Terms and conditions of sale and delivery, Cordes GmbH & Co. KG
The goods and services supplied by us shall be solely subject to the following conditions. Divergent or supplementary conditions of the buyer and collateral conditions shall not be valid unless we have expressly acknowledged them in writing.
Our products are primarily acquired by businesses. If a buyer is a consumer, he/she must notify us accordingly before the contract is signed. If the consumer fails to notify us, he/she must be treated as a business.
I. Offer and contract
- Our offers are always non-binding (without obligation). From a legal point of view they are to be interpreted as an invitation to submit an offer. The order is not accepted by us until we have confirmed it in writing.
- Our order confirmation shall be the sole deciding factor with regard to the scale of the goods or services supplied. Alterations shall require our explicit confirmation in writing.
- Unless otherwise agreed in writing, especially if advance payments are due or part payments in accordance with the progress of delivery, the buyer’s payments shall be due on receipt of the invoice and shall be paid in full within 30 days.
- If the buyer is wholly or partially in arrears with his payment obligations, he shall – without prejudice to any other rights to which we are entitled – pay interest from this point on at the rate of 8% above the base rate plus value added tax on the amount remaining unpaid. If we are entitled to demand maturity interest, the same interest rate shall be agreed.
- If the buyer is in arrears with a payment, if he discontinues payments, if he has excessive debts, if an application is made for the initiation of insolvency proceedings, if there is any other substantial deterioration in the buyer’s financial situation, or if he fails to honour due bills of exchange or cheques, then all accounts receivable, including those deferred or not yet due, shall become payable immediately. This shall not apply if the above-mentioned circumstances are not the fault of the buyer.
- If it becomes apparent that the claim for counter-consideration is endangered by inadequate performance capacity on the part of the buyer, we shall be entitled to demand at our discretion the counter-consideration or security payment step by step against performance, and to refuse performance until the counter-consideration or security payment is made. If the buyer fails to comply with our demand within a reasonable period specified by us, we shall be entitled to withdraw from the contract and, provided the statutory conditions are satisfied, to demand compensation instead of the counter-consideration.
- If the buyer has guarantee claims pursuant to Item VIII on the grounds of faulty performance, he may – without prejudice to the provisions of the following Item 6 – have recourse to any statutory right of retention of the payment owed by him only to the extent of an amount that is in reasonable proportion to the reduction in value due to the existing faults. This right shall also be excluded if we have acknowledged our guarantee obligations arising from the faults in question and have provided a reasonable amount of security, which may also take the form of a bank guarantee.
- Offsetting against counter-claims of the buyer shall not be permissible unless – and provided all other statutory conditions are satisfied – the claims are undisputed or established as having legal force. Rights of retention shall also be excluded unless they are based on the same contractual relationship.
III. Delivery obligations
- If the buyer has to make an advance payment or provide evidence that financing is assured, any delivery period agreed shall not begin until the buyer has fulfilled such obligations. Further preconditions for the start of the delivery period are the provision of all documents and permits to be furnished by the buyer, and compliance with all other duties to cooperate.
- The delivery period shall be deemed to be complied with if we have by the end of such period at least ensured and notified that the goods are ready for shipment.
- The delivery period shall be extended by a reasonable amount as a result of any alterations subsequently desired by the buyer.
- Unforeseen obstacles beyond our control, such as force majeure, official intervention, strikes and other operating problems, delays affecting the delivery of goods demonstrably ordered in good time, and lockouts arising from industrial disputes, shall lead to a reasonable extension of the delivery period. The above-mentioned circumstances shall not be our responsibility even if they occur during an existing delay in delivery.
- Part deliveries shall be permissible.
- If we are in arrears with our delivery obligations, the following rules shall apply. We shall be liable to the buyer for compensation insofar as the delay is due to intent or gross negligence. In cases of simple negligence, the buyer may demand compensation for the damage suffered up to a maximum amount of 0.5% for each complete week of the delay up to a total of 5% of the value of that part of the total delivery which was not able to be used in time or for the intended purpose as a result of the delay. Moreover, such liability shall be limited to the foreseeable damage. The buyer’s right of withdrawal pursuant to Item IX shall remain unaffected.
IV. Transfer of risk and acceptance
- The risk in respect of the item delivered shall pass to the buyer upon shipment at the latest, and this shall also apply if only part deliveries are made or if we have rendered other services, e.g. delivery or cost of carriage.
