General Terms and Conditions
The following General Terms and Conditions apply solely for all deliveries, services and any other legal transactions.
§ 1 General information – scope
1. Our Terms and Conditions apply exclusively; contradicting conditions or conditions deviating of the Customer shall not be recognised, unless we have explicitly agreed to their validity.
2. Our Terms and conditions apply also if we execute the delivery to the customer without reservations in the knowledge of contradicting or deviating conditions.
3. Our Terms and Conditions apply only for entrepreneurs in terms of Section 14 BGB (German Civil Code).
4. Our Terms and Conditions apply also for all future transactions with the customer in as far as they are legal transactions of a related nature.
§ 2 Offer – offer documentation
1. Our offers are subject to change. Verbal information about design, dimensions etc. in case of custom-made productions require a written confirmation. Illustrations, measurements and weights in our lists, offers and order confirmations are only approximates.
2. We reserve proprietary and copyrights to illustrations, drawings, calculations and other documentation; they may not be provided to third parties. This applies particularly for written documentation labelled as “confidential”; the customer must obtain our explicit written consent prior to providing them to third parties.
§ 3 Prices – payment conditions
1. Unless specified otherwise in the order confirmation, our prices are in Euro “ex works” excluding packaging; packaging shall be invoiced separately at cost prices. If the goods are delivered on PKR lattice box pallets (transport packaging), the customer is obligated to accept pallets at prices of the delivery company applicable at the time of the order. PKR lattice box pallets can be returned against a credit note within two years, providing they are undamaged. The PKR lattice box pallets are provided with an annual plaque for identification purposes.
2. Statutory VAT is not included in our prices; it is indicated separately in the legal amount applicable at the date of the invoice.
3. Any deduction of a discount requires a special written agreement.
§ 4 Delivery obligation and lead times
1. Our order confirmation applies for the extent of the delivery.
2. The lead time commences with the dispatch of the order confirmation or at the conclusion of an agreement, however not prior to the receipt of documents to be procured by the customer, permits, releases as well as the receipt of an agreed deposit. In the event of a delay in performance or impossibility of delivery/service in cases of intent or gross negligence on the part of our representative or vicarious agent, we are liable in accordance with the statutory provisions. Outside the cases described in sentence 2 of this clause, liability on our part due to delay in performance is limited to a total of 10% for damages in addition to performance and to 10% of the value of the delivery/service for damages in lieu of performance. Further claims of the customer – also after the expiration of any deadlines provided to us for service – are excluded. The limitations above do not apply in as far as we are liable due to the violation of life, limb or health or in as far as damages are based on gross negligence by one of our legal representatives or vicarious agents. The customer’s right to withdraw from the agreement remains unaffected. A change of the burden of proof to the disadvantage of the customer is not associated with the regulations above.
3. Compliance with our Terms and Conditions presupposes the timely and proper fulfilment of the customer’s obligations.
4. If the customer is in default of acceptance or violates other obligations to participate, we are entitled to demand any damage incurred by us together with any additional expenditures. In these cases, as well as cases of termination or withdrawal from the agreement by the customer, we are entitled to demand 10% of the purchase price as damages, without prejudice to the option of asserting higher compensation, unless the customer proves that no damage was incurred or that the damage was not incurred in the amount of the flat rate.
§ 5 Transfer of risk
1. The risk is transferred upon dispatch of the delivery items to the customer at the latest, even if partial deliveries are made or if the supplier has also assumed other services, such as shipping costs or delivery and installation.
2. If requested by the customer, the deliveries are secured by way of transport insurance; the customer is responsible for any costs in this context.
§ 6 Claims and rights of the customer due to defects
1. In any case, we have the right to choose between rectification of defects and new delivery. If the rectification of defects fails, the customer is entitled to reduce the purchase price or - if construction work is not the subject of the liability for defects - to withdraw from the agreement at its option. The application of Section 478 (1) BGB remains unaffected.
2. If the customer requests compensation in lieu of services or carry out the remedy himself, the rectification of defects shall only be deemed to have failed after the second unsuccessful attempt. For the remainder, the statutory cases of dispensability of a deadline shall remain unaffected. The customer is responsible for any expenses required for the subsequent remedy if they increased due to the fact that the delivery or services are provided to a location other than the customer’s registered office, unless the delivery complies with the intended usage.
3. We are liable according to statutory regulations in cases of intent or gross negligence on our part or that of our representatives or vicarious agents. For the remainder, we are only liable according to the Product Liability Act, due to the violation of life, limb or health or culpable violation of our essential contractual obligations. However, compensation for the violation of essential contractual obligations is limited to foreseeable damages typical to the Agreement, unless another of the exceptional cases listed in sentences 1 or 2 of this clause applies at the same time. Our liability in cases of gross negligence is also limited to foreseeable damages typical to the Agreement, unless another of the exceptional cases listed in sentence 2 of this clause applies at the same time.
4. The regulations of Item 3 above apply for all compensation claims (particularly for compensation next to performance and compensation in lieu), regardless of the legal reasons, particularly in case of defects, the violation of our obligations or unlawful actions. They also apply to the claim for the reimbursement of futile expenditures. However, the liability for default is determined in accordance with § 4 (2).
§ 7 Statute of limitation in case of services and purchasing agreements for new items
1. The statute of limitation for claims and rights based on delivery/service defects is one year. However, this does not apply in cases of Section 438 (1) no. 1 BGB (legal defects in case of movable objects). Section 438 (1) no. 2 BGB (constructions, items for construction), Section 479 (1) BGB (recourse claim of the entrepreneur) or Sections 634 (1) no. 2 BGB (buildings or work whose result consists in the rendering of planning or monitoring services for this purpose).
