General terms of trade
to Conditions of purchaseTerms and conditions of sale and delivery
| I. Generally |
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| 1. Generally | ||
| The contract shall be concluded, the delivery shall be made and the performances shall be provided exclusively on account of the following conditions. The customer’s conditions that differ from these conditions are opposed herewith; they shall not be accepted, even if we do not oppose them again after receipt. The customer is deemed to accept our conditions by means of placing the order. |
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| 2. Limitation of liability | ||
| a) | Our liability shall be limited to the average damage that is foreseeable, contractually typical and direct according to the type of goods, in the event that duties are infringed slightly. This provision also applies in the event that our legal representatives or subcontractors infringe duties negligently. We shall not be liable vis-à-vis companies in the event that insignificant contractual duties are infringed negligently. | |
| b) | The aforementioned limitations of liability do not affect the buyer’s claims that arise from product liability. Furthermore, the limitations of liability do not apply to the customer’s or supplier’s physical injury and damage to health nor to his loss of life, which are ascribed to us. | |
| c) | Claims for compensatory damages that are made by the customer or supplier because of a defect, shall be statute-barred after one year has passed following delivery of the goods. This provision does not apply whenever we are accused of malice. |
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| 3. Applicable law and place of jurisdiction¹ | ||
| a) | The law of the Federal Republic of Germany applies. The UN purchase law’s provisions are inapplicable. | |
| b) | Heidenheim or Ellwangen/Jagst is respectively agreed according to the amount of the disputed value as being the exclusive place of jurisdiction for adjudicating all disputes that arise indirectly or directly from this business relationship, insofar as the buyer is a general business man for the purposes of the German Commercial Code, or a legal entity under public law or a special public asset. The same provision applies whenever the buyer does not have any general place of jurisdiction in Germany, or whenever his place of residence or usual abode is unknown during the period when a legal action is filed. |
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| 4. Partial nullity | ||
| If individual provisions of these terms and conditions of delivery and payment are wholly or partially inoperative, then the operativeness of all the other provisions or agreements shall not be affected hereof. ¹ domicilium disputandi The provision’s whole or partial inoperativeness shall be replaced by a provision that approximates as closely as possible to the economic effect of the inoperative one. |
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| II. Terms and conditions of sale and delivery |
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| 1. Offers¹, acknowledgements or order and conclusion of the contract | ||
| Our offers are open for acceptance and subject to change without notice; they are made without any engagement. Declarations of acceptance and all purchase orders require to be acknowledged by us in writing or telegraphically [e.g., by telex, fax or e-mail], in order for them to be legally operative. The same provision applies to supplements, revisions or collateral agreements. The written acknowledgement can also be replaced by means of an invoice, in the case of immediate delivery. |
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| ¹ Quotations |
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| 2. Prices | ||
| a) | All prices are understood to be exclusive of packing and packaging, freight, postage and insurance, plus the rate of value-added tax that is respectively valid on the day of delivery, ex-works in Giengen. The delivery shall be made franco domicile inland [i.e., within Germany] in the case of orders over € 500; or free of charge to the German frontier in the case of exported consignments. A handling fee amounting to 5 per cent – but at least € 12 – shall be charged for deliveries that are made to third parties on the customer’s behalf. | |
| b) | The minimum amount invoiced shall be € 200 net. Orders below this amount cannot be carried out. |
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| 3. Period of delivery | ||
| a) | Dates and times of delivery are unbinding insofar as nothing else has been agreed in writing. The information about specific times of delivery and dates of delivery is provided by us with the proviso of proper and timely delivery by suppliers and manufacturers. | |
| b) | Dates of delivery shall begin when we acknowledge the order but not before all details about the performance are clarified and all of the other prerequisites which the customer has to fulfil are present. Deliveries are permissible before the time of delivery has expired; partial deliveries are permissible too. | |
| c) | Delays with deliveries and performance on account of force majeure or other unforeseeable events that make it substantially difficult or impossible for us to make the delivery and for which we are not responsible (these events particularly include war, warlike events, official orders, non-conferral of approvals for export, import or transit, national measures for restricting commercial traffic or other operational interruptions of any kind, disruption of traffic – irrespective of whether these events occur at our premises or those of our suppliers or subcontractors – shall entitle us to postpone the delivery or performance for the duration of the hindrance plus a reasonable break-in period or to withdraw completely or partially from the contract insofar as it has not been fulfilled yet. The period of delivery shall also be extended by the period during which the customer finds himself in delay with fulfilling his contractual duties. |
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| d) | The customer shall be entitled to withdraw from the contract completely or partially insofar as it has not been fulfilled, if the hindrance lasts for longer than 3 months and after he has set a reasonable period of grace (at least 14 days). If the time of delivery is extended by applying the provisions of clause 3.c) or if we are exempt from our obligation, then the customer cannot derive any claims for compensatory damages from this circumstance. We can only plead the cited circumstances whenever the customer has been informed immediately. |
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| 4. Inspection procedure and acceptance | ||
