General Terms and Conditions of Supply and Payment for AMPECO GmbH
1. The following terms and conditions of sale apply to all agreements concluded by the seller and ourselves involving the supply of goods. These Terms and Conditions also apply to all future business relationships, even if they are not once again expressly agreed upon. Any terms and conditions of the buyer to the contrary that we do not expressly recognise shall be deemed to be non-binding on us even if we do not expressly object to such. The following Terms and Conditions of sale shall also apply if we carry out the order placed by the buyer without reservation in awareness of contrary or different terms and conditions of the buyer.
2. All agreement made by the buyer and ourselves regarding the execution of purchase agreements are set out in writing in the agreements.
II. Offer and conclusion of agreement
1. We can accept an order by the seller which is deemed to constitute an offer to conclude a purchase agreement within a period of two weeks by transmitting a confirmation of order or shipping the products ordered within the same period of time. 2. Our offers are subject to change and non-binding unless we have expressly labelled such as binding. 3. We reserve our property rights, copyright and all other protective rights to all illustrations, calculations, drawings and other documents. The buyer may only pass these on to third parties with our written consent regardless of whether we have labelled suchas confidential or not.
III. Terms and conditions of payment
1. Our prices are ex works without packaging if nothing to the contrary is stated in the confirmation of order. Our prices do not include statutory value-added tax. This shall be listed separately in the statutory amount on the invoicing date.
2. A discount reduction shall only be allowed if a special written agreement on such is concluded by the buyer and ourselves. The purchase price is net (without deduction) and due for payment immediately upon receipt of the invoice by the buyer if no other payment period is stated on the confirmation of order. Payment shall only be deemed to have been effected when we are able to dispose over the amount. In the event of payment by check, payment shall be deemed to have been effected when the check is redeemed.
3. If the buyer comes into arrears on payment, statutory provisions shall apply.
4. The buyer shall only be able to set off amounts, even if there are complaints about defects or counter-claims, if such counter-claims have been recognised by a court of law, recognised by us or are uncontested. The buyer shall only be entitled to exercise rights of retention if its counter-claim is based on the same contractual relationship.
IV. Delivery and performance period
1. Delivery dates or deadlines which have not been expressly agreed upon as binding shall be deemed to solely constitute non-binding information. The delivery period stated by us shall only begin when technical issues have been cleared upon. The buyer shall also properly fulfil all obligations it is responsible for in due time.
2. If the purchase agreement upon which a transaction is based is deemed to be a „fixed-date transaction“(„Fixgeschäft“) in the meaning of § 286, section 2, no. 4 of the German Civil Code or § 376 of the German Commercial Code, we shall bear liability in accordance with statutory provisions. The same shall apply if the buyer is entitled to claim that it has lost interest in the further fulfilment of the agreement due to a delay in delivery for which we are responsible. In such case, our liability shall be limited to foreseeable damage which typically occurs if the delay in delivery is not due to wilful violation of the agreement for which we are responsible, whereby culpability on the part of our representative or parties we hire to help carry out an agreement shall be attributed to us. We shall also be liable to the buyer in the event of delay in delivery in accordance with statutory provisions if such is due to a wilful or grossly negligent violation of the agreement for which we are responsible, whereby culpability on the part of our representative or parties we hire to help carry out an agreement shall be attributed to us. Our liability shall be limited to foreseeable damage which typically occurs if the delay in delivery is not due to wilful violation of the agreement for which we are responsible.
3. In the event that a delay in delivery for which we are responsible is due to the culpable violation of an important contractual obligation, whereby culpability on the part of our representatives or parties we hire to help carry out the agreement is attributed to us, we shall bear liability in accordance with statutory provisions subject to the stipulation that in this case liability for compensation shall be limited to foreseeable damage that typically occurs in such cases.
4. Otherwise the buyer may claim flat compensation amounting to 0.5% of the value of the consignment, but no more than a maximum of 5% of the value of the consignment, for each completed week in which delivery is delayed for reasons for which we are responsible.
5. Any additional liability for delay in delivery for which we are responsible is excluded. This shall not affect additional statutory claims and rights of the buyer to which it is entitled in addition to the claim to compensation as a result of a delay in delivery for which we are responsible.
6. We shall be entitled to effect partial deliveries and render partial services at any time if it is reasonable for the customer to accept such.
7. If the buyer comes into arrears in accepting the consignment or services, we shall be entitled to demand compensation for the damage that occurs and possible additional expenses. The same shall apply if the buyer culpably violates its obligations to cooperate. Risk of accidental deterioration or accidental loss shall be transferred to the buyer at the point in time at which it comes into arrears in declaring acceptance or arrears on payment.
