point of view intended to achieve by means of the original provision. The same will apply as appropriate if a provision should turn out to be missing from the Terms and Conditions.