General Conditions of Sale, Supply and Payment of the Firm aha Albert Haag GmbH
1. General Provisions
1.1 ur agreements and services, including those in the future, are based exclusively on the following conditions, unless expressly changed by us in writing. The general terms and conditions of business of the ordering party are hereby rejected: we are under no obligation to comply with them even if they are not expressly rejected again upon or after conclusion of the contract. Our general conditions of sale, supply and payment are deemed to have been accepted not later than at the time of receipt of our delivery by the purchaser.
1.2 Verbal subsidiary agreements have to be confirmed in writing by us to become effective.
2. Offer and Conclusion of Contract
2.1 Our offers are subject to confirmation. Agreements only become binding for us when confirmed in writing.
3.1 Our prices are quoted ex-works or warehouse excluding packaging, freight, shipping charges and insurance, duty unpaid and subject to value-added tax.
3.2 In the case of make-and-hold orders and all orders whose execution requires a period of more than four months, we reserve the right to make changes to the essential cost factors (wages, raw materials, price changes of subcontractors, etc.) by means of an appropriate surcharge to our prices.
3.3 The ordering party does not acquire any right to the tools through payment of a portion of their costs: the tools remain our property.
4.1 Insofar as we are not able to meet the agreed delivery date, the ordering party shall grant a reasonable period of grace beginning with the day of receipt of the written notice of default, or in the case of a delivery period set according to a calendar date upon its expiry.
4.2 The delivery period shall be extended accordingly in cases of disruptions to business operations for which we are not responsible, particularly industrial disputes and acts of God which result from an unforeseeable event or an event where we are not at fault and which lead to interruptions to our business operations and those of our subcontractors.
The ordering party is only entitled to withdraw from the contract insofar as after the expiry of the agreed delivery period in such cases a written reminder is sent concerning the delivery and this is not executed by us within six weeks of receipt of the reminder. In the case of a delivery date defined according to the calendar, the six-week period begins upon the expiry of this date.
4.3 We are entitled to submit partial deliveries.
4.4 In the case of make-and-hold orders we are entitled to supply our goods after six months even without an order being called for. Insofar as an order is not called for within the agreed period or within a period of six months at the latest, we are entitled to demand an advance payment for the quantity not called for.
4.5 Delivery periods begin on the date of our confirmation of order, although not before the provision of the documents to be procured by the ordering party before receipt of any agreed down-payment. The date of delivery shall be deemed to be the date of dispatch to the ordering party. Insofar as dispatch is delayed for reasons for which the ordering party is responsible, the date of delivery shall be deemed to be the date on which the order is ready for dispatch.
4.6 Insofar as the ordering party suffers a loss due to a delay for which we are responsible, the ordering party is entitled to demand compensation for delayed completion to the exclusion of all further claims. For each full week of the delay this shall be equivalent to 0.5% – and not more than 5% in total – of the value of the part of the overall delivery which cannot be used in time or in accordance with the contract as a result of the delay.
4.7 Deviations of up to 10% are permitted with respect to weight or the number of items, both in terms of the final quantity and partial deliveries.
Deviations with respect to quality are permitted within the framework of DIN tolerances.
5.Acceptance, Dispatch and Transfer of Risk
5.1 Insofar as the goods are to fulfil special conditions or quality demands, the acceptance test is to be performed at the works supplying the goods. All associated costs shall be borne by the ordering party. Insofar as the ordering party does not send a representative to the acceptance test, the goods may be supplied nevertheless and shall be deemed to have been accepted as soon as they leave the works.
5.2 The risk shall be transferred to the ordering party upon dispatch from the works even in cases where carriage paid delivery has been agreed. Insofar as dispatch is delayed for reasons for which the ordering party is responsible, the risk shall be transferred to the ordering party on the date on which the goods are ready for dispatch.
5.3 In the absence of written instructions the means of transport and transport routes shall be at our discretion to the exclusion of all liability.
5.4 Insurance against transport damage shall only be provided by special agreement and at the expense of the ordering party.
6.1 We do not assume any liability for technical information, recommendations, advice or technical guidelines: in particular, these cannot be assumed to provide an assurance of certain properties.
6.2 Our liability for defects does not refer to natural wear and tear or damage incurred after the transfer of risk as a result of faulty or negligent treatment, excessive loads or inappropriate operating resources.
