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GERD EISENBLÄTTER GmbH - Spezialschleifmittel
§ 1 Scope, defence clause
(1)
Our terms of sales shall be exclusively applicable; we do not accept
any contrary terms or terms from resellers, purchasers and other buyers
("customers") which differ from our terms of sale unless we have expressly
agreed to their validity in writing. Our terms of sale shall apply even if we
deliver goods to the customers without reservation despite being aware of the
fact that the customer has contrary terms or terms which are different from our
terms of sale.
(2)
All agreements which are made between us, in other words between
Gerd Eisenblätter GmbH (hereinafter known as EISENBLÄTTER), and the
customer relating to the fulfilment of this contract shall be set out in writing in
this contract. In addition the statutory regulations shall apply unless a legal
agreement has been made by mutual consent to deviate from them.
(3)
Our terms of sale shall only apply to non-consumers in the sense of
§ 310 Paragraph 1 of the Civil Code.
(4) These terms of sale shall also apply to all future transactions with the
customer if these tractions are related in type.
§ 2 Order acceptance, written form
(1)
Orders must be issued to Eisenblätter in writing and shall not give rise
to a contract until they have been confirmed in writing by EISENBLÄTTER.
(2)
EISENBLÄTTER shall be entitled to continue to develop its products. It
reserves the right to make minor technical or other changes as long as they are
within a reasonable framework for the customer.
(3)
The information supplied for the various products shall be for the
purpose of product description only. It shall not be possible to derive a specific
property or the suitability for the products for a specific purpose from such
information.
§ 3 Delivery
(1)
Lead times shall only be binding if they have been agreed as such in
the order confirmation.
(2)
If the delivery of the goods is delayed for reasons which are beyond
the control of EISENBLÄTTER, in particular as a result of forces majeures,
operational problems or labour disputes, the agreed lead time shall be
extended tacitly by the reasonable period required to rectify this cause.
(3)
The ordered products shall be delivered by EISENBLÄTTER at a charge
using the means of transport selected by EISENBLÄTTER, for example by parcel
service, or on the basis of a special agreement.
(4)
If the EISENBLÄTTER products are shipped to the customer, the risk
of accidental loss or random deterioration of the products shall be transferred
to the customer at the latest when the products leave EISENBLÄTTER's
warehouse/plant. This shall apply regardless of whether the products are
shipped from the place of fulfilment or who is responsible for the shipment
costs.
§ 4 Terms of payment
(1)
The quoted purchase price shall be binding for a period of 30 days
from the date on which the quotation is submitted. Statutory value-added tax is
not included in our prices; this shall be charged at the statutory rate on the
date of the invoice and shown separately on the invoice.
(2)
Setting off or retention against claims of all types shall not be
permitted unless these claims have been finalised by a court of law, are
undisputed or a decision is pending on them.
§ 5 Warranty
(1)
Warranty rights assume that the customer has correctly fulfilled its
duties to inspect the goods and complain about them if they are defective
under § 377 of the Commercial Code.
(2)
If the goods are defective at the time when the risk is transferred, the
customer shall be entitled to repeat fulfilment in the form of defect rectification
or the delivery of new, perfect goods at the discretion of EISENBLÄTTER.
(3)
If the attempt at repeat fulfilment fails, the customer shall be entitled
to demand cancellation or a reduction of the purchase price at its own
discretion.
(4)
Recourse claims under §§ 478 and 479 of the Civil Code shall only
apply if the claim was justified by the consumer and shall only apply within the
statutory framework, but shall not apply to goodwill agreements agreed with
the seller. The customer must notify the seller as soon as possible of any
warranty claim made by a consumer.
(5)
The statute of limitations for warranty claims for defects against
EISENBLÄTTER shall be 12 months starting from the date of delivery of the
goods. This shall not apply if the law set out in § 438 Paragraph 1 No. 2
(structures and goods for structures), § 479 Paragraph 1 (recourse claims) and
§ 634 a Paragraph 1 No. 2 of the Civil Code (design defects) specifies longer
statute of limitations and in cases of death, physical injury or health impairment
in the event of a malicious or grossly negligent breach of duty on the part of
EISENBLÄTTER or its legal representative or agents and in the event of
maliciously neglecting to disclose a defect or if a guarantee is accepted for a
specific property of the product.
6)
§ 6 shall apply for compensation claims.
