General terms of sale, delivery and payment
1. General
1.1 All offers shall be subject to change without notice. Order shall be non-binding unless confirmed or completed by us through delivering the goods to you. Unless confirmed in writing, no ancillary verbal understandings and agreements deviating from the order and these terms of sale shall be in effect. This shall apply, in particular, to the applicability of any terms of purchase established by the purchaser.
1.2 When using the delivered goods, the purchaser shall be required to observe any applicable third-party property rights.
2. Prices
2.1 Prices shall be calculated in the currency designated in the order plus the VAT at the prevailing rate.
2.2 Deliveries made within 4 months of conclusion of contract shall be subject to the prices specified in the order. If the seller’s original costs (wages or similar costs) or the original costs of the supplier change within this period, the delivery rates shall increase accordingly if the purchaser is a merchant and the contract is concluded with a purchaser associated with a commercial business.
If delivery is made to a private end consumer, the four-month price guarantee set forth in sentence 1 shall remain in effect.
2.3 If delivery is made later than four months after the conclusion of contract (shall also apply to continuous delivery contracts with terms stretching over several years), the list prices valid on the date of delivery shall apply.
2.4 Statutory raises in VAT can be passed on among merchants even before any price maintenance period expires.
2.5 Unless agreed upon otherwise, prices shall apply ex works and include loading at the factory, but no packaging. Packaging shall be billed at cost and be non-returnable.
3. Delivery
3.1 The seller’s obligation to deliver shall be suspended as long as the purchaser is in arrears with a commitment.
3.2 In case of culpable infringement of the agreed delivery period, the seller shall not be in default of delivery until a reasonable grace period has elapsed.
4. Terms of payment
4.1 All invoices issued by the seller shall be due for payment without deductions within 14 days of date of invoice and payable strictly net cash.
4.2 A cash discount of 2% of the purchase price shall be granted on all payments made immediately upon delivery.
4.3 If the period allowed for payment as set forth in item 4.1 is exceeded, the seller shall – without prejudice to other claims for damages – charge interest at a rate in line with standard banking practice, however, of no less than 2%above the prevailing German Federal Bank’s discount rate p.a.
4.4 If the purchaser defaults on a payment and should any doubts arise as to the solvency or financial standing of the purchaser, the seller shall – without prejudice to his other rights – be entitled to demand collateral or payments in advancefor outstanding shipments and call due all accounts receivable not yet due from the entire business relationship.
4.5 Only undisputed claims or claims stated to be non-appealable shall entitle thepurchaser to offset or withholding.
5. Retention of title
5.1 The sold goods shall remain the property of the seller until all claims arising from the business relationship to the buyer are paid in full. The purchaser may dispose of the purchased goods as part of a regular business transaction.
5.2 Retention of title shall also apply to products resulting from processing, blending or combining the goods supplied by the seller and amount to the full value of these goods. Moreover, the seller shall be deemed the manufacturer of these goods. If a third party retains title in case the seller’s goods are processed or blended or combined with the goods of the third party, the seller shall acquire co-ownership in proportion to the invoice amounts attached to these processed goods.
5.3 The purchaser shall hereby assign to the seller any claims against third parties arising from the resale in order to secure the seller’s property. These claims shall be equal to the overall sales value or the amount that reflects the seller’s share as a co-owner (see item 5.2). The purchaser shall be authorised to collect these amounts for the seller’s account until thecancellation or completion of the purchaser’s payments to the seller. Neither shall the purchaser be allowed to assign these claims, not even to collect claims on the way of factoring, unless the obligation of the factor is being justified to pay the counterclaims in the amount of the claimed rate of the seller directly to the seller when there are still claims of the seller against the purchaser.
5.4 Exercising the right to possession shall not constitute rescission of the contract.
5.5 Until payment has been made in full, the goods for which ownership is reserved and the claims arising from this retention of title can neither be pledged nor transferred or assigned by way of security to third parties.
5.6 If the value of the securities exceeds the claims of the seller by more than 20 %,the seller shall – upon request of the purchaser – release the securities as determined by the seller at his own discretion.
