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horizont group gmbh Korbach, 01. January 2006
Conditions of Sale, Delivery and Payment
The following conditions of sale, delivery and payment shall be effective immediately.
All previous conditions of sale, delivery and payment shall hereby cease to be in force.
1. General terms and conditions
1.1. Only the following terms and conditions shall be legally valid and deemed as an integral part of our offers to enter into a contract as
well as our sales contracts. Any terms and conditions stipulated by the customer will not be recognized by our company, even if we do not expressly object to such terms and conditions, unless the
validity of the said terms and conditions was expressly approved by our company in writing. Only the terms and conditions stipulated by our company shall be legally valid, even if the delivery of goods
to our buyer is carried out by our company without reservation and upon full knowledge of any conflicting conditions or conditions which may deviate from our terms and conditions.
1.2. Our terms and
conditions shall also apply to all future business transactions concluded with the buyer, even if we do not expressly refer to the same terms and conditions again.
1.3. With the exception of the
managing directors, “Prokuristen” (holders of a general commercial power of attorney) and general agents (holders of a general commercial authority), the employees of our company are not authorized to
enter into any agreement which may deviate from these terms and conditions or from our specification of services.
2. Offers and conclusion of a contract
2.1. Any offers made by our company are always non-binding and without engagement. The formation of a contract will only take place, if our
company confirms the order of the buyer or carries out the delivery of goods.
2.2. All agreements which have been entered into verbally or by telephone must be confirmed in writing by our company in
order to be valid. The same shall apply to supplements, alterations or collateral agreements.
2.3. Drawings, illustrations, weights and measures or other specifications are only binding, if this is
expressly agreed upon in writing.
3. Prices and terms of payment
3.1. Unless otherwise provided for in the agreement, our prices shall be effective, without insurance ex warehouse or ex works, exclusive of
packaging and with the addition of the respective statutory value-added tax.
3.2. Any data contained in brochures, advertisements, price lists and catalogues shall serve only as an approximate
criterion, unless these are expressly stipulated as binding.
3.3. We shall make every effort to maintain the prices stipulated by our company. In the event of unforeseeable, exceptional
circumstances, such as price increases by the manufacturer and currency fluctuations, we shall reserve the right to pass on the price increase to the buyer. If the price increase exceeds the specified
purchase price by more than 10 %, the buyer shall have the right to withdraw from the sales contract.
3.4. The net invoice amount less 2 % cash discount is due for payment, if our invoice is paid
within 10 days after the date of invoice. The full net invoice amount is due for payment, if the invoice is paid within 30 days after the invoice date.
3.5. We shall have the right to demand that the
delivery is to be concurrent with the payment, without stating the reasons pertaining thereto. If our company recognizes after the conclusion of the contract that our right to counter-performance is
jeopardized through the lack of financial capacity of the buyer, then we shall have the right to demand cash in advance or the provision of collateral or security. The same shall apply if the buyer is in
default of acceptance or has already violated the stipulated terms of payment.
3.6. We expressly reserve the right to reject checks or bills of exchange. The acceptance shall always be effected on
account of performance. Discounting and bill charges shall be paid by the buyer and are immediately due for payment.
3.7. If the buyer is in default of payment, we shall have the right to demand
interest on arrears amounting to 7 % above the current base interest rate in accordance with section 1 of the DÜG. The buyer shall have the right to furnish proof that our company has not suffered any
damage or that the extent of the damage sustained is much less compared to the damage claimed as a result of the default. The company reserves the right to assert a claim for higher damages.
3.8. An
additional EURO 5.00 will be charged for every dunning notice issued after the due date of the debt. In the event of default, any agreement pertaining to respite or extension of payment as well as any
period allowed for payment shall become null and void.
4. Delivery
4.1. The delivery of goods shall be effected through a forwarding agency. We will designate the transport company or the forwarding agent.
4.2. We
shall make every effort to deliver the goods within the shortest possible period of time and to comply with the delivery periods or delivery dates. The dates and periods, which we have specified to the
merchants, are not binding, unless otherwise expressly agreed upon in writing.
4.3. We shall have the right to effect partial delivery and part performance at any time provided that such partial
delivery or part performance is carried out within a reasonable scale.
4.4. If the buyers are not merchants, then these buyers can withdraw from the contract or claim damages after a grace period of
six weeks which is to be specified and which shall commence as soon as we have received the appointment of the grace period. However, the latter claim for damages is only permissible, if intention or
gross negligence was committed by our company or by the persons employed by our company in performing an obligation. The extended liability pursuant to section 287 of the BGB (“Bürgerliches Gesetzbuch”
or Civil Code) shall be excluded.
4.5. Furthermore, the following provisions shall apply to business transactions with merchants:
4.6. The delivery shall be carried out subject to the correct and
prompt delivery of goods to us as well as the successful arrival of the goods. We are not liable for any delays in delivery and performance resulting from force majeure or similar circumstances which
arise after the conclusion of the contract and which are beyond our control such as industrial disputes, official directives, irrespective of whether these delays occur at our suppliers or their
subcontractors. In these cases, the delivery period is extended by the duration of the hindrance plus the length of time corresponding to a reasonable setting-up period; the maximum extension however,
shall be three months. In this respect, both parties shall have the right to withdraw from the contract after the expiration of this time limit. The same shall apply if the delay causes substantial
disadvantages to any of the contracting parties.
