General Terms and Conditions (GTC)

I. Contract conclusion / Transfer of rights and responsibilities of the buyer / purchaser

 

1. Relevance of the general terms and conditions

 

a. The general terms and conditions of the seller / contractor are valid for all – also future – contracts between the contractors. Terms of the buyer / purchaser are only binding if the seller has expressly acknowledged them in written or text form. The inefficiency of individual terms are without prejudice to the validity of these conditions for the rest.

 

b. As far as the term “seller” is used in the following, the seller as well as the contractor are equally meant. As far as the term “buyer” is used in the following, the buyer as well as the purchaser are equally meant.

 

c. The completion of the order counts as acknowledgement of the seller’s terms and conditions.

 

d. The seller is entitled, at all times, to change the current terms and conditions. If the buyer does not object to the changed conditions within 2 weeks of receiving notification of the changes, these will take effect according to the notification.

If the customer does object within the prescribed time limit, the seller is entitled to terminate the contract at that time, in which the changed conditions come into effect. These terms and conditions are also valid for future business, but an explicit agreement in this regard is needed in each individual case.

 

e. We are entitled, to assign the rights of our business relations.

 

 

2. Consultation/Offers/ Contract Conclusion

 

a. The seller gives technical consultation to the best of her knowledge, on the basis of her experiences. All information and advice concerning suitability and application of her products are however unbinding and do not exempt the buyer from their own testing and sampling.

 

b. The order is binding for the buyer.

 

c. All offers are subject to change, if the seller does not expressly declare in individual cases, her obligation to an offer for a certain period of time or the offers are expressly declared firm offers.

 

d. Contracts only then count as accepted, when they are confirmed in writing by the seller.

 

e. The Seller reserves for herself the right to cancel the contract, but requirements of any kind can be made by her, if the buyer’s ability to pay appear unsure and/or the desired prepayment is rejected by the seller.

 

 

3. Effectiveness of the contract, authorisation

 

For all agreements, including all supplementary agreements, pledges and subsequent changes to the contract as well as order acceptance, extension and changes, and issuance of quotations, only the company director and authorised representatives are actually authorised as representatives.

All agreements, supplementary agreements, pledges, subsequent changes to the contract, order acceptance, extension and changes by other persons require the written confirmation of authorised persons.

 

 

4. Written Form

 

All agreements, orders and one-sided declarations from the buyer are to be put in writing.

 

 

5. Extent of the order

 

If the buyer orders a product, which must be specially manufactured for him due to his specification, he is obligated to accept and pay for the product from the point in time when the product is modified according to his wishes.

 

 

II. Delivery

 

1. Delivery costs

 

The seller’s offer is subject to change. Delivery is made according to the prices and conditions which were last given to her before shipping or collection of the products.

 

 

2. Shipping of the products

 

The packaging is calculated specially and on a pro rata basis and is not redeemable. Costs and crates, as far as the worth justifies, are reimbursed on return, which is freight paid and exempt from charges, in the correct state, with 2/3 of the calculated value.

 

3. Over- and Underdelivery

 

In case of batch production we reserve the right on usual over- and underdeliveries up to 10 % while charging the quantity effectively delivered.

 

 

4. Risk assumption

 

a. In the handing over of the products to a transport company, at the latest in leaving the warehouse, the risk transfers to the buyer. If the seller transports the products herself, the risk transfers to the buyer when the products are delivered. The responsibility of unloading as well as the associated costs are borne by the buyer.

 

b. Choice of packaging, mode and way of despatch are at the seller’s discretion.

c. The seller ensures insurance only under special instruction and at the cost of the buyer.

 

 

5. Default of acceptance, Damages

 

a. If the buyer does not pay for the goods in sufficient time, the seller can grant the buyer in writing, an extension of 2 weeks, with the explanation that she will reject an acceptance after this period of time. The setting of this extension is not required in legally specified cases. After an unsuccessful expiration of this time period, the seller is entitled to refuse to fulfil the contract.

 

b. If the buyer has not replaced the rejection, the seller is entitled to ask for damages in addition to the withdrawal. If the seller seeks damages, these amount to a lump sum of 15% of the agreed purchase price. The damages are high or lower, if the seller proves higher damages or the buyer proves lower damages.

 

 

III. Delivery/ Delivery default

 

1. Written copy, beginning of the time period

 

Delivery dates and conditions are to be declared in writing. Delivery conditions begin after conclusive clarification of issued orders, that is after receipt of all of the necessary documents for the order history (designs, templates, etc.) and the confirmation of the order by the seller.