6. Terms of sale
6.1 All cancellations of placed orders shall require the written consent of the seller. The seller shall be reimbursed for any costs and expenses, including agent’s commissions, as well as any loss of profit accrued prior to the time of the cancellation.
6.2 Any design changes and slight colour deviations on the goods shall remain reserved.
6.3 If it has been proven that the seller is responsible for delays in delivery or the impossibility or inability to supply the goods, the purchaser shall have the right to withdraw from the contract or demand damages. The latter shall be limited to the amount billed on the invoice for the quantity of the goods that have been directly affected by the damaging event.
6.4 The seller shall be entitled to make partial deliveries. If the seller is responsible for delays, impossibility or inability or partial services yet to be rendered, the purchaser shall not be allowed to withdraw from the contract unless the partial services already rendered are no longer of any interest to him.
6.5 The purchaser shall commit for the duration of his lease to purchase only the votive lights supplied by the seller for use on the offering tables which the seller has supplied to the purchaser by way of leasing, instalment purchase or exchange. If the lease is terminated, the offering table(s) shall be acquired by the customer at the list price applicable at the time of termination. Returning used offering tables shall not be permitted.
7. Force majeure
7.1 Cases of force majeure (as such are considered circumstances and occurrences that cannot be prevented by the diligence of proper business management) shall suspend the parties’ contractual obligations for the time of the interruption and to the extent of its effect. If delays resulting from this exceed the period of eight weeks, then both parties to the contract shall be entitled to withdraw from the contract regarding the affected scope of services. Any further claims shall be excluded.
8. Shipping
8.1 The goods shall be loaded and shipped uninsured at the consignee’s risk. Any transport damage must be reported to the relevant authority without delay.
8.2 The seller shall endeavour to accommodate the purchaser’s requests and interests with regard to the mode ofshipment and the shipping route; any additional costs accrued by the seller in this endeavour – including costs in case of agreed carriage-free delivery – shall be borne by the purchaser.
9. Warranty
9.1 While all specifications regarding the fitness for use, workmanship or application of the supplied goods, all technical advice or other information are provided to the best of the seller’s knowledge, the purchaser shall not be released from his obligation to test and inspect the goods.
9.2 Immediately upon receipt of the goods delivered the purchaser shall proceed to check for any defects of faults as to quantity, quality and fitness for use (where reasonable, also by way of test processing), otherwise such goods will be deemed accepted and approved.
9.3 Notification of defects and complaints can be considered only if lodged in writing and supported by evidence within 8 days of receipt of goods – or for hidden defects, after they have been discovered, but no later than 6 months of receipt of goods. If the notice of defect is received by the seller later than this period, the purchaser shall have no rights whatsoever with regard to the obvious defects he reported.
9.4 The seller’s obligation for warranty shall be limited – at his own discretion – to reworking, compensation delivery, conversion or abatement. This not being successful shall authorise the customer to – at his own discretion – demand a reduction of the purchase price or withdraw from the contract.
10. Compensation for damages
10.1 As far as permitted by law, the seller’s duty to compensate for damages, for any legal reason whatsoever, shall be limited to the invoice value of the quantity of goods directly involved in the event causing the damage. This provision shall not apply if the seller is liable to the full extent of the law in cases of intent or gross negligence.
11. Place of performance, jurisdiction and applicable law
11.1 The places of implementation for delivery and payment shall be the respective point of departure and the seller’s principal office, respectively.
11.2 The parties to the contract agree thatthe agreement shall be governed exclusively by German law.
11.3 The place of jurisdiction – if the contract is concluded between merchants – shall be Munich. The same place of jurisdiction shall apply
a) if the purchaser has no general place of jurisdiction in the Federal Republic of Germany
b) or if the purchaser, after conclusion of contract, changes his domicile or place of habitual residence to outside the Federal Republic of Germany or if the purchaser’s domicile or habitual residence is unknown at the time the action is filed.
Walter Zimmermann GmbH, Auinger Weg 5, D-82229 Seefeld-Hechendorf