4.7. In all cases of delayed delivery, any claim for damages asserted by the buyer owing to the delay in delivery as well as any claim for damages in
lieu of performance shall be excluded, even after the expiration of the time limit which was stipulated to us for the delivery of goods. This shall not apply, if mandatory liability accrues in the event
of intention and gross negligence or as a result of health or bodily injuries or death. The buyer shall have the right to withdraw from the contract within the framework of the statutory provisions, only
if our company is liable for the delay in delivery. A change in the burden of proof to the disadvantage of the buyer shall have no connection with the preceding provisions.
5. Passage of risk
5.1. The goods will be delivered via mail, train, forwarder or company lorry. The mode of transport will be selected by our company.
5.2. The
goods will be transported for the account and at the risk of the buyer. This shall also apply to any possible sales returns. The risk is transferred to the buyer as soon as the goods are handed over to
the transport company designated to carry the goods or to the forwarding agent. This shall also apply, if partial deliveries are carried out or if our company has assumed the performance of other
obligations such as transportation charges, carriage and installation. If the forwarding of goods is carried out at a delivery date which is subsequent to the earliest possible delivery date, either at
the request of the buyer or due to other reasons which are within the sphere of responsibility of the buyer, then the risk shall be transferred to the buyer upon notification of the readiness to deliver.
5.3. Upon request and at the expense of the buyer, we will insure the consignment of goods against theft, breakage, transport damage, damage caused by fire and water as well as other risks.
6. Reservation of ownership
6.1. We shall reserve the propriety rights to the object sold until the payment of all existing and accruing receivables arising from the
business relations. We will release a portion of the corresponding security interests at the request of the buyer, if the value of all security interests, to which we are entitled, exceeds the amount of
all secured claims by more than 20%.
6.2. The buyer shall have the right to process and sell the goods subject to reservation (reserved goods) in the course of regular business activity, provided
that the buyer is not in default or a petition for the opening of bankruptcy proceedings against his assets has not been filed. Any pledge or chattel mortgage as well as assignment of receivables shall
be permissible, only if our written consent was previously issued in this regard.
6.3. If the delivered goods are processed by the buyer, the reservation of ownership with respect to the goods
subject to reservation shall not expire. The processing or reconstruction shall be carried out for us as manufacturer, without any subsequent obligations being incurred by the company. If the goods owned
by the buyer or by a third party are processed, we shall acquire joint ownership of the object which results from such processing; the joint ownership acquired shall correspond to the ratio of the value
of goods delivered by our company (invoice value including value-added tax) to the other processed goods at the time of processing. If there is a union or mixture of the reserved goods with a principal
thing owned by the buyer, then it shall already be stipulated in this agreement that the buyer shall transfer the joint ownership of the uniform goods to us on a pro rata basis. The buyer is under
obligation to preserve our joint ownership for us without any remuneration. The pertinent provisions shall apply, if there is any mixture or union of the reserved goods with other goods.
6.4. In the
event of resale, the buyer’s receivables arising from the resale as well as all ancillary rights pertaining thereto shall be assigned to us by the buyer in order to provide security for our claims. If
our company is only a joint owner of the goods sold, the assignment shall be restricted to the share of the receivables which corresponds to our joint-ownership share. The buyer shall have the right,
until revoked, to collect, for his own account and in his own name, the receivables from the resale which were assigned to us. We shall have the right to revoke the authorization to collect, if the buyer
fails to fulfill his contractual obligations, especially in the event of any delayed performance,. At our request, the buyer is under obligation to disclose the debtors of the assigned receivables and to
hand over all the necessary information and documents to us as well as to notify the debtors of the assignment. We shall have the right to disclose the assignment to the debtors at any time.
6.5.
With regard to the safekeeping of the goods which are owned (jointly owned) by our company, the buyer is obliged to exercise care and to carry this out at his own expense, to insure the said goods
against the risk of fire and theft and to provide evidence as to the conclusion of an insurance contract, if requested.
6.6. As soon as the facts are known to the buyer, the buyer is obliged to
immediately inform us of any third-party access to the goods subject to reservation and to provide us with all the information and documents which are needed for an intervention. The buyer shall be
liable for all the costs which have accrued for the revocation of the access (particularly through the institution of a third-party action against execution), if these costs cannot be recovered from the
petitioning creditor.
6.7. If the behavior of the buyer is contrary to the terms of the agreement, especially in the event of a default in payment, our company shall have the right to withdraw from
the contract and to take back the goods sold. The buyer is under obligation to return the goods and to defray the costs relating to the taking back of the goods. After the issuance of a warning, we shall
have the right to realize or sell the reserved goods which were taken back. The realization proceeds minus the appropriate realization costs will be charged to the liabilities of the buyer.
