General Terms and Conditions of Sale and Delivery
(1) All deliveries, services and offers of mb-Vermarktung Martin Bauer, Hohenlohestrasse 22, 74523 Schwäbisch Hall, Germany (hereinafter referred to as the “Seller”) are exclusively based on these General Terms and Conditions of Sale and Delivery. These are an integral part of all contracts that the seller concludes with its contractual partners (hereinafter also referred to as the “Customer”) concerning the deliveries or services offered by the Seller. They shall also apply to all future deliveries, services or offers to the Customer, even if these are not separately agreed upon again.
(2) Business terms and conditions of the customer or of third parties shall not apply, even if the Seller does not separately dispute their validity in an individual case. Even if the Seller refers to a letter or communication that contains the terms and conditions of the Customer or of a third party, or makes reference to such, this shall not constitute consent to the validity of the said terms and conditions.
§2 Offer and conclusion of contract
(1) All offers made by the Seller are subject to change and non-binding, unless they are expressly specified as binding or contain a specific term of acceptance. The Seller may cancel orders or commissions within fourteen days after receiving them.
(2) The concluded sales contract, including these General Terms and Conditions of Sale and Delivery shall be solely authoritative in regard to the legal relations between the Seller and the Customer.
(3) Additions and amendments to the concluded agreements, including these General Terms and Conditions of Sale and Delivery, must be in textual form to be effective.
(4) Information provided by the Seller concerning the object of the delivery or service (e.g. weights, dimensions, utility values, load capacity, tolerances and technical data) and depictions of the said delivery or service (e.g. drawings and illustrations) shall only be approximately applicable, unless its usability for the contractually intended purpose requires a precise match. The said details shall not be deemed guaranteed characteristics, but rather descriptions or designations of the delivery or service.
§3 Prices and payment
(1) The prices apply to the scope of services and delivery specified in the order confirmations. Additional or special services will be charged separately. The prices are in EUROS, free domicile, including packaging, shipping and the statutory value-added tax, however, in the case of export deliveries, the prices exclude customs duties, fees and other public charges.
(2) Invoice amounts shall be paid within eight days without any deductions, unless otherwise agreed in writing. The date of receipt by the Seller shall be decisive in determining the date of payment. Cheques shall only be considered as payment after they have been cashed. Should the Customer fail to make payment when due, the outstanding amounts shall be subject to at an interest rate of 9 percentage points above the base interest rate from the date of maturity onwards; the right of the Seller to impose higher interest and further damages in the event of default shall thereby remain unaffected.
(3) Offsetting against counterclaims of the Customer or the retention of payments on account of such claims shall only be permissible provided the counterclaims are undisputed or have been legally established.
(4) The Seller shall only be entitled to demand outstanding deliveries or services against advance payment or the provision of security if, after the conclusion of the contract, circumstances become known to the Seller which could be seriously detrimental to the creditworthiness of the Customer and which put at risk the Customer’s payment of the open claims of the Seller based on the respective contractual relationship.
(1) Deliveries shall be made free domicile, unless otherwise specified upon conclusion of the contract.
(2) Periods and dates for deliveries and services promised by the Seller shall always apply only approximately. Insofar as dispatch has been agreed, delivery periods and delivery dates shall refer to the time of handover to the forwarding agent, carrier or other third parties commissioned with the transport.
(3) The Seller may – without prejudice to his rights relating to default by the Customer - demand from the Customer an extension of delivery and performance deadlines or a postponement of delivery and performance dates by the precise period of time during which the Customer fails to fulfil their contractual obligations towards the Seller.
(4) The Seller shall not be liable for impossibility of delivery or for delays in delivery if these are not caused by force majeure or other circumstances which were not foreseeable events (e.g. operational disruptions of any kind, difficulties with the material or energy supply, transport delays, strikes, lawful lockouts, lack of labour, energy or raw materials, difficulties in obtaining necessary official approvals, official measures, non-delivery or incorrect or untimely delivery by suppliers) for which the seller is not responsible. If such events make it considerably more difficult or impossible for Seller to carry out the delivery or service and if the hindrance is not just temporary, the Seller shall be entitled to withdraw from the contract. In the event of hindrances of temporary duration, the delivery or performance deadlines shall be extended, or the delivery or performance dates be postponed by the period of the hindrance plus a reasonable starting period. If the Customer cannot be reasonably expected to accept the delivery or service as a result of the delay, they may withdraw from the contract by sending a prompt written declaration to the Seller.
(5) Should the Seller get into default with a delivery or service or if it is impossible for them to carry out a delivery or service, for no matter what reason, the liability of the Seller shall be limited to compensation for damages in accordance with Point 7 of these General Terms and Conditions of Sale and Delivery.
(6) If products are delivered on a weight basis (kilograms/grams), the weight determined at the time of handover to the Customer shall be decisive. In the case of a sale of approximate quantities, a deviation of +/- 10 % on handover to the customer shall still be deemed fulfilment of the contract.
(7) The Seller shall be entitled to carry out partial deliveries.
§5 Place of performance, shipping, packaging, transfer of risk
(1) Unless otherwise specified, the place of performance for all obligations arising from the contractual relationship shall be D-74523 Schwäbisch Hall.
(2) The method of shipment and packaging shall be subject to the conscientious discretion of the Seller.
