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General Terms and Conditions of Krass + Wissing GmbH.
The conditions apply exclusively between merchants.
§ 1 Place of performance, delivery and acceptance
1. The place of performance for all services under the delivery contract shall be the place of the Seller’s commercial establishment.
2. The delivery of the goods is made ex domestic plant. These shipping costs shall be borne by the Buyer. The Buyer may determine the carrier. The goods shall be shipped uninsured. A shipping notification can be agreed.
3. In the case of delivery from an external warehouse, a flat-rate warehouse surcharge may be invoiced.
4. Packaging costs for special packaging will be charged to the buyer.
5. Sorted and, in the case of combinations, partial consignments suitable for sale must be made promptly and prior notice must be given. Unsorted ones are only permissible with the consent of the buyer.
6. If, due to the fault of the buyer, the acceptance does not take place on time, the seller has the right, at his discretion, after setting a grace period of 12 days, either to issue an invoice for arrears or to withdraw from the contract or to claim damages.
§ 2 Place of jurisdiction
The place of jurisdiction (also for actions on bills of exchange and checks) shall be, at the plaintiff’s option, the place of the commercial establishment of one of the parties or the registered office of the professional or antitrust organization responsible for the supplier (place). The court first seized shall have jurisdiction.
§ 3 Contract content
1. Delivery of the goods is made on specific dates (working day or a specific calendar week). All sales are concluded only for certain quantities, items, qualities and fixed prices. Both parties are bound by this. Commission transactions are not made.
2. Block orders are permitted and must be limited in time when the contract is concluded. The period of acceptance may not exceed 12 months.
§ 4 Delivery interruption
1. In the event of force majeure, labor disputes and other operational disruptions for which we are not responsible and which have lasted or are expected to last longer than one week, the delivery deadline or acceptance deadline shall be extended without further ado by the duration of the impediment, but by no more than 5 weeks plus the subsequent delivery period. The extension shall only come into effect if the other party is immediately informed of the reason for the impediment as soon as it can be foreseen that the aforementioned deadline cannot be met.
2. if the delivery or acceptance has not taken place in time, the other contracting party may withdraw from the contract. However, it must announce this in writing at least two weeks before exercising the right of withdrawal.
3. if the other contracting party was not informed immediately upon request that delivery or acceptance would not be made on time and if the hindrance lasted longer than 5 weeks, the other contracting party may withdraw from the contract immediately.
4. claims for damages are excluded if the respective contracting party has fulfilled its obligations according to clauses 1-3.
§ 5 Additional delivery deadline
1. After expiry of the delivery period, a subsequent delivery period of 12 days shall be set in motion without explanation. After expiry of the subsequent delivery period, the withdrawal from the contract shall be deemed to have taken place to the exclusion of claims for damages. Withdrawal from the contract pursuant to Clause 1, Sentence 2 shall not occur if the Buyer declares to the Seller during the additional delivery period that it insists on performance of the contract. The Seller shall, however, be released from the obligation to deliver if the Buyer, upon inquiry by the Seller, does not state within the subsequent delivery period whether he insists on performance of the contract.
2. Transactions for delivery by a fixed date shall not be made. However, if the parties expressly agree in an individual case that the goods are intended for a specific action, a fixed delivery date may be agreed without a grace period. If this delivery date is exceeded, the Buyer may demand reimbursement of special expenses for the ordered goods, but not more than the purchase price of the ordered goods. Further claims are excluded. The buyer can only reduce the purchase price or withdraw from the contract due to the defectiveness of the promotional goods.
3. If the buyer wishes to claim damages instead of performance, he must set a 4-week deadline for the seller, with the threat that he will refuse performance after the deadline has expired. The period shall be counted from the day on which the Buyer’s notice is sent by registered mail. This provision shall apply in the case of Clause 1, sentence 2 instead of the rescission specified therein only if this notice of the Buyer has been received by the Seller within the subsequent delivery period.
4. For stock goods ready for dispatch and NOS goods – « Never-out-of-Stock » – the subsequent delivery period is 5 working days. In the event of non-delivery, the purchaser must be informed immediately. Otherwise, the provisions of clauses 1 and 3 shall apply.
5.Prior to the expiry of the subsequent delivery period, claims of the purchaser due to delayed delivery are excluded.
§ 6 Notice of defects
1. Notices of defects must be sent to the seller within 12 days after receipt of the goods at the latest.
2. After cutting or otherwise started processing of the delivered goods, any complaint about open defects is excluded.
3. Minor, technically unavoidable deviations in quality, color, width, weight, equipment or design may not be objected to. This also applies to deviations customary in the trade, unless the seller has declared in writing a delivery true to sample.
4. In the event of justified notices of defect, the Seller shall have the right to rectify the defect or to deliver defect-free replacement goods within 12 days after receipt of the returned goods. In this case, the seller shall bear the freight costs. If the subsequent performance has failed, the buyer only has the right to reduce the purchase price or withdraw from the contract.
5. After expiry of the period specified in item 4, the purchaser shall only have the right to reduce the purchase price or to withdraw from the contract.
6. The Buyer shall notify the Seller of hidden defects immediately after their discovery. The buyer can only reduce the purchase price or withdraw from the contract due to the defect notified in time.
