General Terms and Conditions of Sale and Delivery of Golden Compound GmbH
The following conditions apply to entrepreneurs, legal entities under public law or public law special funds.
Orders become binding only with the order confirmation of the supplier. If the customer does not object within 5 working days after receipt of the order confirmation, the contract comes into effect under the conditions specified there, even if they differ from the original agreements due to transmission, communication or spelling errors. Changes and additions should be made in text form. All offers are subject to change as far as they are not referred to as binding offers. Indications of quantities and sizes are non-binding approximated values unless they are explicitly identified as binding.
In case of permanent business relations, these terms and conditions also apply to future business transactions, even if not expressly referred to, if they have been referred to in an earlier order confirmed by the supplier.
Any terms and conditions of the customer do not apply, even if we do not explicitly exclude them, unless they are expressly acknowledged in writing by the supplier. The regulations on distance selling in transactions with consumers do not apply to the business relationship with entrepreneurs.
In case of doubt, the prices are ex works exclusive of freight, customs duties, import or export supplementary duties and packaging plus VAT at the statutory rate.
If the decisive cost factors, in particular for materials, energy or personnel, change by more than 5% after submission of the offer or order confirmation until delivery, each party is entitled to demand a price adjustment. This has to be measured according to how the relevant cost factor changes the total price.
The supplier is not bound to previous prices for new orders.
3 Delivery and acceptance obligation, force majeure
Delivery periods starts upon reception of all documents required for the execution of the order, the down payment and due provision of materials, if agreed. The supply deadline is considered fulfilled upon receipt of the delivery advice note, even if the actual shipment is delayed or has become impossible as long as the supplier does not cause the delay.
If an agreed delivery date is not kept due to the supplier’s fault, the customer is in any case obliged to set a new adequate deadline.
Partial deliveries are permitted as far as reasonable.
For orders on call without any agreement on terms, lot production sizes and purchase deadlines, the supplier can demand a binding agreement at the latest three months after confirmation of the order. Should the customer not comply this request within three weeks, the supplier is entitled to extend the time limit by two weeks and, after its expiry, to withdraw from the contract and/or demand compensation.
If the customer fails to meet his obligation to accept, the supplier is not bound to the provisions governing covering purchase, without prejudice to other rights, but can instead freely sell the delivery items after previous notification of the purchaser.
Events of force majeure entitle the supplier to postpone the delivery for the duration of the obstruction and an appropriate time for adjustment or to withdraw from the contract completely or partially on account of the unfulfilled part of the contract. Deemed equivalent to force majeure are strike, lock-out or unforeseeable, unavoidable circumstances, e.g. interferences to operation or transport delays or interruptions without a fault, shortage of raw materials or energy without a fault, which render the timely delivery impossible despite a reasonable effort. This is also valid if the above-mentioned hindrances occur during a delay or because of a sub-contractor. The customer may ask the supplier to declare within two weeks whether he wishes to withdraw or deliver within a reasonable grace period. If the supplier does not provide his statement, the customer may withdraw from the unfulfilled part of the contract.
The supplier shall inform the customer without delay when force majeure, as defined in clause 1 has occurred. The supplier is obliged to minimize any inconvenience to the purchaser as far as possible.
4 Terms of payment
All payments are to be made in € (EURO) exclusively to the supplier. Unless otherwise agreed, the purchase price for deliveries or other services is payable without deduction within 30 days from the date of invoice.
If the agreed payment date is exceeded, interest shall be calculated at the legal rate of 8 percentage points above the applicable base interest of § 247 BGB, provided that the supplier does not prove higher damages.
Payment by cheque or bills of exchange is only accepted in case of a prior explicit written agreement and only on account of performance. All costs involved are at the expense of the purchaser.
The customer can set off or exercise a right of retention only if his claim is uncontested or has been legally established.
The persisten failure to comply with conditions of payment or circumstances which give reason to serious doubts as to the creditworthiness of the purchaser, result in the immediate maturity of all outstanding debts in favour of the supplier. In this case the supplier is also entitled to claim payment in advance for outstanding deliveries and to withdraw from the contract upon unsuccessful expiration of a reasonable period of time.
5 Packaging, dispatch, risk transfer and acceptance delays
Unless otherwise agreed, the supplier shall choose the packaging, mode of dispatch and shipping route. He is entitled to assign one of the sender usually selected by him for his shipping transactions to the usual conditions agreed with the latter.
