General Terms and Conditions of fk POULTRY GmbH (as of 01/2022)
Section 1 General
- These General Terms and Conditions (“GTC”) shall apply to all – also future – contracts with entrepreneurs (Section 14 German Civil Code (“BGB”), legal entities under public law and special funds under public law (“Customer”) concerning the sale and/or delivery of movable goods, offers, orders and other services including contracts for work and services and construction contracts as well as pre-contractual legal relationships.
- In case of doubt, the Incoterms in their latest version shall be decisive for the interpretation of commercial clauses.
- Our offers are subject to change and non-binding. They are invitations to bid only. Verbal agreements, promises, assurances or guarantees made by our employees or representatives in connection with the conclusion and execution of the contract are also subject to change and shall only become binding upon our written confirmation.
- Placing an Order for the goods by the Customer is considered a binding offer of contract. Unless otherwise stated in the Order, we are entitled to accept this contractual offer 14 working days after receipt by written declaration or delivery of the goods to the Customer.
- Legally relevant declarations and notifications with regard to the contract (e.g. setting of deadlines, reminders, withdrawal) must be made in writing, i.e. in written or text form (e.g. letter, email, fax). Statutory formal requirements and further evidence, in particular in the event of doubts about the legitimacy of the person making the declaration, shall remain unaffected.
- Our GTC apply exclusively. Terms and conditions or agreements deviating from these Terms and Conditions shall not be recognized even if we do not expressly object to them again after receipt by us. Deviating conditions shall only become binding if they are confirmed by us in writing.
Section 2 Quality, offer, conclusion of contract
- The information contained in brochures, on the Internet, in a price list or similar (e.g. drawings, dimensions, load capacity, technical data, mere reference to DIN/EN standards) is non-binding unless expressly declared binding in writing in our offer or in our Order Confirmation. They are considered as approximate demonstration pieces for quality, dimension and color. We reserve the property rights and copyrights to all information, documents, files, drawings, drafts, calculations and preliminary work originating from us. The Customer shall receive rights of use to the extent necessary to achieve the purpose of the contract between the Customer and us.
- Information provided by the Customer may be assumed by us to be binding and correct; there is no obligation on our part to verify such information.
- Our Written Offer or our Order Confirmation as well as our drawings shall be decisive for the scope of the delivery or service. The Order Confirmation must be checked carefully. Discrepancies must be reported no later than three working days after the date of our Order Confirmation. Silence on the part of the Customer until the expiry of this period shall be deemed to be acceptance of the Order Confirmation as the content of the contract. Subsidiary agreements and amendments require our written confirmation. If we make insignificant, reasonable deviations in the dimensions and design of the ordered item, such deviations shall not entitle to complaints, unless compliance with dimensions and color shades had been expressly agreed. Technical modifications and improvements on our part which do not cause any deterioration in value or possibility of use shall also be deemed permissible.
- If the Customer withdraws from or otherwise dissolves the contract after conclusion of the contract without being legally or contractually entitled to do so, we shall be entitled to liquidated damages in the amount of 20% of the price or the agreed remuneration in addition to reimbursement of expenses already incurred. We reserve the right to prove a lesser damage.
Section 3 Duties to cooperate in the case of contracts with installation services
- The Customer shall provide adequate access to the construction site and sufficient unloading space and shall create the structural conditions for the installation work; in winter, the room in which installation work is carried out shall be heated; the Customer shall be obliged to provide electric power, water and lighting. It must create the conditions for carrying out test runs.
- The Customer shall be solely responsible for obtaining any permits, inspections, licenses, or the like for the installation or assembly of the goods.
Section 4 Prices
- All prices apply to the service and scope of delivery listed in the Order Confirmation. Additional or special services will be charged separately.
- Prices are net ex warehouse, plus statutory VAT, packaging, customs duties for export deliveries, as well as fees and other public charges. If prices are not expressly agreed, our price list valid at the time of conclusion of the contract shall apply. Prices shall only be deemed to be fixed prices if they have been confirmed by us in writing and marked as fixed prices.