- If shipment of the item delivered is delayed as a result of circumstances for which the buyer is responsible, the risk shall pass to the buyer on the day the goods are ready for shipment.
- Items delivered must be accepted, even if they have minor faults or if they are only part deliveries. The buyer’s rights under our liability for faults shall remain unaffected.
V. Delay in acceptance by buyer
If the buyer is in arrears with acceptance, we may – without prejudice to all other rights –
- refuse, after immediate invoicing, to perform our services until the buyer has paid in full the sum he owes,
- withdraw from the contract after setting a reasonable extension of deadline and, provided the statutory conditions are satisfied, demand compensation instead of the counter-consideration.
If in such a case we do not claim more than 15% of the contractual amount as compensation, no evidence shall be required. The buyer shall have the right to furnish evidence that no damage actually occurred or that such damage was substantially less than this agreed flat rate.
VI. Retention of title
- All items delivered shall remain our property until satisfaction in full of all claims – including subsidiary claims – arising from the mutual business relationship.
- If the items delivered are processed together with other goods not belonging to us, we shall acquire joint ownership in the new item on the basis of the ratio of the goods supplied by us to the other goods at the time of processing. The new item shall be deemed to be reserved goods for the purpose of this provision.
- The buyer shall not pledge or assign by way of security any items on which our retention of title is based. The buyer shall inform us without delay of any pledging or other impairment of our rights by third parties.
- The buyer shall be entitled to sell the goods in the context of proper business activities. The reserved goods may only be resold subject to retention of title. The entitlement to resell shall not apply in the event of suspension of payments or evident financial difficulties on the part of the buyer.
- The buyer’s right to possess the reserve goods shall cease immediately if he is in arrears of payment, if the reserved goods are not properly treated or in any other cases of infringement of the contract.
- If the buyer is in arrears with payment of the purchase price, we shall be entitled to withdraw from the contract.
- At our request, the buyer shall be obliged at all times to provide us with information on the whereabouts of the goods supplied subject to retention of title and about any claims arising from resale. The buyer shall provide us with any other information necessary to safeguard our property rights.
- If the buyer resells the goods, uses them to fulfil a contract for work or a contract for work and materials, or hires them out, he shall thereby assign to us any resulting future claims against his customers, together with all subsidiary claims, to safeguard all our claims. Until further notice, the buyer shall be authorised to collect such assigned claims. At our request the buyer shall notify the customer of such assignment, provide us with the information necessary to assert our rights against the customer, and hand over the necessary documents. The buyer shall bear all costs of collection and any interventions.
- If the value of the security exceeds our claims against the buyer under the current business relationship by more than 25%, we shall at the buyer’s request be obliged to release at our discretion securities to which we are entitled.
VII. Liability for faulty deliveries
In so far as we give a separate guarantee for our products, such guarantee shall be subject solely to our guarantee conditions. Outside our guarantee conditions we shall be liable in accordance with the statutory provisions for faults in the items supplied, except as otherwise provided in the following clauses.
- The goods shall be inspected by the buyer immediately after arrival at the place of destination. Any obvious faults shall be claimed within an exclusion period of seven days. If a fault becomes apparent later, it must be notified within seven days after discovery. Otherwise the goods shall be regarded as approved in spite of the fault. Upon discovery of any faults, use of the contractual item must be discontinued immediately if this is necessary to avoid further damage.
- Our liability for faults shall not apply to natural wear and tear, nor to damage occurring after the transfer of risk as a result of improper assembly or commissioning by the buyer or third parties, faulty or negligent treatment, excessive stress, unsuitable operating supplies, faulty construction work, unsuitable foundations all chemical, electrochemical or electrical influences.
- A guarantee obligation shall cease to exist if alterations or repairs to the contractual item are made by the buyer or a third party without our consent.
- If a guarantee claim exists, we shall be obliged to remedy the faulty parts or – at our discretion – replace the item delivered or the faulty part with a fault-free item or part.
- The buyer shall give us the necessary time and opportunity to make any repairs we deem necessary and to supply and install replacement parts. If he fails to do so, we shall be relieved of liability for such faults.
- If our deliveries are third-party products, we reserve the option to assign our guarantee claims against the subcontractor to the buyer in satisfaction of our guarantee obligations. In such a case, the buyer may only bring guarantee claims against us if it is demonstrably impossible or unreasonable for him to assert the assigned claims out of court. We shall on request provide the buyer with all information necessary for asserting the guarantee claims and will refund the expenses made in consultation with us, insofar as they are necessary for the purpose of remedying the faults.
