Standard Terms of Delivery and Payment
1. Validity of the Terms
We carry out the order issued to us exclusively on the basis of the following Standard Terms of Delivery and Payment (called "AGB" in German). They have been agreed on issue of the order under the simultaneous exclusion of other AGB. Our AGB also apply to future orders.
The client confirms that he has received our ABG in such good time before conclusion of the contract that he had sufficient time and opportunity to read them and to find out about the meaning and consequences of all provisions.
Amendments to our AGB, as well as other contractual agreements even if they were made with our field sales representatives, are only valid when they have been confirmed in writing by the Executive Management (cf. subsections 2.4 and 4.2 of these AGB). The written form clause can also only be contracted out in writing.
2. Offers and Descriptions
Our offers and contracts are subject to change at all times and are subject to delivery facilities, particularly with regard to delivery by our subcontractors.
Unless otherwise guaranteed expressly and in writing, the descriptions of our products and services in brochures, drawings and such as well as trial and sample deliveries reflect average quality values, which can deviate in individual cases.
We supply goods of an average type and quality. They are flawless if suitable on delivery (cf. subsection 3.5) for normal use and are of a nature expected by the customer according to the type of article (cf. §434 (1) German civil code (BGB))
No special features are promised; guarantees for a certain characteristic of the purchased article described by third parties are not given (§ 434 (3) BGB). Express reference is made to subsections 1.3 and 4.2 of these AGB.
3. Implementation of the Services
Delivery deadlines and dates for the implementation of other services will be kept by us if possible. Nevertheless, any delays, whether from our side or from our subcontractors, which we were not able to avert in spite of care reasonable according to the circumstances of the case or fair economic expenditure, release us from meeting offered deadlines and entitle us to withdraw from the contract wholly or partially without liability for damages.
The provisions of §376 Commercial Code (HGB) on fixed commercial transactions are eliminated by agreement.
We are in arrears with our performance when quoted delivery/service deadlines have been recklessly exceeded by one month and in addition the purchaser has sent us a written reminder on expiration of this month.
Dispatch takes place carriage forward from the Eggenfelden depot.
Partial deliveries are permitted.
Our deliveries are carried out exclusively from the Eggenfelden depot (ex work Eggenfelden), i.e. we fulfil our delivery obligation with the provision of the goods for pick-up by the haulage contractor/carrier quoted to us by the purchaser as the possessor's agent (§855 BGB) and vicarious agents (§278 BGB). The risk passes to the purchaser from the point in time of the provision for pick-up. This also applies in the case of deliveries free of charge or if the transportation and/or assembly of the delivered goods are carried out by our people.
If the haulage contractor/carrier is authorised by us due to lack of instructions from the purchaser, we are merely acting as the purchaser's representative. We do not take over any obligation in connection with the haulage contractor/carrier's contract. We are entitled to have any freight costs paid by us or freight costs, which the authorised haulage contractor/carrier can claim from us, collected from the purchaser through carr. fwd..
Any return deliveries must be sent to us c.i.f Steinbach.
4. Warranty and Liability
We are only liable for breaches of duty, or if the goods delivered by us deviate from the condition as per subsections 2.2 and 2.3 of these contractual provisions, if we committed the breach of duty or deviation deliberately or caused them through thoughtless actions, which were committed in the knowledge that a loss would probably come about because of them.
We do not take over any liability for the contents of advertising statements or similar third-party information over whose content and wording we have no influence and which are known to the purchaser. Nevertheless, anyone basing grounds for compensation claims on such information must not only prove that he has taken note of provisions within the purview of the BGB/HGB and other relevant provisions, but also that the information about which he is complaining was exclusively causal for his decision to purchase. We reserve the right to refer to the business and other conditions of the party responsible for the information about which he is complaining, as well as to the legal provisions, commercial customs and legal application of the legal system of the country from which the queried advertising comes and/or the country in which the claimant received knowledge of it (cf. in this respect also subsections 1.3 and 2.4).
If we are responsible for breaching obligations from the purchasing agreement (§§433, 280 BGB), at our discretion we can either deliver a flawless article at a later date, remove the existing defect or withdraw from the contract by issuing an appropriate credit note. At our discretion we can carry out any necessary work at the place of assembly or request post-paid return of the defective parts. If the reprimanded defect came about due to incorrect treatment, extraordinary use, non-observance of assembly, operational and/or maintenance regulations or as a result of unauthorised third party interference, such as inappropriately qualified staff, a case of liability for defects does not exist.
The purchase can request subsequent performance, whereby we are entitled either to undertake two attempts to remove the defect or to supply a flawless article. If the subsequent performance is unsuccessful, both we as well as the purchaser can withdraw from the contract.
We have the right to refuse subsequent performance if it is only possible with exceptional economic expense. In such a case the purchase can request a reduction in the purchase price.