- We reserve the right to change our prices accordingly if significant cost reductions or cost increases occur after conclusion of the contract, in particular in the case of price developments beyond our control, such as exchange rate fluctuations, currency regulations, changes in customs duties, changes in taxes, in the case of changes in wage and collective agreements, transport costs, in the case of material or manufacturing costs of our suppliers as well, etc. We will provide evidence of these upon request.
Section 5 Payment and settlement
- Unless otherwise agreed in writing or stated in our invoices, the purchase price is due immediately upon receipt of the invoice by the Customer and delivery or acceptance without discount.
- In the case of partial deliveries and partial services, we shall be entitled to demand reasonable down payments.
- Our invoices shall be deemed to have been accepted if no objection is made in writing within 30 days of receipt of the invoice. We will inform the Customer of this with each invoice.
- Target sales require express written agreement. If a payment term is granted, invoices shall be due for payment without deduction on the respective agreed payment term.
- The granting of a cash discount requires an express written agreement with us. An agreed cash discount always relates only to the value of the goods and presupposes full settlement of all due liabilities of the Customer at the time of the cash discount. Pallets, freight and services are not discountable.
- Unless otherwise stated in the above, we shall charge interest on arrears from the 10th day after the due date at a rate of 9% above the current prime rate of the European Central Bank without further reminder.
- If, after conclusion of the contract, it becomes apparent that our claim for payment is jeopardized by the Customer’s inability to pay, we shall be entitled to the rights under Section 321 of the German Civil Code (“defense of uncertainty”). In this case, we shall also be entitled to declare due and payable all outstanding – including deferred – claims from the business relationship with the Customer that are not subject to the statute of limitations. In addition, the defense of uncertainty shall extend to all other outstanding deliveries and services from the business relationship with the Customer.
- We are entitled, also within the framework of an ongoing business relationship, at any time to carry out a delivery in whole or in part only against advance payment. We declare a corresponding caveat at the latest with our Order Confirmation.
- The Customer waives the assertion of a right of retention from earlier or other transactions of the current business relationship. The offsetting of counterclaims is only permissible insofar as these are recognized by us and are due for payment or have been legally established.
Section 6 Delivery, transfer of risk, delivery periods and dates, default of acceptance
- Our warehouse is the place of performance for all our deliveries. In case of delivery to another place, the Customer bears the risk. In this case, the delivery will be made to the agreed place. We determine the shipping route and means as well as the carrier and freight forwarder. The risk, including the risk of seizure of the goods, shall pass to the Customer for all transactions, including carriage paid and free domicile deliveries, when the goods are handed over to a forwarding agent, carrier or other person or institution designated to carry out the shipment, but no later than when the goods leave our warehouse. Insofar as acceptance has been agreed, this shall be decisive for the transfer of risk. The handover is equal if the Customer is in default of acceptance.
- Delivery periods begin with the date of our Order Confirmation. They shall be extended in each case by the period of time by which the Customer fails to fulfill its obligations to us. This applies accordingly to delivery dates. The time of dispatch from our warehouse shall be decisive for compliance with delivery periods and deadlines. They shall be deemed to have been complied with upon notification of readiness for dispatch if the goods cannot be dispatched through no fault of our own.
- Force majeure or other events unforeseeable at the time of conclusion of the contract (e.g. operational disruptions of any kind, transport delays, strikes, shortage of labor, for example as a result of epidemics, pandemics, quarantine entry bans) or official measures which temporarily prevent us, through no fault of our own, from delivering the goods on the agreed delivery date or within the agreed period shall release us from our contractual performance obligations for the duration and to the extent of their effect. We shall inform the Customer immediately after the event becomes known. If we are unable to perform even after a reasonable extension of the deadline, we shall be entitled to withdraw from the contract. Claims for damages on the part of the Customer are excluded. If we withdraw from the contract, we shall immediately reimburse the Customer for all payments already made. Other rights of withdrawal remain unaffected.
- We are entitled to make partial deliveries to a reasonable extent. We are further entitled to use subcontractors to fulfill our contractual obligations.
