Mädler GmbH Conditions of Sale, Delivery and Payment
§ 1 General information – Area of application
Our conditions of sale shall apply exclusively; conflicting or deviating terms and conditions of the buyer are not binding for us unless expressly agreed to their validity in writing. Our conditions of sale shall also apply where we perform delivery to the buyer without reservation in spite of knowledge of conditions of the supplier which conflict with or differ from our conditions of sale. Any agreements made between us and the buyer for the purpose of execution of this contract are contained in writing in this contract. Our sales conditions apply only to entrepreneurs as defined by § 310 paragraph 1 German Civil Code (BGB).
§ 2 Quotation – Quotation documents
If the order is to qualify as an offer in accordance with § 145 BGB, we shall have 2 weeks in which to accept it.
We reserve ownership and copyright on illustrations, drawings, calculations and other documents. This applies equally to documents defined as “confidential”. Passing them on to third parties shall be subject to our explicit written consent. All information provided in catalogues, drawings and models regarding performance, load capacity, dimensions and weights are approximate values. As part of ongoing technical development, we reserve the right to make dimensional and constructional alterations. Upon request and at the buyer’s cost we provide a technical test certificate. Reproduction of our catalogues and drawings as wells as copies of our models, even in part, requires our explicit approval in writing. Our offers are non-binding. Orders are only binding if confirmed by us or if fulfilled by sending of the goods.
§ 3 Pricing – Terms of payment
Retail customers and customers outside Germany will only be supplied on a cash before delivery basis. In the absence of any written agreements to the contrary, our prices for deliveries within Germany include free carriage and packaging; excluded are special freight and deliveries to foreign countries. Statutory VAT is not included in our prices; the applicable legal rate is stated in a separate invoice at the date of the invoice. Unless firm pricing has been explicitly agreed for a certain delivery, prices will be calculated according to our price lists valid at the time of the purchase, which also provide terms and conditions for small orders, call orders, price surcharges and return deliveries. These price lists in their currently valid form are the subject matter of conditions of sale, delivery and payment. Dispatch is carried out cash on delivery unless explicitly agreed otherwise. If delivery is not made cash on delivery, our invoices are to be settled within 30 days without any deduction. If the invoiced amount is paid within 14 days from date of invoice, the buyer is entitled to deduct a 2% discount. Discount deductions, however, shall only be permitted on condition that the buyer has settled all outstanding invoices with us or is settling them at the same time. Payment conditions for deliveries starting from EUR 1.500,00 for goods made up to specifications or samples are 50% upon receipt of confirmation of order and 50%, without deduction, within 30 days of invoice date. Partial deliveries are invoiced immediately. We shall be entitled to demand default interest amounting to 8 percentage points above the base rate, if periods of payment are exceeded. The seller reserves the right to claim damages for the enforcement of a further delay. Payment terms shall only be deemed met, if the amount payable is available to us within the delays.
Bills of exchange are accepted only upon special previous agreement. Bills of exchange and cheques are accepted only on account of performance. Where there is major deterioration in the financial circumstances of the ordering party, we are entitled to refuse to carry out further deliveries until all receivables, due or not due, are settled or a warranty is provided. Only undisputed claims or those determined with legal validity shall entitle the buyer to offset claims or retain payments. Retentions of payments must be based on the same contractual relationship as the respective accounts receivables.
§ 4 Delivery times
Deadlines and dates for deliveries are only approximate. In case of a culpable failure to keep the delivery date, there will only be a default in delivery after an extended period has been set provided the underlying purchasing contract has not been expressly agreed on as a fixed date transaction, as defined in § 286 paragraph 2 No. 4 BGB or § 376 German Commercial Code (HGB). The commencement of the delivery period specified by us depends on prior clarification of all technical questions. Fulfillment of our delivery conditions is subject to prompt and proper fulfillment of the buyer’s obligations. We reserve the defense of non-performance of the contract.
