General terms and conditions of sale, delivery and payment
§ 1 General aspects
Our deliveries, services and offers are rendered exclusively in accordance to these terms and conditions of business. These also apply to all future business relations, even if they have not been stipulated again. At the latest upon receipt of the goods or services, these conditions will be considered as accepted.
Counter-confirmations on the part of the buyer referring to his terms of business or purchasing are invalid and will be hereby rejected. Keeping silent on our part is not regarded as recognition. Additional agreements, changes and completions need to be written for having an effect.
§ 2 Offer, prices - payment conditions
1. Our offers are in basically provisional and non-binding. Our prices are resulted, as long as something else is not agreed, from writing prices which have been fixed at the day of placing of order. They are calculated ex ramp Rastede.
2. Orders are only accepted by our written confirmation or execution. Our invoicing is regarded as written confirmation of order.
3. The purchase price and prices for additional services are due for payment 30 days after handing-over of the purchased item (Ex ramp stock Rastede).
4. The granting of discount requires special written agreement.
5. Exceeds the buyer the payment deadline, we calculate interest for late payment at the rate of at least 5 percentage points above the base rate of the European Central Bank. In case of delayed payment of any requirement, we can also forbid the further sale of the under our reservation of proprietary rights delivered goods.
6. Against demands of the seller the buyer only can set off in case if the counterclaim of the buyer is indisputable or exists a legal title; the right of a retention (lien) he can only assert as far as it is based on demands from the purchase contract.
7. The seller can require assurances according to his choice to secure his receivables (for example, bank guarantee).
§ 3 Delivery
1. Delivery dates and deadlines that can be agreed as binding or non-binding have to be given in writing.
2. If the seller because of a circumstance which he or a subcontractor represents, is prevented from delivering the goods to the agreed date or within the agreed period (delay in delivery), the buyer is authorised to set a reasonable extension of deadline.
The buyer is only authorized to cancel the contract or to claim compensation instead of service in so far as the delivery within the prescribed extension period has not taken place. Compensations instead of service or because of delay in service is excluded both against the seller as well as against his subcontractor as far as the seller or his subcontractor has not acted intentionally or grossly negligent.
Any liability is limited to the foreseeable damages when concluding the contract.
3. Force majeure and events which temporarily prevent the seller without own fault from delivering the goods to the agreed date or within the agreed period, entitle the seller to delay the delivery or service for the duration of the hindrance plus a reasonable period of adjustment. If appropriate disturbances lead to a delay in service of more than three months, the buyer can withdraw from the contract. Other rights of withdrawal remain untouched.
4. We are entitled to partial deliveries. The buyer can not withdraw from the contract during partial delivery.
5. The buyer is obliged to acceptance of purchased item. If the buyer is in default with taking delivery, the seller is entitled to demand compensation for the resulting damage. 6. Form changes, color variations as well as changes of the scope of delivery on the part of the manufacturer remain reserved during the delivery period, as long as the changes or variations considering the interests of the seller are reasonable for the buyer.
As far as the seller makes use of the symbols or numbers to identify the order or the ordered subject, no rights can entirely be derived from it in view of the concretization of the purchased articles or of the scope of delivery.
7. The goods will be delivered in an appropriate business customary package.
§ 4 Transfer of risk
The risk of accidental loss and accidental change for the worse of the delivery items passes over to the buyer when goods have been sent, when goods are handed over to the person performing the transport or when the goods had left the Seller's warehouse for the purpose of dispatch.
§ 5 Liability for material defects
1. The statutory period of limitation for material defect is 2 years for newly manufactured goods. The sale of used goods takes place under exclusion of any liability for defects.
2. In case of defectiveness of goods, the seller has the right to demand repairs or replacement delivery. In cases of failures of the repair or replacement delivery the buyer may demand reduction of the price or withdraw from the contract. The repairs have failed, if and when a supplementary performance deadline which was set for seller has stopped up without result. The conditions for execution of the right of withdrawal shall be governed in accordance of § 323 CCB (German Civil Code).
3. The seller is liable under the statutory provisions as long as the buyer asserts claims for damages which are based on malice, intent or gross negligence, including malice, intent or gross negligence of his representatives or subcontractors.
Insofar as the seller cannot be blamed for the intentional breach of the contract, his liability for losses or damage shall be limited to the foreseeable, typically incurred damage. Incidentally, the liability of damages is out of the question; in so far as the seller is not liable in particular for damages that have not occurred to the delivery item, unless it is a matter of an injury of life, body and / or health.
4. In case of repair the seller is obliged to pay all for the purpose of repair necessary expenses, in particular transport, transport path, labor and material costs, insofar the costs are not increased in a way that the goods have been transported to another place than the place of fulfillment.
5. Claims for correction of faults the buyer has to assert in writing to the seller.
§ 6 Entrepreneur’s recourse in case of sales to commercial resellers
1. If the buyer resells the sold goods within the scope of his commercial business to another consumer and should take back this article due to a defect or should reduce the purchase price, so the buyer can assert his claims of liability for material defects from the seller without fixing a deadline.
2. The buyer can also demand the compensation of the expenses which he had to bear in relation to the consumer, if the by the consumer asserted defect already existed when the risk has passed to the buyer. Expenses are in particular transport, transport path, labour and material costs.
3. The buyer is not entitled to claim damages within the scope of this entrepreneur’s recourse.
§ 7 Protection of Market competition
The seller sells entirely for him produced exclusive products. Therefore, these products may not be sold to commercial resellers neither the same, nor confusingly similar, nor in neutralized form by the purchaser without the agreement of the seller.
§ 8 Points of sale (Shops)
The buyer is obliged to sell the purchased items to consumers exclusively within the points of sale, which are listed on the order overview by name, within a scope of a proper business activities.
§ 9 Reservation of proprietary rights
1. The purchase item remains the property of the seller until compensation of entitled demands due to the purchase contract. The seller reserves the property of all delivery items until the receipt of all payments according to the business relationship.
2. The buyer is entitled to resell the delivery items to consumers in the orderly course of business, however, already now he makes over all claims at an amount of the final invoice of owed purchase price claim by him, which results for him from the resale to his consumers or a third person. The buyer remains authorized to collect the receivables also after the assignment.
3. The goods and appropriate demands for them before full payment may neither be made over to a third person for the purpose of security or handed over nor pledged.
4. If the value of securities exceeds the claims of the seller by more than 20%, the Seller will release in so far as securities by request of the buyer according to the seller's choice.
§ 10 Jurisdiction- place of fulfillment
1. The place of fulfillment is D- 26180 Rastede.
2. Exclusively German law is valid. The application of the United Nations Convention dated 11 April 1980 about Contracts for the International Sale of Goods (Vienna UNICITRAL Agreement - "CISG") is excluded.
3. Jurisdiction for all disputes from the business relationship including all claims concerning checks and bills is Oldenburg in Oldbg. Ulla Popken GmbH
District court Oldenburg HRB 120726
Managing Partner: Thomas Schneider
Managing Director: Barbara Arnold-Reinschmidt, Ralf Keller, Ulf Cronenberg