§ 7 Payment
1. The invoice shall be issued on the date of delivery or provision of the goods. A postponement of the due date (value date) is generally excluded.
2.Invoices are payable as indicated on the invoice.
§ 8 Payment after due date
1. For payments after the due date, interest of 8% above the respective base interest rate of the Deutsche Bundesbank will be charged.
2. Prior to full payment of due invoice amounts including interest, the Seller shall not be obliged to make any further delivery under any current contract. The right to claim damages for delay is reserved.
3. In the event of default in payment by the Buyer or in the event of imminent insolvency or other significant deterioration in the financial circumstances of the Buyer, the Seller may, after setting a grace period of 12 days for outstanding deliveries under any current contract, demand payment in cash before delivery, or withdraw from the contract or claim damages.
§ 9 Payment method
1. Offsetting against and retention of due invoice amounts shall only be permitted in the case of undisputed or legally established claims. This shall also apply in the event of suspension of payments by the Seller. Other deductions
(e.g. postage) are inadmissible.
2. Bills of exchange, insofar as they are accepted in payment, shall only be accepted against reimbursement of charges. Bills of exchange and acceptances with a term of more than three months shall not be accepted.
§ 10 Reservation of ownership
1. The goods remain the property of the seller until full payment of all claims from deliveries of goods from the entire business relationship, including ancillary claims, claims for damages and encashment of checks and bills of exchange. The retention of title shall also remain in force if individual claims of the seller are included in a current account and the balance is drawn and acknowledged.
2. If the goods subject to retention of title are combined, mixed or processed by the Buyer to form a new movable item, this shall be done on behalf of the Seller without the Seller being obliged as a result. The Buyer shall not acquire ownership of the new item pursuant to §§ 947 et seq. of the German Civil Code (BGB) as a result of the combination, mixing or processing. In the event of combination, mixing or processing with items not belonging to the Seller, the Seller shall acquire co-ownership of the new item in the ratio of the invoice value of its reserved goods to the total value.
3. If a central settling agency is involved in the business transaction between the seller and the buyer and assumes the del credere, the seller shall transfer ownership to the central settling agency upon dispatch of the goods with the condition precedent of payment of the purchase price by the central settling agency. The buyer shall only be released upon payment by the central settling agent.
4. The purchaser is only entitled to resell or further process the goods subject to the following conditions.
5. The purchaser may only sell or process the reserved goods in the ordinary course of business and provided that his financial circumstances do not deteriorate in the long term.
6a. The Buyer hereby assigns to the Seller the claim with all ancillary rights from the resale of the reserved goods – including any balance claims.
6b. If the goods have been combined, mixed or processed and the Seller has acquired co-ownership in the amount of its invoice value, it shall be entitled to the purchase price claim in proportion to the value of its rights in the goods.
6c. If the Buyer has sold the receivable within the scope of genuine factoring, the Buyer shall assign the receivable against the factor replacing it to the Seller and shall forward its sales proceeds to the Seller in proportion to the value of the Seller’s rights to the goods. The Buyer is obliged to disclose the assignment to the factor if he is more than 10 days overdue with the settlement of an invoice or if his financial circumstances deteriorate significantly.
The seller accepts this assignment.
7. The purchaser is authorized to collect the assigned claims as long as he meets his payment obligations. The authorization to collect shall expire in the event of default of payment by the Buyer or in the event of a significant deterioration in the financial circumstances of the Buyer. In this case, the seller is hereby authorized by the buyer to inform the buyers of the assignment and to collect the claims himself. For the assertion of the assigned claims, the Buyer must provide the necessary information and permit the verification of this information. In particular, he must hand over to the seller on request a precise list of the claims to which he is entitled with the names and addresses of the buyers, the amount of the individual claims, the date of the invoice, etc.
8. If the value of the security existing for the Seller exceeds its total claims by more than 10 %, the Seller shall be obliged to release securities of its choice to this extent at the Buyer’s request.
9. Pledging or transfer by way of security of the reserved goods or the assigned claims is not permitted. The Seller shall be informed immediately of any seizure, stating the seizure creditor.
10. If the Seller takes back the delivery item in exercise of its right of retention of title, this shall only constitute a rescission of the contract if the Seller expressly declares this. The seller can satisfy himself from the taken back goods subject to retention of title by sale on the open market.
11. The Buyer shall store the reserved goods for the Seller free of charge. He shall insure them against the usual risks such as fire, theft and water to the customary extent. The Buyer hereby assigns to the Seller his claims for compensation to which he is entitled against insurance companies or other parties liable to pay compensation as a result of damage of the aforementioned kind to the amount of the invoice value of the goods. The Seller accepts the assignment.
12. All claims as well as rights arising from the retention of title to all special forms stipulated in these terms and conditions shall remain in force until full release from contingent liabilities (check-bills of exchange) entered into by the seller in the interest of the purchaser. In the case of sentence 1, the Buyer shall in principle be permitted to engage in factoring for its outstanding accounts. However, he shall inform the Seller thereof before entering into contingent liabilities.
§ 11 Applicable law
The law of the Federal Republic of Germany shall apply. The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.