Eberhard Faber Vertrieb GmbH General Terms of Sale and Delivery
These General Terms of Sale and Delivery
a) These General Terms of Sale and Delivery (“GTS”) shall apply to all our customers (“Buyer”). The GTS shall only apply where the Buyer is an entrepreneur (Unternehmer, Sec. 14 of the German Civil Code (Bürgerliches Gesetzbuch – “BGB”)), a legal entity under public law or a special fund under public law.
b) In particular, the GTS shall apply to contracts for the sale and/or delivery of movable goods (“Goods”). Save where otherwise agreed, the GTS shall apply as amended at the time when the order is placed.
c) Our GTS shall apply exclusively. Any General Terms of Business of the Buyer which deviate from or conflict with or supplement these GTS will become part of the contract only if and to the extent that we have explicitly agreed to their application. An implied consent that is excluded, especially in cases where, in knowledge of the Buyer´s General Terms of Business, we perform delivery to the Buyer without reservation.
d) Any individual agreements made with the Buyer in an individual case (including subsidiary agreements, supplements and amendments) in each case prevail over these GTS. As regards the content of such agreements, a written conract or our written confirmation shall be authoritative, subject to evidence to the contrary.
e) Any statements or notice of legal significance to be given to us after the conclusion of the contract (e.g. for fixing time limits, notifying defects, rescinding the contract or reducing the purchase price) must be made in writing (Schriftform) in order to be effective.
f) References to the application of statutory provisions are for clarification only. The statutory provisions shall therefore apply even without such clarification, save where directly amended or explicitly excluded herein.
a) All our offers are subject to chance and nonbinding
b) The Buyer´s ordering of Goods shall be deemed to be a binding offer to contract. Unless otherwise apparent from the order, we are entitled to accept such offer within five (5) days of its receipt by us.
c) The offer can be accepted either in writing or text form (e.g. by order confirmation) or by delivering the Goods to the Buyer.
Unless otherwise agreed in an individual case, the prices applicable at the time of conclusion of the contract apply, ex warehouse, plus statutory VAT.
4. Delivery periods delay in delivery
a) Delivery dates or delivery periods shall always be deemed to be non-binding and approximate, except where binding delivery dates or delivery periods have been expressly agreed. In each case, a delivery period shall begin to run only when all technical questions relating to the delivery have been clarified. Any follow-on order shall be deemed to be a new order. We are entitled at all time to make delivery by instalments.
b) If we are unable to meet binding delivery darer or deliver periods for reasons for which we are not responsible, we will inform the Buyer accordingly without undue delay and at the same time communicate the expected new delivery date or new delivery period.
c) Our adherence to delivery dates or delivery periods is subject to proper, especially punctual delivery to ourselves by our suppliers, unless we are at fault for the improper delivery to ourselves. If we are not properly delivered by our suppliers we can rescind the contract in whole or in part. We will inform the Buyer without undue delay, if we chose to exercise our right to rescind the contract, in which case consideration already paid by the Buyer will be refunded by us.
d) In the event of a delay of delivery, the Buyer shall be entitled to rescind the contract after expiration of a reasonable cure period having been set by the Buyer after the delay in delivery.
e) The rights of the Buyer under section 9 hereof an dour statutory rights, in particular in case our obligation to perform is excluded (e.g. as a result of impossibility of, or due to it not being reasonably acceptable to us to make, performance and/or subse-quent performance) shall not be affected hereby.
5. Delivery, passing of risk, acceptance and default of acceptance
a) Delivery will be made ex warehouse which will also be the place of performance for the delivery and any subsequent performance. The risk of accidental loss or accidental deterioration of the Goods passes to the Buyer upon handing over of the Goods to the Buyer.
b) The Goods will be shipped to a different destination at the Buyer´s request and cost (Versendungskauf). Save where otherwise agreed, we are entitled to determine the kind of shipment (especially transport company, shipment route, packaging) ourselves. If the Goods are shipped to a destination other than the place of performance at the Buyer´s request and cost, the risk of accidental loss and accidental deterioration of the Goods as well as the risk of delay will already pass to the forwarding agent, carrier, or other person or institution designated to carry out shipment on surrender of the Goods to this person or institution. Default of acceptance on the part of the Buyer is equivalent to surrender or acceptance of the Goods, as the case may be.
c) If the Buyer is in default of acceptance, if the Buyer fails to perform any act of cooperation or if our delivery is delayed for other reasons for which the Buyer is responsible, we are entitled to demand compensation for damages resulting therefrom, including additional expenses (e.g. storage coasts). We will charge a lump-sum compensation of EUR 20 net per calendar day for this, commencing with the end of the delivery date resp. delivery period or, in the absence of a delivery date resp. delivery period, wit the communication that the Goods are ready for shipment. We reserve the right to furnish proof of higher damage whereas the Buyer may furnish proof of lower damage.
d) If an order deviates from our packaging units, we are entitled to increase the order quantity to the next higher packaging unit without a special notification.
e) For deliveries within Germany, the following provisions apply: For orders from EUR 250 net, there will be no shipping charges. If the delivery value is below EUR 250 net, we will invoice the actual shipping charges. For orders where the Goods are of a value of less than EUR 100 net, we will invoice an additional charge for such lower value of EUR 6.50 net in addition to the actual shipping charges. Additional costs for express delivery, express parcel delivery, delivery on a specific date, etc. arising at the Buyers request will be at the expense of the Buyer.