If the purchaser delays acceptance or if it culpably infringes other duties of cooperation, we shall be entitled to ask for compensation, including any additional expenditure. Any further legal claims shall remain unaffected. If the conditions of paragraph (3) are met, the risk of accidental loss or of accidental degradation of the item purchased shall transfer to the ordering party when the same party defaults on debts or in acceptance. We are liable within the legal provisions to the extent that the underlying purchasing contract is a fixed date transaction as defined in § 286 paragraph 2 No. 4 BGB or § 376 German Commercial Code (HGB). We are also liable pursuant to the statutory provisions to the extent that, as a consequence of a delay in delivery that is our responsibility, the customer has the right to claim cessation of his interest in continuing the performance of the contract. Moreover, we shall be liable in accordance with statutory provisions in so far as the delay in delivery is based upon an intentional or grossly negligent contract violation for which we are responsible; we shall also be responsible for a fault caused by our representatives or vicarious agents. Insofar as the delay in delivery is not the result of an intentional breach of contract for which we are responsible, our liability for compensation is limited to the foreseeable damage that may typically occur.
We shall bear legal liability under statutory regulations if the delay in delivery for which we are responsible has been caused by the culpable violation of an essential contractual obligation; in such case, however, our liability for damages shall be limited to the foreseeable typically occurring damage. The buyer shall reserve the right to additional statutory claims and rights.
§ 5 Transport Insurance, Packaging and Costs
Provided that nothing else is stated in the order confirmation, delivery shall be considered as agreed. Deliveries within the Federal Republic of Germany are free kerbstone edge and covered by our transport insurance. Everything else requires a special agreement. If the place of delivery is within the German Federal Republic, we shall bear the cost of loading and dispatch; otherwise, the ordering party is liable for the costs. Generally, shipments outside the German Federal Republic shall be transported at the expense and risk of the purchaser and we shall select a suitable carrier or transport company. Transport packaging and all other packaging in accordance with the German Packaging Ordinance is non-returnable and becomes the Customer’s property, except for pallets. The customer is obliged to dispose of the packaging material at his own expense.
§ 6 Liability for defects
All information about suitability, workmanship and application of our products, technical advice and other details are given to the best of our knowledge but do not release the customer from the obligation to perform his own examinations and tests. Claims for defects by the customer require proper fulfillment of its obligations to inspect and complain in accordance with § 377 HGB. In the case of custom-built products we are allowed to make overdeliveries or underdeliveries of up to 10% of the ordered quantity.
Provided there is a defect on the merchandise, the customer is entitled to choose between rectification of the defect or having the merchandise delivered free of defects. In case of remedying a defect we are to bear all costs which are necessary for remedying the defect, especially transport, travel, work, and material costs insofar as these costs are not increased by moving the delivery to a place other than the place of performance. If subsequent performance fails, the buyer will be entitled to choose to demand cancellation or reduction. We are liable within the legal provisions, as far as the customer asserts a claim on compensation which is based on intention or gross negligence of us, including intent or gross negligence on the part of representatives or vicarious agents.
As far as we are not accused of willful breach of contract, our liability for claims for damages is limited to the foreseeable, typically occurring damage. We shall be liable pursuant to the statutory provisions, insofar as we culpably violate an essential contractual obligation; however, in this case liability is restricted to foreseeable, typically occurring damage. Liability on account of culpable injury to life, limb or health shall not be affected; this shall also apply to mandatory liability as provided for in the product liability law. Liability shall be excluded in instances not covered in the above provisions. The statutory limit for claims in respect of a defect is 12 months, beginning with the transfer of risk. The statute of limitations in the event of a delivery recourse according to §§ 478, 479 BGB remain unaffected; it is five years, beginning from delivery of the faulty object.
§ 7 Total liability
We specifically exclude any additional form of liability, beyond that specified in §6, independent of the legal nature of the issue. This applies in particular to claims for damages resulting from fault in conclusion of contract, from other breaches of duty or from tortious claims for compensation for property damage according to § 823 BGB. As far as the liability for compensation against us is excluded or restricted, this shall be valid as well with respect to the personal liability for compensations of our employees, staff members, representatives and vicarious agents.