V. Transfer of risk – shipment/packaging
1. Loading and shipment shall be effected without insurance at the risk of the buyer. We shall endeavour to take the desires and interests of the buyer into account with respect to the type of shipment and shipment route. Any additional costs arising as a result – including if carriage-free shipment is agreed upon – shall be at the expense of the buyer.
2. We shall not accept returns of transport or any other packaging in accordance with the German Packaging Regulation (Verpackungsverordnung). Excepted from this shall be Europool pallets. The buyer shall dispose of the packaging at its own expense.
3. If shipment is delayed upon the desire or due to the culpability of the buyer, we shall store the goods at the expense and risk of the buyer. In this case, notice of readiness to ship shall be deemed to be tantamount to shipment.
4. We shall insure the consignment with a transport insurance policy at the buyer’s expense if so desired by the buyer.
1. Claims for defects on the part of the buyer shall only apply if the buyer has duly met its obligations to inspect and issue complaints in accordance with § 377 of the German Commercial Code (HGB).
2. In the event of legitimate complaints for defect, we shall be obligated to effect subsequent performance unless we are entitled to refuse subsequent performance as a result of statutory provisions; rights of the buyer to withdraw from the agreement or reduce the purchase price shall be excluded. The buyer shall grant us a reasonable grace period to effect subsequent performance. Subsequent performance may be effected by rectifying the defect (subsequent improvement) or by supplying a new good as the buyer sees fit. In the event of rectification of the defect, we shall bear the expenses required if these do not increase because the subject of the agreement is located at a site other than the place of performance. If subsequent improvement fails, the buyer may demand reduction of the purchase price or declare its withdrawal from the agreement as it sees fit. Subsequent improvement shall be deemed to have failed after the second attempt is in vain if no additional attempts at subsequent improvement appear reasonable and are reasonable to expect of the buyer as a result of the subject of the agreement. Any claims to compensation subject to the following terms and conditions as a result of the defect can only be forwarded by the buyer after subsequent improvement fails. This shall not affect the right of the buyer to forward further claims to compensation subject to the following terms and conditions.
3. The warranty claims of the buyer shall expire one year after delivery of the goods to the buyer under the statute of limitations unless we have fraudulently concealed the defect; in such case statutory provisions shall apply. This shall not affect our obligations emanating from section VI, no.4 and section VI, no.5.
4. We shall be obligated to take back the new good or reduce the purchase price including without the required grace period being set in accordance with statutory provisions if the customer of the buyer in the capacity of consumer of the good could demand that the buyer take back the good or reduce the purchase price as a result of the defectiveness of such good or a claim to recourse resulting therefrom is directed at the buyer. We shall moreover be obligated to compensate the buyer for expenses, in particular transport costs, travel expenses, labour and material costs, which the buyer has had to bear in relation to the end consumer within the framework of subsequent fulfilment as a result of the good being defective upon risk being transferred from ourselves to the buyer. This claim shall be ruled out if the buyer fails to duly meet its obligations to inspect and issue a complaint as required under § 377 of the German Commercial Code.
5. The obligation set out in section VI, no. 4 shall be ruled out if a defect is based on advertising statements or any and all other contractual agreements which do not stem from us, or if the buyer has issued a special guarantee towards the end consumer. This obligation shall also be ruled out if the buyer itself was not obligated to exercise warranty rights towards the end consumer as a result of statutory provisions or the end consumer did not issue any complaint about a claim forwarded against it. This shall also apply if the buyer undertakes warranties towards the end consumer which go above and beyond statutory provisions.
6. Independently of the following limitations on liability, we shall bear liability in accordance with statutory provisions for loss of life, physical injury or health impairment due to any negligent or wilful violation of obligation by ourselves, our legal representatives or parties we hire to fulfil the agreement as well as for any damage which is covered by liability under the German Product Liability Act (Produkthaftungsgesetz). We shall be liable in accordance with statutory provisions for damage which is not covered by clause 1 which is based on wilful or grossly negligent violations of the agreement and fraudulent intent on our part, on the part of our legal representatives or parties we hire to carry out the agreement. In such case, liability to pay compensation shall be limited to foreseeable damage which typically occurs if we, our legal representatives or parties hired by us to carry out the agreement have not acted with wilful intent. We shall also bear liability within the framework of this guarantee in the scope in which we have issued a guarantee on quality and/or durability including within the framework of this guarantee. We shall only bear liability for damage which is due to the absence of a guaranteed quality or durability, but which does not occur directly to the good, however, if the risk of such damage is obviously covered by the guarantee on quality and durability.