The replacement of indirect damage or consequential harm caused by a defect is expressly excluded in every case.
Also in the case of other contractual liability facts, we are only liable in the case of criminal intent or in case people for whom we are responsible or we have caused the damage through thoughtless actions committed in the knowledge that damage would probably come about because of it. In this case as well, our obligation is limited to the replacement of the direct damage to the supplied goods.
The purchaser forfeits the right to refer to an infringement of the contractual duties or a lack of conformity with the contract of the goods if he has not shown them to us within a reasonable period after the time he discovered or should have discovered them and described exactly the type of contract infringement (cf. art. 39 (1) UN sales law) to us.
Claims from the contractual relationship become statute-barred in the case of appliances in two years, and with non-repairable items or working parts within one year of their availability for pick-up by the haulage contractor.
5. Duties of the Customer/Purchaser
The customer is obliged to examine the goods or have them examined immediately before delivery by the haulage contractor/carrier, at any rate however within such a short period as circumstances allow. Reference is also made to the commercial period for claims according to §377 HGB, as well as to that of art. 38 UN sales law.
The customer is obliged to do everything to protect his and possibly also our rights towards the haulage contractor used and/or transport company and in particular to protect the complaint, period of limitation and/or preclusive time limits of the considered sea, land and air carriage of goods law, such as for example the limits as per §§ 407 ff., 438 HGB; Art. 30 ff CMR or Art. 26, 29 WA?29/WA?55.
The purchaser is obliged to safeguard his and also if need be our rights from the haulage/freight agreement and any regress possibility towards the authorised haulage contractor/carriers by taking suitable measures, such as pertinent and precise entries in the consignment note, written complaints and such. In the event that the haulage/freight agreement was concluded by us (cf. subsection 3.7 of these AGB), we already transfer the rights to which we are entitled as senders to the purchaser that accepts this transferring. We do not owe further indemnifications, and in particular are not obligated to assert claims against haulage contractors and/or carriers or to impose them judicially.
6. Terms of Payment
Our prices are net, excluding value-added tax. Even with confirmed orders, we reserve for ourselves a relative price increase if within 4 months after conclusion of the contract, but before contractual delivery material prices or wages rise, or cost factors change as a result of changes in exchange rate parities or other changes in the import/export costs.
Our invoices are payable net without deduction within five working days from the date of invoicing.
If the purchaser is in payment arrears (§286 II 1 BGB), the demand is to be paid with interest of 8 percent above the basic rate (§288 II BGB), which can be officially fixed again on each 1st January and 1st July of that year. We are entitled to demand higher interest and in addition further compensatory damages.
We are not obligated to accept bills of exchange and/or cheques; otherwise they are only accepted on account of performance. Discount, collection and/or other expenses will be charged to the purchaser.
Our representatives and employees are only entitled to accept payments, bills of exchange or cheques on presentation of a special collection authorisation.
The purchaser can only offset with demands that are undisputed or legally valid or assert a retaining lien account of such demands.
7. Reservation of Proprietary Rights
We reserve ownership of all goods supplied by us until the purchaser has paid all claims from the business relationship. If deliveries are carried out on current account, the reservation of proprietary rights also serves the safeguarding of the balance.
The customer is entitled to dispose of purchased goods within the framework of ordinary course of business. The purchaser herewith transfers all claims from a resale or from a renting out of goods that are under the reservation of proprietary rights to us. We accept the transferring. Compensation claims towards insurance companies or third parties from damages to the goods that are under reservation of ownership are also transferred herewith. As long as the customer fulfils his payment obligations towards us, he remains entitled to collect the claims. If the customer does not fulfil his payment obligations properly or only partially, he is obliged on our first request to let us know the name of the purchaser of the goods and his address for service. We are entitled to report the transferring to the third party and to collect the claims ourselves.
If the value of our securities exceeds our claims by more than 20%, we will release exceeding securities.
The assertion of the reservation of ownership is not regarded as a withdrawal from the contract. If goods are taken back due to the reservation of ownership, 15% of the respective order price will be refunded to us for our costs connected with the taking back. The assertion of compensation claims remains reserved
8. Final Provisions
German law applies or at our discretion the law of the country/client.
Place of performance for all performances from the contractual relationship, also in connection with the new packaging waste order of 12.6.91 (BGBI IS 1410 Refuse Act of 27.8.1986) is Industriestraße 23 b in D-61449 Steinbach. Legal venue is Frankfurt am Main. Next to that, the statutory legal venue is also valid in cases of actions on cheques and bills of exchange.
Should one of the aforementioned terms be or become ineffective, the effectiveness of the remaining terms and the contract is not affected by this. The contractual partners undertake to replace the contractual term that is or has become ineffective with an effective one that achieves the commercial purpose.
Parts Depot GmbH,
Industriestraße 23 b
P.O. Box: 5143
D-65726 Eschborn 1