§ 8 Security of reservation of title
We retain the title of ordered goods until all due payments have been provided as stated in the contract (including the settlement of all outstanding current account balances). If the customer acts in a way contrary to the contractual obligations, in particular in the event of a default in payment, we shall be entitled to retrieve the goods. Our taking back of the delivery item in no way constitutes withdrawal from the contract, unless this was previously explicitly agreed in writing.
A seizure of the delivered goods shall always constitute a withdrawal from the contract. After recovery of the purchased object we are entitled to sell the latter, the amount thus realized is to be deducted from the obligations of the ordering party – less reasonable exploitation costs. The customer is obliged to handle the purchased goods with care and, in particular, the customer shall, at its own expense, sufficiently insure such goods, at their original price, against fire, water and theft damage. If maintenance and inspection work is necessary, the contracting party must conduct such work in due time at its own cost. In the event of seizures or other action by third parties, the customer must notify us immediately in writing so that we can lodge a lawsuit in accordance with § 771 German Code of Civil Procedure (ZPO)
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 buyer is entitled to resell the purchased item in the ordinary course of business; however, he herewith already assigns to us all claims to the amount of the invoice sum total (including value-added tax) arising from the further assignment to its clients or to a third party, and this independently of whether or not the purchase object has been sold on without or after further processing.
The buyer remains entitled to collect this receivable even after the assignation. Our right to collect such claims remains unaffected.
However, we undertake not to collect the claim as long as the client fulfills his payment obligations arising from the collected profits, is not in default of payment and particularly if no application for the institution of bankruptcy or composition or insolvency proceedings is filed and no insolvency has occurred.
However, if this is the case we can request that the buyer informs us of the assigned claims and their debtors, provides all pertaining information and relevant documents which are necessary for us to assert our rights, and that he informs the debtors (third parties) about the assignment. The processing or modification of the purchased item by the customer will always be carried out on our behalf.
If the ordered item is processed with other objects not belonging to us, we acquire the joint ownership of the new resulting item in the ratio of the value of the object bought (final invoiced amount including value-added tax) to the other processed objects at the time of processing. Apart from this the same shall apply for the item resulting through processing as for the item delivered under reserve. If the object of sale is indivisibly mixed with other objects not belonging to us, we shall acquire co-ownership of the new object created in the ratio of the value of the delivered item (final invoice value including value-added tax) to the other mixed objects at the time of mixing.
If mixing occurs in such a way that the contractor’s item is to be regarded as the principal item, it is deemed to have been agreed that the contractor transfers proportionate co-ownership to us. The purchaser keeps the herewith generated sole ownership or co-ownership for us.
As a security for our own claim, the customer also assigns to us the claims arising against a third party by integration of the ordered goods into real property. At the request of the customer, we undertake to release the securities to which we are entitled insofar as the realisable value of our securities exceeds the claims to be secured by more than 10%, the choice of the securities to be released is within our scope of responsibility.
§ 9 Provision of Materials and Samples
If the tool breaks as a result of bad prior work or defective material on the parts to be processed, relevant cost shall be borne by the customer. If work pieces provided by the customer become unusable as a result of mistakes in workmanship, with the exception of intent and gross negligence, we shall assume responsibility only for work carried out by our company. A guarantee is granted by way of subsequent improvement in such way that we carry out the same processing again, at no charge, when new work pieces are delivered to us. Our liability – with the exception of intent and gross negligence – is limited to the invoiced wage costs.
Prior to leaving our premises, the processed parts are subjected to a random inspection. Additional examination takes place only upon special agreement or against calculation of extra costs. This output check does not release the customer (recipient of goods) from his own duty to carry out an incoming goods check. We do not accept responsibility for any samples sent to us.
§ 10 Jurisdiction – Place of fulfillment
Provided the buyer is a merchant, jurisdiction shall be our place of business; we are, however, entitled to sue the buyer at the court of his residence.
The law of the Federal Republic of Germany shall apply with the exception of UN international trade law.
Unless otherwise provided in the confirmation of order, place of fulfillment is the place of our business.
Status October 2012, Mädler GmbH