 

 

2. Delays which do not result from the seller

 

a. If circumstances arise which are not controlled by the seller (e.g.: acts of nature,  strikes, etc.), especially through delays with the primary material factories, the buyer has no right to withdraw from the contract and/or to ask for damages. This does not apply in regard to the right to cancel for cases of §322 Para. 2, No. 2 BGB.

 

b. Agreed delivery conditions extend and the agreed delivery times change appropriately according to impediments to performance, which are out of the seller’s control. Furthermore, the delivery time changes according to the time period in which the clarification of the details is delayed, unaccording to plan

 

c. If the extent of work increases in comparison to the original contract, the delivery conditions are extended/ the delivery time is changed.

 

 

3. Delay in delivery in non-binding delivery conditions/delivery time

 

The buyer can request the seller, in writing, 4 weeks after exceeding a non-binding delivery time or a non-binding delivery condition, to deliver within a time period of 4 weeks, with the instruction that he rejects the acceptance of the object of purchase after the time period. This does not apply, if a deadline is unnecessary according to the law.

 

 

4. Delay in delivery in binding delivery conditions/delivery time

 

If a binding delivery time or a binding delivery condition is exceeded, the buyer asserts his rights until the time of the occurrence of default..

 

 

5. Damages

 

a. Delay damages

 

If the seller falls behind with payments, damages are limited to a maximum of 5% of the agreed purchase price, if the seller has simply behaved negligibly.

 

b. Non compliance damages

 

If the buyer withdraws after the deadline, he can request a maximum of 10% of the agreed purchase price as damages for the seller’s negligent act.

 

 

IV. Price and Payment

 

1. Price

 

a. The offer is subject to change. Delivery, performance and invoicing are according to the prices and conditions which were last given to the seller before shipping or collection of the products, as long as stock lasts.

 

b. The prices are basically calculated from stock and suppliers, excluding freight and shipping costs plus sales tax of the respective legal amount.

 

 

2. Invoicing, payment dates

 

The purchase price and prices for ancillary services are payable, at the latest, on receipt of the goods and delivery or sending of the invoice.

 

 

3. Methods of payment

 

a. In case we have assigned our current and future receivables to a factor, all payments with discharging effect are to be made solely to the factor referred to on the invoice. Also, we then have transferred our property clause to the factor.

 

b. Another method of payment must be expressly organised. Cheques and drafts are only taken as payment by arrangement. The acceptance of foreign or outstanding acceptances is reserved for the seller. All costs from hereon are borne by the buyer. The seller does not take on guarantee for models and protests.

 

Protesting of the purchaser’s bills or not immediate provision of protested foreign bills enables the seller to return all outstanding bills. At the same time all of the seller’s requests are payable. Predated cheques will not be accepted.

 

 

4. Reduction

 

a. The payment must be made within 30 days of the invoice date without deduction.

 

b. If payment is received within 10 days of the invoice date, a 2% reduction is granted. A reduction balances all earlier outstanding, undisputed invoices. No reduction is avail- able if payment is made by note.

 

c. For an arranged cash discount deduction, the receipt of the invoice total in the seller’s account is authoritative.

 

 

5. Withholding / Summation

 

The withholding of payment or summation of any counterclaims is only allowed, if these are legally binding or recognised by the seller.

 

 

V. Delay of payment

 

1. Deadlines and withdrawal

 

a. If the buyer finds himself behind, the seller can set a deadline of 2 weeks for the payment of the outstanding value. After this deadline, the seller can withdraw from the contract and also request damages.

 

b. If the seller withdraws from the contract, successful purchase price payments will be reimbursed against return of the products, only pro rata to the value of the remaining current market value of the products.. Depreciation is at the expense of the buyer. At the request of the buyer, which can only be immediately expressed after the return of the products, a public, sworn in surveyor can judge the general selling value. The cost accrued by this is borne by the buyer.

 

 

2. Interest rate for delay/ discontinuation of discount

 

The case of delay, the seller owes the buyer the legal interest rate for delay of 8% above the base rate, without demanding a further request for payment from the seller. Furthermore, in  the case of delayed payment, any guaranteed reduction is cancelled. The reimbursement of further damages is not excluded.