| a) | If the customer wishes that the requisite inspections are carried out by ourselves, then he has to inform us about this. The nature and extent of the inspection must be agreed by the time when the contract is concluded. | |
| b) | If an acceptance is desired, then the extent and conditions must be stipulated before the contract is concluded. The acceptance has to take place immediately at the customer’s cost, after the readiness for acceptance in the delivering factory has been notified. If the acceptance does not take place or if it does not take place promptly or if it takes place incompletely, then we shall be entitled to despatch the goods or to store them at the customer’s cost and risk; the goods shall be deemed to have been accepted while doing so. |
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| 5. Divergences of size, weight and quantity | ||
| Drawings, illustrations, sizes and weights that are included in catalogues, offers, advertising letters, etc., are only approximately definitive. The right is reserved to carry out commercial modifications at any time. Divergences of up to 10 per cent above or below in comparison with the ordered quantity shall be admissible for special manufactures. |
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| 6. Packing and packaging | ||
| a) | The goods shall be packed and packaged commercially and the costs for this service shall be charged at 2 per cent of the goods’ value but at least € 8. The packing and packaging shall be done free of charge in the case of deliveries where the goods’ value is greater than € 500 net. | |
| b) | The choice about type of packing and packaging is left to the supplier: whereby this shall be done according to the rules of the packaging regulations. We wish to point out, that we shall thereupon take back the transport packaging in the case of delivery free of charge (including carriage) but we shall not pay any disposal costs. | |
| c) | The supplier reserves the right to charge for the costs that are incurred whenever Collico’s transport containers, railway containers with special fittings, grid pallets, Euro pallets or wooden pallets are not given back within two weeks. |
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| 7. Despatch | ||
| a) | The despatch shall be made franco domicile to the recipient’s address in Germany or free of charge to the German frontier as an export which is untaxed and with unpaid customs duties, for deliveries arising from orders below € 500 net. The despatch costs shall be added to the invoiced value for these orders. The extra costs for any express or expedited consignments that are requested, shall be borne by the customer in every case. | |
| b) | The type of despatch shall be chosen at our discretion but without any obligation for the supplier. | |
| c) | We shall be left to choose the means of transport and transport routes in the absence of instructions and by excluding any liability. |
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| 8. Passage of risk and transport insurance | ||
| a) | The passage of risk shall take place ex-works in Giengen. The goods shall be despatched at the customer’s risk. A transport insurance policy shall only be arranged by us at the customer’s express wish and at his expense in that case. | |
| b) | If the despatch is delayed without the supplier being responsible for it, then the risk shall pass to the buyer whom the supplier has notified about the readiness for despatch or collection. |
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| 9. Redeliveries | ||
| We shall charge a fee amounting to 20 per cent of the goods’ value – but at least € 15 – for the restorage of goods that are returned through no fault of our own. The redelivery has to be made to us free of charge. Any costs of freight, packing and packaging, postage or other incidental expenses that are incurred shall be borne by the redeliverer. The return shall only be allowed to be made after our express approval has been given in every case. It is basically impossible to retrieve goods with a value of up to € 200 net. |
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| 10. Terms of payment | ||
| a) | Our invoices must be paid without any deduction and within 30 days from the date of invoice. We shall grant a discount of 2 per cent for payment within 14 days from the date of invoice. | |
| b) | Interest amounting to the cost of credit that is charged by banks, shall be charged whenever the target date is exceeded; however, it shall amount to at least 8 percentage points above the basic rate of the European Central Bank. | |
| c) | We shall be entitled to set off payments against the customer’s existing debt first of all, despite his differing terms and conditions. We shall inform the customer about the nature of setting off that has taken place. If costs and interest have been incurred already, then we shall be entitled to set off the payments against the costs, then the interest and lastly the main payment. | |
| d) | Partial deliveries and partial performance can be invoiced separately. | |
| e) | Setting off or asserting a right of retention is excluded, unless the counterclaim has been established by a court of law or it is accepted by us. | |
| f) | If the terms of payment are not complied with, then all of our debt claims including those which we have taken in exchange shall become due for payment immediately. | |
| g) | If the customer does not comply with his payment obligations, or if he suspends payments or if a bank does not clear a cheque, then we shall be entitled to set a time limit for withdrawing from the supply contract as well as from any agreements about granting delays in payment. Furthermore, the right shall be vested in us to exclude the defaulting customer from being supplied further, even if corresponding supply contracts have been concluded. | |
| h) | We are entitled to assign our debt claims. | |
| i) | Our invoices must be paid without incurring any expenses for us. Any bank charges or other incidental expenses concerning monetary transactions shall be borne by the customer. An invoice shall only be deemed to have been paid when the equivalent value of the invoice’s total amount has been credited to us. |
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| 11. Reservation of ownership | ||
| a) | We reserve the right to ownership in the delivered goods until all of the debt claims that have arisen or are still arising from the business relationship vis-à-vis the customer have been paid fully, irrespective of their nature and legal grounds. The reserved ownership applies as a security for the debt claim in the case of current invoicing. | |
