General Terms and Conditions of Sale and Delivery
of Company Rud. Kanzow (GmbH & Co.) KG. (hereinafter referred to as „Seller“)
All sales with the exception of consumer sales as defined by § 474 BGB (German Civil Code) shall exclusively take place under the following general terms and conditions of sale and delivery which the Buyer recognizes, also on receipt of the goods against delivery note. Any opposing or deviating terms and conditions of the Buyer shall not become subject matter of the contract, unless the Seller has agreed to them in particular cases explicitly and in writing.
1. Orders of the Buyer as well as other agreements and supplements to an agreement, even if concluded by Representatives, shall be binding on the Seller only by written or printed confirmation of the Seller (also on invoices and delivery notes).
2. Seller’s offers are without engagement. Only goods registered in the particular valid price list of the Seller are available. The Seller shall be entitled to deliver partial. Every partial delivery may be invoiced separately.
3. The Seller shall deliver as soon as possible. Fixed delivery time shall not exist, unless expressly confirmed by the Seller in writing as binding. Compliance with the delivery obligation of the Seller requires the timely and proper fulfillment of obligations on the Buyer´s part.
4. Dispatch shall be effected from the Seller´s registered office or ex distributing warehouse. The risk of accidental loss or accidental deterioration of the goods passes to the Buyer with their leaving of the business location or distributing warehouse. This shall apply also in case of agreed freight-free delivery or if transport is effected by the Seller.
5.1 Obvious defects shall be notified to the Seller not later than 24 hours after receipt of the goods by mail, fax or telephone on part of the Buyer, hidden defects shall be notified immediately upon detection. If these deadlines are missed, all existing warranty claims shall expire. Timely dispatch of such notification shall suffice to comply with the deadline. The Buyer bears the full burden of proof for all claims, especially for the defect itself, for the time of detection of the defect and the timeliness of the complaint.
The Buyer undertakes to store the goods properly and to proceed in accordance with the instructions of the Seller.
5.2 In case of defects, the Seller may at first, at his option, perform the warranty by replacement. If subsequent performance fails, the Buyer is generally entitled to opt either for decrease of the purchase price (reduction) or for cancellation of the contract (withdrawal).
5.3 The limitation period for warranty claims shall be one year after delivery of the goods.
5.4 No responsibility shall be assumed for any damage due to unsuitable or improper use, natural deterioration, faulty or negligent treatment by the Buyer or third party.
6.1 The Seller shall be fully liable if the damage is caused by intent or gross negligence.
6.2 The Seller shall be also liable for the slightly negligent breach of duties that are essential for the execution of the contract. In this case, the liability for compensation is limited to the typical, predictable damage. The Seller shall assume no further liability for slight negligence.
6.3 The above mentioned clauses shall not apply for damage arising from the injury to health, body and life, for fraudulent concealment of defects or deficiencies after acceptance of a guarantee of quality. The provisions of the Product Liability Act shall also apply unlimited.
6.4 If the liability of the Seller is limited, this shall also apply to the personal liability of its salaried employees, wage earners, co-worker, representatives and / or assistants.
7. Force majeure, operational disturbance, labor disputes or other obstacles for which the Seller is not to be held responsible shall relieve the Seller of his duty to deliver for the duration of the disturbance and their effects without Buyer´s entitlement to claim damages instead of performance. If delivery and / or acceptance is exceeded by more than eight weeks due to the disturbance, both parties shall be entitled to withdraw.
8.1 Basically, the particular current price list of the Seller shall be valid, unless any deviating individual agreement in written form exists. The prices are generally deemed to be ex warehouse Hamburg, Trettaustr. 22, and net prices plus applicable statutory VAT.
8.2 The purchase price shall be payable – unless explicitly otherwise agreed – within 10 days after invoicing. The Buyer shall pay interest on the debt during the default at a rate of 8 percentage points above the base rate. The Seller reserves the right to assert further damage claims arising from a default.
8.3 If the buyer defaults on payment, an overdue bill or check is not honored properly, the direct debit is not balanced or if after conclusion of a contract circumstances becomes known that are able to affect the creditworthiness of the Buyer, all outstanding debits of Seller against Buyer inclusive all bills and checks payable by the Buyer shall fall due for immediate payment.
