Standard Terms and Conditions of Supply
§ 1 General
1. Our terms and conditions of sale, supply and payment only apply to business with companies (§ 14 German Civil Code – (Bürgerliches Gesetzbuch)). They are a component of all current and future offers and contracts for the supply of goods of van Laack GmbH (the "Seller").
2. Our terms and conditions of supply apply exclusively. We do not acknowledge terms and conditions of business of the buyer which conflict with or differ from our own even where we have executed the contract without reservation.
3. Any amendments or additions either to the contract or to these terms and conditions are valid only if they comply with written-form requirements. Any waiver of this written form-requirement must also be in writing.
§§ 2 Place of performance; supply and acceptance
1. The place of performance for all services under the contract for supply is the Seller's domicile.
2. The goods will be supplied from our German plant. The shipping costs will be borne by the buyer. The buyer can select the freight carrier. The goods must be despatched uninsured. The parties can agree that a despatch advice will be issued.
3. Where the goods are shipped from warehouse operated by a third party standard warehousing surcharge may be made.
4. Packaging costs for special packaging will be borne by the buyer.
5. Goods can be supplied in part shipments where this can be reasonably expected of the buyer; a charge may be made for part shipments.
6. If acceptance cannot take place cannot take place in a timely manner due to the fault of the buyer, the Seller may – having first granted a 12-day extension – choose either to issue an invoice for the outstanding amount or withdraw from the contract and demand compensation.
§ 3 Content of contract
1. The goods will be delivered on certain dates (a specific working day or in a specific calendar week). All sales must be for specific quantities, articles, qualities and at fixed prices, to which both parties are bound. We do not carry out commission business.
2. Block orders are permitted and must be limited to a specific period, which may not exceed 12 months, at the time the contract is concluded.
§ 4 Shipment, delivery periods/dates
1. Our obligation to supply is subject to our being supplied correctly and in a timely manner by our own suppliers except where this was our fault.
2. Any delivery times which we quote are approximate. If we are in default with delivery, the customer may exercise its statutory rights, but may not claim compensation. This exclusion does not apply to intent and gross negligence or to injury to life, the body and health.
3. Bei solchen Aufträgen, bei denen der Kunde die Ware selbst am Lager bei uns abholt oder über einen Spediteur oder Frachtführer abholen lässt, ist für die Einhaltung von Lieferfristen und –terminen der Zeitpunkt der Übergabe ab Werk oder Lager an den Kunden, Spediteur oder Frachtführer maßgebend. Die Lieferfristen und –termine gelten in diesem Fall mit Meldung der Versandbereitschaft an den Kunden als eingehalten.
4. Force majeure occurrences entitle us to defer supply by the duration of the disruption and an appropriate period for renewed start-up of operations. Deferral presupposes that the other party is notified of the cause of the disruption without undue delay. This also applies where such occurrences arise during an existing delay. Force majeure will be deemed to include occurrences such as currency, trade policy and other sovereign measures, strikes, lock-outs, operational disruptions for which we are not responsible, disruptions to transportation infrastructures, delay with customs clearance and any other circumstances which make supply substantially more difficult or impossible even where we are not at fault. Whether such circumstances arise with us, one of our suppliers or an upstream supplier is of no relevance. If any of the above occurrences make execution of the contract unreasonable for either party, in particular if execution of material sections of the contract is delayed by more than five weeks, that party can declare the contract rescinded.
§ 5 Reporting defects
1. The buyer's obligation to examine goods supplied and to report defects in quality are as provided for in § 377 German Commercial Code (Handelsgesetzbuch). We can only acknowledge claims for defects which are asserted in writing without undue delay but no more than eight working days after the goods have arrived at the place of destination stipulated by the buyer; this does not release the buyer of its obligation to pay.
2. Concealed defects must be reported without undue delay after they have been discovered. Claims cannot be accepted once processing and combining work on the goods has commenced.
3. The buyer cannot derive any rights from quality defects which do not impair the value of the goods or their suitability for the purpose as evident to us or which only impair it to an immaterial extent.
4. If the goods have a quality defect at the time of passage of risk we have both a right and an obligation to render subsequent fulfilment, which we will do as we see fit either by remedying the defect or by supplying replacement goods. We will bear the cost of subsequent fulfilment, including without limitation costs of transport, travel, labour and materials. If these amount to more than 50% of the value of the shipment we have the right to refuse subsequent fulfilment.
5. Where subsequent fulfilment fails or cannot be rendered within a reasonable period set by the buyer or we refuse subsequent fulfilment, the buyer may withdraw from the contract or demand a reduction in the purchase price commensurate with the decrease in value caused by the defect or – within the limits of the paragraphs set out below – compensation in lieu of performance.
6. If a defect gives rise to a loss we will be liable as provided for by statute in as far as such loss consists of personal injury, falls within the scope of the German Product Liability Act (Produkthaftpflichtgesetz) or is attributable to intent or gross negligence.
7. Where the loss is attributable to a culpable breach of a material contractual duty or a "cardinal duty" we will only be liable for losses typical of the type of contract.
8. The buyer may not assert any contractual claims or claims in tort over and above this. In particular, therefore, we will not accept liability for losses not caused to the supplied goods themselves or for lost profit or other financial loss of the buyer.
9. The above paragraphs 2–8 have no effect on § 478 German Civil Code.
§ 5a General limitation of liability
1. Our liability for breaches of contractual and non-contractual duties, including where such breaches are committed by our key employees and by other vicarious agents – in particular owing to impossibility, default, fault in the contract formation stage and tort – only covers cases of intent and gross negligence and is limited to losses which were foreseeable at the time the contract was concluded and which are typical of this type of contract.