- Failure by us to comply with a delivery date or a delivery period shall entitle the Customer to assert rights to which it is entitled by law only if it has granted us a reasonable grace period of at least 14 working days and if the delay in delivery is due to an intentional or grossly negligent breach of contract. A written reminder from the Customer is mandatory for the occurrence of a delay in delivery. Otherwise, the occurrence of the delay in delivery shall be determined in accordance with the statutory provisions.
- If we are unable to meet a binding delivery deadline for reasons for which we are not responsible, we shall inform the Customer of this immediately and notify the new expected delivery deadline. If we are also unable to meet this delivery deadline, we are entitled to withdraw from the contract in whole or in part. We shall immediately refund any consideration already paid by the Customer.
- When carrying out assembly work, delivery dates shall apply under the following conditions:a. the freedom to build by the Customer or other executing companies is guaranteed;b. the Customer shall obtain and, upon request, submit the permits and authorizations required under public law for the performance of the work by us (in particular under building law, road traffic law, water law, trade law); the Customer shall bear the risk of obtaining, acquiring and maintaining such permits and authorizations.
Section 7 Extended retention of title
- All delivered goods shall remain our property (“goods subject to retention of title”) until all claims, in particular also the respective balance claims, to which we are entitled within the scope of the business relationship (“reserved balance”) have been satisfied. This shall also apply to claims arising in the future and conditional claims, e.g. from acceptor’s bills of exchange and also if payments are made on specially designated claims. This reserved balance shall finally expire upon settlement of all claims still outstanding at the time and covered by this reserved balance.
- The Customer may only sell the goods subject to retention of title in the ordinary course of business under its normal terms and conditions and as long as it is not in default, provided that the claims arising from the resale are transferred to us in accordance with these Terms and Conditions. In this case, the following conditions apply:a. the claims arising from the resale of the goods subject to retention of title shall be assigned to us here and now together with all securities which the Customer acquires for the claims. We hereby accept the assignment. They shall serve as security to the same extent as the reserved goods. If the reserved goods are sold by the Customer together with other goods not supplied by us, the claim from the resale shall be assigned to us in the ratio of the invoice value of the reserved goods to the invoice value of the other goods. In the event of the sale of goods in which we have co-ownership shares pursuant to Section 7 No. 2 of these Terms and Conditions, a part corresponding to our co-ownership share shall be assigned to us.b. the retention of title extends to the products resulting from the processing, mixing or combining of our goods at their full value, whereby we are deemed to be the manufacturer. If, in the event of processing, mixing or combining with goods of third parties, their right of ownership remains, we shall acquire co-ownership in proportion to the invoice values of the processed, mixed or combined goods. In all other respects, the same shall apply to the resulting product as to the goods delivered under retention of title.
c. in addition to us, the Customer is entitled to collect claims from the resale of the reserved goods. This direct debit authorization shall expire in the event of our revocation, but at the latest in the event of default in payment, non-redemption of a bill of exchange or application for the opening of insolvency proceedings. We shall only make use of our right of revocation if it becomes apparent after conclusion of the contract that our claim for payment under this or other contracts with the Customer is jeopardized by the Customer’s lack of ability to pay. At our request, the Customer is obliged to inform its purchasers immediately of the assignment to us and to hand over to us the documents required for collection.
- The goods subject to retention of title may neither be pledged to third parties nor assigned as security before full payment of the secured claims. The Customer must inform us immediately of any seizure or other interference by third parties. The Customer shall bear all costs which have to be incurred for the cancellation of the seizure or for the return transport of the reserved goods, insofar as these are not reimbursed by third parties.
- If the Customer is in default of payment, we shall be entitled to take back the goods subject to retention of title after expiry of a reasonable grace period and, if necessary, to enter the Customer’s premises or property for this purpose. The same shall apply if, after conclusion of the contract, it becomes apparent that our claim for payment under this or other contracts with the Customer is jeopardized by the Customer’s inability to pay. This redemption is not considered as a withdrawal from the contract. The provisions of the InsO shall remain unaffected.
