Current
GTC
General Standard Terms and Conditions of the company dreer CNC-Holzbearbeitung
GmbH & Co. KG · Kirchdorfer Straße 83 ·
86825 Bad Wörishofen, hereinafter referred to as dreer
§
1 - Formation of the agreement
1.
The present and the follow-up business transactions realized with the customer
shall be exclusively based on the present Terms and Conditions. Any differing
Terms and Conditions of the customer shall not be valid, unless they have been
individually agreed upon. Any differing Terms and Conditions of purchase of the
customer shall not be valid even if they are contained in a confirmation letter
of the purchaser following our order confirmation and we do not object to it.
Our silence shall mean refusal. Our Terms and Conditions shall be considered as
accepted at the latest upon the receipt of the goods by the customer, in particular
in case the order was placed by telephone. Any differing stipulations individually
agreed upon need to be done in writing. 2.
Delivery contracts shall be entered into by our written order confirmation following
a written order or delivering the goods. Any oral, in particular any additional
agreements made by telephone, as well as any agreements concerning the execution
of the order, shall require our separate written confirmation in order to be valid.
3.
The documents belonging to the offer such as illustrations, drawings, weights
and dimensions shall be only approximations, unless they have been expressly qualified
as binding. Especially as far as dimensions of wood as a natural product are concerned,
it is agreed upon that even exactly indicated dimensions are subject to the usual
tolerances and variations resulting from the quality of wood as a natural product.
We reserve the right of ownership and the copyright of cost estimates, drawings
and any other documents; they must not be made available to third parties.
§
2 - Delivery
1.
The scope of delivery shall be determined by our written confirmation of order.
2. Unless the contract item is considerably modified and if the customer can be
expected to accept the modifications, we reserve the right to carry out, during
the term of delivery, changes of the construction or of the form resulting from
technical improvements or prescriptions of the legislator.
3. In case we receive subsequently indications of the customer's irregular payment
transactions, of the filing for or the opening of a moratorium or insolvency proceedings
or of any other deterioration of his economic situation, we shall be entitled
to carry out the delivery only against the payment of the purchase price in advance
or against cash on delivery.
4. In case the receipt of the goods is refused (also in case they are delivered
against cash on delivery), any transport and postage charges as well as any additional
charges shall be borne by the customer. Costs of storage and dispatching of ready
shipments shall be invoiced at a general rate of 0.5 % of the value for each commenced
month in case the customer delays the receipt. The customer shall be free to give
evidence of the fact that no damage incurred or only to an extent smaller than
the aforementioned lumpsum. We shall be free to give evidence of the fact that
the damage exceeds the above mentiond lumpsum.
5. The scope of delivery and the contract items may result - beside paragraph
1 - from additional specifications to the extent they became a subject matter
of the contractual agreement.
6. We reserve the right to provide a performance of equivalent quality and price.
We reserve as well the right not to provide the promised performance in case of
its non-availability.
§
3 - Delivery time and receipt
1. Any delivery times shall be non-binding. To the extent we are correctly and
timely supplied, however, we shall observe the delivery times as far as possible.
In the event of problems as to the availability of the goods or as to their
timely availability, we shall be obliged to notify the customer immediately. In
case of a delay exceeding six weeks, both contracting parties shall be entitled
to withdraw from the agreement by notifying the other party in writing. In this
case, performances that have already been granted have to be reimbursed. There
shall be no further claims, in particular no claims for damages. To the extent
the customer's order contains a fixed deadline for the delivery and if we mentioned
only an approximate date or a calendar week in our order confirmation, this period
shall be considered as the agreed delivery date, unless the customer objects to
that within one week after receipt of our order confirmation.
2. The time of delivery shall begin with the dispatching of the order confirmation,
but not before the submission of the documents, approvals, releases to be possibly
provided by the customer and not before the receipt of an agreed down payment.
3. The time of delivery shall be considered as complied with, if until its expiration
the readiness for shipment of the goods has been notified or if the contract item
left our premises. 4.