2. These limitations do not apply to a culpable breach of material contractual duties in as far as this jeopardises the purpose of the contract, in cases of mandatory liability under the German Product Liability Act, losses to life the body or health nor do they apply where we have fraudulently concealed quality defects or warranted that such defects do not exist. This has no effect on the rules governing the burden of proof.
3. Unless otherwise agreed, the limitation period for contractual claims which the buyer asserts against us owing to or in connection with the supply of the goods is one year after the goods have been delivered. This does not affect our liability for breaches of duty arising from intent and gross negligence or the limitation of statutory claims to withdraw from the contract. Where we render subsequent fulfilment, the limitation period begins again from zero.
§ 6 Payment
1. The invoice will be issued on the date on which the goods are delivered or ready for collection. Unless otherwise agreed, the due date may not be deferred.
2. Invoices are payable:
a) within 10 days from the date of issue and despatch of the goods less 4% prompt payment discount;
b) from the 11th to 30th day after the date of issue and despatch of the goods less 2.25% discount;
c) from the 31st to 60th day after the date of issue and despatch of the goods the full invoice amount; As of the 61st day the buyer will be in default pursuant to § 286 (2) no. 2 German Civil Code.
3. Payment will be made in cash or by cheque, or by bank, giro or post bank transfer. Bills of exchange and customer documents will not be accepted in payment unless expressly agreed beforehand. Any bank, discount and collection charges arising from the acceptance of bills will be borne by the buyer.
4. The discounts stated in (2) above will only be granted on condition that there are no older unsettled accounts. These terms of payment apply likewise to invoices for part-shipments.
§ 7 Late payment
1. Late payments will be subject to default interest at a rate of eight percentage points above the base interest rate pursuant to § 247 German Civil Code.
2. The Seller has no obligation to supply under any current contract until unsettled invoice amounts including any accrued interest
3. If the buyer is in default with payment or facing imminent illiquidity or some other material deterioration in its financial position, the Seller can demand advance cash payment for outstanding deliveries from any current contract, revoking the period allowed for payment, or withdraw from the contract or claim compensation provided the Seller grants a 12-day extension period. A material deterioration in its financial position will be deemed to exist if an application is filed for insolvency in respect of the buyer's assets, if the buyer ceases payments, if its bills of exchange and cheques cannot be redeemed in a timely manner and if the buyer is more than 30 days in default with payment for goods supplied by the Seller.
§ 8 Payment method
1. Due invoice amounts may only be offset or withheld where the accounts receivable are undisputed or have been ruled final and absolute by a court of law. This also applies if the Seller ceases payments. No other deductions (e.g. for postage) are permitted.
§ 9 Reservation of title
1. The goods will remain the property of the Seller until all amounts due for any goods supplied under the entire business relationship including ancillary claims, compensation claims and redemption of cheques and bills of exchange have been paid in full. Reservation of title continues to exist even if individual claims of the Seller have been included in a current invoice and the balance is drawn and accepted.
2. Where the business between the Seller and buyer is transacted via a central regulatory body, which assumes del credere, the Seller will transfer title to the central regulatory body when dispatching the goods, doing so on the condition precedent that the purchase price is paid via thecentral regulatory body. The buyer will only be deemed discharged after payment by the central regulator.
3. The buyer can only resell or process the goods subject to the conditions below.
4. The buyer may only sell or process the reserved goods in the normal course of business and to the extent that there is no sustained deterioration in its financial position.
5. The buyer hereby assigns the claim and all ancillary rights arising from resale of the reserved goods – including any outstanding accounts receivable – to the Seller.
6. If the buyer has sold the claim in the context of genuine factoring, the buyer hereby assigns the resultant claim against the factor to the Seller and will pass on its sales proceeds to the Seller pro rata to the value of the Seller's rights in the goods. The buyer must inform the factor of such assignment if it is more than ten days late in settling an invoice or if there is a material deterioration in its financial position. The Seller accepts the assignment.
7. The buyer is authorised to collect the assigned claims as long as it fulfils its payment obligations. The right to collect lapses if the buyer is in default with payment or if there is a material deterioration in its financial position, in which case the buyer hereby authorises the Seller to notify the customers of such assignment and to collect the claims itself. The buyer must provide whatever information is necessary to allow the assigned claims to be asserted and allow this information to be verified. In particular, the buyer must provide the Seller on request with a complete list of the claims due to it, stating the names and addresses of the customers, the amount of the individual claims, invoice dates, etc.
8. If the value of the security provided for the Seller's claims exceeds the value of the Seller's claims by more than 10%, at the buyer's request the Seller must release securities in excess of our claim as it sees fit.
9. The reserved goods and the assigned claims may not be pledged or provided as security. The Seller must be informed immediately if goods are attached, stating the attaching creditor.
10. If in exercising its reservation of title the Seller demands that the goods supplied be returned, the Seller will only be deemed to have withdrawn from the contract if the Seller expressly states this. The Seller can satisfy its claims from reserved goods which it has repossessed by selling them on the open market.
11. The buyer will keep the reserved goods for the Seller free of charge, insuring them against the usual risks such as fire, theft and water to the customary extent. The buyer hereby assigns to the Seller its claims for indemnification from insurance companies or other entities liable to render compensation arising from losses of the type stated above in the amount of the invoice amount. The Seller accepts the assignment.
§ 10 General and applicable law
1. The buyer's rights under this contract are not transferable.
2. If any provisions of the contract are invalid this does not affect the visions.
3. The place of jurisdiction will be Mönchengladbach or the buyer's domicile, as we see fit.
4. German law only applies, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
Last post January 2010