- If the realizable value of the existing securities exceeds the secured claims including ancillary claims (interest, costs or similar) by more than 10% in total, we shall be obliged to release securities of our choice to this extent at the request of the Customer.
Section 8 Liability for material defects
- The quality of the goods shall be determined in accordance with the agreed specifications or, in the absence of an agreement, in accordance with the product descriptions and manufacturer’s specifications available at the time of conclusion of the contract or, in the absence of such specifications, in accordance with commercial practice. Insofar as the condition has not been agreed, it shall be assessed in accordance with the statutory regulations whether a defect exists.
- The statutory provisions shall apply to the inspection of the goods and notification of defects with the following proviso:a. the Customer has the obligation to inspect the properties of the goods relevant for the respective use immediately after delivery and to notify us in writing of any defects in the goods without delay, at the latest within five working days from delivery. In the case of goods intended for installation or other further processing, an inspection must in any case be carried out immediately before processing. In this case, the internal properties of the goods shall also be included among the properties relevant for installation or attachment. Defects which cannot be discovered immediately after delivery, even with the most careful inspection, must be reported in writing immediately after discovery, at the latest also within five working days of discovery.b. in the event of a justified notice of defect within the time limit, we may, at our option, remedy the defect or deliver goods free of defects (“subsequent performance”). Our right to refuse subsequent performance under the statutory conditions shall remain unaffected. In the event of failure or refusal of subsequent performance, the Customer may, after unsuccessful expiry of a reasonable period, withdraw from the contract or reduce the purchase price. If the defect is not substantial or if the goods have already been sold, processed or transformed, it shall only be entitled to the right of reduction.c. we are entitled to make the subsequent performance owed dependent on the Customer paying the purchase price due. For its part, the Customer may retain a part of the purchase price that is reasonable in relation to the defect.
- The Customer shall give us the time and opportunity required for the subsequent performance owed, in particular to hand over the goods complained about for inspection purposes. In the event of a replacement delivery, the Customer shall return the defective item to us in accordance with the statutory provisions. Subsequent performance shall neither include the removal of the defective item nor the re-installation if we were not originally obliged to install it.
- We shall bear or reimburse the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labor and material costs and, if applicable, removal and installation costs, as evidenced by the submission of suitable documents, in accordance with the statutory provisions if a defect is actually present. Otherwise, we may demand reimbursement from the Customer of the costs incurred as a result of the unjustified request to remedy the defect (in particular inspection and transport costs), unless the lack of defectiveness was not apparent to the Customer.
- Insofar as the expenses claimed by the Customer for subsequent performance are disproportionate in the individual case, in particular in relation to the purchase price of the goods in a defect-free condition and taking into account the significance of the lack of conformity with the contract, we shall be entitled to refuse to reimburse such expenses.
- If the Customer carries out the rectifications himself or has them carried out without our consent and without giving us the opportunity to rectify the defect, our liability shall lapse. In urgent cases, e.g. if operational safety is endangered or to prevent disproportionate damage, the Customer shall have the right to remedy the defect itself and to demand reimbursement from us of the expenses objectively necessary for this purpose. We are to be notified immediately of any such self-execution, if possible in advance. The right of self-execution does not exist if we would be entitled to refuse a corresponding subsequent performance according to the statutory provisions.
- Further claims of the Customer for damages or reimbursement of expenses incurred in vain shall also exist in the case of material defects only in accordance with Section 9 and shall otherwise be excluded.
Section 9 General limitation of liability
- We shall be liable for damages – also for our executive employees and other vicarious agents or persons for whose fault we are responsible according to statutory provisions – irrespective of the legal grounds, within the framework of fault liability only in cases of intent and gross negligence.
- These limitations shall not apply in the event of culpable breach of essential contractual obligations, insofar as the achievement of the purpose of the contract is jeopardized, in the event of damage to life, limb and health and also not if and insofar as we fraudulently conceal defects in the item or have guaranteed their absence, as well as in cases of mandatory liability under the Product Liability Act. The rules on the burden of proof shall remain unaffected.