The delivery time shall be extended in case of measures in the frame of labour
disputes, in particular strikes and lock-outs and upon the occurence of unanticipated
hindrances beyond our control, such as interruption of service, delays in the
delivery of essential materials, to the extent evidence can be given of such hindrances'
having a considerable impact on the delivery of the contract item. The same shall
apply in case these circumstances are affecting our subcontractors. The delivery
time shall be extended according to the duration of such measures and hindrances.
We shall not be answerable for the aforementioned circumstances either in case
they arise during a delay that is already existing. In important cases, we shall
notify the customer of the beginning and the end of such hindrances as soon as
possible. 5.
The observance of the delivery time shall be based on the customer's fulfilling
his contractual obligations, also as far as other business transactions concluded
with us are concerned.
§
4 - Packaging and shipment
1. The shipment of the goods (and of any possible return shipments) shall be realized
at the customer's cost and risk, unless otherwise provided. This shall apply as
well to our delivering the goods with our own vehicles. In each case, we shall
be entitled to invoice supply costs up to the amount of the charges that would
incur in case another kind of shipment was choosen.
2. The choice of the type of shipment shall be effected at our discretion. We
do not assume any liability as to the cheapest way of shipment.
3. We reserve the right to execute the shipment not from the place of fulfillment
according to § 12 para. 1, but from another place of our choice.
4. Packaging costs shall be invoiced by us separately.
§
5- Prices
1. The prices are to be understood ex manufacturer's works, without cash discount
and without any other kind of discount. The value-added tax in its respectively
legal amount shall be added to the prices.
2. The prices of our price lists and catalogues shall be non-binding. We shall
always invoice the prices that are valid on the date of delivery. We shall in
particular be entitled to price adjustments in case the prices of the raw materials
we need and the related additional charges such as import duties etc. increase.
In the event the price increase exceeds 25% of the last valid price, the customer
shall be entitled to withdraw from the agreement.
3. To the extent our prices and invoices show cost of tools as a price component,
the payment of these items shall not entitle the customer to any rights of the
tools. These tools are just tools provided for the supply of the customer and
the respective price components are parts of the overhead costs related to the
customer or the product falling to the customer and invoiced to him. To the extent
the customer's name is mentioned on the tools, this is just meant to simplify
the attribution of the means of production to the production for the respective
customer and does not create the customer's right of the tools, in particular
no right of property. Nor is a constructive possession being created.
§
6- Reservation of ownership
1. We reserve the right of ownership of the goods supplied with
regard to any debt claims resulting from the present and future
business relationship with the customer (current account reservation).
The integration of individual debt claims into a current invoice
and their balancing out and their acknowledgement do not annul the
reservation of ownership.
2. We shall be entitled to take our conditional commodities from the customer
during his usual business hours in the event he does not comply with his obligations
towards us, in particular in case his payments are delayed, and to enter for this
purpose any storage and office rooms of the customer. This act of taking away
does not constitute unlawful interference with possession.
3. In case our goods are processed or combined with other products, we shall acquire
the joint ownership of the items resulting from processing or combination, and
the possessor shall keep it in custody free of charge with the due diligence of
a prudent businessman. Our part in the joint ownership shall be defined according
to the fraction corresponding to the value of our goods in proportion to the value
of the item that has been created.
In case the purchaser acquires by the combination
of the products the sole ownership, he assigns to us right now the joint ownership
according to the proportion of the value of the conditional commodities compared
to the value of the item that has been created. As to the resale, the below mentioned
para. 4 shall apply; the debt claim resulting from the resale or from any other
legal title is assigned to us right now in the amount of the above mentioned fraction.
4. In case the customer sells the conditional commodities alone or together with
other goods that do not belong to us, the customer right now assigns to us the
debt claim resulting from the resale in the amount of the value of the conditional
commodities with any ancillary rights and priority above the rest.
We accept
the assignment. The value of the conditional commodities shall be our invoice
amount.
