1. Section 1 Scope of application and general provisions
1. The general terms and conditions, which follow (hereinafter: “Terms of
Business”), shall apply to all current and future business with our customers
(hereinafter: “Purchaser”).
2. The Terms of Business shall particularly apply to contracts for the sale
and/or delivery of goods (hereinafter: “Goods”) without consideration of
whether the Goods are manufactured by ourselves or purchased from other
suppliers (sections 433 and 651 of the German Civil Code (BGB)). The Terms
of Business shall apply as amended as a framework agreement to future
contracts for the sale and/or delivery of goods with the same Purchaser
without the need in each case to incorporate them by reference.
3. Our Terms of Business shall apply exclusively. Any different or additional
general terms and conditions from our contractual partner shall only
then apply if and to the extent their applicability to the contract has been
expressly agreed to in writing.
This requirement of consent shall apply in each and every case even when,
for instance, we are aware of the Purchaser’s general terms and conditions
and deliver without reservation or otherwise accept goods and services
without reservation.
4. Specific agreements executed with the Purchaser including any ancillary
supplements and amendments shall have priority over the Terms
of Business in every case. In order for this to apply to such agreements
they must be made in writing or we must have otherwise consented to or
acknowledged their contents in writing.
5. Legally relevant statements, declarations and notices, which the
Purchaser furnishes us after the execution of the contract (e.g. time limit,
notice of nonconformity, rescission or abatement) must be made in writing
in order to be legally valid and effective.
6. References to the applicability of statutory provisions are only made
for reasons of clarity, and in the event no reference to legal provisions is
made, this shall not in any way impact their applicability, provided that
they are not otherwise specifically modified or expressly excluded in these
Terms of Business.
Section 2 Offer and contractual execution
1. Our offers are subject to change at any time and are not binding for reorders,
and become binding exclusively by our written acceptance of order or bill delivery . This applies even when we have furnished the Purchaser catalogues, technical documentation (e.g.
drawings, plans, computations, calculations, references to DIN-standards),
other product descriptions or documents–even in electronic form–upon
which we reserve proprietary rights and copyrights.
Moreover we are authorized to correct obvious falsity, omissions, clerical errors and calculation errors at any time. With the placing of order the client confirms his creditworthiness and his ability to pay.
2. When the Purchaser places an order for a Good it shall be considered a
legally binding offer. Unless otherwise apparent from the order we shall be
entitled to accept the contractual offer within 3 weeks of its receipt by us.
3. Acceptance may be made either in writing (e.g. Order Confirmation) or by
shipment of the Good to the Purchaser.
4. At electronical legal relations the confirmation of order does not represent the binding declaration of acceptance of the offer of contract, except the acceptance was explicitly given in the confirmation of order.
The illustration of the products in the internet does not represent a legal binding offer, but a not binding overview of prices. The agreement of sale is concluded with our confirmation of order or the delivery of the goods.
We deliver exclusively in return for payment in advance, if nothing else agreed.
5. We reserve without limitation all proprietary rights as well as all copyrights
to the use and exploitation of our drawings, constructions and other
documents. The Purchaser may not disclose these items to third parties. If
we are not awarded the contract, all drawings and other documents, which
are a part of the offer, shall be promptly returned upon request. The same
shall apply correspondingly to customer documents. We may, however,
disclose such to third parties, which we have permissibly engaged for the
delivery of products and services.
Section 3 Prices and payment terms
1. Unless otherwise specifically agreed to, our current prices and surcharges
applicable at the time the contract is executed shall apply. Prices
apply ex company Motedis GmbH Ensdorf, Germany. Prices are listed in Euros as per description in the articles.
If the stipulated period of delivery is longer than four months after execution
of the contract we shall be entitled to calculate prices and surcharges
at the rates valid at the time of delivery. Any possible reduction in costs as
a result shall be passed along to the customer.
2. For purchases that are to be shipped (section 5 (1)) the Purchaser shall
bear the transportation expenses ex warehouse and any expenses for
freight insurance the Purchaser may desire.