2. The statute of limitation periods according to Item 1 also apply for all compensation claims against us related to defects – regardless of the legal basis for the claim.
3. The statute of limitation periods according to items 1 and 2 above apply with the following proviso:
a) The statute of limitation periods generally do not apply in cases of intent or malicious non-disclosure of a defect in as far as we have assumed a warranty for the quality of the object of delivery.
b) The statute of limitation periods for compensation claims do not apply in cases of violation of life, limb, health or freedom as well as claims according to the Product Liability Act, in case of the gross negligent violation of obligations or the violation of essential contractual obligations.
4. The limitation period for all claims commences with the delivery, in case of work services upon approval.
5. Unless explicitly agreed or determined otherwise, the statutory regulations regarding the commencement of the limitation period, suspension of the running of the limitation period, suspension and recommencement of limitation periods remain unaffected.
6. A change of the burden of proof to the disadvantage of the customer is not associated with the regulations above.
§ 8 Compensation claims and statute of limitation in case of used items
1. Claims and rights based on defects at the delivery of used items – regardless of the legal reason – are excluded in this paragraph subject to further regulations. The customer is particularly not entitled to the right of withdraw from the Agreement or to a reduction.
2. Compensation claims of the customer in lieu of performance (Section 281 BGB) due to negligent violation of obligations are excluded if and in as far as the prerequisites of § 4 (2) do not exist. For the remainder, the customer is only entitled to compensation or reimbursement of expenditures in case of intent, malicious non-disclosure of a defect, if we have assumed a warranty with respect to the quality of the delivery item, if we are liable for a violation of life, limb or health, in as far as any damages are based on the gross negligent violation of obligations by one of our legal representatives or vicarious agents or in case of the violation of essential contractual obligations, which have led to a foreseeable damage typical to the agreement. Any claims for compensation or reimbursement of expenditures become statute-barred after one year. Compensation claims based on intent and gross negligence as well as in cases of the violation of life, limb and health based on the intentional violation of obligations of the user, the statutory limitation period applies.
§ 9 Securities and reservation of title
1. We retain title to the purchased item up to the receipt of all payments under the supply agreement. In the event of conduct contrary to the agreement by the customer, particularly in case of default of payment, we are entitled to retrieve the purchased item. The retrieval of the purchased item by us does not constitute a withdrawal from the agreement, unless we have declared this intention explicitly in writing. The seizure of the object of sale by us always constitutes a withdrawal from the agreement. Following the retrieval of the purchased item, we are entitled to its utilisation; the revenue from the utilisation is offset against the customer’s obligations – less incurred utilisation costs.
2. Up to the receipt of all payments from the supply agreement, the customer is obligated to treat the purchased item with care; the customer is particularly obligated to insure the goods at his expense against fire, water and theft damages at new price. The customer has to execute any necessary maintenance and inspection works at his expense and in due time.
3. In case of pledges or other interventions by third parties, the customer has to inform us in writing without undue delay. If the third party is not able to reimburse us for court and out-of-court costs of a lawsuit in accordance with Section 771 ZPO (German Code of Civil Procedure), the customer is liable for the loss incurred by us.
4. The customer is entitled to resell the purchased item in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount agreed with us (including VAT), which accrue to him from the resale against his customers or third parties, regardless whether or not the object of sale has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, as long as no application for the institution of insolvency proceedings has been filed or payments have not been suspended. However, if this is the case, we are entitled to demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and notifies the debtor (third party) of the assignment.
5. The processing or transformation of the purchased item by the customer shall always be carried out on our behalf. The customer's expectant right to the purchased item continues to apply to the transformed object. If the purchased item is further processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the objective value of the purchased item to the other processed objects at the time of processing. For the remainder, the same applies to the item created by processing as to the item delivered under reservation of title.
6. If the purchased item is inseparably mixed with other items not belonging to us, we shall acquire co-ownership of the new item in the ratio of the objective value of our purchased item to the other mixed items at the time of mixing. If the mixing is carried out in such a way that the customer's item is to be regarded as the main item, it shall be deemed agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
7. The customer also assigns to us the claims to secure our claims against him, which arise through the connection of the object of sale with a property or against a third party.
8. We undertake to release the securities to which we are entitled at the request of the customer to the extent that the realisable value of our securities exceeds the claims to be secured by more than 10% or the nominal amount by more than 50%; the selection of the securities to be released shall be incumbent upon us.
§ 10 Place of fulfilment, place of jurisdiction, applicable law
1. Place of fulfilment for our contractual obligations is Vechta.
2. In the case of all disputes arising from the contractual relationship, if the customer is a fully qualified merchant, a legal entity under public law or a special fund under public law, the action shall be brought before the court having jurisdiction for our principal place of business. We are also entitled to take legal action at the customer’s registered office.
3. The law of the Federal Republic of Germany applies exclusively to the exclusion of the laws on the international purchase of movable goods, even if the customer’s registered office is abroad. If individual provisions of the aforementioned agreement have not become part of the agreement in whole or in part or are ineffective, the remainder of the agreement shall not be affected. An invalid condition shall be replaced by another condition which comes closest to the meaning of the invalid condition in legal and economic terms.
Gebr. Ostendorf Kunststoffe GmbH
49377 Vechta Germany
Status: May 2017