5.
The customer shall be entitled to resale, use and to install the conditional commodities
only within his usual and due course of business. The customer shall not be entitled
to dispose of the conditional commodities in any other way, and shall in particular
not be entitled to pledging and assigning them as security. In case of payment
by cheque or bill of exchange, the reservation of ownership shall extinguish only
upon the encashment of the bill of exchange / cheque and the crediting of the
invoice amount.
6. The authorization to resale, use or install the conditional commodities shall
not be valid if the customer concludes an agreement according to the conditions
of a third party that do not entitle him to assign to us debt claims to third
parties.
7. Subject to revocation, the customer entitles us to collect the assigned debt
claims. We shall not make use of our authorization to collect as long as the customer
complies with his duties to pay. Upon our request, the customer shall give us
any required information as to the stock of the goods that are our property and
the debt claims and rights assigned to us and he shall inform his clients about
the assignment. We shall be entitled, but not obliged, to inform the customer's
clients at any time about the assignment and to assert assigned debt claims in
our own name. The enforcement of the assigned rights shall be done at the customer's
expenses and risk; however, we shall not be obliged to do so and the customer
shall not be able to hold us liable for that.
8. The customer shall notify us immediately of any third-party compulsory execution
measures as to the conditional commodities or the assigned debt claims by submitting
to us the documents that are required for objection.
9. We undertake to disclose the guarantees we are entitled to upon the customer's
request to the extent the value of the debt claims they are meant to guarantee,
in case they have not been settled yet, exceed more than 20 %.
10. The pledging and assigning of the conditional commodities as security or of
the rights we are entitled to as well as any other dispositions of the customer
affecting our rights shall not be admissible.
11. In the event a third party is getting access to the conditional commodities,
to the debt claims assigned by us or the rights that have been created according
to the preceding paragraphs, the customer shall make it aware of our ownership
and notify us immediately by submitting any documents required for intervention.
The
taking back of the conditional commodities and their pledging by us shall not
constitute a withdrawal from the agreement; the said measures are only meant to
guarantee our claims.
We do not agree to the resale of the conditional commodities
in case judicial conciliation or insolvency proceedings are opened.
§
7- Payments
1. Unless otherwise agreed upon, invoices have to be settled at the latest 30
days after the invoice date.
2. Any payments have to be made to our location, free of charge. To the extent
additional charges are charged to us by the bank or any other institutes on the
occasion of the customer's payment, they shall be borne by the customer and we
shall charge them to him.
3. The payment by letter of exchange shall be excluded, unless otherwise expressly
agreed upon in writing. The exceptional acceptance of letters of exchange shall
be considered as a deferment of the purchase price only to the extent no negative
changes occur or become known as far as the economic situation of the customer
is concerned. The payment by letter of exchange shall not be considered as a cash
payment. The discount charges and any other charges related to the letter of exchange
shall be paid immediately by the customer; in any case upon submission of the
letter of exchange. We shall not assume any liability as to the timely presentation,
notice of dishonor and / or charges for returned letters of exchange. The acceptance
of cheques shall not be done in place of performance, but on account of performance.
4. We shall invoice interests on defaulted payment at 8 % p.a. above the base
interest rate. They can be calculated at a higher or lower percentage, in case
we can give evidence of a burden at a higher interest rate or if the customer
can give evidence of a smaller burden.
5. The customer shall not be entitled to retain payments on account of any of
his counter-claims that have not been recognized by us or that have not been validly
determined, and shall not be entitled to balance them against such counter-claims.
6. In the event the terms of payment are not observed or if we become aware of
facts that would suggest that our claims for the purchase price are endangered
due to the customer's liquidity problems, we shall be entitled to carry out further
deliveries only against advance payment or the giving of securites.
