Terms and conditions of sale and delivery
I. Conclusion of a Contract
1. The following Standard Terms and Conditions of Delivery and Payment shall apply for business contracts with the Supplier unless special agreements have been expressly reached. Other terms and conditions of purchase of the Buyer which are at variance with or supplement these Terms and Conditions of Business shall be invalid.
2. Ordering Party acknowledges that minor tolerances or deviations in terms of size, weight, roundness, colour or dimensions may occur, for technical and material-related reasons, during the manufacture of glass products, in particular in items of the same series. Such tolerances and deviations are customary in the industry, are outside of our sphere of influence, and do not represent product defects. Furthermore, the manufacturing process may result in lower or higher quantities than the agreed-upon delivery quantity for reasons of production technology. This is also customary in the industry, with permissible deviations from the delivery quantity of up to +/- 10%. The amount payable shall be based on the actually delivered quantity.
3. In the case of firms with which the Supplier has no regular business connections, the Supplier shall reserve the right to obtain information of the potential business partner in question before entering into a binding contract. The Supplier shall obtain the information immediately after receipt of the corresponding order. It shall undertake to inform the Buyer of its acceptance or rejection of the order immediately after receiving the aforesaid information.
4. All offers shall be subject to change without notice. An order shall only be binding for the Supplier when a written order acknowledgement has been issued. Immediately after receiving an order, the Supplier shall undertake to inform the Buyer whether the contract offer has been accepted or rejected. Business agreements by telephone, telefax, telegram or through representatives shall require a written confirmation. Intermediate sale shall be reserved in all cases with regard to offers from existing inventory holdings.
II. Prices and Packaging Costs
1. Calculations shall be made at the prices and conditions prevailing on the date of delivery.
2. Cost for outer packaging, such as crates, collapsible containers, pallets, cartons and other containers shall be charged to the consignee.
3. Crates and containers shall be charged separately. Credit notes for crates and containers shall be issued at two-thirds of the invoiced value if they are returned to the Supplier in an undamaged and fully packaged condition with all freight and carriage cost paid within 4 weeks of receipt of the consignment. Small postal packages and cartons shall not be accepted.
III. Delivery, Delivery Periods and Transfer of Risk
1. All goods shall be despatched for the account and at the risk of the Buyer. In the absence of any special agreement, packaging shall be selected by the Supplier. No liability whatsoever shall be assumed for any breakages, damages or losses during transport. This shall also apply in cases covered by § 447, para. 2 of the German Civil Code (BGB).
2. Notifications on delivery times which are not expressly agreed shall not be regarded as a contractual warranty. A fixed trading purchase within the meaning of the German Commercial Code (HGB) shall only apply if the delivery date has been expressly agreed contractually.
3. In the absence of a special agreement on the admissibility of deviations, the order quantity shall only be regarded as an approximate quantity. It should be upheld by the Supplier as far as possible. Upward or downward deviations shall only be possible up to a maximum of 20 % if the order quantity is for 1,000 units of the same type or less.
4. In the event of a more defined limitation or an exclusion of any overages or underages, a special agreement is to be made thereon when the contract is concluded. Deviations in dimensions, contents, weights and colour tones attributable to production shall be permitted to customary extent within the industry. Details on the size and weights of packages shall be provided by the Supplier to the best of its knowledge and belief.
IV. Tools and Moulds
1. Tools and moulds shall remain the property of the Supplier even if the Buyer has assumed the relevant acquisition costs in whole or in part.
V. Third-Party Liability
1. The Buyer shall be liable for ensuring that orders placed by him/it based on his/its own specifications for moulds, colours, sizes and weights infringe no industrial property rights of third parties and shall be liable for all damages, costs, etc., which are incurred in such cases as a result of any infringements of third party rights.
VI. Payment and Set-Off
1. Regardless of the date on which the goods are received, invoices shall be payable in Euros either:
within 7 days of the invoice date in cash, less 3 % cash discount
within 14 days of the invoice date in cash, less 2 % cash discount, or
within 30 days of the invoice date in cash, net.