- We may refuse to remedy faults without suffering any legal disadvantage if the buyer retains the payment owed on a scale that is out of proportion to the faults which have occurred.
- If the item delivered consists of second-hand goods, all guarantee claims shall be excluded.
- We shall only be liable for compensation in the event of deliberate or grossly negligent fault on our part. Where the damage takes the form of injury to life, limb or health, we shall also be liable in cases of simple negligence. For all other damage ,liability shall be limited to the foreseeable damage.
- The guarantee rights shall expire six months after the transfer of risk.
VIII. Buyer’s right of withdrawal
- If the performance incumbent upon us becomes impossible, the buyer shall be entitled to withdraw from the contract. If it is only partially impossible, the buyer shall only be entitled to withdraw if he has no interest in partial performance. If such impossibility occurs during a delay in acceptance or due to a fault on the part of the buyer, the latter shall remain obliged to make counter-consideration.
- If the performance is due and we do not render it at the time promised in the contract, the buyer may, provided he has unsuccessfully set us a reasonable period for performance or rectification, withdraw from the contract. This shall not apply if we are not responsible for the delay in performance.
IX. Own right of withdrawal due to unforeseen events
If any unforeseen events within the meaning of Item IV. 4. lead to substantial changes in the economic importance or the content of the performance or have substantial impacts on our operations, we shall be entitled to withdraw from the contract. If we wish to take advantage of this right of withdrawal, we shall inform the buyer without delay upon recognising the implications of the event, and this shall apply even if an extension of the delivery period was originally agreed with the buyer. In such a case, the buyer shall not be entitled to claim compensation.
- The event of total or partial impossibility for which we are responsible, we shall owe the buyer compensation in accordance with the statutory provisions, if we are to blame for deliberate intent. Claims for compensation shall be excluded in the case of impossibility due to mere negligence. The same shall apply to gross negligence, except where the blame rests with our legal representatives or senior executives.
- Moreover, we shall owe compensation to the buyer in accordance with the statutory provisions only if we are to blame for deliberate intent or gross negligence. Where the damage takes the form of injury to life, limb or health, we shall also be liable in cases of simple negligence. In other cases of damage, claims for compensation shall be excluded even in the event of gross negligence, except where the blame rests with our legal representatives or senior executives. Where we are obliged to pay compensation, our liability in the case of further damage shall be limited to the foreseeable damage.
XI. Exclusion of further claims
These terms and conditions of sale and delivery contain in full all rights of withdrawal, reduction of the purchase price or compensation to which the buyer may be entitled under the contractual relationship. If these terms and conditions of sale and delivery do not grant rights, such rights shall be excluded except where mandatory statutory provisions prohibit such exclusion.
XII. Place of performance and place of jurisdiction
- The place of performance for all reciprocal obligations shall be Harsefeld. We may bring actions against the buyer before the competent local courts for Harsefeld.
- Hamburg shall also be a venue for our actions against the buyer. The sole place of jurisdiction for actions against us by the buyer shall be Hamburg.
- German law shall be deemed to be agreed, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
XIII. Final provisions
- In relation to consumers, the existing General Terms and Conditions of Business shall apply with the following modifications:
- In Item III. 3. an interest rate of 5% above the base rate shall be agreed.
- The circumstances listed in Item IV. 4. shall be our responsibility even if they occur during an existing delay in delivery.
- In Item IV. 6. the liability in the case of gross negligence shall not be limited to the foreseeable damage.
- Items VII. 5., 6 and VIII. 1. to 10. shall not apply.
- If the item delivered consists of second-hand goods, the claims shall expire after one year.
- Under Item X. we cannot withdraw from the contract if the events mentioned in Item IV. 4. only lead to a temporary obstacle to performance.
- Under Item XI. 1. it shall be deemed to be agreed that liability also exists in the case of gross negligence and that in cases of mere negligence the liability shall be limited to the foreseeable damage.
- Under Item XI. 2. it shall be deemed to be agreed that liability also exists in the case of gross negligence and that only liability in cases of mere negligence shall be limited to the foreseeable damage.
- If individual provisions of these Terms and Conditions of Sale and Delivery are invalid, this shall not affect the legal validity of the remaining provisions.