§
8 - Passage of risk
In any case, the risk shall pass on to the customer when the consignment leaves
our premises or at the moment the shipment is delayed, the goods being ready for
shipment, upon the customer's request. We shall not cover any transport damages
or the loss of the goods. To the extent claims can be asserted towards liable
third parties and/or insurers (insurances only upon request of the customer and
at his expenses), the customer's claim towards us shall be limited to the assignment
of the claim to him.
§
9 - Warranty
1. To the extent we did not produce ourselves the goods delivered to the customer,
but bought them from a subcontractor, we shall assign to the customer any warranty
claims towards the subcontractor. The customer shall be obliged to assert the
assigned claims at our subcontractor. To the extent the claims cannot be enforced
out-of-court, our warranties shall be governed by the provisions of the below
mentioned paragraph 2.
2. The quality of the supplied goods shall be that of the product description
or the merchantable quality. Declarations as to the quality shall not represent
a guarantee, unless expressly designated as such. In general, no guarantee shall
be assumed beside the warranty according to the present provisions and pursuant
to law.
The customer shall check the goods received immediately for defects
and shall examine their quality. Defects have to be notified to us in writing
within one week after delivery. Independently, the customer's right to lodge a
complaint shall expire, in case he already changed, processed or combined the
goods bought from us already before the expiration of the aforementioned period.
Any further legal provisions shall remain unaffected. Hidden defects have to be
notified to us in writing at the latest within one week after their discovery.
In the event a defect is discovered, the customer shall provide us with the
goods he complains about at the latest one week after he sent his written complaint
in order to enable us to examine them. In case he culpably refuses to do so, any
claims shall be cancelled.
The aforementioned duty to notify shall apply as
well in case the buyer notified the customer of defects of the goods or parts
supplied by us.
If the customer's complaint is justified, he shall be entitled
to ask for rework or a substitute delivery as an additional performance. We shall
be entitled to refuse the kind of additional performance the customer chose in
case it can be realized only with unreasonable costs or if the kind of additional
performance the customer chose is more expensive than the other one, but does
not lead to considerable inconvenience for the customer compared to the other
possibility of additional performance. In the event of additional performance
by rework, our right to rework shall be limited to three trials as regards one
and the same defect and to a total of six trials with regard to the whole number
of defects.
In case the purchased item has to be brought, after the execution
of the additional performance, to another place than the initial place of delivery,
the additional costs incurred shall be borne by the customer. The same shall apply
in case the customer returns to us the defective item from a place other than
his location / the place of delivery for the purpose of additional performance.
The customer shall be entitled to assert any further warranty claims only
after having agreed with us a reasonable period for the execution of the rework
or the substitute delivery and in case this period expired without results.
In
case the defect is of insignificant importance only, the customer's right to withdraw
from the agreement shall be excluded. The right of a reduction of the purchase
price shall be unaffected.
3.
There shall be no warranties in case
a)
the defect has to be attributed to improper use, operation, service or insufficient
maintenance, erroneous assembly and putting into service or to violent effects,
to any other external influences or to storage or transport related circumstances
to the extent we are not answerable for,
b) the defect has been caused by an improper modification of the contract item,
in particular the use of inappropriate, especially third-party spare parts, and
if the damage is causally connected to the modification or use,
c) the defect is due to the characteristics of wood as a natural product and the
natural changes of the raw state resulting thereof both during and after its processing,
even in case such effects become manifest only in the final product,
d) the defect has been caused by the quality or defects of partial products or
components of our products (e.g. HPL), that the customer defined to us and that
he bindingly asked us to use. Natural
wear and tear and damages that can be attributed to negligent or improper manipulation
or treatment shall be excluded from warranty.
4. The goods complained about have to be sent to us together with the original
delivery note or a photocopy of it. In the frame of negotiations about complaints
we do not renounce to the objection that the complaint was not lodged in time
or not in the due manner.
5.
The customer shall be entitled to withhold payments by invoking claims resulting
from a defect only to the extent that this is reasonable according to good faith,
taking into consideration the defect he complained about, i. e., up to a maximum
of the partial amount of the purchase price of the item that he exactly qualified
to be defective.
