General Terms and Conditions of Sales and Delivery of MJ-Gerüst GmbH, Plettenberg (Germany)
§1 General terms
(1.) All our offers are subject to contract. All supply contracts and other arrangements are only valid when confirmed in writing. The contents of the confirmation are final and binding. Verbally agreed terms are not binding.
(2.) Alterations or additions to the agreement must be confirmed in writing.
(3.) Al agreements and offers are exclusively based on these terms of delivery and payment: they are considered as accepted by placing of order or acceptance of the shipment. Differing terms of the purchaser, which we do not expressively accept, are not binding on us, also in cases where there is no contradiction by us.
§2 Extent of delivery, terms of delivery
(1.) The time of the delivery shall begin, as soon as all terms of the contract have been agreed between the parties.
(2.) Terms of delivery and time of delivery are intended to be approximate. They refer to the time of dispatch and are fulfilled as the readiness for delivery has been notified to the purchaser.
(3.) Delivery times shall be extended – without prejudice to our right – by such period as the purchaser shall be in default of any of his obligations under the contract. This applies accordingly to delivery-dates.
(4.) In cases of default on our part, for whatever reason, damages shall be limited as specified in paragraph 8, hereto.
(5.) Partial deliveries may be made; every delivery shall be considered as a complete performance.
(6.) In cases of force majeure and similar events over which we have no control and which make delivery difficult or impossible as for example stoppages in production of any kind, difficulties in obtaining materials or energy, transport delays, strikes, lock-outs, unsuitable or non-deliveries, incorrect or delayed delivery by our suppliers, for whatever reason, release us from our obligations arising out of the contract: but temporary impediments only for the length of hindrance plus and adequate starting period. If the acceptance of a delayed delivery can not be expected to be made by the purchaser, he can withdraw from the contract on immediate written notice sent to our address. Claims for damages against us in such cases are excluded.
1.) Risk passes to the purchaser, including when “carriage paid” is agreed, on delivery of the goods to the forwarding agent or carrier, or in any event on the goods leaving our premises. If the shipment is delayed due to reasons out of our control, passing of risk is affected by notice of readiness for delivery. Additional costs of storage arising after the passing of risk are to be borne by the purchaser.
(2.) An insurance of the shipment against transport damages and other risks is only made if expressively desired and at the cost of the purchaser
Our prices are in accordance with the extent of delivery and services contained in our confirmation of order. Payment is to be made in Euro, unless otherwise agreed, to our account in Plettenberg together with value added tax. Extra costs for example costs for packing, dispatch, and transport are to be borne by the purchaser.
§5 Terms of payment
Invoices are generally payable within 30 days after invoice date without any deduction or within 14 days with a 2 % discount. Unless otherwise agreed.
§6 Proprietary rights
(1.) We reserve all property rights in the goods (goods reserved) delivered by us, until the purchaser including future liabilities -independent of any legal cause -has discharged all liabilities under the contract.
In the event of any misconduct on the part of the purchaser contractual regulations, in particular in the event of default in payment, we shall be authorised to take back the goods (goods reserved). Such a measure shall not constitute any rescission of the agreement, unless we explicitly declared this. After taking back the goods we shall be authorised to dispose of these, whereby the proceeds shall be appropriated to the Purchaser’s liabilities minus appropriate selling charges and any possible surplus shall be paid out to the Purchaser”.
a: The processing of the goods (goods reserved) is effected for us as manufacturer according to Â§ 950 BGB, without any obligation on our part. The goods machined are considered as goods reserved according to section 1.
b: In case of processing, connection, blending and mixing of the goods reserved with other goods by the purchaser we have the right of co-ownership on the new object in the proportion that the value of the goods reserved bears to the value of the goods used.
c: In case of expiration of our property right due to processing, connection, blending and mixing, the purchaser assigns to us his thereafter existing proprietary rights in the new article or goods in the proportion that the value of the goods reserved bears to the value of the value of the goods used. He retains it for us free of charge.
d: For the goods reserved the conditions contained in this paragraph shall apply to the share arising according to b) and c).
