Terms and Conditions of Gustav Selter GmbH + Co. KG
Terms and Conditions of Sale and Delivery of Gustav Selter GmbH + Co. KG
Please read the Terms and Conditions of Sale and Delivery in English here.
§1 General; scope
Only our Terms and Conditions of Sale and Delivery shall have effect; any contrary terms of the customer or terms conflicting with our terms and conditions of sale will not be accepted, unless we have explicitly consented to their applicability. Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation while being aware of any contrary terms of the customer or terms conflicting with our terms and conditions of sale.
(1) Our Terms and Conditions of Sale and Delivery shall only apply vis-à-vis entrepreneurs within the meaning of Sect. 310 (1) of the BGB [German Civil Code].
(2) Our Terms and Conditions of Sale and Delivery shall also apply to any future business with the customer.
§2 Offer; offer documents
If an order qualifies as an offer under Sect. 145 of the BGB, we may accept such offer within 2 weeks.
(1) We reserve our property rights and copyright in all illustrations, drawings, calculations, other documents, and samples. This shall also apply to any written documents marked as confidential. The customer may not disclose these to a third party without our explicit written consent.
§3 Prices; terms of payment
(1) Unless otherwise stated in the order confirmation, our prices are ex works and do not include packaging, which will be invoiced separately.
(2) Our prices do not include statutory value-added tax; this will be shown separately on the invoice at the statutory rate in effect on the date of the invoice.
(3) Unless otherwise stated in the order confirmation, the purchase price shall be due for payment in full (without deduction) within 30 days from the date of the invoice. The statutory regulations regarding the consequences of a default in payment shall apply.
(4) The customer shall only have set-off rights if its counterclaims have been established by declaratory judgment, are undisputed or have been recognised by us. Only under the aforementioned circumstances shall the customer also have a right of retention.
§4 Delay in delivery; impossibility
(1) The commencement of the delivery period stated by us is subject to all technical issues being cleared up.
(2) Furthermore, our compliance with our obligation to deliver is subject to the customer fulfilling its obligation in a timely and proper manner. We reserve the right to plead non-performance of contract.
(3) Within reasonable bounds for the customer, we shall be entitled to make partial deliveries.
(4) If the customer is in default of acceptance or in culpable breach of other obligations to co-operate, we shall be entitled to compensation for any damages incurred as a result of this, including any additional expenses. Any further claims remain reserved.
(5) If the conditions stipulated in subsection 4 apply, the risk of accidental loss or accidental deterioration of the purchased item shall pass to the customer as of that time at which the latter is in default of acceptance or payment.
(6) If we are in default or if our obligation to perform is rendered impossible pursuant to Sect. 275 (1) of the BGB, or if we may refuse performance pursuant to Sect. 275 (2) and (3) of the BGB, we shall only be liable in accordance with Sect. 8 of these Terms and Conditions of Sale and Delivery.
In addition, in cases of simple negligence, our liability shall be limited to 0.5% per week of default, but no more than 5% of the value of that part of the delivery which cannot be used, or cannot be used in accordance with the contract, as a result of the default.
(7) The limitations of liability set out in subsection 6 shall not apply to fixed-date transactions within the meaning of point 4 of Sect. 286 (2) of the BGB or of Sect. 376 of the HGB [German Commercial Code].
§5 Force majeure
(1) Acts of God, natural disasters, industrial disputes, wars, civil unrest, official measures, failure to deliver on the part of our suppliers, and any other unforeseen, unavoidable and serious events shall release us from the obligation to perform for the duration of the disruption and to the extent of its effects.
(2) This shall also apply if such events occur at a time at which we are in default, unless such default was caused by our intent or gross negligence.
§6 Transfer of risk
(1) Unless otherwise stated in the order confirmation, delivery shall be ex works.
(2) The risk of accidental loss or accidental deterioration shall pass to the customer at the time of dispatch even if we are covering the shipping costs or are providing other additional services, or if a partial delivery is being made.
(3) If the customer so desires, we will take out transport insurance covering the delivery; the costs incurred in this regard shall be borne by the customer.
§7 Claims for defects
(1) Any claims for defects made by the customer shall be subject to the customer having duly fulfilled its obligations to inspect the goods and give notice of defects in accordance with Sect. 377 of the HGB. Without prejudice to the statutory obligations to inspect the goods and give notice of defects, any obvious defects detected during a reasonable receiving inspection must be reported to us within 7 days after receipt of the goods by the customer. This report must be made in writing.
(2) Any particular requirements regarding size accuracy or adherence to specific shapes or colours must be stated explicitly and agreed when the order is placed. Otherwise, minor deviations in dimensions, shape, or colour shall be deemed in conformity with the contract. This shall apply, in particular, to any printed or embossed advertisements.
(3) To the extent that a purchased item is defective, we shall be entitled, at our discretion, either to take remedial action to repair the defect or to supply a new item free from defects. In case of repair, we shall be required to bear all necessary expenses for the purposes of such repair, including but not limited to transport, travel, labour and material costs, to the extent that such expenses are not increased by the purchased item having been removed to a location different from the place of performance.
(4) If the remedial action fails, the customer shall be entitled to make any other statutory claims for defects. The customer shall only be entitled to make claims for damages in accordance with Sect. 8 of these Terms and Conditions of Sale and Delivery.