2. Cheques, bills of exchange and acceptances shall be treated as cash payments on their respective collection date. If the payment period of 30 days is exceeded, default interest shall be charged at 8 % above the respective discount rate of the German Bundesbank with effect from the 31st day.
3. Partial payments or advance payments made without agreement shall always be credited to oldest unsettled invoice amounts.
4. If the Buyer is in payment arrears or if a cheque issued by the Buyer cannot be collected in our favour, we shall be entitled to take repossession of the goods. We shall also be entitled to forbid resale of the goods and to revoke the collection power of authority for claims of the Buyer from his/its customers on the strength of our extended reservation of title.
5. Repossessing goods shall not be construed as a withdrawal from the contract.
6. If facts or circumstances subsequently become known to us which indicate a substantial deterioration in the financial position of the Buyer and which may endanger our payment claims, we shall be entitled to make our claims due with immediate effect.
7. The aforesaid legal consequences in the event of payment arrears may be averted by the Buyer by the provision of security in the amount of the endangered payment claim.
8. This shall not prejudice the relevant legal regulations on payment arrears.
9. The Buyer shall only be entitled to set off counterclaims which have been established by declaratory judgement or which are undisputed. A retention right may only be enforced on the strength of counterclaims which are based on the same contractual relationship.
VII. Reservation of Title
1. All delivered goods shall remain our property (reserved goods) pending settlement of all claims, especially any net balance claims, to which we are entitled within the scope of the business relationship, including interest and costs. This shall also apply for all future and conditional claims. The Buyer shall only be entitled to sell reserved goods in the ordinary course of business and on his/its normal business terms and conditions and as long as the Buyer is not in payment arrears, provided the claims in connection with the resale are hereby assigned to us, The Buyer shall be entitled to make no other dispositions on our reserved goods.
2. The Buyer shall be authorized to collect claims resulting from the resale of reserved goods until the aforesaid power of authority is revoked.
3. Claims of the Buyer arising from the resale of reserved goods shall hereby be assigned to us. They shall act as security to the same extent as reserved goods. If the reserved goods are sold by the Buyer together with other goods not sold by us, the claim arising from the resale shall be assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods.
4. At the request of the Supplier, the Buyer shall be obliged to inform his/its customers of the aforesaid assignment and to provide us with the information and documents required for collection purposes.
5. The Buyer shall at all events not be entitled to assign the aforesaid claims to any other party.
6. The Buyer is obliged to inform us immediately of any seizures or interferences by third parties relating to the reserved goods.
7. The power of authority to collect claims may be revoked at any time, especially in the event of any payment arrears by the Buyer. If the value of the existing securities exceeds the secured claims by more than 20% in total, we shall be obliged to release securities of our choice at the request of the Buyer.
VIII. Notification of Complaints and Warranty
1. The Buyer shall inspect the goods immediately upon delivery. If the delivered goods are defective or if the Buyer identifies an incorrect delivery or quantity errors, he/it shall notify the manufacturer thereof in writing immediately. If the Buyer fails to make the aforesaid notification, the goods in question shall be regarded as accepted unless there is a defect which could not be identified upon the initial inspection. An immediate notification within the meaning of § 377 of the German Commercial Code (HGB) shall only apply if it is made at the latest within 14 days after receipt of the goods. Any onward transmission of the goods to third parties or any despatch to customs warehouses abroad shall be regarded as a unreserved acceptance of the goods in question.
2. First of all, the Supplier shall always be given sufficient opportunity to rectify defects within a reasonable period of time. If rectification is abortive, the Buyer shall have the right to withdraw from the contract or to reduce the purchase price. Defects claims shall not arise in the event of immaterial adverse effects on usability, in the event of damages which occurred after the transfer of risk as a result of improper or negligent handling or excessive use.