(3.) The purchaser is only allowed within normal business practice to resell the goods reserved. The following is valid:
a: If a delay in payment is granted, the purchaser shall reserve the property rights in the goods sold against his customer on the same conditions we have reserved the property rights in delivery of the goods reserved. Without this reservation the purchaser shall not resell the goods reserved.
b: The purchaser surrenders to us the claims to payment against his customer, originating from the re-sale. They stand equally with the goods reserved as security. The purchaser is only entitled and authorized to sell the goods reserved or to use them for any other purpose, if it is secured that the corresponding claims are conferred on us.
c: If the surrendered claim is taken into a current invoice (current account), the purchaser shall surrenders the claim from the balance of the current account in the amount which corresponds to the surrendered claim risen in the balance; if intermediate balances are drawn and the transfer is agreed, the claim from the intermediate balance, according to the above mentioned regulation, has to be considered as surrendered to us for the next balance.
d: If the goods reserved are sold by the purchaser together with goods not delivered by us, the surrender of the claim from the sale is only valid to the amount of the value of the sold goods reserved. In case of sale of goods, of which we posses co-ownership share according to section 2.b, the surrender of the claim is valid to the amount of this co-ownership share.
e: The purchaser is authorized, unless counter – manded, to collect the claim Surrendered to us. We are not allowed to make use of this right of countermand, as long as the purchaser complies with his liabilities originate from the contract.
(4.) If the value of our security exceeds 20 % then the purchaser can demand that we release the excess from the security and it is at our discretion which part is to be released.
(5.) At any time the purchaser is obliged to inform us, on demand of the location of the goods reserved and the claims arising from the re-sell and to return the appropriate documents to us in the event of revocation.
(6.) If the restriction on the proprietary rights are not legally binding according to the law of the country in which the goods reserved are located, the following security according to the law of this country is considered as agreed.
(1.) The goods delivered by us shall be immediately examined with due care on arrival at the purchaser’s premises. In the event of any visible defects, the forwarding agent shall confirm these. It is deemed to be approved, unless a written complaint has been received within 8 working days after arrival of the goods, or, if the faults have not been identifiable on immediate, careful examination, then within 8 working days after detection.
(2.) In the event of any defects in the delivered goods, who shall be obliged at our discretion to comply with our contractual obligations by either elimination of the defects. If we fail to comply with our contractual obligations in this respect, the purchaser shall be entitled at his discretion to either reduce the purchase price or to rescind from the agreement. Title in the replaced parts shall pass on to us.
(3.) Claims raised by the purchaser, in so far as we have taken over a guarantee for the quality or shelf life of the goods delivered, shall remain unaffected hereby. The contents of the promise warranty shall be decisive for the scope of liability.
(4.) Claims on the grounds of the product liability laws or on the grounds of damage to persons shall not be affected hereby either.
(5.) The warranty period shall be on year.
§8 Liability regarding compensation
(1.) Our liability as well as that of our agents – no matter on which legal ground this may be based, in particular resulting from illegal action – shall be excluded. This exclusion shall not be applicable, if intentional or gross negligent action on our part is given or if any such refers to the violation of substantial contractual obligation on our part.
(2.) In so far as we warrant according to paragraph 1, this liability shall be excluded:
a: for damage claims on the grounds of non-fulfilment, if the substitution of indirect or sub sequential damage is demanded;
b: for non-typical contractual and foreseeable damage;
c: for damage with can be controlled by the Purchaser;
d: for damage, in so far as any such exceeds ten times the remuneration of our delivery.
(3.) If in the Purchaser’s branch the causative risk for the damage occurred is normally insured by the Purchaser, our liability shall then be excluded, even in the event of gross negligence.
(4.) The above-mentioned exemptions of liability and limitations of liability shall be applicable in the same scope for the benefit of our legal representatives, other organs, and executive and nonexclusive employees, as well as of any other agents.
§9 Legal provisions
(1.) Place of performance is Plettenberg, unless otherwise provided. All proceedings arising out of the business relationship existing between the purchaser and us shall be commenced at our discretion in Plettenberg or in the court at the place of business of the purchaser. Actions against us may only be brought in Plettenberg / Germany.
(2.) The relation between the purchaser and us are only subject to the law of the Federal Republic of Germany. The UN agreement of the 11th April 1980 regarding contracts of the international trade is not valid.
(3.) If single terms of these “terms of delivery and payment” or the supply contract become ineffective, the effectiveness of the remaining terms is not affected. The parties to the contract are obliged to agree to new terms, which match as near as possible the invalid terms.
Update March 2010