General sales and delivery conditions
of the company
MALUCHA Stanzautomaten Vertrieb und Service GmbH,
Max-Eyth-Straße 5, D-75428 Illingen
-hereafter called “MALUCHA”
§ 1 Scope of Application-General
1. The following Sales and Delivery Terms will apply to all present and future business relations.
2. The Sales and Delivery Terms below will apply exclusively; any terms by the customer contrary to or deviating from or supplementary to the present Sales and Delivery Terms will not become part of the contract even where the parties are aware of them unless it was expressly agreed on in writing that they are to apply. The following Sales and Delivery Terms will apply even where delivery is made unconditionally to the customer despite knowledge of the contrary or deviating Sales and Delivery Terms.
3. All agreements made regarding the performance of the present contract have been set out in writing in the present contract.
4. The present Sales and Delivery Terms are only valid in relation to entrepreneurs. Entrepreneurs are defined in the present business terms as natural or legal entities or legally viable partnerships exercising their commercial or self-employed activity upon conclusion of the legal transaction.
§ 2 Offer-Offer Documents Conclusion of Contract
1. Where the customer’s order qualifies as an offer as defined in § 145 BGB (Civil Code), we can accept it within two weeks. Our offers are non-binding and subject to change unless otherwise set out in the order confirmation. The goods will be subject to prior sale.
2. Data such as measures, weights and spatial perimeters, illustrations, features, type designations, makes and specifications have been made to the best of knowledge and without binding character and do not represent any guaranteed feature.
3. Delivery only comprises the items expressly specified in our order confirmation. We reserve the ownership and copyrights to illustrations, drawings, calculations and other documents. This also applies to written documents classified as “confidential”. The customer will require our express written consent before disclosing them to third parties.
4. Upon ordering the goods the customer declares with binding effect that he intends to acquire the ordered goods. The customer’s order will not be regarded as having been accepted by us before it has been confirmed by us. Changes or ancillary agreements made verbally and over the telephone must be in writing.
5. Where the customer orders the goods electronically we will immediately confirm receipt of the order. The receipt confirmation does not constitute a binding acceptance of the order. There will only be a binding acceptance of the order through our written order confirmation.
Conclusion of the contract will be subject to the proviso of the proper and punctual supply of goods to us by our own suppliers. This will not apply where we are not responsible for the failure to supply, in particular in the case of conclusion of a hedging transaction with our supplier. The customer will be informed immediately of the non-availability of the good or service. Any compensation will be returned immediately.
§ 3 Prices- Payment Terms
1. Unless otherwise specified in the order confirmation, the prices are “ex works”. The price does not include costs for shipping, customs, postage, packaging, insurance and other costs; they will be charged separately.
2. Value added tax at the statutory rate is not included in the price either; it will be charged separately on the invoice at the statutory rate at the invoice date.
3. Deduction of discount will require a separate written agreement. Checks and bills of exchange will be accepted for payment purposes only; the customer will bear the costs of discounting and collection.
4. Unless otherwise set out in the order confirmation the purchase price will be due for payment net within 10 days after the date of the invoice. After this date, the customer will be regarded as being in arrears with payment.
5. During the period of delay the customer will be obligated to pay interest of 8 per cent above the respective basic interest rate of the German Federal Reserve on the outstanding claim. We reserve the right to prove and claim greater default damage from the customer. However the customer has the right to prove that no or only minor damage was incurred by delayed payment.
6. The customer will only be entitled to rights of set off where his counterclaims have been declared res judicata, are uncontested or have been recognized. The customer has the right to exercise a right of retention where his counterclaim is based on the same contract.
§ 4 Delivery- Delivery Period
1. Shipping will be at the account and risk of the customer in every case. MALUCHA has fulfilled its obligation by handing over the item to the shipping agent, carrier or other person designated for shipping (duty to dispatch goods).
2. The settlement of all details regarding performance is the prerequisite for the start of the delivery period specified by us. The prerequisite for compliance with our delivery duty is the timely and proper compliance of the customer’s duty. We reserve the right to the plea of non-performance of the contract.
3. The consignment will be insured by us against theft, breakage, damage during transport, fire and water damage or other insurable risks at the customer’s request.
4. Where the customer delays acceptance or breaches other duties of cooperation we will have the right to demand compensation of the damage thereby incurred to us, including any additional expenses. We reserve the right to further-reaching claims.
5. Where the prerequisites set out in paragraph 4 are given, the risk of accidental loss or accidental deterioration of the item will pass to the customer at the time when the latter became delayed in accepting the item or fulfilling his obligation.
6. We will further be liable in accordance with the statutory provisions where the delayed delivery is based on a willful or gross negligent breach of contract for which we are responsible. Where the delayed delivery is based on a minor negligent breach of contract attributable to us our damage compensation liability will be limited to foreseeable, typical damage.
§ 5 Passing of Risk- Packaging Costs
1. Unless otherwise set out in the order confirmation, delivery will be ex works.
2. Transport and any other packaging according to the Packaging Regulations cannot be returned. The customer will be obligated to take care of the disposal of the packaging at his own costs.
3. Where the customer so requests, shipment will be covered by a transport insurance policy; the customer will bear the costs thereby incurred.
4. Risk of accidental loss and accidental deterioration of the goods will pass to the customer upon handover, in the case of sale by dispatch upon delivery of the item to the shipping agent, carrier or other person or body designated for shipping.
§ 6 Retention of Title
1. We reserve ownership of the Item until the complete compensation of all obligations from the business relationship.
2. The processing or refinement of machines, accessories, etc. through foundation or a similar technique with the ground, building sections or in any other way with other items is always in our name and for our account. Where processing is with items not belonging to us we acquire the co-ownership of the new item on the basis of the ratio of the value of the goods delivered by us to other processed items. The same will apply where the goods are mixed with other items not belonging to us.