The transport risk transfers to the customer upon goods leaving the works, even if delivery is free ex works. In case of delays of shipment caused by the customer, the risk already passes to the customer upon notification of readiness for shipment.
Upon written request of the customer the goods will be insured against the risks designated by him and at his expense.
If the customer delays acceptance of the delivery the supplier is authorized to store the goods at the expense of the customer. If the supplier himself stores the goods he is entitled to invoice storage costs amounting to 0,5% of the invoice amount of the stored goods per commenced calendar week. The supplier reserves the right to assert higher storage costs upon provision of evidence.
6 Reservation of title
Deliveries remain the property of the supplier until all claims of the supplier on the customer are fulfilled, even if the purchase price for specially marked claims is paid. In the case of current billing the reservation of title on the delivered goods acts as security for the balance of the invoice. If, in connection with the payment of the purchase price by the buyer a mutual liability of the seller is substantiated, the reservation of title will not expire before the redemption of the bill of exchange by the buyer as drawee.
Any conversion or processing by the customer is deemed to have been carried out under exclusion of the acquisition of property in accordance with §950 BGB for the supplier; according to the net invoice value of his goods compared to the net invoice value of the developed or processed goods, the supplier shall become co-owner of the resulting object, which, as goods subject to reservation of title, will serve as security for the claims of the supplier according to section 1.
Further processing (in combination or addition) by the customer with other goods not owned by the supplier, the provisions of §947,948 BGB are applicable, resulting in proportional co-ownership by the supplier in the resulting goods, which are now considered reserved goods.
The re-sale of goods subject to reservation of title by the customer is only permissible as part of usual commercial practice and on condition that the customer also agrees on a reservation of title with his customers as defined in section 1 to 3. The purchaser is not authorized to make other disposals of the reserved goods, in particular pledging or transfer of ownership as security.
The customer relinquishes herewith all claims, which may result from the re-sale of goods and all other justifiable claims, including associate rights on his customers to the supplier until all claims of the supplier are fulfilled. At the request of the supplier the customer is obliged to immediately provide all information and to hand over all files that are necessary for the assertion of the supplier’s rights against the customers of the purchaser.
In case the reserved goods are resold by the orderer after processing according to section 2 and /or 3 together with other goods not belonging to the supplier, the assignment of the purchase-money claim according to section 5 is only valid to the amount of the invoice value of the supplier’s reserved goods.
Should the value of the security existing in favour of the supplier exceed its claims in total by more than 10%, the supplier shall, at the request of the customer, be obliged to release security of its own choice to this extent.
The supplier must immediately be notified of any pledgings or confiscation of reserved goods from third parties. Costs of intervention arising therefrom are in any case at the orderer’s expense unless the cost are paid by third parties.
If the supplier, pursuant to the above regulations, makes use of reservation of title by withdrawing the conditional goods, he has the right to privately sell or auction the goods. The reserved goods are taken back in the amount of the earned profit, not exceeding the contract prices agreed upon. Further claims of compensation for damages, especially the loss of profit incurred, remain reserved.
7 Liability for defects
Relevant for the quality and finish of all goods are the information on the works test certificates, which the customer makes available to the supplier for examination and reference as requested. Incidentally, §11 para. 1 must also be observed. Any reference to technical standards shall only serve the specification of services and shall not constitute any warranted properties. The tolerances registered in the works test certificates apply. In the absence of a written agreement, the production shall be executed with standard industry materials and according to the agreed, and in the absence of an agreement, according to generally accepted production processes. Slight deviations from the original in color productions or reproductions are not considered defects.
When the supplier has advised the customer outside its contractual obligations, he shall be liable for the functional capability and the suitability of the delivered item only if this has specifically been assured in advance.
Complaints of defects are to asserted immediately in writing. Hidden defects are to be notified immediately after discovery. In both cases, unless otherwise agreed, all warranty claims are subject to a limitation period of 12 month after transfer of risk of the goods.
The supplier is obliged to supplementary performance (according to his choice rectification or replacement) if the warranty claims are found to be justified. If he does not meet this obligation within a reasonable period of time or a rectification of the defect fails despite of several attempts, the customer is entitled to reduce the purchase price or to withdraw from the contract. For further claims, in particular claims for reimbursement of expenses or claims for damages due to defects or consequential damages, the limitations of liability according to §8 apply. Replaced parts are to be returned to the supplier at his request and cost.