In this case, the Seller is entitled to provide the performance only reciprocal against payment or security deposit or – without need of a grace period notification – to rescind the contract and demand resulting damages.
8.4 Checks and bills of exchange shall be accepted only on account of payment.
8.5 Payments on part of the buyer shall always be credited in the order cost before interest before principal claim, at which amortization is credited to the respectively oldest outstanding amount as per § 367 BGB (German Civil Code).
The Buyer may only offset any claims against those of the Seller if the Buyer’s counterclaim is undisputed or if he has a legal title. The same shall apply to the enforcement of a lien.
8.6 In the event that the Buyer unjustifiably withdraw from his placed order or the contract is terminated for other reasons, for which the Buyer is responsible, the Seller may claim 10 percent of the net sales price for costs incurred for processing and lost profits, without prejudice to its rights to enforce higher damages. It is left to the Buyer to prove minor damage.
9.1 The Seller shall retain the title to his goods until receipt of full (for cashless payments of final) payment of all present and future claims arising out of the ongoing business relationship with the Buyer. If the value of the securities, as measured by agreed purchasing price of the contract, do not exceed the debts to be secured by more than 30 percent (safety limit) the Seller shall, at the request of the Buyer, release the securities that are above the safety limit. If the retention of title requires application, registration or similar acts at the Buyer’s registered office in order to be valid, the Buyer shall be obliged to perform them.
9.2 Processing or transformation of the goods delivered under retention of title occurs on behalf of the Seller – without any obligation of the Seller – as manufacturer in terms of § 950 BGB (German Civil Code) under exclusion of Buyer´s acquisition of ownership regarding the new objects. The processed or transformed goods shall serve as security of the Seller amounting to invoice value of the goods delivered under retention of title.
9.3 The Buyer shall be obliged to ensure correct storage and handling of the goods delivered under retention of title. He is obliged to insure the reserved goods sufficiently at own expense and at replacement value against fire and water damage, burglary and theft damage as well as windstorm and hail damage and the Buyer hereby assigns to the Seller all claims for compensation arising from the insurance contract on the Buyer´s part; Seller hereby accepts this assignment.
9.4 The Buyer shall be entitled to resell the reserved goods in the ordinary course of business as long as his obligations to the Seller are duly fulfilled, he is not in default of payment, no application has been made to open insolvency proceedings and there is no suspension of payment respectively.
In the event of resale, the buyer shall observe that the transfer of ownership of the reserved goods delivered to his customer only occur upon full payment. The Buyer hereby assigns to the Seller all claims arising from the resale to third parties, regardless of whether the reserved goods have been resold without or after processing; Seller hereby accepts this assignment.
In case that the Buyer has resold goods in which the Seller has retained title together with goods that are other party property, the assignment of the purchase price claim is only applicable to the amount of the value of the goods in which the Seller has retained title.
At the request of the Seller, the Buyer has to name the debtors of the assigned claims and to notify the debtor of the assignment.
9.5 The Buyer is entitled to recover receivables from resale only under conditions of 9.5 paragraph 1. The right of the Seller to collect the assigned receivables himself remains unaffected by the right of the Buyer.
9.6 The Buyer shall not be entitled to assign reserved goods as security or to pledge or otherwise encumber reserved goods. The Buyer must immediately inform the Seller in writing on seizures or other encroachments of third parties by handing over a bailiff’s return as well as a statutory declaration regarding the identity of the seized items.
10.1 Place of performance for mutual obligations shall be the registered office of the Seller.
10.2 Exclusive jurisdiction for all disputes arising between the parties (including action on checks and bills) shall be the registered office of the Seller. The Seller shall remain entitled to sue the Buyer also at the latter’s general place of jurisdiction.
11.1 Any amendments or additions, including termination of contract and this clause, shall be made in writing.
11.2 Should a clause be or become legally invalid, the contract shall remain valid in its remaining provisions. This shall not apply if adherence to the contract would constitute undue hardship for one of the parties. The parties shall replace the invalid provision by a provision that will meet the economic purpose of the invalid provision as closely as possible.
Version dated 05.04.2012