In order to secure our claims against him, the customer is also assigning claims against a third party incurred to him through combination of the item with the ground.
We will be obligated to release the securities we are entitled to at the customer’s request where the realizable value of our securities exceeds the claims being secured by more than 10%; we will have the right to choose the securities to be released.
3. In the case of breach of contract by the customer, in particular delayed payment, we will have the right to take back the item. In taking back the item we are not rescinding the contract unless we expressly declared this. In pledging the item there is always a rescission of the contract. After the return of the item we are authorized to use it; the proceeds are to be deducted from the customer’s liabilities, minus adequate costs of use.
4. The customer is obligated to treat the item with care; in particular he is obligated to insure it adequately at replacement value against fire, water and theft damage. Where maintenance and inspection work is necessary it must be performed by the customer in good time at his costs.
5. In the case of pledging or other intervention by third parties the customer must inform us immediately so that we can file a complaint in accordance with § 771 ZPO. Where the third party is not capable of compensating the court and out-of-court costs of a lawsuit as set out in § 771 ZPO, the customer will be liable for our loss.
6. The customer has the right to resell the item as part of the regular business procedure. In this context the customer is already assigning all claims against his client or a third party to the invoice amount incurred to him through resale, regardless of whether the item was sold without processing or after processing. We accept the assignment. After the assignment the customer will be authorized to collect the claim. Our authorization to collect the claim ourselves will remain unaffected. However, we will be obligated not to collect the claim as long as the customer complies with his payment duties from the proceeds earned, is not in arrears with payment and in particular where no proceedings for instatement of bankruptcy, conciliation or insolvency have been filed or there is no cessation of payment. However, where this is the case we may demand that the customer disclose the claims assigned to us and their debtors, provide all information necessary for collection, submit all relevant documents and inform the debtors (third parties) of the assignment
§ 7 Liability for Defects (second-hand machines)
Second-hand machines are sold as inspected, excluding any guarantee. The customer has the right to view and inspect the purchase item prior to conclusion of the contract. Where he exercises the right only partially or not at all he recognizes the condition of the goods unconditionally as being in compliance with the contract.
§ 8 Liability for Defects (new machines)
1. The prerequisite for the customer’s guarantee rights is that he has duly complied with his inspection- and reporting duties as set out in § 377, 378 HGB (Commercial Code).
2. In the case of defects of new machines we will render contractual performance as we choose either through rectification or replacement (make-up performance).
3. Where the make-up performance fails the customer can either demand that the purchase price be reduced (price reduction) or rescind the contract. In the case of a minor breach of contract, in particular in the case of minor defects, the customer will not have a right of rescission.
4. The customer has the right to inspect the delivered item with regard to visible defects which would be easily visible to an average customer. Visible defects include the lack of manuals as well as significant, easily visible damage of the goods. Moreover, this includes cases in which a different item or lesser quantity is delivered. Such visible defects are to be reported to us in writing within two weeks after delivery; this failing, assertion of the guarantee rights will be excluded.
Defects which become visible later must be reported by the user within two weeks after detection, In the case of a breach of the inspection and reporting duty the goods will be regarded as having been inspected in spite of the defect.
5. The customer has the full burden of proof for proving all prerequisites for the claim, in particular the defect itself, the time of detection of the claim and for the punctuality of the defect report.
6. Where after failed make-up performance the customer opts to rescind the contract in accordance with para.3 on grounds of a material or legal defect he will not be entitled to damage compensation.
7. The guarantee period is one year as from delivery of the item. This will not apply where the customer did not report the defect to us in good time in accordance with para. 4.
8. Only the manufacturer’s product specification is agreed on as guaranteed features of the goods. In contrast, public statements, acclaim, or advertisement by the manufacturer does not constitute a contractual specification of the features of the item.
9. The customer will not receive any guarantees from us. Manufacturer’s guarantees will remain unaffected.
10. Where, even where there is no defect, we exceptionally acquiesce out of courtesy to a customer’s request for rescission of the contract, we are to be compensated by the customer for the costs, in particular transport costs and lost earnings incurred in this context.
§ 9 Liability for Defects/Statute of Limitations
1. Damage compensation claims are excluded where they were incurred by willful or gross negligent conduct by MALUCHA. An exception to this is personal injury and/or damage based on breach of a cardinal contractual duty.
2. Claims by the customer based on a defect will expire after one year after delivery of the Item. This will not apply in the case of
a) willfulness and/or intent
b) injury to life, limb or health
§ 10 Final Provisions
1. The laws of the Federal Republic of Germany will apply exclusively. The provisions of the UN Sales Convention will not apply.
2. Where the customer is a businessman, legal entity or entity under public law or an estate under public law the place of jurisdiction and performance for all disputes arising from the present contract falling under the jurisdiction of the local courts is the Pforzheim Municipal Court and Karlsruhe Higher Regional Court for all disputes falling under the jurisdiction of higher regional courts. This applies equally to lawsuits for bills of exchange and checks where the customer lacks a general place of jurisdiction in Germany or his place of residence or habitual abode is unknown at the time the lawsuit is filed. We also have the right to sue the customer at the court at his place of residence.
3. Amendments of the present contract must be in writing. This applies to the writing requirement itself.
4. Should individual terms of the present contract with the customer including the present General Sales and Delivery Terms be or become invalid this will not affect the validity of the remaining terms. The wholly or partially invalid term is to be replaced by a term whose economic purpose comes as close as possible to that of the original invalid term; until creation of the new term optional law will apply.