General Terms and Conditions

General Terms of Sale and Delivery of Feuerherdt GmbH, Berlin

Section 1 General

The following terms apply to all, including future deliveries, offers and agreements. Terms and conditions of the party placing the order forming a departure to these are only binding upon us if they are explicitly recognised in writing.

Section 2 Offers, conclusion of the contract

(1) Our offers are without engagement. The documents enclosed with our offers, such as drawings, illustrations and descriptions, are only approximate unless they are designated as binding. Our documents may not be duplicated or used in any other way for commercial purposes of the buyer without relevant permission.

(2) The order of the customer is a binding offer. We can accept or refuse the offer at our discretion within two weeks by sending a written confirmation of the order or by sending the goods ordered to the party placing the order within this period.

(3) The order must contain clear details of the order regarding quantity and designation. If details are imprecise or contradictory, we do not accept any liability for incorrect deliveries which arise from imprecise details provided by the customer.

(4) Any change to or cancellation of the order by the party placing the order can only be taken into account if it is in writing and is received by us no later than eight days before shipment and we consent to the cancellation or change in writing.

 

Section 3 Prices

(1) Our prices are quoted as net prices excluding value-added tax. Our prices apply ex works plus packing unless anything else is indicated in the order confirmation.

(2) We reserve the right to increase the prices in keeping with increases in costs arising from collective bargaining agreements or increases in the cost of materials in the case of contracts with an agreed delivery period of over four months. In the event that the increases are over five per cent of the agreed price, the party placing the order can terminate the contract.

(3) In the event that payment is in a foreign currency, changes in exchange rates will be borne by the party placing the order.

(4) Packing and freight costs will be billed separately. Loan packing, returnable packing and loan pallets remain our property and shall be returned in perfect condition at the expense of the customer when the next shipment is delivered. In the event that the return does not take place within one month of delivery, we will bill our own costs.

 

Section 4 Delivery periods

(1) The delivery periods indicated in the order confirmation are not binding for us despite the facts that these periods are planned with great care. A delay in delivery does not in any circumstances give rise to grounds for cancelling the order unless this was agreed explicitly.

(2) In the event that delivery is delayed by the occurrence of unavoidable events (e.g. plant disruptions, intervention by a public authority, shortage of raw materials, industrial action etc.), the delivery period shall be extended to a reasonable extent. If delivery is impossible irrespective of the reason we will be exempted from the delivery obligation.

(3) We will only have defaulted if we were set an additional period of at least two weeks. Withdrawal from the contract on account of default is also only possible after the party placing the order has set an additional period of at least two weeks. If we default, damages are limited to 30% of the predictable damage in cases of slight negligence. Further-reaching claims to damages only exist if default arises from intent or gross negligence.

(4) We have the right to make partial deliveries to a reasonable extent.

(5) In the event that the party placing the order has defaulted on payments or is verging on insolvency, we have the right to refuse to execute further shipments.

 

Section 5 Payments, default on payment

(1) Bills for goods are payable without any deductions 14 days after the date of the bill. The terms of payment are 14 days 2%, 30 days net for customers with a business account, 30 days net for overseas customers; payment in advance or COD in the case of new customers.

(2) In the event that the payment periods named in paragraph 1 are exceeded, the party placing the order will have defaulted without any reminder first being required. As of the occurrence of default, we are entitled to demand default interest of 9.5% p.a. without this depriving the party placing the order of the right to show that the damage was less. The flat rate default interest does not apply if it exceeds the damage to be expected in the ordinary course of events or the decrease in value which typically occurs. Assertion of further-reaching damage is not affected by the foregoing. All payment claims are due immediately. Should, as a departure from this, a deferment or other later due date have been agreed, the payment will as a whole nonetheless be due if the party placing the order does not discharge its payment obligations or its obligations arising from the agreed reservation of title (cf. Section 7), it discontinues its payments, information exists that gives rise to substantial or justified doubts as to its credit rating or insolvency proceedings are initiated regarding its assets and liabilities.

(3) Cheques will be accepted on account of payment. Costs and charges shall be for the account of the party placing the order.

(4) The party placing the order can only offset our claims with claims that are undisputed or have been set with final force.