7. We shall also bear liability for damage which we cause through simple negligent violation of those contractual obligations whose fulfilment only becomes possible through the due and proper execution of the agreement in the first place and regarding which the buyer can and does generally trust and have confidence in adherence to such. We shall only bear liability to the extent that the damage is typical of such an agreement and foreseeable, however.
8. Any further liability shall be excluded regardless of the legal nature of the claim that is forwarded. This also shall in apply in particular to tortious claims or claims for compensation for expenses incurred in vain instead of performance. This shall not affect our liability in accordance with section IV, nos. 2 to section IV, no. 5 of this Agreement. If our liability is excluded or limited, this shall also apply to the personal liability of our executive staff, employees, staff, representatives and parties we hire to perform an agreement.
9. Any claims to compensation on the part of the buyer as a result of defect shall expire one year after delivery of the goods under the statute of limitations. This shall not apply in the event of culpable loss of life, personal injury or damage to health caused by us, our legal representatives or parties we hire to carry out the agreement, or if we or our legal representatives have acted in a wilful or grossly negligent manner, or if simple parties we have hired to carry out the agreement have acted wilfully.
VII. Retention of title
1. We shall retain title to the good supplied until all claims are satisfied including all current account balance claims which we are entitled to against the buyer now or in the future (goods subject to retention of title). In the event of conduct of the buyer in violation of the agreement, for example arrears on payment, we shall be entitled after first setting a reasonable deadline to take back the goods subject to retention of title (conditional goods). If we take back the goods subject to retention of title, such shall constitute a withdrawal from the agreement. If we pledge the goods subject to retention of title, such shall constitute withdrawal from the agreement. We shall be entitled to exploit the goods subject to retention of title after taking such back. After subtracting a reasonable amount for the exploitation costs, the proceeds from exploitation shall be set off against the amounts owed to us by the buyer.
2. They buyer shall handle the goods subject to retention of title with care and insure these against any fire or water damage or theft at the value of new goods. Any maintenance and inspection work which is required shall be carried out by the buyer at its own expense.
3. The buyer shall be entitled to sell and/or to use the goods subject to retention of title duly and properly in business commerce as long as it is not in arrears on payment. The buyer cedes any and all claims which come about in connection with the goods subject to retention of title as a result of resale or for any other legal reason (insurance, tort) (including all current account balance claims) to us here and now as a precautionary measure. We herewith accept this cession. We authorise the buyer subject to revocation to collect all claims ceded to us for the buyer’s account in the buyer’s own name. This authorisation to collect may be revoked at any time if the buyer fails to meet its payment obligations. Nor is the buyer authorised to cede this claim for the purpose of collecting a claim by means of factoring unless at the sametime an obligation is established for the factoring to effect counter-performance to the amount of the claims to us for as long as we have claims against the buyer.
4. Any processing or transformation of the goods subject to retention of title by the buyer shall always be on our behalf. If the goods subject to retention of title are processed with other objects which do not belong to us, we shall acquire co-title to the new object in the ratio of the value of the goods subject to retention of title (final invoice amount including value-added tax) to the other processed objects at the point in time of processing. The same shall apply to the new object as applies to the good subject to retention of title. In the event of the goods subject to retention of title being inseparably combined with other objects which do not belong to us, we shall acquire co-title to the new object in the ratio of the value of the goods subject to retention of title (final invoice amount including value-added tax) to the other combined objects at the point in time of combination. If the object of the buyer must be deemed to be the main object after the combination, the buyer and we agree that the buyer shall cede us prorated co-title to this object.We herewith accept this cession. The buyer shall hold our sole title or co-title to the object that comes about in this manner for us in safekeeping.
5. In the event of access to the goods subject to retention of title by third parties, in particular distraints, the buyer shall draw attention to the fact that we have title to such goods and inform us of such without undue delay so that we may defend our property rights. The buyer shall be liable for the third party not being able to reimburse us for court or non-court expenses incurred in this connection.
6. We shall be obligated to release any collateral to which we are entitled if the value of our collateral which can be realised exceeds the claims that are to be secured by more than 10%. We may select the collateral to be released as we see fit.
VIII. Place of performance, legal venue, applicable law
1. The place of performance and legal venue for all deliveries and payments (including actions filed in connection with checks and bills of exchange) as well as any and all disputes between ourselves and the buyer which may arise from the purchase agreements concluded by ourselves and the buyer shall be our registered offices. We shall also be entitled, however, to take action against the buyer at its place of residence and/or registered offices.
2. The relationship between the parties to the Agreement shall be governed solely by the law of the Federal Republic of Germany. The application of UN purchasing law (CISG) is excluded.