- The Customer may only withdraw from or terminate the contract due to a breach of duty that does not consist of a defect if we are responsible for the breach of duty. A free right of termination of the Customer is excluded. In all other respects, the statutory requirements and legal consequences shall apply.
- In the event of delay, we shall be liable for 0.5% of the order value per week, but not more than 10% in total. Furthermore, claims for compensation shall be limited to the reimbursement of proven additional costs (covering purchase on the basis of three comparative offers).
- We are not liable for breach of contract or damage due to force majeure.
- If there are different, in particular stricter, product liability or product safety regulations in the countries in which the Customer will resell our products compared to German law, the Customer must inform us of this when placing its Order. In this case we are entitled to withdraw from the contract within one month. If the Customer fails to provide this information, we may withdraw from the contract within one month of learning of the relevant legal situation. In the latter case, the Customer shall be obliged to indemnify us against claims of third parties which exceed our obligation to perform in the event of a comparable product liability case in Germany. This also applies if we adhere to the contract.
Section 10 Limitation
- Contractual claims as well as contractual and non-contractual claims for damages shall become time-barred within one year, unless the application of the regular statutory limitation period would lead to a shorter limitation period in individual cases. The limitation period shall not apply to damages caused by intent or gross negligence on our part or in case of injury to life, body or health as well as under the Product Liability Act. In cases of subsequent performance, the limitation period shall not start to run again.
Section 11 Applicable law; place of jurisdiction; data protection
- All legal relationships between us and the Customer shall be governed by the laws of the Federal Republic of Germany, in particular the German Civil Code (BGB) and the German Commercial Code (HGB) as amended from time to time, in addition to these Terms and Conditions.
- If the conditions for an agreement on the place of jurisdiction pursuant to Section 38 (1) of the German Code of Civil Procedure (ZPO) exist, the place of jurisdiction for all claims of the contracting parties, including actions on bills of exchange and checks, shall be the court responsible for our registered office in Laer. However, we shall be entitled to bring an action at the place of performance of the delivery obligation in accordance with these GTC or at the general place of jurisdiction of the Customer. Overriding statutory provisions shall remain unaffected.
- In accordance with the applicable data protection law, we would like to point out that all customer and supplier-related data are stored and processed by us with the aid of electronic data processing. We are entitled to forward the data transmitted to us to the persons and companies required to provide the service, insofar as this is necessary for the delivery of the goods or execution of the Order. Personal data that has been communicated to us will only be stored until the purpose for which it was entrusted to us has been fulfilled and prescribed retention periods do not prevent deletion. If there is no longer any consent to the storage of personal data or if this data has become incorrect, we will arrange for the deletion, correction or blocking of the data on the basis of a corresponding instruction within the framework of the statutory provisions. Upon request, we will provide information free of charge about all personal data that we have stored about our customers. For questions regarding the collection, processing or use of personal data, as well as for information on the data and correction, blocking or deletion of data, we ask for a corresponding request in writing.
- Should individual provisions of these GTC be or become invalid, this shall not affect the validity of the remaining provisions. In such a case, the Parties undertake to agree without delay on new effective provisions that come as close as possible to the economic purpose of the invalid provision.
fk poultry gmbh General Terms and Conditions of Purchase (as of 02/2022)
Section 1 General
- These General Terms and Conditions of Purchase shall apply to all – including future – orders for goods, services and contract work and their processing vis-à-vis companies within the meaning of Section 14 (1) of the German Civil Code (BGB).
- The Incoterms as amended from time to time shall be decisive for the interpretation of commercial clauses.
- Terms and conditions, or agreements deviating from these Terms and Conditions, shall not be recognized, even if we do not expressly object to them again after receipt by us. Deviating conditions shall only become binding if they are confirmed by us in writing.
- Verbal agreements made by our employees shall only become binding upon our written confirmation.
- The preparation of offers is free of charge and non-binding for us.
Section 2 Prices
- All prices are in Euro (€).
- The agreed price is a fixed (maximum) price.
- In the case of “free domicile”, “free at destination” and other “free/pre-paid” deliveries, the price includes freight and packaging costs, insurance and assembly. Value added tax is not included. If delivery is not included, we shall determine the shipment method.