 

 

3. Payment dates of all outstanding accounts / Advanced payments / Withdrawal / Damages

 

Not inclusive of the payment conditions or circumstances, which give rise to serious doubts concerning the buyer’s credit rating, result in the immediate payment date of all of the seller’s outstanding accounts. The seller is entitled to charge for open deliveries, advanced payments or securities, to withdraw from the contract after a certain deadline or to request damages due to failure to perform, to forbid the resale of products and to reclaim the unpaid products. The associated costs are payable by the buyer.

 

 

4. Risk assumption during delays

 

During his delay, the buyer assumes the risk of loss or the deterioration of the service, if the products are still with the seller.

 

 

 

 

VI. Security interests

 

1. Extent of reservation of proprietary rights

 

a. The delivered products remain the property of the seller until the seller’s receipt due to the purchasing contract’s outstanding bills. The reservation of proprietary rights ex- tends also to outstanding bills, which the seller has in her outstanding business connection with the buyer.

 

b. At the request of the buyer the seller is obliged to waive the reservation of proprietary rights, if the buyer has fulfilled all outstanding bills in connection with the object of purchase and adequate insurance exists for the otherwise remaining outstanding bills from the current business connection.

 

c. If the value of insurance exceeds the seller’s outstanding bills by 20%, this will be authorised at the buyer’s request insofar as the insurance of their choice in view of the 120% excess value.

 

 

2. Assertion of reservation of proprietary rights

In asserting the reservation of proprietary rights, the seller is entitled to demand the immediate delivery of reserved goods. The buyer’s rights of retention, which are not based upon the , are excluded.

 

 

3. Connection/ Amalgamation/ Batching of reserved goods

 

If the reserved goods are linked, amalgamated or batched with a new moveable item by the buyer, this is in favour of the seller, who is not obligated by this.

 

Through the connection, amalgamation or batching, the buyer does not acquire ownership of the items according to the regulations of §§ 947 ff BGB. In the case of connection, amalgamation or batching with items with do not belong to the seller, the seller acquires joint ownership of the new goods, according to the relationship of the value of her reserved goods to the total value.

 

 

4. Sale / Assignment as security / Pledging of products in the case of conditional sale

 

a. The buyer may sell or process the reserved goods only in the proper business and as far as the financial circumstances are not seriously damaged.

He is obligated to reserve the property for the seller.

 

b. The buyer conveys to the seller the outstanding bills with all rights for the resale of the reserved goods. If the goods have been connected, amalgamated or batched and the seller has obtained joint ownership, she is entitled to the asking price proportionate to the value of her rights to the goods.

 

c. The buyer authorised to collect the debts named in this arrangement, despite the above mentioned assignment.

 

The seller’s authority to collect debts, remains however unaffected by the seller’s permission to collect debts.

 

The seller will not collect the outstanding debts, as long as the buyer complies with his payment obligations. The buyer will impart to the seller on request, all information for  an assertion of rights and surrender the necessary documentation.

 

d. The buyer is not entitled to mortgage the goods or the out standing bills in their place,  or to transfer the title in order to secure a debt.

 

 

5. Access of third parties to conditional sales

 

In the case of access of third parties, especially in the case of distrait of the object of pur- chase, the buyer must object on the grounds of reservation of proprietary rights and inform the seller immediately in writing. A written notification must then follow, if a work contractors’ lien  or other lien is invoked by a third party. The vendor is obliged to support the seller safeguarding her rights.

 

 

6. Contractors’ Lien

 

In the acquired objects and documents of the buyer, which are in the possession of the seller, a lien exists due to the outstanding bills in connection with the work contract. The seller is entitled to use these objects also through freehand sales. If use is made of the right to distress selling, the dispatch of written notification of the buyer’s last address is sufficient as a threat.

 

 

7. Right of retention

 

Due to all outstanding bills directed to the buyer, including those from earlier work contracts and purchase contract, the seller is entitled to retain the acquired objects and documents of  the buyer, which are in her possession.

 

 

 

VII. Guarantee

 

1. Required State

 

a. The required state of the goods is determined by that of the seller’s specification sheet. Incidentally, the criterion for the accuracy is the state of the technology for comparable goods of the type of the object of purchase at the time of completion of the contract.

 

Minor deviations do not count as actual deviations from the required state. The promotion of another manufacturer is only then binding for the required state, if the seller has adopted it as her own.

 

b. Limited, technical, unavoidable deviations in quality, colour, width, weight of the equipment or the design may not be rejected and do not count as defects in the sense of §434 BGB. This is also valid for usual deviations, unless the buyer has agreed in writing to a delivery according to the design.