We reserve the right to make technical changes in the interests of progress and subject to changes in form and colour
General terms of sale and delivery for
§ 6 Liability
(1)
Claims for compensation and for the reimbursement of expenses on
the part of the customer (hereinafter known as compensation claims),
regardless of their legal basis, in particularly as a result of a breach of duties
from an obligation based on an illegal act, shall be excluded. This shall not
apply in the event that a guarantee has been given or a purchase risk exists.
This shall also not apply if binding liability applies, for example under the
Product Liability Law, in cases of malice or gross negligence, in cases of death,
physical injury or health impairment and in cases of breaches of major contract
duties. This shall not involve any change in the burden of proof to the
disadvantage of the customer.
(2)
The compensation claim for the breach of major contract duties shall
be limited, however, to the foreseeable damage typical for this type of contract
unless gross culpability applies or in the event of liability for death, physical
injury or health impairment. This shall not involve any change in the burden of
proof to the disadvantage of the customer.
(3)
If liability for compensation on our part is excluded or limited, this
shall also apply to the personal liability for compensation of our staff,
employees, colleagues, representatives and agents.
§ 7 Reservation of title, copyright
(1)
For contracts with business people, EISENBLÄTTER shall reserve title
to all the supplied EISENBLÄTTER products until all claims relating to the
business relationship have been settled in full. In the case of customers who
are not business people, EISENBLÄTTER shall reserve title to supplied
EISENBLÄTTER products until the purchase price has been paid in full.
(2)
Resellers shall only be entitled to resell the products which are subject
to reservation of title under § 7 No. 1 within the framework of their normal
business activities. They shall not be entitled to dispose of these products by
any other method or by pledging them. The reseller hereby assigns its claims
accrued from the resale of the products together with additional rights to
EISENBLÄTTER in order to secure all the claims accrued by EISENBLÄTTER
under § 7 Paragraph 1. The reseller shall be entitled to collect the assigned
claims. If seizures are made against the products subject to the reservation of
title described in § 7 Paragraph 1 or if they are exposed to other action by third
parties, the customer must notify EISENBLÄTTER without delay. If the value of
the securities held by EISENBLÄTTER exceeds the value of its total claims by
more than 15%, EISENBLÄTTER shall release the securities of its choice at the
request of the customer. If insolvency proceedings are opened against the
assets of the reseller or if the reseller is insolvent or indebted, its entitlement
described in § 7 Paragraph 2 shall automatically be voided.
(3)
In the event of the customer acting against this contract, in particular
in the event of the customer being in default or a breach of a duty set out in §
7 Paragraph 2, EISENBLÄTTER shall be entitled to withdraw from the contract
and demand the return of the goods.
(4)
EISENBLÄTTER shall reserve the title and any copyright to
photographs, drawings, catalogues and other documents which are supplied to
the customer, including quotations and documents relating to price calculations,
etc. If these documents do not belong to documentation, descriptions and
instructions for data processing programs for which separate contractual
provisions apply, they must not be copied or disclosed to third parties without
the written consent of EISENBLÄTTER.
(5)
In addition the documents supplied by EISENBLÄTTER are protected
by copyright. The grant of any utility rights shall require a special agreement.
Under no circumstances shall it be permitted to make copies or to permit a
third party to do so. This shall not include end customers who have been
expressly permitted to do this by EISENBLÄTTER.
§ 8 Concluding provisions
(1)
Any assignment of the rights or transfer of the duties set out in this
contract shall require the prior written consent of EISENBLÄTTER.
(2)
If a provision in these terms of sale and delivery should be or become
invalid, the other provisions shall not be affected.
§ 9 Place of jurisdiction and applicable law
(1)
If the customer is a businessman, legal entity under public law or a
special fund under public law, our registered business address shall be the
place of jurisdiction. However, we shall also be entitled to sue the customer at
his home address. The same shall apply if the customer does not have a
general place of jurisdiction in the Federal Republic of Germany or his place of
abode or normal place of residence are not known at the time when the lawsuit
is lodged.
(2)
The law of the Federal Republic of Germany shall apply. The validity of
the UN Convention on Contracts for the International Sale of Goods shall be
excluded.
(3)
Unless specified to the contrary in the order confirmation, our
registered business address shall be the place of fulfilment and payment.
Date of issue: November 2008
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