- In all other respects, the latest version of Incoterms shall apply.
Section 3 Payment
- In the absence of any other agreement or more favorable conditions of the Seller, payments shall be made within 14 days less 3% discount or within 30 days net.
- Payment and discount periods shall run from receipt of the invoice, but not before receipt of the goods or, in the case of services, not before their acceptance and, if documentation, test certificates or similar documents are part of the scope of services, not before their handover to us in accordance with the contract.
- Invoices shall be sent to us by mail, email or electronic data interchange separately from the delivery, stating the order number and order date.
- Our payments are deemed on time if they are executed or ordered from the bank or payment service provider on the due date.
- Default interest cannot be claimed. The default interest rate shall be 5 percentage points above the base interest rate. In any case, we are entitled to prove lower damage caused by delay than demanded by the Seller.
- We shall be entitled to rights of set-off and retention to the extent provided by law.
- Claims against us may only be assigned to third parties with our written consent.
Section 4 Delivery Periods, Delivery Delay
- Agreed delivery dates and deadlines are binding. Impending delivery delays must be communicated to us immediately in writing. At the same time, suitable countermeasures to avert the consequences must be proposed to us.
- Receipt of the goods by us shall be decisive for compliance with the delivery date or delivery period, unless otherwise agreed in writing.
- If the Seller is in default of delivery, we shall be entitled to charge a lump sum for damages of 0.2% of the order value per day, but not more than 5% of the order value, without providing evidence, unless the Supplier proves that we have incurred lower damages in the individual case. The assertion of further damage caused by delay on the basis of statutory claims shall remain unaffected. In particular, we shall be entitled to claim damages in lieu of performance after the fruitless expiry of a reasonable grace period to be set by us.
- Our claim to the delivery is excluded only after the Seller has paid the compensation.
- The Seller may only invoke the absence of necessary documents to be supplied by us if it has not received the documents even after a written reminder.
Section 5 Retention of Title
- With regard to the Seller’s rights of retention of title, the Seller’s terms and conditions shall apply with the proviso that title to the goods shall pass to us upon payment thereof and, accordingly, the extension form of the so-called current account reservation shall not apply.
- On the basis of the retention of title, the Seller can only demand the return of the goods if it has previously effectively withdrawn from the contract in writing.
- The Seller is not entitled to exercise a right of lien or retention on materials, models, drawings, etc. supplied by us. For the time in the Seller’s custody, the goods shall be insured at the Seller’s expense against all risks for which insurance is usually taken out.
Section 6 Execution of Deliveries and Transfer of Risk
- The Seller shall bear the risk of accidental loss and accidental deterioration, including in the case of “pre-paid” and “free domicile” deliveries, until the goods are handed over at the destination, if a person authorized by us has confirmed receipt. In the case of contracts for labor and services and contracts for labor and materials, the risk shall pass to us at the earliest upon completion of the full order and joint acceptance. In addition, the Incoterms shall apply in their latest version.
- Partial deliveries require our consent.
- Excess or short deliveries are only permitted within the scope customary in the industry. Excess or short deliveries/services not customary in the industry require our express written consent.
- Packaging costs shall be borne by the Seller, unless otherwise agreed in writing. If we bear the costs of packaging in an individual case, this shall be charged to us as cheaply as possible. The take-back obligations are based on the Packaging Act (VerpackG). The costs for return transport and/or disposal of the packaging shall be borne by the Seller.
Section 7 Declarations of Originating Status
- Upon our request, the Seller shall provide us with a supplier’s declaration on the preferential origin of the goods.
- In the event that the Seller makes declarations regarding the preferential or non-preferential originating status of the goods sold, the following shall apply:
- The Seller undertakes to enable the verification of proofs of origin by the customs authority and to provide both the information required for this purpose and any confirmations that may be required.
- The Seller is obliged to compensate the damage caused by the fact that the declared origin is not recognized by the competent authority as a result of incorrect certification or lack of possibility of verification, unless it is not responsible for these consequences.