 

 

2. Examination and Notification of Defects

 

The buyer must examine the products immediately after receipt or within eight days of notification of delivery readiness, and in the case of defects, he must inform the seller immediately.

 

If he neglects to inform the seller, the purchased items are count as approved, unless it is a matter of a defect which was not recognisable during the examination. If such a defect is noticeable later, the seller must be informed immediately, at the latest a week after discovery, alternatively the purchased items will be counted as approved even in consideration of this defect. This does not count in the cases of §444 and §639 BGB.

 

 

3. Extent of warrantee

 

a. If any legitimate defects are reported, the buyer can request supplementary performance. The seller will correct the defect or deliver a defect-free product, according to her choice.

 

b. If the seller’s attempt to correct the defect fails three times or is of disproportional expense, the buyer can choose to request that the contract is cancelled or the payment is lowered. A rectification also does not count, after the third unsuccessful attempt, as having definitely failed, especially if something else arises from the type of product or the defect or the other circumstances, which aggravate the rectification.

 

c. The parts, which were attached as necessary during rectification, will be safeguarded until the end of the object of purchase’s warrantee deed due to the purchasing contract. The relevant parts which were replaced, become the property of the seller.

 

 

4. Liquidation / Costs

 

a. The buyer can claim amendments from the seller. The seller decides on the type and place of amendment.

 

b. In the case of cancelling the contract, the received services are refunded and in the case of mitigation of the remuneration of the surplus amount paid by the buyer, re- funded by the seller and the pulled uses are edited. As long as the buyer has not acted against the rules of an orderly business, he is obligated to pay compensation to the seller.

 

 

5. Exclusion of warranty

 

a. The warranty deed expires, when the goods are changed or repaired after discovering the defects, by the buyer or someone other than the seller. Excluded from this are emergencies and cases, in which the changes or repairs clearly could have no influence on the defects.

 

b. The seller’s guarantee commitments further expire, if the buyer has not adhered to instructions regarding the handling, maintenance, storage and care of the object of purchase.

 

 

6. Unauthorised notification of defects, investigation

 

In the case of unauthorised notification of defects, which an extensive investigation generates, the necessary examination costs will be invoiced to the client.

 

If after the ordinary test for defects an extensive investigation is necessary, the seller informs the buyer in order to carry this out with their approval.

 

 

7. Limitation

 

a. Guarantee time limits for recognisable defects become invalid 6 months after delivery.

 

b. For such quality defects, which are not recognisable on receipt, the statute of limitation lasts one year from receipt.

 

 

 

VIII. Liability

 

1. Board members and leading employees

 

In the trading of board members and leading employees, the seller’s liability is limited – due to any legal clause – to malice and gross negligence.

 

 

2. Ordinary vicarious agents

 

In an act of ordinary vicarious agents, the seller is extensively liable for the injury of responsibilities, which are essential to the contract. In the case of injury to responsibility which are not essential to the contract, liability lies with ordinary vicarious agents only for premeditation and gross negligence.

 

 

3. Amount of damages

 

In case of damage caused by negligence, the liability is limited to the amount of reasonably foreseeable damage. This does not apply in the case of gross negligent behaviour by board members or leading employees.

 

 

4. Personal Injury

 

For damage to life, body and health, the seller is completely liable.

 

 

5. Damage responsibility of the employer

 

Personal liability for the seller’s board members and employers against the buyer exists only  to the scales, which the seller herself is liable.

 

 

6. Insurance

 

As far as the seller is insured against liability for content of the above passages, she can yield to the injured party in the event of an insurance claim.

 

 

IX. Jurisdiction

 

1. Place of execution and jurisdiction

 

Place of execution and jurisdiction for all requirements resulting from the sales contract are, according to our choice, the location of the company of Frankfurt am Main, also if sales and deliveries have been carried out by a subsidiary.

This jurisdiction is applicable for all disputes over the origin and efficiency of the contractual relationship.

 

The seller serves the right to also claim against the buyer in front of the appropriate court.

 

 

2. Authority of German law

 

German law is used for the whole business relationship. The UN sales law is not used.

 

 

 

elisto GmbH

Robert-Bosch-Str. 15

D - 65582 Diez / Lahn

 

Phone: +49 (0) 64 32 - 95 11 - 0

Fax:      +49 (0) 64 32 - 95 11 - 95

 

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