| b) | The goods that have been delivered and are still owned by us, shall be treated and processed according to our order without any liability being incurred by us as a result. | |
| c) | If the customer incorporates [our goods] into other goods, then we shall acquire co-ownership in the newly created products: namely, as the ratio of the goods delivered by us to the other goods that are jointly utilized. | |
| d) | If the goods delivered by us are mixed or connected with other objects, then the customer shall herewith assign his rights of ownership and co-ownership in the mixed or new object and he shall safeguard it for us with the requisite care and free of charge. | |
| e) | The customer is entitled to process and sell the conditional commodities during the course of proper business transactions, provided that he is not in default. Pledges or mortgages and assignments as security are impermissible. | |
| f) | An assignment of the customer’s claims against his customers which arise from reselling the goods delivered by us subject to retention of ownership is excluded, unless the matter concerns an assignment by way of pure factoring that is notified to us in every case and for which the factoring proceeds exceed the value of our secured debt claim. Our debt claim shall become due for payment immediately when the credit entry is made for the factoring proceeds. | |
| g) | The customer herewith assigns us the debt claims to the full extent and for reasons of security (including all debt claims from the current account) that arise from the resale or other legal grounds (insurance or prohibited action) regarding the conditional commodity. We shall irrevocably empower the customer to collect the debt claims assigned to us for our own account on our own behalf. The empowerment for collection can only be revoked, if the customer does not comply with his payment obligations properly. | |
| h) | The customer shall advise him about our ownership and we shall be notified immediately in the event that a third party seizes the conditional commodities, so that we can take judicial or extra-judicial measures to defend our claims in this connection. The judicial or extra-judicial costs that are incurred for this purpose shall be borne by the customer. | |
| i) | The customer has to resist third-party seizure. In the event of conduct that is contrary to the term of the contract – especially default in payment – we shall be entitled to take back the conditional commodities or to demand assignment of the buyer’s claims to surrender [of the goods] against third parties, should the occasion arise. The withdrawal from the contract is thereupon not required, as a divergence from article 449 II of the German Civil Code. | |
| j) | No withdrawal shall be present whenever we take back and pledge or mortgage the conditional commodities, insofar as a consumer has not acquired an interest in them. | |
| k) | The customer undertakes upon our request to send back the remaining extent of received goods to us at his own cost, whenever a cheque is not cleared. | |
| l) | If the value of the reserved securities exceeds our debt claim by 20 per cent, then we shall release securities to this extent according to our choice and at the customer’s demand. The customer shall bear the burden of proof for this purpose, that the retained securities exceed [our debt claim] by 20 per cent. |
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| 12. Warranty | ||
| a) | We give a warranty that the parts delivered by us have been manufactured according to the standard of the agreed technical delivery instructions. The moment when the passage of risk takes place is definitive for the contractually compliant condition of the goods. | |
| b) | The warranty period amounts to 1 year after delivery of the goods. | |
| c) | The warranty shall be implemented by a repair first of all or by a replacement delivery, in the event that the goods are defective. | |
| d) | The customer must notify us in writing about any detectable defects immediately or not later than 1 week after receipt of the delivery item. Defects that cannot be detected even by careful inspection within this period, must be notified to us in writing immediately or not later than within 1 week after detection on the other hand. The assertion of a claim against the warranty shall be excluded otherwise. Timely despatch [of the written notification] shall suffice for the purposes of meeting the deadline. The customer shall bear the full burden of proof for all prerequisites of claims and especially for the defect itself, for the moment when the defect was established and for the punctuality of the customer’s complaint about the defect. |
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| e) | No new warranty periods shall come into force by means of replacing parts, assemblies or whole devices. No warranty shall be undertaken for wearing parts or for the improper usage, storage and handling of devices. Third-party intervention shall result in excluding claims against the warranty. | |
| f) | The customer can – according to his choice – basically demand a lowering of the remuneration (reduction) or an annulment of the contract (withdrawal) if 3 attempts at repair have proved to be fruitless. However, no right of withdrawal shall be vested in the customer when there is only a negligible infringement of the contract, especially if there are only minor defects. | |
| g) | If the customer chooses to withdraw from the contract because of a legal or material defect after the fruitless attempt at fulfilment, then no claim to compensatory damages shall be additionally vested in him because of the defect. If the customer chooses compensatory damages after the fruitless attempt at fulfilment, then the goods shall remain with him if this is reasonable for him. The compensatory damages shall be limited to the difference between the price and the value of the defective article. This provision does not apply whenever the contractual infringement is likely to have been caused fraudulently. | |
| h) | The customer shall not receive any guarantees for legal purposes. The manufacturer’s guarantees remain unaffected hereof. |
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| 13. Data protection | ||
| We are entitled to process the data about the customer that is received regarding the business relationship or in connection with it – irrespective of whether it comes from the customer himself or third parties – for the purposes of the Federal German Data Protection Law. This advice replaces the notification according to the Federal German Data Protection Law [to the effect] that personal data about the customer shall be stored and reprocessed by means of electronic data-processing. |
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