3. Claims of the Buyer for expenses required for rectification purposes, especially transport, travelling, labour and material costs, shall be excluded if the expenses are increased because the delivered goods are subsequently moved to a location other than the location of the Buyer.
4. Statutory recourse claims of the Buyer against the Seller shall only apply insofar as the Buyer has reached no agreements with his/its customer over and above the statutory defect claims.
5. Additional or other defect claims of the Buyer against the Supplier and its vicarious agents governed by this Section shall be excluded. Section X. shall apply in addition.
6. Any claims of the Buyer against the Supplier for a defect in the delivered goods shall be statute-barred after 12 months.
IX. Rights of the Supplier in the Event of Payment Arrears by the Buyer
1. If the Buyer fails to comply with his/its obligations under the purchase contract, or if, in particular, he/it is in arrears with payment of the purchase price, the Supplier shall be entitled to withdraw from the contract after a reasonable period of grace or to demand compensation or reimbursement of the costs incurred. This shall not apply of the liable party was not responsible for the relevant breach of duty.
2. Any change the burden of proof to the detriment of the Buyer shall not be associated with the aforesaid rulings.
X. General Liability Limitation and Expiry
1. Claims for damages and reimbursement of expenses by the Buyer shall be excluded regardless of the legal cause, especially on account of any breach of duties in connection with the contractual relationship and any tortious acts.
2. The liability exclusions and liability limitations included in these Terms and Conditions of Business shall not apply in cases of liability independent of the question of blame or negligence, especially claims under the German Product Liability Act (Produkthaftungsgesetz ) in cases of wilful intent, gross negligence, or injury to life, limb or health and on account of a breach of major contractual obligations.
3. Compensation for failing to comply with major contractual obligations shall be limited to typical, foreseeable damages, however, unless wilful intent or gross negligence applies, or on account of liability for injury to life, limb or health.
4. Any change in the burden of proof to the detriment of the Buyer shall not be associated with the aforesaid rulings.
5. If the Buyer is entitled to damage compensation claims, these shall be statute-barred in 12 months.
XI. Place of Performance, Legal Venue and Governing Law
1. Zwiesel shall be regarded as the place of performance for deliveries. The legal venue is the Local Court of Viechtach or the Regional Court of Deggendorf, if the Buyer if a registered trader within the meaning of the German Commercial Code (HGB).
2. All legal relationships substantiated by the sale and purchase contract shall be exclusively governed by the laws of Germany to the exclusion of the Convention of the United Nations on Contracts for the International Sale of Goods (CISG).
XII. Data Protection
1. All data collected within the scope of the business relationship, including personal data, are automatically processed and stored for the purposes of executing the order in accordance with applicable data protection laws.
2. This includes the possibility that the personal data of the purchaser are forwarded to credit, mercantile and commercial agencies prior to the conclusion of contract in order to verify payment history and credit rating.
3. Partner companies, as mentioned under XIII. 2, with which we collaborate in connection with the conclusion and execution of the order, are also obliged to comply with the German Data Protection Act [Datenschutzgesetz (BDSG)].
Commerzbank Passau, Kto.-Nr.6 202 626 (BLZ 740 400 82)
BIC: COBA DE FF 740
IBAN: DE43 7404 00820620 2626 00
Deutsche Bank Deggendorf, Kto.-Nr.9 820 200 (BLZ 750 700 13)
BIC: DEUT DE MM 750
IBAN: DE26 7507 0013 0982 0200 00
HypoVereinsbank Deggendorf, Kto.-Nr.2 412 608 (BLZ 741 200 71)
BIC: HYVE DE MM 415
IBAN: DE20 7412 0071 0002 4126 08
Sparkasse Zwiesel, Kto.-Nr. 209 155 (BLZ 741 514 50)
BIC: BYLADE M 1 REG
IBAN: DE78 7415 1450 0000 2091 55
Postbank München, Kto.-Nr. 458 802 (BLZ 700 100 80)
IBAN: DE65 7001 0080 0000 4588 02