6.3 Defects which are evident upon careful examination of the goods must be notified in writing within 10 days of receipt of the goods, concealed defects within the same period after their discovery within the warranty period. This also applies to claim this with respect to weight and the number of items.
6.4 The warranty period is six months, or three months where the supplied goods are used for multiple shift operations.
The right of the ordering party to assert claims for defects shall become time-barred in six months from the date of timely notification of defects.
7.1 Legitimate notifications of defects only entitle the ordering party to refuse payment if the goods are returned to us within 14 days of the notification of defects at the expense of the ordering party.
8. Conditions of Payment
8.1 Unless otherwise agreed, payments are due strictly net within 30 days of the date of invoice without deduction or within 10 days with a discount of 2%. Bills of exchange are not accepted as means of payment.
8.2 Even in the case of claims the ordering party is not entitled to retain or offset payments unless such claims are undisputed or legally established.
8.3 Bills of exchange are only accepted by prior agreement. Insofar as payment is effected in bills of exchange, cheques or other forms of money order, the ordering party shall bear the costs of discounting and collection, unless alternative arrangements are expressly agreed.
8.4 Insofar as the terms of payment are not complied with, all of our claims shall become due for immediate payment in cash without taking into account incoming bills of exchange. In such cases the ordering party may no longer sell the items owned exclusively or jointly by us and shall return them to us upon demand. Rights in rem of third parties shall not be affected by the surrender.
8.5 The ordering party shall accept cash payments for the assigned claims on our behalf for separate safekeeping and shall assign to us postal cheque and bank balances to the level of the amounts accepted for safekeeping. The amounts are to be forwarded to us without delay.
8.6 Where payment deadlines are exceeded, interest and commissions shall be charged in accordance with the respective bank rates for short-term loans, and at least 5% above the discount rate of the Deutsche Bundesbank.
8.7 Whenever payment deadlines are exceeded in individual cases this shall entitle the supplier to withdraw from all supply contracts that have not yet been executed. In such cases the ordering party shall have no right to assert claims for damages. Insofar as the supplier does not avail itself of its right of withdrawal, it shall nevertheless be entitled to retain its deliveries or other services associated with this or other orders until full payment of all of its claims due from the ordering party. The ordering party may ward off this right of retention by the provision of a directly enforceable and unlimited guarantee furnished by a major West German bank, savings bank or other bank to the amount of all outstanding claims.
8.8 The ordering party hereby declares its agreement that claims of the supplier may be offset against claims of the ordering party to which the ordering party is entitled from deliveries or for other reasons, even if the due dates of the mutual claims are different or cash payment has been agreed by the one party and payment in the form of acceptances or customer bills of exchange by the other party.
9. Retention of Title
9.1 The goods shall remain the property of the seller until the full payment of all claims, including ancillary claims, claims for damages and the encashment of cheques and bills of exchange.
9.2 The retention of title shall also apply if individual claims of the seller are included in an open account and the account is balanced and accepted.
9.3 Insofar as the purchaser’s goods that are subject to the retention of title are processed to form a new movable item, the processing shall be deemed to be performed on behalf of the seller, without the seller being subject to any obligations as a result. The new item shall become the property of the seller. In cases where such goods are processed, mixed or combined with goods not belonging to the seller, the seller shall acquire co-ownership of the new items according to the ratio of the value of its goods subject to the retention of title to the total value.
9.4 The purchaser is only entitled to sell on, further process or install the goods subject to the retention of title as specified by the following provisions and only on condition that the claims referred to in section 6. are indeed transferred to the seller:
9.5 The authority of the purchaser to sell, process or install goods subject to the retention of title during the normal course of business shall end upon its revocation by the seller due to sustained deterioration in the purchaser’s financial status, and not later than at the time of cessation of payments or upon the application or opening of bankruptcy or composition proceedings with respect to the purchaser’s assets.
9.6 a) The purchaser hereby assigns to the purchaser the claim – together with all ancillary rights – associated with the resale of the goods subject to the retention of title.
b) Insofar as the goods have been processed, mixed or combined and the seller has acquired co-ownership thereof to the level of its invoice value, the seller shall have a right to the purchase price in the same ratio as to the value of its rights to the goods.
c) Insofar as goods subject to the retention of title are installed in an item of real estate, the purchaser hereby assigns the resulting claim for remuneration to the level of the value of the goods subject to the retention of title together with all ancillary rights, including a claim with respect to the granting of a collateral mortgage with first ranking before other rights.