Unauthorized reworking and improper handling result in the loss of all warranty claims. Only for defence against unreasonably serious damages or in case of delay in the rectification of defects by the supplier, the customer is entitled to repair the goods and to demand substitution of appropriate costs after prior notification of the supplier.
Wear and tear because of contractual use do not result in any warranty claims.
Recourse claims according to §§478,479 BGB only exist, as far as the claim was authorized by the user and only in legal extent, however not for goodwill arrangements not agreed with the supplier, and presuppose compliance with own duties of the party entitled to recourse, especially compliance with the notification duties.
8 General limitations of liability
The supplier is liable for the compensation of damage and reimbursement of expenses only, insofar as he, his executives or vicarious agents are culpable of intent, gross negligence or injury of life, body or health.
Liability independent of culpability according to the product liability law as well as liability for fulfillment of a quality warranty are not affected.
The liability for culpable violation of fundamental contractual obligations will remain unaffected too; but the liability is limited to typical contractual and foreseeable damage (except for the cases of No. 1). Major contractual duties and obligations are the basic, fundamental duties and obligation resulting from the contractual relationship which are of particular importance for the proper fulfillment of the contract or which mainly influence the existing mutual trust, especially with regard to the fulfillment of the obligations to supply and to forward important information.
The above provisions do not constitute any change in the burden of proof to the disadvantage of the customer.
9 Concepts/ Documents
The supplier will retain the exclusive execution rights and all copyrights in respect of any documents, drawings or other files. As far as the customer provides patterns and ideas, the supplier receives a co-copyright to the extent to which the pattern or concept was fashioned by the supplier.
If no contract is concluded, the customer is obliged to return to the supplier all documents handed over to him including any copies made. Digital duplications are to be finally destroyed.
10 Material supplies
In case the customer supplies materials, these are to be delivered at his expense and risk in due time and perfect quality with a reasonable extra quantity of at least 5%.
If these requirements are not met, the delivery time shall be extended accordingly. Except in cases of force majeure, the customer shall bear the additional cost arising from interruptions of production.
11 Industrial property rights and defects of title
If the supplier has to perform according to drawings, models, samples or using parts to be supplied by the customer, it is the customer’s responsibility that industrial property rights of third parties in the country of destination of the goods are not violated hereby. The supplier will advise the customer of rights known to him, however, he is not obliged for own research. The customer has to release the supplier from any claims of a third party and pay compensation for any resulting damage. In the event, the supplier is forbidden to perform, manufacture or deliver by a third party under reference to a copyright belonging to him, the supplier is entitled- without examination of the legal situation-to stop work until clarification of the legal situation by the customer and the third party. In case further execution of the order is not acceptable to the supplier anymore due to the delay, the supplier is entitled to cancel the agreement.
Any drawings and patterns that had been made available to the supplier, but did not eventuate in a contract will be returned on request, otherwise he is entitled to destroy them three months after submission of the quote. This obligation shall apply to the customer accordingly. The party entitled to destruction has to inform the contractual partner about its intention of destruction in due time before.
The supplier retains all property, copy and any industrial property rights, in particular the rights of use and exploitation of models, forms and devices, drafts, designs, drawings and materials made by him or for him under contract by a third party. Upon request the customer has to release without delay all documents, designs or models including any and all reproductions which may have been made to the supplier..
For all other defects of title, §7 applies correspondingly.
12 Food contact and recycling materials
If a product is to be used for the contact with food the applicability of the material for the concrete food must be examined by the customer on his responsibility in advance.
Recycled raw material shall be carefully selected by the supplier.Regenerative plastics may, however, exhibit greater variation of surface characteristics from one charge to another, such as colour, purity, odour and physical or chemical properties, which the customer may not claim as a fault. However, the supplier will by request transfer any demands towards sub-suppliers to the customer; the customer will not take any responsibility that these claims endure.
13 Final provisions
Place of performance is the supplying plant.
The legal venue is the local court of the supplier or customer by choice of the supplier.
German law applies exclusively with the exclusion of the EU sales law.
If individual parts of these General Terms and Conditions of Sale and Delivery are or become legally invalid, the validity of the other provisions shall not be affected.
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