(3) The risk shall pass to the Customer at the latest on the handover of the delivery item to the freight forwarder, carrier or other third parties commissioned with carrying out the shipment (whereby the start of the loading process shall be decisive). If the dispatch or handover is delayed due to circumstances for which the Customer is responsible, the risk shall pass to the Customer from the day on which the delivery item is ready for dispatch and the Seller has notified the Customer of this.
(4) The storage costs after the transfer of risk shall be borne by the Customer. In the case of storage by the Seller, the storage costs shall amount to 0.25% of the invoice amount of the delivery items to be stored, per full week. The right to assert and provide proof of additional or lower storage costs remains reserved.
(5) The shipment shall only be insured by the Seller at the express request of the Customer, and at the Customer’s expense, against theft, breakage, transport, fire and water damage or other insurable risks.
(6) If the Seller and the Customer have agreed on collection by the Customer, the contractual products shall be collected immediately after the Seller sends notification that they are ready for collection. If the contractual products are not promptly collected by the Customer, this shall entitle the Seller to withdraw from the contract and to claim damages, while being exempted from their delivery obligations, without the need to send a reminder letter or to set a deadline.
§6 Warranty, material defects
(1) The warranty period shall be 6 months from the date of delivery.
(2) The delivered items shall be carefully examined immediately after delivery to the Customer or to the third party designated by the Customer. They shall be deemed approved if the Seller does not receive a written notice of defects regarding obvious defects or other defects that were identifiable through an immediate, careful examination within two working days after the delivery of the delivery item, or otherwise within two working days after the discovery of the hidden defect. At the request of the Seller, the rejected delivery item shall be sent back to the Seller carriage paid.
(3) In the event that there are material defects in the delivered items, the Seller shall be obligated and entitled to carry out replacement delivery. Should a replacement delivery fail, the Customer shall be entitled to withdraw from the contract – if necessary, partially - in relation to this part of the delivery.
(4) If a defect is due to the fault of the Seller, the Customer may demand compensation under the conditions specified in Point 7.
§7 Liability for damages
(1) The Seller shall be liable for damages – irrespective of the legal ground – in the event of wilful intent and gross negligence. In the event of simple negligence, the Seller shall only be liable:
- a) for damage resulting from injury or harm to life, limb or health,
- b) for damages resulting from the breach of an essential contractual obligation (an obligation the fulfilment of which is essential for enabling the contract to be properly executed or on whose fulfilment the contractual partner was entitled to regularly rely); in this case, however, the Seller’s liability shall be limited to compensation for foreseeable, typically occurring damage, but limited to the contractual sum for each case of damage. The liability under the product liability act shall thereby remain unaffected.
(2) Liability for consequential damage is hereby precluded – except in the case of injury or harm to life, limb or health.
§8 Retention of title
(1) Until all current and future claims of the Seller against the Customer arising from the ongoing business relationship have been paid in full, the Seller shall reserve the title to the contractual goods sold and delivered.
(2) The contractual goods subject to retention of title may not be pledged to third parties or transferred to third parties as collateral security before full payment of the secured claim. The Customer shall immediately notify the Seller in writing if and to the extent that third parties access the goods owned by the Seller.
(3) The Customer is, however, authorised to resell and/or process the contractual products subject to retention of title in the normal course of business. In this case, the following provisions shall additionally apply.
- a) The retention of title shall also extend to any products resulting from the processing, mixing or combining of the Seller's contractual products and their full value, whereby the Seller shall be deemed to be the manufacturer. If, in the event of any processing, mixing or combining with goods of third parties, their ownership rights remain, the Seller shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. For the rest, the same shall apply to the said resulting product as to goods delivered under retention of title.
- b) The Customer hereby already assigns to the Seller any claims against third parties arising from the resale of the goods or the product, either in total or in the amount of the respective proportion of ownership, in accordance with the above paragraph, as a collateral security. The Seller hereby accepts the said assignment of claims.
(4) In addition to the Seller, the Customer shall remain authorised to collect the claim. The Seller undertakes not to collect the claim provided that the Customer fulfils its payment obligations towards the Seller and does not get into default of payment, and that no application to open insolvency proceedings has been filed and that the Customer’s ability to pay is not prejudiced in any other way.
(5) Should the realisable value of the collateral securities exceed the Seller's claims by more than 10 %, the Seller shall, at its own discretion, release collateral securities at the Customer’s request.
$9 Concluding clauses
(1) The place of jurisdiction for any disputes arising from the business relationship between the Seller and the Customer shall, at the Seller’s option, be D-74523 Schwäbisch Hall or the seat of the client. D-74523 Schwäbisch Hall shall be the exclusive place of jurisdiction for lawsuits against the Seller. Mandatory statutory provisions concerning exclusive places of jurisdiction shall remain unaffected by this provision.
(2) The relationships between the Seller and the Customer shall be exclusively subject to the law of the Federal Republic of Germany. The United Nations’ Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not apply.
(3) Should one or more provisions of this contract be or become invalid or void, in whole or in part, or if this agreement contains a loophole, the validity of the remaining provisions of this contract shall thereby remain unaffected. The contracting parties hereby agree that an invalid clause or a clause that becomes invalid during the execution of the contract shall be replaced by a clause that most accurately fulfils the economic purpose of the invalid clause.