 

Section 6 Passage of risks, warranty

(1) The risk of accidental loss and accidental deterioration shall pass to the party placing the order at the latest when the shipment is handed over to the haulier and at the latest upon leaving the works, namely also if we have explicitly taken over other services, e.g. delivery. In the event that shipment is delayed for reasons beyond our control, the passage of risks shall take place upon notification that the goods are ready for shipment.

(2) It is the responsibility of the customer to accept a consignment only after inspecting the packing and the contents and not to throw anything away without having made sure that the packing no longer contains any objects.

(3) The party placing the order is obliged to examine the goods supplied by us without delay, also if they are packed. The check is to be carried out according to the simple sampling plan for normal assessment.

(4) We are to be notified of any defect in the goods and the complaint specified in a way that can be reviewed; notification shall be in writing in the form of a registered letter with advice of delivery. External damage to the shipping packing is to be noted on the bill of lading in the presence of the haulier and the haulier notified. Concealed damage arising during shipping is to be reported to the haulier within four days at the latest. An application for an inspection appointment is to be made. Obvious defects are to be reported in writing without delay, at the latest within 8 working days of receipt of the goods.

(5) In the case of a defect for which we are responsible, we have the right to remove the defect or deliver a replacement. In the case of removal of the defect, we are obliged to bear also expenses necessary to remove the defect insofar as these are not increased by the subject matter of purchase being sent to a place other than the place of performance.

(6) In the event of removal of the defect failing or we are not willing or in a position to remove the defect or deliver a replacement or this is delayed beyond reasonable periods of time for reasons not beyond our control, the party placing the order has the right to withdraw from the contract or demand a reduction in the purchase price.

(7) Further claims of the party placing the order, in particular claims to damages including lost profit or arising from other financial loss will not be recognised. This limitation of liability does not apply insofar as the cause of the damage is based on intent or gross negligence or if the party placing the order asserts the claim for damages due to the absence of a warranted feature. In the event that we have infringed a duty essential to the contract due to negligence, our liability is limited to the predictable damage.

(8) The warranty period is six months as of handover of the subject matter of purchase. This period also applies to claims arising from the replacement of consequential damage insofar as no claims arising from a tortious act are asserted.

 

Section 7 Reservation of ownership, security rights

(1) The goods delivered remain our property until payment of all our claims arising from the business relationship. If allocated to current account, the reservation of ownership applies to the balance in question.

(2) Taking goods back and attachment of the subject matter of the consignment by us does not constitute withdrawal from the contract.

(3) The party placing the order can further process the goods in normal course of business or resell them subject to reservation of ownership. It has no right to make any other dispositions. The exploitation authority of the party placing the order will lapse in the case of non-compliance with its payment obligations or other gross infringements of the content.

(4) Processing of the goods subject to reservation of title will be taken over for us (Section 950 Bürgerliches Gesetzbuch [German Civil Code]. In the case of a common agreement for a number of suppliers, co-ownership is due to us pursuant to Section 947 f. Bürgerliches Gesetzbuch.

(5) In the case of processing, the party placing the order shall assign to us the claims and ancillary rights arising from further processing in proportion to our share owned. It is not entitled to agree prohibition of assignment. In the case of part payment by the party placing the order the claim assigned to us is deemed to be the last paid. The party placing the order is entitled to collect the assigned claim in the normal course of business; out authority to collect payment is not affected by the right of the buyer to collect payments. At our request, the party placing the order shall inform of the debtor of the claims assigned and notify the debtor of the assignment to us.

(6) The reservation of ownership is subject to the condition that upon payment in full of all our claims arising from the business relationship ownership of the goods subject to reservation of title will pass to the party placing the order without further steps being required and the claims assigned are due to the party placing the order.

(7) We are obliged to release the security due to us at the request of the party placing the order insofar as the value of our security does not exceed the claim to be secured by more than 20%. In the case of a number of security items, selection will take place at our discretion.

(8) In the case of impairment of our ownership rights by a third party, in particular in the case of attachment of the goods, the party placing the order is obliged to inform us immediately, sending the documents available to it, and to draw the attention of the third party to our ownership rights. The costs incurred by us from the impairment of rights shall be borne by the party placing the order.

 

Section 8 Final provisions

(1) The statutory provisions shall apply where these terms do not contain any explicit provisions. German law applies to all orders placed with us.

(2) The place of jurisdiction for any and all disputes arising from this contract is Berlin. The place of performance is our business seat.

Last updated: July 2014

Feuerherdt GmbH