6.
In case the customer or a third party executes improper rework, we shall assume
no liability as to the consequences resulting thereof. The same shall apply to
modifications of the contract item that are carried out without our previous written
approval.
7.
In addition, paragraph 10 shall apply to claims for damages.
8.
To the extent the scope of delivery contains software or any other goods or rights
that might be protected by copyright, the customer shall be granted a non-exclusive
right to use the supplied software including the related documentations.
The
customer shall be entitled to use and process the software only in the extent
legally admissible and shall not remove the manufacturer's data and shall not
modify it without our previous written approval.
The customer shall not be
entitled to assign the software or its rights to a third party - e.g., by license
- without our previous written approval.
9.
The warranty period for material defects shall be one year as of the delivery
of the goods. This shall not apply in case we are liable due to intention or to
the fraudulent concealment of a defect that is known to us; in these cases, we
shall be liable according to the legal stipulations. A shorter period shall apply
if the defect is related to a product the wear and tear of which regularly and
typically becomes manifest after a period of less than one year.
10.
The customer shall not be entitled to use advertising measures that have not been
approved by us in the frame of the distribution of the goods produced by us. In
case clients of the customer assert warranty claims based on the non-conformity
of the goods bought as compared to the advertisement of the distribution partners,
the latter shall not be entitled to deduce claims towards us from this circumstance.
§
10 - Liability
1. 1. We shall be liable for the customer's damages independently of the legal
argument, in particular due to non-compliance with duties under the agreement
and due to unauthorized acts, only in the case of intention and gross negligence,
unless a)
liability is provided for the injury of life, the body or of health,
b)
liability is provided for the con-compliance with essential contractual duties.
2.
The claim for damages due to the non-compliance with essential contractual duties,
however, shall be limited to the damages that are regulary predictable and typical
for the agreement.
3. The same shall apply to cases of liability for defects.
4. The restrictions of liability mentioned in §§ 9 and 10 shall apply
as well with regard to the possible liability due to erroneous advice, incorrect
assembly instructions and any other non-compliance with accessory obligations.
5. Any further claims for damages shall be excluded.
6. § 9 para. 9 shall apply accordingly to the prescription of the aforementioned
claims.
§
11 - Offset / right of retention
1. The customer shall be entitled to set off counter-claims against our debt claims
only in case the counter-claims are uncontested or have been validly determined
by court.
2. Unless otherwise provided in the present General Standard Terms and Conditions,
the same shall apply as well to the assertion of rights of retention.
§
12 - Place of fulfilment and place of jurisdiction
1.
Bad Wörishofen…. shall be the place of fulfilment. Differing from that
stipulation, we shall be entitled in individual cases to define the place of production
of works to be supplied as the place of performance.
2. As regards any litigation resulting from the contractual relationship and in
case the customer is a full merchant, a legal person under public law or a special
fund under public law, actions have to be lodged at the court that is competent
for our headquarters. We shall also be entitled to lodge an action at the place
of the customer's headquarters.
§
13 - Applicable law
Exclusively German law shall be applicable to the exclusion of the laws on the
international purchase of mobile goods, even in case the customer's company seat
is located abroad.
§
14 - Agreements on the form
Any modifications, amendments and ancillary agreements relating to the present
General Terms and Conditions and to individual agreements need to be done in writing
in order to be valid. This shall apply even in case the stipulation prescribing
the written form is to be cancelled in the case of modifications.
§
15 - Miscellaneous
1. The assignment of rights and duties of the customer resulting from the agreement
concluded with us shall require our written consent in order to be valid.
2. Should individual provisions of the preceeding GTC partially or fully be or
become void, contestable or invalid, this shall not affect the validity of the
remaining provisions of the agreement and of the agreement as a whole. The contracting
parties shall then execute the agreement with a valid substitute regulation coming
next to the economic purpose intended by the cancelled provision.
Version of : 14.02.2003 - Bad Wörishofen
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