6. Terms of payment, rescission in case of deterioration of financial condition
a) Subject to explicit written arrangements to the contrary, our invoices are payable within eight (8) days with a discount of two percent (2%), resp. within thirty (30) days strictly net cash from the date of the invoice without deductions. However, even in the course of an ongoing business relationship we are entitled at all times to carry out any delivery in whole or in part only against advance payment. We will declare such reservation on confirmation of the order, at the latest.
b) In case of failure to meet the date fixed for payment, we will be entitled without further reminder to demand from the Buyer interest of nine (9) percentage points above the base rate p.a This shall be without prejudice to the assertion of higher damages for delay. In case of delivery by instalments we explicitly reserve the right to issue pro rata invoices.
c) Payment instructions, cheques and bills of exchange will be accepted only on account of the performance, with any expenses for collection or discount being charged to the Buyer. Discounts will be granted only in accordance with agreements reached in this regard. If, at a later point in time, the agreed requirements for the grant of a discount cease to exist, we reserve the right to reclaim any discounts granted in this respect.
d) If, after the conclusion of the contract, it becomes apparent (e.g. by a petition for the opening of insolvency proceedings) that our claim for payment of the purchase price is in jeopardy due to the Buyer´s lack of ability to pay, we are entitled in accordance with the statutory provisions (Sec. 321 BGB) to refuse performance and, after fixing a time limit if necessary, to rescind the contract. In case of contracts for the production of non-fun-gible goods (individual productions) we can rescind the contract immediately; the statutory provisions regarding the dispensability of a time limit shall not be affected.
7. Warranty, limitation
a) In case of a material defect or a defect in title, the rights of the Buyer are governed by the statutory provisions, save where otherwise determined here below. The special provisions of law in case of final delivery of the Goods to a consumer shall in any event not be affected (supplier recourse pursuant to Sections 445 a, 445 b, 478 BGB).
b) Our liability for damage is above all based on the agreement reached as to the quality of the Goods. An agreement on the quality of the Goods shall be deemed to mean all product descriptions which are subject matter of the individual contract. Where a certain quality has not been agreed, the statutory rules shall be authoritative for determining whether or not defect exists (Sec. 434 (1) sent. 2 and 3 BGB). The Goods are in line with the statutory requirements applicable in Germany (in particular with regard to labelling and packaging). The Buyer is responsible for compliance with any deviating statutory provisions applicable abroad.
c) The Buyer shall inspect the Goods delivered upon receipt without undue delay, and notify any patent defects evident on a proper inspection in writing, if need be by advance fax within eight (8) day of receipt of the Goods and before passing on the Goods to a third party. The Buyer shall likewise notify any latent defects not evident in a proper inspection within eight (8) days of discovery in writing. If the Buyer fails to carry out a proper inspection and/or to notify a defect in time, our liability for such defect is excluded.
d) In deviation from Sec. 438 (1) No. 3 BGB, the general limitation period for claims relating to material defects or defects in title is one (1) year from delivery of the Goods. Where an acceptance has been agreed, the limitation period will begin to run on acceptance (Sec. 438 (1) No. 2 BGB). Further special provisions of law regarding limitation (in particular Sec. 438 (1) No. 1, No. 2, (3), 71 and Sections 444, 445b, BGB) shall not be affected, either. The above limitation periods provided by sales law also apply to other contractual and non-contractual claims for damages of the Buyer arising from a defect in the Goods, unless the application of the standard limitation period provided by law (Sections 195, 199 BGB) would result in a shorter limitation period in an individual case. Any claims of the Buyer for damages according to section 9(b) sentences 1 and 2 (aa) below as well as under the Product Liability Act, however, will become statue-barred only in accordance with the statutory limitation on periods.
e) If defects are notified in time, we will examine the Goods as soon as possible. Until such time, the Buyer shall store the Goods exercising the due care of a prudent businessman and observing the applicable storage instructions, if any.
f) In case the Goods are actually defective, we are entitled at our choice to repair or replace the Goods which we have acknowledged to be defective. Following our explicit written approval, we accept a return of these goods. Our right to refuse subsequent performance on the conditions provided by law remain unaffected. We are entitled to make the subsequent performance owed conditional on the Buyer paying the purchase price which is appropriate with respect to the defect.
g) Warranty claims of the Buyer hall be excluded in the event(s) of an insignificant deviation from the agreed usability, normal wear and tear, defects and damages caused after the transfer or by improper use of the Goods, excessive use of the Goods or use of unsuitable operating materials or accessories (such as refills, ink, ink cartridges) as well as defects caused by improper storage.