In any given case if we do not invoice carriage charges actually incurred,
then a flat rate for transportation expenses shall be considered agreed to
(exclusive of any freight insurance) according to our respective shipping
cost table. The Purchaser shall pay any duties, fees, taxes and other public
charges.
3. Significant for the date of payment is the date payment is received. Payments
made by cheque are considered paid when the check is honoured.
4. The Purchaser shall be in default if payments are not made within the
aforementioned payment period. Legally applicable default interest shall
be charged to the purchase price during the period of default. We reserve
the right to assert additional claims of loss for default. As far as merchants
are concerned any claims that we might have to claim interest from the date
payment becomes due (section 353 of the German Commercial Code (HGB))
shall remain unaffected.
5. In the event of payment default we shall be entitled to refuse further deliveries
or only dispatch deliveries upon prepayment as well as declare all
outstanding and deferred invoice amounts as immediately due and owing.
6. The Purchaser shall only have a right to setoff or retention insofar as he
has a valid judgment against us or his claim is otherwise undisputed. For
nonconforming deliveries section 7 (7) shall remain unaffected.
7. If after execution of the contract reasonable grounds for insecurity arise
indicating that the Purchaser will be unable to pay the purchase price (e.g.
a petition in bankruptcy), we shall then be entitled to refuse performance
according to legal provisions and, where applicable, after a time set for
adequate assurance of performance, terminate the agreement (section
323 of the German Civil Code (BGB)). For contracts for the manufacture of
customized goods (specially manufactured goods) we may immediately
rescind the contract – statutory provisions concerning the dispensability
of setting a time to cure shall remain unaffected.
Section 4 Delivery, risk of loss, acceptance, untimely rejection and return
1. Tender of delivery shall occur ex warehouse in Ensdorf, Germany, which
is also the place of performance for all obligations arising from this contractual
relationship, provided nothing else has been agreed to. Upon the
Purchaser’s request and at its cost, Goods will be shipped to a particular
destination (Goods purchased for shipment), while the shipping is carried out to the delivery address of the customer. Our delivery times are not binding, and can differ form the actual delivery times, while we will inform you about that, as soon as possible. Unless otherwise provided for, we shall be entitled to determine how goods are shipped (in particular
the carrier, forwarding route, packaging).
2. The risk of loss or damage to the Goods in the absence of breach shall
pass to the Purchaser by handing over the goods. Where the contract
requires shipment (Goods are delivered ex curb, and are insured according to the Goods’ value) of the Goods by carrier the risk of loss or damage to the
Goods in the absence of breach as well as any risk of delay shall pass to
the Purchaser when the Goods are handed over from the carrier to the customer. The customer pledges himself, by receipt of the Goods, to check them for transport damage. In case of a transport damage, the customer is obligated to inform the carrier about those. Claims ex post will not be accepted.
3. If the Purchaser fails to timely reject the Goods, fails in good faith to
properly cooperate or causes a delay of our delivery, then we shall be
entitled to demand reimbursement for losses resulting therefrom including
any additional expenses (e.g. warehousing costs). For such breaches we
calculate liquidated damages at a flat rate in the amount of 10 % of the invoice
amount. We shall be entitled to prove that we have suffered damage or
loss in excess of such liquidated damages and our statutory claims (in
particular reimbursement for additional expenses, reasonable compensation
for loss, termination) shall remain unaffected. Any liquidated damages
amount shall be credited to any other monetary claims for loss or damage.
The Purchaser is free to provide proof that we have suffered no damage or
loss or that we have only suffered a considerably lower amount of damage
or loss than is accounted for under the liquidated damages provision.
4. Instalment shipments are permissible within a reasonable scope; if the
instalment delivery is practicable for the Purchaser within the scope of its
intended purpose under the contract; if the delivery of the outstanding
Goods ordered is guaranteed; and the Purchaser shall not incur any material
additional or supplemental costs (unless we have agreed to bear such
expenses).