- The Seller guarantees that no third-party rights are violated during the execution of the order and declares already now that it indemnifies us against all third-party claims. If the Seller is not the sole owner of the rights, it shall be obliged to obtain the consent of the co-owners to the transfer of rights without delay, and to provide evidence thereof at our request.
Section 8 Liability for Defects and Limitation Period
- The Seller shall provide us with the goods free of material defects and defects of title. In particular, it shall warrant to us that its deliveries and services have the warranted characteristics and standards, and comply with the recognized rules of technology, and are not afflicted with defects which nullify or reduce the value or suitability for use normally assumed, or assumed at the time of placing the order. Official test certificates are to be provided to us free of charge upon request.
- The goods will be checked for quality and completeness upon receipt to the extent reasonable and technically possible for us. In the absence of concrete indications of a defect, only examinations of the external condition visible to the naked eye shall be deemed reasonable within the scope of the incoming inspection, but not examinations of the internal condition of the goods. Notifications of defects shall be deemed timely if they are received by the Seller within ten working days by letter, fax, email or telephone. The period for notification of defects shall commence at the time at which we – or, in the case of drop shipment, our customers – have or should have discovered the defect.
- If the goods have a material defect, we shall be entitled to the statutory rights at our discretion. Defective goods and work performances, including those with hidden defects or defects that only appear during the intended use, shall be replaced free of charge and freight paid upon request. If the Seller is in default herewith, we shall be entitled, without determining a grace period, to procure a replacement at the Seller’s expense and to claim damages, or to withdraw from the contract. A rectification of defects by the Seller shall be deemed to have failed already after the first unsuccessful attempt.
- We may also demand compensation from the Seller for expenses related to a defect which we have to bear in relation to our customer, if the defect was already present when the risk passed to us.
- Statutory limitation periods shall apply to our claims for defects. They shall commence with timely notification of defects within the meaning of No. 2 above. If we give written notice of a defect within two years after the transfer of risk, the limitation period shall be four years. In the event of replacement delivery or rectification of defects, the limitation period for warranty claims for the replaced or rectified parts shall begin anew. The objection of delayed inspection and delayed notification of defects is excluded within six months after transfer of risk.
- Our approval of drafts, drawings, descriptions and the like shall not release the Seller from its warranty obligation.
- The Seller hereby assigns to us – on account of performance – all claims to which it is entitled against its suppliers on account of and in connection with the delivery of defective goods or goods lacking guaranteed characteristics. It shall hand over to us all documents required for the assertion of such claims.
Section 9 Place of Performance, Jurisdiction and Applicable Law, Data Protection
- Unless otherwise agreed, the place of performance for the delivery shall be our registered office in Laer, Germany.
- The place of jurisdiction is our registered office in Laer, Germany. We can also sue the Seller at its place of jurisdiction.
- All legal relations between us and the Seller shall be governed by German law in addition to these Terms and Conditions, including the provisions of the United Nations Convention of April 11, 1980 on Contracts for the International Sale of Goods (CISG).
- In accordance with applicable data protection law, we point out that all Seller-related data is stored and processed by us with the help of electronic data processing. We are entitled to forward the data transmitted to us to the persons and companies necessary for the provision of the service, insofar as this is necessary for the delivery of the goods or the execution of the order. Personal data communicated to us will only be stored until the purpose for which it was entrusted to us has been fulfilled, and prescribed retention periods do not prevent deletion. If there is no longer any agreement with the storage of personal data, or if this data has become incorrect, we will arrange for the deletion, correction or blocking of the data on the basis of a corresponding instruction within the framework of the legal provisions. Upon request, we will provide information free of charge about all personal data that we have stored about our customers. For questions regarding the collection, processing or use of personal data, as well as for information on the data and correction, blocking or deletion of data, we ask for a corresponding written request.
- Should individual provisions of these General Terms and Conditions of Purchase be or become invalid, this shall not affect the validity of the remaining provisions. In such a case, the parties undertake to agree without delay on new effective provisions that come as close as possible to the economic purpose of the invalid provision.