General Terms of Delivery and Payment Pelipal GmbH, Hans-Wilhelm-Peters-Straße 2, D-33189 Schlangen
Section 1 – General validity
1. Unless agreed otherwise in writing in individual cases, all our offers for delivery in Germany and other countries shall be based on the following terms which shall consequently become an integral part of the contract. The present Terms of Business shall also apply for all subsequent transactions.
2. The buyer's purchasing terms are herewith explicitly rejected. We shall not be bound by such terms even if we do not reject them again after the contract has been confirmed by the buyer.
3. Should any of the following terms prove to be invalid, this shall not affect the validity of the contract as a whole.
Section 2 – Conclusion of contract
1. Our quotations are made without obligation and subject to change. All orders shall only be deemed to have been accepted if they have been confirmed by us in writing within 14 days. The same shall also apply for purchase orders placed by agents or by telephone, telegraph or fax. Our invoice shall also be deemed confirmation of an order.
2. Subsidiary agreements shall only be valid if set out in writing. Supplements, amendments or deletions shall only become binding when we have confirmed them in writing.
3. The customer shall be bound by his order for 14 days.
4. Place of performance for delivery and payment shall be at the headquarters of the delivery works.
Section 3 – Prices and payment
1. Prices shall apply ex factory and normally do not include packaging, freight, insurance and customs. Unless agreed otherwise, they shall always be subject to change. We shall be entitled to charge the prices applicable at the time of delivery of the purchased goods.
2. Invoiced sums shall be payable net and without any deductions 10 days after receiving the goods.
3. In the event of arrears, interest may be charged on the defaulted sum at a rate 3% above the applicable main refinancing rate charged by the European Central Bank. The buyer shall be entitled to prove that a loss was not incurred or that it is lower than the amount of interest charged. We reserve the right to claim further damages for the loss incurred through the default in payment.
4. If the buyer has defaulted on a due payment for more than 30 days, or if we can claim circumstances indicating a significant deterioration in the buyer's financial situation and the buyer does not make an adequate payment in advance in such a case, we shall be entitled to withdraw from the contract as regards the outstanding deliveries; the buyer shall be informed accordingly without delay. With regard to new purchase contracts to be concluded, we may waive the deadline for payment and demand advance payment prior to delivery of the goods.
5. Bills and cheques shall only be accepted in lieu of payment.
1. If on-call orders are not called within 6 weeks of expiry of the call-off deadline, we shall be entitled at our discretion either to insist that the goods are called off immediately or to withdraw from the contract and to claim damages for the resultant loss incurred.
2. The same shall also apply for on-call orders without specifically agreed call-off deadline if more than four months have elapsed without goods being called since the order was confirmed.
Section 5 – Delivery and delivery period
1. Agreed delivery periods shall always be subject to confirmation by the delivery works.
2. In the event of acts of God and disturbances in business operations, especially labour disputes, sabotage and official measures for which we are not responsible, as well as stoppages and interruptions in the supply of materials for which we are not to blame and which have continued or can be expected to continue for more than one week, the deadline for delivery shall automatically be extended for the duration of the disturbance, but for not more than five weeks plus deadline for subsequent delivery (not more than 24 days). The right to claim damages shall be excluded.
3. If it has been agreed that the goods are to be delivered, they shall be transported at the buyer's expense and risk, unless agreed otherwise.
4. Part-deliveries shall be permitted in all cases and may be invoiced separately. We shall not be under any obligation to continue delivery while invoices which are due and payable have not been paid.
Section 6 – Notice of defects
1. Notices of defects in accordance with Sections 377 and 378 of the German Commercial Code (HGB) must be itemized and sent to us in writing within 8 days of receiving the goods. Complaints shall not be accepted after expiry of this time-limit.
2. Customary differences in dimensions, execution and accuracy of fit, especially in the case of follow-up orders, shall not give cause for complaint, unless compliance with dimensions and colours has been explicitly agreed in writing.
3. The buyer shall be entitled to withhold or set off payments if the counter-claim has either been accepted by us or established by a court of law without right of appeal.
4. In the case of justified complaints concerning defects, the buyer shall only be entitled, at our discretion, to repair, delivery of a replacement or a reduction in the purchase price. Differences in colour and grain or surface texture shall only be deemed a defect if the differences are significant and obvious at first glance.
5. A guarantee as defined by Section 477 of the German Civil Code (BGB) is explicitly excluded.
Section 7 – Liability
1. Liability for minor fault in cases of breach of contract, violation of duties during contractual negotiations, default and impossibility shall be excluded.