5. We reserve the right to reasonably alter the technical design, colour
and form of our Goods as well as any quantities, provided, for instance,
the value and usability of the Goods offered for sale are not in any way
impaired:
Our profiles are delivered anodised.
Anodised and RAL colours do not rely to any norms, therefore differences in colour and shine can not be excluded. Small paricle inclusions or anomaly on surfaces can appear. Only claims which pass the given guidelines can be accepted when they are seen at a distance of viewing of 5 meters at diffuse light. To ensure the conservation of value the corresponding cleaning intervals with appropriate cleaning supplies have to be observed.
Feel free to order more information at any time.
7. We shall not take back any packaging used for transportation or any
other type of packaging used in accordance with the provisions of the
German Packaging Regulation, except for Euro pallets. Packaging shall
become the property of the Purchaser.
8. Returning shipments shall require our prior written consent.
Because aluminium profiles are specially manufactured for you, a return is not possible. The Purchaser is free to provide evidence that we have suffered no loss or that we have suffered
damage or loss to a lesser extent than provided for above.
Section 5 Reservation of title
1. We shall retain title to the Goods sold until full payment of the price
specified in the purchase agreement or from an on-going business relationship
(secured transaction) is made. The Purchaser is under a duty to treat
the Goods with reasonable care. If maintenance or inspection work is required,
the Purchaser shall conduct these periodically at its own expense.
2. Goods that are subject to a reservation of title may not be pledged to
third parties or assigned as a security interest before complete payment of
the debt, which they secure. The Purchaser shall immediately inform us in
writing, if and to what extent some third party wishes to execute on Goods
belonging to us or if the Goods have been damaged or destroyed. Insolvency
administrators, persons or officers responsible for execution and
attachment, or other third parties attempting to execute on the property
are to be informed about our property rights.
3. If the Purchaser breaches this contract, in particular fails to pay the
purchase price, we shall be entitled pursuant to statutory provisions to
terminate this agreement and demand a return of the Goods because of our
reservation of title in them and a termination of the agreement. If the Purchaser
does not pay the purchase price we may only assert these rights if
we have set a reasonable time for the Purchaser to cure its payment default
and the Purchaser has not done so within the time specified, unless such a
deadline may be dispensed with according to statutory provisions.
4. The Purchaser is authorized to resell and/or process the Goods subject
to a reservation of title in the ordinary course of business. In such event the
following provisions shall apply:
a) The reservation of title shall extend to the resulting product processed,
intermixed or combined with our Goods in its full value and we shall be
deemed the manufacturer thereof. If our Goods are processed, intermixed
or combined with the goods from third parties who similar to us also have
retained title then we shall acquire a joint property right in the goods so
processed, intermixed or combined proportional to the invoice values,
otherwise the same reservation of title shall apply to the resulting product
as does to Goods supplied.
b) Proceeds or debts arising from the sale of the Goods or product due from
third parties shall be assigned to us herewith as security in the amount
of the debt owed to us for the delivery of the Goods pursuant to the aforementioned
paragraph. We hereby accept the assignment. The Purchaser’s
obligations specified in section 6 para. 2 herein shall also apply to claims
of debt, which have been assigned.
c) The customer shall assign to us as security for the debt it owes to us its
debt that accrues against a third party by reason of the Good becoming
affixed to real estate. We hereby accept the assignment.
d) The Purchaser shall retain the right in addition to us to collect the debt.
We promise not to institute collection proceedings on the debt so long as
the Purchaser discharges its payment obligations to us, does not default
on making payments, does not petition for bankruptcy or other insolvency
proceedings and there is no other failure or breach of performance or
obligation. If, however, this is the case, then we may demand that the
Purchaser disclose the debtor and debt assigned to us; provide us with all
required information in order to institute collection proceedings; deliver
to us all associated documents and records; and inform the debtor (third
party) about the assignment.
e) If the realisable value of the security exceeds our debt claims by more
than 10%, then upon the request of the Purchaser we shall at our discretion
release security interests.