(5) Any claims for defects shall become statute-barred in accordance with Sect. 9 (1) of these Terms and Conditions of Sale and Delivery.
We shall only be liable for damages in accordance with the following provisions:
(1) We shall be liable in accordance with statutory provisions where the customer asserts claims for damages on the grounds of intent or gross negligence, including the intent or gross negligence of our representatives or vicarious agents. To the extent that we are not accused of intentional or grossly negligent breach of contract, our liability shall be limited to such damage as may foreseeably or typically occur.
(2) We shall be liable in accordance with statutory provisions if we are in culpable breach of a material contractual obligation; however, our liability in that case shall be limited to such damage as may foreseeably or typically occur.
(3) To the extent that the customer is entitled to compensation for damages in lieu of performance, our liability within the scope of subsection 3 shall be limited to such damage as may foreseeably or typically occur.
(4) Any liability for culpable injury to life and limb or health shall remain unaffected; this shall also apply to mandatory liability under the Produkthaftungsgesetz [German Product Liability Act] and any liability under a guarantee.
(5) The foregoing limitations of liability shall also apply to the extent that the customer, in lieu of asserting a claim for damages, demands compensation for useless expenses instead of performance.
(6) To the extent that our liability for damages is excluded or limited, this shall also apply to any personal liability for damages on the part of our employees, workers, representatives and vicarious agents.
§9 Limitation of actions
(1) The period of limitation for claims for defects shall be 12 months from the beginning of the statutory limitation period.
(2) A cut-off period of 18 months shall apply to the limitation of any other claims by the customer not subject to the period of limitation for claims for defects. It shall commence upon the damage and the person having caused the damage becoming known.
(3) The foregoing provisions shall not affect statutory periods of limitation in the following cases:
– In case of a recourse on delivery pursuant to Sections 478, 479 of the BGB;
– In case of defects of buildings/building materials pursuant to point 2 of Sect. 438 (1) and point 2 of Sect. 634a (1) of the BGB;
– In case of injury to life and limb or health;
– In case of intent or malice or gross negligence on our part or on the part of our legal representatives or vicarious agents;
– The customer’s right to rescind the contract in the event of a breach of duty for which we are responsible and which is not a defect of the purchased item or the work;
– In case of guarantee claims.
§10 Reservation of title
(1) We retain ownership of the purchased item until all payments under the supply contract have been received. If the customer acts in a way that is contrary to contract, including but not limited to being in default of payment, we shall be entitled to recover the purchased item. Our recovery of the purchased item shall constitute a rescission of the contract. Having recovered the purchased item, we shall be entitled to sell it on; the proceeds, less reasonable selling expenses, shall be set off against the customer’s liabilities.
(2) The customer is obliged to take good care of the purchased item; in particular, the customer shall, at its own expense, sufficiently insure the item at replacement value against fire or water damage and theft.
(3) The customer must notify us without undue delay of any attachment of property or other interventions by third parties, so that we may bring an action in accordance with Sect. 771 of the ZPO [German Code of Civil Procedure]. If such third party is unable to reimburse us for the court and other costs of an action under Sect. 771 of the ZPO, the customer shall be liable for the loss incurred by us.
(4) The customer is entitled to resell the purchased item in the ordinary course of business; however, the customer shall hereby assign to us any accounts receivable from its buyers or third parties arising from the resale, in the amount of the total invoice amount (including VAT) of our account receivable, irrespective of whether the purchased item was resold with or without further processing. The customer shall remain authorised to collect the account receivable even after its assignment. This shall not affect our authority to collect the account receivable ourselves. However, we undertake not to collect the account receivable so long as the customer meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for opening composition or insolvency proceedings has been made, and the customer has not suspended payments. If, however, that is the case, we may demand that the customer disclose to us the assigned accounts receivable and their debtors, provide any information required for their collection, hand over the relevant documents, and inform the debtors (third parties) of the assignment.
(5) We undertake, upon the customer’s request, to release the securities to which we are entitled to the extent that the realisable value of our securities exceeds the accounts receivable to be secured by more than 10%; the choice of securities to be released shall be at our discretion.
§11 Place of jurisdiction, of performance
(1) If the customer is a merchant, the place of jurisdiction for any legal disputes hereunder shall be our place of business at Altena, Westphalia; however, we shall also be entitled to bring an action against the customer at its local court.
(2) The law of the Federal Republic of Germany shall apply; the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
(3) Unless otherwise stated in the order confirmation, the place of performance shall be our place of business at Altena, Westphalia.
(1) Each party to the contract shall ensure that all documents (including samples, models, and data) and knowledge obtained from the business relation are used only for the jointly pursued purposes and kept confidential vis-à-vis any third parties with the same level of care as would that party’s own documents and knowledge, if the respective other party to the contract has marked such documents and knowledge as confidential or has an obvious interest in keeping them confidential.
(2) This obligation shall not apply to any documents and knowledge that are common knowledge or were already known to the customer at the time of receiving them, without the customer being obliged to keep them confidential.
§13 Final provisions
(1) If any of the foregoing provisions should be or become invalid, this shall not affect the validity of the remaining provisions. For any such provision there shall be substituted such new provision as most closely approximates the economic purpose of the contract while safeguarding the interests of both parties.
(2) All our previous terms and conditions of sale and delivery are hereby superseded.
Notice pursuant to Sect. 33 of the BDSG [Federal Data Protection Act]: Customer’s data will be processed electronically.