2. The statutory provisions of Sections 478 and 479 of the German Civil Code (BGB) shall apply in all other respects. As supplier, the company shall be obliged to prove to us that it has asserted its rights against the consumer if there is justified cause to suspect that the consumer's complaint is unfounded.
Section 8 – Damages for non-performance and rescission of contract
1. In those cases in which we may claim damages for non-performance, we shall be entitled to claim such damages at a flat rate equal to 25% of the gross price, notwithstanding the right to claim a specific loss in individual instances if the buyer does not prove a smaller loss.
2. If we have already performed, we may demand that the delivered goods be returned, even if we claim damages for non-performance, and at the same time assert our interest in the performance of the contract. Any down-payment already remitted by the buyer may be set off against our claim for damages.
Section 9 – Reservation of title
1. Current account reservation (business relationship): The seller shall retain ownership of the goods until all accounts receivable by the seller from the buyer as a result of the current business relationship and all accounts receivable in the future as a result of contracts concluded at the same time or later have been settled. This shall also apply if all or some of the sums payable to the seller have been included in a current account and the account has been balanced and confirmed.
2. The buyer shall be obliged:
a) to take out adequate insurance against fire, burglary and water damage for the goods with reservation of title. Insurance claims shall herewith be assigned to us in the amount equal to the value of the goods.
b) to dispose of the goods only within the framework of due and orderly business. It is consequently prohibited, among other things, to pledge the goods which have been delivered with reservation of title, to assign them to third parties by way of security or to dispose of them as gifts.
c) to grant us or our representative access on demand.
3. Extended reservation of title in the event of resale with assignment of future claims. The buyer may only resell the unpaid goods with corresponding reservation of title and shall only be entitled to resell the goods with reservation of title in the course of due and orderly business if all the buyer's future claims against customers or third parties as a result of the resale are herewith assigned to the seller. If the goods with reservation of title are resold without processing or after being processed or combined with articles which are exclusively owned by the buyer, the buyer herewith assigns to the seller the full claims arising from the resale. If goods with reservation of title are resold by the buyer – after processing / combination – together with goods not belonging to the seller, the buyer herewith assigns the claims arising from the resale in the amount equal to the value of the goods with reservation of title, with all ancillary rights and priority over the remainder. The assignment is accepted by the seller. The buyer is authorized to collect these claims despite the assignment. The seller's right to collect the claims directly shall not be affected. However, the seller undertakes not to collect the claims as long as the buyer duly discharges its payment obligations and other obligations. The seller may demand disclosure of the assigned claims and the corresponding obligors by the buyer; the seller may also demand that all the particulars required to collect the claims be provided by the buyer, that the corresponding documents be handed over and the obligors be informed of the assignment. Any costs incurred for intervention shall be borne by the buyer.
4. Extended reservation of title with processing:
Goods with reservation of title shall be processed by the buyer on behalf of the seller without the latter incurring any obligations as a result of such processing. If the goods with reservation of title are processed, combined, mixed or blended with other goods not belonging to the seller, the seller shall be entitled to the resultant part- ownership of the new product in accordance with the value of the goods with reservation of title in relation to the other goods at the time of processing, combination, mixing or blending. If the buyer acquires exclusive ownership of the new product, the contracting parties herewith agree that the buyer shall grant the seller part-ownership of the new product in accordance with the value of the processed, combined, mixed or blended goods with reservation of title and that the buyer shall store these on behalf of the seller free of charge.
5. Cheques / bills:
If the seller acquires liability on a bill as a result of the buyer's payment of the purchase price, the reservation of title and the underlying claim for trade payables shall not expire before the bill has been honoured by the buyer as drawee.
6. If the value of the goods delivered with reservation of title and serving as collateral for us exceeds the total value of our claim against the buyer by more than 20%, we shall be obliged to release / transfer ownership of the goods in the amount of the excess value when demanded by the buyer.
Section 10 – Attachment
If the goods which we have delivered with reservation of title are seized by third parties, we must be duly informed without delay, enclosing a copy of the minutes of attachment.
Section 11 – Surrender of the goods, settlements, bankruptcy
1. If the buyer fails to discharge its obligations towards us, we shall be entitled to demand that the goods delivered with reservation of title be surrendered without setting a time- limit.
2. The buyer shall be obliged to return the surrendered goods carriage-paid and free of charge for us.
Section 12 – Concluding provisions
1. We shall be entitled to assign to third parties our claims under the contract concluded with the buyer.
2. Place of jurisdiction (also for suits upon a bill or cheque) shall be Detmold as a matter of principle. If the buyer's general place of jurisdiction is not in Germany, we shall also be entitled to select the domicile of the buyer's branch as venue instead of Detmold.