Section 6 Purchaser warranty claims
1. The statutory provisions shall apply to the Purchaser’s rights regarding
nonconformity of goods and defects in legal title (including nonconforming
delivery and delivery shortfalls as well as improper assembly or defective
instructions for assembly), unless otherwise provided for below. The
special statutory provisions for the final delivery of goods to a consumer
(supplier recourse pursuant to sections 478 and 479 of the German Civil
Code (BGB)) shall in any event remain unaffected.
2. The basis of our warranty liability is primarily the quality of the Goods
agreed upon. Product descriptions shall be considered to be made part
of the basis of the bargain concerning the quality of the Goods (including
manufacturer descriptions), which have been provided to the Purchaser by
us before placing its order or have otherwise been incorporated into the
agreement by reference in the same or similar manner as these Terms of
Business. Public remarks, commendations or advertising by the manufacturer
do not establish a contractual basis for warranty.
3. With respect to the nature and quality of goods, if no express warranties
have been agreed to, then whether the Goods are conforming or not shall
be determined according to statutory provisions (section 434(1) sentences
1 and 3 of the German Civil Code (BGB)). We shall not be held liable for
any public remarks made by the manufacturer or other third parties (e.g.
advertising slogans).
4. Within the legal sense the customer shall not receive guarantees from
us. All references in our acknowledgments or Order Confirmations or offers
to manufacturer guarantees do not mean a limitation of our warranty in
excess of the aforementioned limitations. They merely represent a reference
to additional rights the customer has against the manufacturer, which
we are merely passing along for informational purposes. In this regard
they do not represent an expansion of warranty rights that the customer
has against us. The manufacturer guarantee given to the customer is not
affected by our aforementioned limitations on warranty.
5. Claims brought by the Purchaser for breach of warranty presuppose
that it has discharged its legal duties of inspection and notification of
nonconformities (sections 377 and 381 of the German Commercial Code
(HGB)). If upon inspection or at a later time a nonconformity or defect is
discovered, we are to be notified of this fact in writing without undue delay.
Immediate notification shall be considered given if it is carried out within
7 working days, whereby the timely dispatch of the notification suffices to
comply with the time limit. Independent of the obligations of inspection
and notification, the Purchaser must report obvious nonconformities or defects
(including incorrect delivery and delivery shortfalls) in writing within
7 working days of delivery, whereby the timely dispatch of the notification
suffices to comply with the time limit here as well.
We shall not be liable for any nonconformities or defects not properly
reported because the Purchaser fails to properly inspect and/or notify us
about such.
6. If the delivered goods are nonconforming, we may first choose whether
we shall cure the nonconformity by rectifying the defect (rectification) or by
the delivery of conforming goods (substitute delivery). Our right to refuse
either alternative pertaining to cure pursuant to statutory prerequisites
shall remain unaffected.
7. We are entitled to make any possible attempts at cure dependent
upon whether or not the Purchaser has properly paid the purchase price.
However, the Purchaser is entitled to withhold a reasonable portion of the
purchase price in relation to the defect or nonconformity.
8. The Purchaser must allow us the necessary time and opportunity to cure
and in particular furnish us the Goods rejected because of nonconformity
for inspection. If a substitute delivery is undertaken then the Purchaser
shall return the nonconforming goods to us pursuant to statutory provisions.
9. If a defect or nonconformity is actually determined then all requisite
expenses, in particular, transportation, work and material costs for
inspection and substitution shall be borne by us. If, however, no defect or
nonconformity can be determined and the Goods have been wrongfully rejected
by the Purchaser, then we may demand that the Purchaser indemnify
us for costs incurred.
10. In urgent cases for example in cases of endangerment of operational
safety or to prevent disproportional loss the Purchaser shall have the right
to rectify or remedy any defect or nonconformity itself and request indemnification
of the reasonable expenses incurred therefor. Depending on
practicability thereof, we are to be promptly informed before such self-help
is undertaken. There shall be no right to undertake corrective measures
by means of self-help, if we would have been entitled to have refused any
corresponding cure pursuant to statutory provisions.
