of the Althoff + Lötters GmbH + Co. KG [PDF Download]
I. Content of contract:
- All of our deliveries (sales), also future, are based on the following general conditions of sale and delivery, even if is not particularly referred to.
- Deviations and alterations only become elements of contract by an expressive written acceptance of our part. This is also valid for the collaterals and consents of our sales representatives.
- Conditions of purchase of the purchaser will be contradicted, without the need of an expressive contradiction in the individual case.
- By the way decisive for the content and volume of deliveries and performances is our written acceptance of order.
II. Retention of ownership:
- The delivered merchandise (conditional commodity) remains our property until satisfaction of all of our accounts from the business relation with the purchaser for whatever legal justification. With open account the retention of ownership is valid for protection of our claim balance.
- We are entitled to register the retention of ownership in a competent registry - as far as the law of the recipient provide this - sub intermediation of the purchaser. If a similar regulation with the retention of ownership does not exist in the country of the purchaser, after placing the order we can demand the performance of a bank guaranty in the amount of the contract value.
- The purchase is entitled, as far as he is not in delayed performance, to sell the conditional commodity in proper business, if he keeps to the agreed remuneration and no non-assignment is stipulated. The purchaser already now assigns the claim on the purchase price to us to secure, which arises from the sale. But he remains entitled to collect claims, which were assigned for security, if this authorization will not be revoked. The authorization can be revoked, if the purchaser culpably does not or not any longer fulfil his contractual obligations. If the authorization to collect is revoked, we are entitled to announce the effected assignment. The purchaser has to dispose immediately the necessary documents for the announcement of the assignment and for the collection.
- It is not a sale in the sense of proper business, if the purchaser contrary to section 3 phrase 1 pledges, assigns as security and/or makes it object of factoring the conditional commodity to a third party.
- In case of treatment and/or finish of conditional commodity this is effected on behalf and for us as manufacturer in the sense of the §§ 950 ff. Civil Code, without any obligation for us. In this case we are entitled to the object, which were made by the treatment of finish of conditional commodity, (joint) ownership in relation of the conditional commodity to the value of the new made merchandise at the moment of the treatment and/or finish. We are also entitled to joint ownership in the new good, if additionally to the conditional commodity goods of third parties have been treated. If the purchaser sells the treated good, for protection he already now assigns his claim from the sale in the amount of the conditional commodity.
- If the conditional commodity is damaged or interfered in any way the purchaser has to inform us immediately. If the purchaser arises claims against third parties because of that, he assigns them already now to us for protection.
- If the value of all claims rights, we are entitled to, exceeds the amount of all secured claims more than 20%, we will release a corresponding part of the claims rights, if requested by the purchaser.
- If violations of duties occur on the part of the purchaser, especially default in payment, we are entitled to cancel the contract and/or to take back the conditional commodity. The purchaser has the obligation to surrender possession.
- The purchaser has to examine to delivered merchandise for proper quality and to inform in writing us about patent defects in a period of eight days after the receipt of the merchandise. For hidden defects is this period valid from its discovery by simultaneous discontinuation of eventual treatment or finish.
- If the formal complaint is justified, that means if defects exist, which cause already existed at time of passage of risk, we are entitled to rectification of defaults (correction of faults) or additional supply (substitute delivery) according to our choice.
- If we are not able to rectify the defaults or to supply additionally, respectively we are entitled to deny the rectification of default respectively additional supply according to § 439 section (3) Civil Code, or if a delay occurs in the rectification or additional supply for more than a adequate period, for which we are responsible, or if the additional supply respectively the rectification fails twice, the purchaser is entitled according to his choice to cancel the contract or to demand a corresponding reduction of the purchase price.
- Legal claims of recourse of the purchaser against us exist only as so far as the legal conditions (among others sale of consumer goods) are fulfilled. Because of that especially no claims of recourse exist, if the purchaser made agreements with his buyer in addition to the legal defect claims in the frame of a guaranty or by good will.
- If the legal prescriptions about the sale of consumer goods (§§ 474 ff. Civil Code) especially regarding the liability upon recourse (§§ 478 ff. Civil Code) cannot be applied for lack of existence of legal requirements, a one-year warranty-period is valid. § 438 section 1 Nr. 2 Civil Code and § 444 Civil remain unaffected.
- Also the legal consequences of a violation of the commercial obligation of examination and lodging a complaint (according to § 377 and § 378 Commercial Code) remain unaffected.
- For claim for damages section IV is valid. Further or other claims of the purchaser, which are regulated in this section and in section IV because of a redhibitory defect, are excluded.
IV. Compensation in damages/liability:
- Claim for damages, for whatever legal reason, especially because of violation of obligations from the obligatory relation and unlawful act are excluded, if not a mandatory liability according to the law of product liability sets in, in case of liability for intentional or gross negligent behaviour, because of the injury of life, body or health, or because of violation of important contractual duties.
- The claim for damage fort he violation of important contractual duties though is limited to the typically foreseeable damage, if a limitation is not excluded because of intentional or gross negligent acting respectively because of injury of life, body and health.
- The purchaser has to give us the possibility, in case that he will justified be claimed by his buyer ort he buyer of the buyer for rectification of default, in an adequate time to do the rectification ourselves, before he obtains "substitution" in different place. The purchaser has to impose this obligation accordingly to his buyer. If the purchaser violates these obligations, we will reserve us the right to cut the repayment of expenses to the amount, which had occurred to us by own rectification of default.
- Repayment of expenses for expenses in the frame of the performance of the purchaser to his buyer is excluded, if the purchaser did not insist on his rights, to deny this type of performance respectively both types of performance because the expenses are unreasonable, in contrary to his doctrine of avoidable consequences.
- Claims of the purchaser because of the expenses necessary for the performance, especially expenses for transport, travel, working and material, are excluded, if the expenses increase, because the object of delivery was brought to a different place, than to the subsidiary of the purchaser, if not the transport corresponds with his intended use. This is also valid for the liability upon recourse
- For the claims for damages and expenses in relation with the defects of the merchandise the obligatory periods of limitation are valid. (see. III. 5.).
- For the legal relation regarding this contract German substantive la under exclusion of the Agreement of the United Nations about contracts about International merchandise sales.
- Place of performance and only place of jurisdiction for all disputes related directly or indirectly with the contractual relation is our registered office.
- If one of the regulations here in these terms or a regulation in the frame of other agreements should be or become void, the effectiveness of all other regulations and agreements is not touched.