8. Reservation of title
a) We reserve title to the Goods sold until all our present and future claims under the sales agreement and in an ongoing business relationship (secured claims) have been settled in full.
b) The Goods subject to reservation of title may not be pledged or transferred by way of security to any third party before the secured claims have been paid in full. The Buyer shall inform us in writing without undue delay if a petition for the opening of insolvency proceedings has been filed, or where third parties have access to Goods belonging to us (e.g. attachment).
c) In case of any behavior of the Buyer which is breach of the contract, in particular in case of failure to pay the purchase price due, we are entitled to rescind the contract in accordance with the statutory provisions and/or to demand surrender of the Goods by virtue of the reservation of tittle. The demand for surrender of the Goods is not at the same time a notice of rescission; instead, we are entitled to demand surrender of the Goods and to reserve the right to rescind. If the Buyer fails to pay the purchase price due, we may assert such rights only if we have fixed a reasonable period before for the Buyer to make payment which expired without success, or if such period is dispensable according to the statutory provisions.
d) The Buyer is authorized, until revocation pursuant to subsection
dd) below, to resell and/or process the Goods subject to reservation of title in the ordinary course of business. In that case, the provisions set out below shall apply in addition.
aa) The reservation of title extends to the products resulting from processing, mixing or combining our Goods at their full value, with us being deemed the manufacturer. If a title held by a third party survives such processing, mixing or combining with third party goods, we acquire joint ownership in proportion to the invoice values of the Goods processed, mixed, or combined. In all other respects, the provisions applying to Goods delivered subject to reservation of title shall also apply to the product so created.
bb) The Buyer hereby assigns to us by way of security any and all claims against third parties resulting from the resale of the Goods or of the product, either in full or, in case of joint ownership in accordance with the preceding paragraph. We hereby accept the assignment. The Buyer´s obligations stated in subsection b) hereof shall also apply with regard to the claims assigned.
cc) The Buyer remains authorized to collect the claim, in addition to us. We undertake not to collect the claims as long as the Buyer meets its payment obligation vis-á-vis us, as long as there is no impairment of the Buyer´s ability to perform, and as long as we do not assent the reservation of title by exercising a right in accordance with subsection c) above. However, when such event occurs, we can demand that the Buyer disclose to us the claims assigned and their debtors, provide all the information required for collection, deliver the relevant documents an communicate the assignment to the debtors (third partier) concerned. In addition, we will be entitled in that case to revoke the Buyer´s authority to resell and process the Goods subject to reservation of title.
dd) If the realizable value of security provided exceeds our claims by more than ten percent (10%), we will release security of our choice at the Buyer´s request.
9. Limitations of liability
a) In case of a violation of our contractual or non-contractual duties, we will be liable in accordance with the statutory provisions, save where otherwise provided in the GTS including the provisions below.
b) We will be liable for damages – irrespective of the legal ground – in case of intent and gross negligence. In case of simple negligence, we will be liable, subject to a less stringent standard of liability under the statutory provisions (e.g. for care usually exercised in one´s owns affairs), only aa) for damage resulting from injury to life, body or health, bb) for damage resulting from a not insignificant violation of an essential contractual duty (obligation, whose fulfillment is a prerequisite for enabling the proper performance of the contractual partner usually relies and may usually relay); in this case, however, our liability will be limited to compensation for the foreseeable and typical damage arising.
c) The limitations of liability resulting from subsection b) also apply in case of violations of duty by, or for the benefit of, persons for whose fault we are responsible pursuant to the statutory provisions. They do not apply if we have fraudulently failed to disclose a defect or if we have assumed a guarantee for the quality of the Goods, and for any claims of the Buyer under the German Product Liability Act (Produkthaftungsgesetz).
d) The Buyer can rescind or terminate the contract for any violation of duty other than a defect only if we are responsible for such violation of duty. A discretionary right of the Buyer to terminate the contract (in particular pursuant to Sections 651, 649 BGB) is excluded. In all other respects, the statutory conditions and legal consequences shall apply.
e) We do not accept any liability whatsoever for any materials, order components, agents, formulations, guarantees as to quality, shipping instructions or processing requirements provided by the Buyer. We are not obliged to check those for compliance with the statutory standards applicable from time to time. In these cases, the Buyer will be liable without limitation and shall fully indemnify us from any and all third party claims already when the claim is made.
10. Applicable law, jurisdiction
a) The GTS and the contractual relationship between us and the Buyer shall be governed by the laws of the Federal Republic of Germany, excluding international uniform law, in particular the provisions of the UN Convention on Contracts for the international Sale of Goods (CISG).
b) If the Buyer is a merchant (Kaufmann) as defined in the German Commercial Code (Handelgesetzbuch – HGB), a legal entity under public law or a special fund under public law, our registered office in Stein near Nuremberg shall be the exclusive – including international - place of jurisdiction for any and all disputes directly or indirectly arising from the contractual relationship. The same shall apply accordingly if the Buyer is an entrepreneur as defined in Sec. 14 BGB. However, we are entitled in all cases to bring action at the place of performance of the delivery obligation und these GTS, or under any overriding individual agreement, as the case may be, or at the Buyer´s general place of jurisdiction. Any overriding provisions of law, in particular regarding exclusive jurisdiction, shall not be affected thereby.