7. Redhibitory defects
7.1. With respect to all those parts or services which show any redhibitory defect within the period of limitation (Article 7.7), we are under
obligation to remedy defects, provide replacement or render services at our option and without remuneration, if the cause for such defect already existed at the time of the passage of risk.
7.2. Any
claim based on defects shall be excluded, if there is only a slight deviation from the stipulated quality, if there is only a slight impairment of the usefulness, in the event of natural wear and tear or
in the event of damages which occur after the passage of risk as a result of faulty or negligent handling, excessive strain, inappropriate production facilities, defective construction work and
unsuitable building site or in the event of damages due to extraordinary external forces which were not expected according to the contract. If improper modifications or repairs are carried out by the
buyer or by a third party, any claim based on defects shall also be excluded with respect to the aforementioned buyer or third party as well as the resulting consequences.
7.3. In the event of any
redhibitory defects, the buyer is under obligation to immediately submit a written notice of defects to our company.
7.4. In this case, the opportunity to carry out subsequent performance within a
reasonable period of time must first be granted to our company.
7.5. All claims of the buyer, which arise from the expenses required to carry out any subsequent performance such as transportation
charges, traveling expenses, labor cost and cost of materials in particular, shall be excluded, if the costs increase due to the subsequent transfer of the delivery item to a place other than the place
of business of the buyer, unless the transfer corresponds to the contractual use of the item.
7.6. Notwithstanding any claims for damages according to Article 8, the buyer shall be allowed to
withdraw from the contract or to reduce the payment, if the subsequent performance fails. Any further claims or any other claims of the buyer, which deviate from the claims stipulated in Article 8 and
which are asserted against those persons employed by our company in the performance of an obligation as a result of a redhibitory defect, shall be excluded.
7.7. All claims based on redhibitory
defects are statute-barred after 12 months. This shall not apply, if the law requires longer time-limits in accordance with section 438, paragraph 1, no. 2 of the BGB (“Bürgerliches Gesetzbuch” or Civil
Code), section 479 of the BGB and section 634a, paragraph 1, no. 2 of the BGB as well as in cases involving health or bodily injuries, death, intentional and grossly negligent breach of duty by our
company and fraudulent concealment of a defect. The statutory provisions regarding the suspension of the statute of limitations as well as the suspension and new commencement of the limitation periods
shall remain unaffected.
7.8. If a notice of defects was filed, the buyer will be allowed to withhold his payments, but the amount of the payment withheld must be in due proportion to the redhibitory
defects which have appeared. The buyer will be allowed to withhold payments, only if a formal complaint or notice of defects was filed and if there is no doubt whatsoever about the justification of such
complaint. If the formal complaint or notice of defects is unfounded, then we shall have the right to demand the buyer’s reimbursement of the expenses incurred by our company.
8. Damages
8.1. Any claim for damages and reimbursement of expenses (hereinafter: claims for damages) by the buyer, particularly as a result of the violation of
duties arising from an obligatory relation and from a tortious act, shall be excluded, irrespective of the legal reason.
8.2. This shall not apply, if mandatory liability accrues, e.g. in cases of
intention and gross negligence, as a result of health or bodily injuries or death, as a result of any breach of major contractual duties and in accordance with the law on product liability. However, the
claim for damages owing to the breach of major contractual duties shall be limited to the standard contractual, foreseeable damages, unless an intentional or grossly negligent act has been committed, or
mandatory liability exists due to health or bodily injuries or death. A change in the burden of proof to the disadvantage of the buyer shall have no connection with the preceding provisions.
8.3. If
the buyer is entitled to damage claims according to the aforementioned Article 8, then it is stipulated in Article 7.7 that these claims shall become statute-barred upon the expiration of the limitation
period which applies to claims based on redhibitory defects. The statutory period of limitation shall apply to damage claims which are in accordance with the law on product liability.
9. Concluding provisions
9.1. The law of the Federal Republic of Germany shall apply. The applicability of the uniform UN-law on the international sale of goods (CISG) shall
be excluded.
9.2. The place of performance for all obligations arising from this contract shall be Korbach.
9.3. With respect to business transactions with merchants, legal persons under public
law or special assets of the Federal Government, Korbach shall be the place of jurisdiction. This place of jurisdiction shall be the exclusive place of jurisdiction for all legal proceedings instituted
against our company. We hereby reserve the right to also sue the customer at a legally justified place of jurisdiction.
9.4. Alterations of the contract, supplements and collateral agreements must be made in writing in order to be valid.
9.5. If compliance with the written form is required under these terms,
transmission per telefax or e-mail shall also be sufficient.
9.6. Should any of the provisions of
conditions of sale, delivery and payment cease to be effective, or if there is a gap in the provisions of the contract, the validity of the other provisions shall remain unaffected. The invalid or incomplete provision shall be replaced by a provision which comes closest to the commercial essence and purpose of the desired provision.
Municipal Court, Korbach
1 HR B 100
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