Insofar as the purchaser has sold the claim within the framework of old-line factoring, the purchaser’s claim shall become due for immediate payment and the purchaser shall assign the claim taking its place against the factor to the seller and shall forward its proceeds from the sale immediately to the seller. The seller hereby accepts the assignment.
9.7 For as long as it fulfils its payment obligations the purchaser is authorised to collect the assigned claims. The collection authorisation shall lapse when revoked, and not later than the time of default of payment on the part of the purchaser or in the case of a significant deterioration in the financial circumstances of the purchaser and after the submission of an express reminder by the seller. In this case the seller is authorised by the purchaser to inform the customers of the assignment and collect the claims itself. The purchaser is obliged to submit to the seller upon request an accurate list of the claims to which the seller is entitled, with the names and addresses of the customers, the level of the individual claims, date of invoice etc., provide the seller with all of the information required for the assertion of the assigned claims and permit this information to be verified.
9.8 Insofar as the invoice value of the collateral provided to the seller exceeds the total amount of the seller’s claims including ancillary claims (e.g. interest, costs) by more than 20%, the seller is obliged – at the request of the purchaser or a third party who is at a disadvantage as a result of the over-collateralisation of the seller – to release appropriate collateral at the seller’s discretion.
9.9 Hypothecation or transfer by way of security of the goods subject to the retention of title or the assigned claims is not permitted. The seller is to be informed immediately of any attachments, stating the details of the pledgee.
9.10 Insofar as the seller takes back the supplied goods due to the retention of title, this shall only be deemed to be withdrawal from the contract if this is expressly declared by the seller. The seller may satisfy its claims associated with the goods subject to the retention of title that have been taken back by selling them at its own discretion.
9.11 The purchaser shall store the goods subject to the retention of title free of charge on behalf of the seller. The purchaser shall insure them against standard risks such as fire, theft and water to the customary level. The purchaser hereby assigns to the seller its claims for compensation to which it has a right with respect to insurance companies or other bodies required to provide a replacement as a result of damage of the type stated above to the level of the invoice value of the goods. The seller hereby accepts the assignment.
9.12 All claims and rights arising out of the retention of title to all special forms defined in these provisions shall remain in existence until full indemnity from contingencies and commitments into which the seller has entered in the interests of the purchaser.
10. Withdrawal, Damages
10.1 We reserve the right to render the delivery subject to an advance payment or the provision of security or to withdraw from the contract by means of a written declaration if the ordering party has submitted incorrect information concerning its person or other facts that affect its creditworthiness, or discontinues its payments, applies for a moratorium or if bankruptcy or composition proceedings are applied for or opened with respect to its assets.
10.2 Insofar as we demand damages from the ordering party due to non-fulfilment of the contract, a flat-rate compensation amount of 15% of the order total is hereby agreed. With respect to this flat-rate amount the ordering party is at liberty to provide evidence that our specific claim to compensation is not or significantly less than the flat-rate amount.
11. Final Provisions
11.1 The assignment or hypothecation of claims or rights on the part of the ordering party against us is excluded.
11.2 The place of performance is Neuss, unless alternative arrangements are agreed above. The place of jurisdiction for all disputes associated with any transaction to which these General Terms and Conditions apply is the supplier’s place of business.
11.3 The relationships between ourselves and the customer are subject exclusively to the law of the Federal Republic of Germany.
11.4 Insofar as individual provisions of these General Terms and Conditions are or become invalid, they shall not affect the validity of the remaining provisions. In place of the invalid provision a legally valid provision shall apply that comes as close as possible to the intended purpose of the invalid provision.
11.5 The headlines in these General Terms and Conditions only serve the purpose of better orientation. They are of no significance with respect to interpretation.
11.6 Only the provisions relating to the retention of title in these terms of sale apply to business transactions with ordering parties who are not merchants within the meaning of the German Commercial Code, special funds under public law or legal persons under public law, as well as to business transactions with a merchant not forming part of a mercantile trade.