11. If substitute performance is unsuccessful or is unable to be made within
the reasonable time set for cure by the Purchaser or such reasonable time
for substitute tender may be dispensed with according to statutory provisions,
the Purchaser may terminate the purchase agreement or reduce the
purchase price. However, in cases of immaterial defects or nonconformities
there shall be no right to termination for breach.
12. The Purchaser’s right to assert a claim for damages or restitution for
useless expenditures shall be subject to the provisions contained in section
8 hereto and are otherwise excluded.
Section 7 Liability
1. Provided not otherwise specified in these Terms of Business including
any supplemental provisions, we shall be liable for contractual and noncontractual
breaches of obligations pursuant to the pertinent statutory
provisions.
2. We shall be liable for damages in cases of intentional breach and gross
negligence regardless of the legal basis therefor.
3. The liability of the seller applies to the goods’ value of the offered articles. An exceeding liability in case of consequential damages respectively consequential costs, lost sales or financial losses of any sort, resulting from not delivering, wrong delivering, or non functioning is excluded.
4. The Purchaser may only rescind or terminate the contract in the event of
a material breach by us, which is not related to a defect or nonconformity.
An open right of contractual rescission by the Purchaser is excluded (in
particular pursuant to sections 651 and 649 of the German Civil Code
(BGB)). Otherwise all other statutory provisions and legal consequences
shall apply.
5. Our liability shall dissipate, if the delivered Goods are processed or
altered, unless the Purchaser is able to prove that processing or transformation
did not cause the damage or loss.
Section 8 Software
To the extent software is contained in a delivery, the customer shall be
granted a non-exclusive and non-transferable right to use the delivered
software together with any documentation included with it. The software
may only exclusively be used for intended purposes associated with the
article of sale. Use, duplication, adaption or translation of the software
as well as a conversion of the object code in the source code for other
purposes is prohibited, unless otherwise permitted according to the provisions
of section 69d of the German Copyright Act.
Section 11 Protection of privacy
1. The Purchaser hereby agrees and is herewith informed that all information
about the Purchaser from the business relationship may be stored by
our electronic data processing system, including any personally related
and invoice related data within the meaning of the German Federal Data
Protection Law and forwarded exclusively to commissioned service providers
and credit reference agencies (e.g. credit checks) within the scope of
processing an order.
2. Our business partners oblige themselves not to transmit the relevant
data incoming in the context of the business relationship to unauthorized
third parties and to safely protect and store them from access and misusage
by unauthorized people.
Section 9 Protection of privacy
1. The Purchaser hereby agrees and is herewith informed that all information
about the Purchaser from the business relationship may be stored by
our electronic data processing system, including any personally related
and invoice related data within the meaning of the German Federal Data
Protection Law and forwarded exclusively to commissioned service providers
and credit reference agencies (e.g. credit checks) within the scope of
processing an order.
2. Our business partners oblige themselves not to transmit the relevant
data incoming in the context of the business relationship to unauthorized
third parties and to safely protect and store them from access and misusage
by unauthorized people.
Section 10 Governing law, venue and final provisions
1. The law of the Federal Republic of Germany shall be used to govern,
construe and interpret these Terms of Business and all legal relationships
between ourselves and the Purchaser, excluding all international and supranational
(contractual) laws; in particular, the United Nations Convention
on Contracts for the International Sale of Goods. However by contrast, as
a condition to and the legal effectiveness of the reservation of title contained
in section 6 of these Terms of Business shall be subject to the law of
the locality where an item is located, inasmuch as such local law does not
permit the applicability of German law or the choice of law is otherwise not
legally effective.
3. Should a term or provision of this agreement / Terms of Business be held
to be invalid or unenforceable, this shall not affect the remaining valid and
enforceable terms or provisions. In lieu of the invalid or unenforceable term
or provision a provision shall be deemed as agreed to within the confines
of the law, which comes closest to the original intent and purpose sought
by the contractual parties in the invalid or unenforceable term or provision.
The same shall apply to any possible gap in the agreement.
Status as of: 27 November 2011
Registered office in Ensdorf, Germany
