General Terms and Conditions of Sale Exclusively Applying to Business Customers
General Terms and Conditions of Sale Exclusively Applying to Business Customers
1.1 Sales or deliveries of Yorkshire Farben GmbH (hereinafter referred to as „Seller“) under this terms of contract shall be effected exclusively to entrepreneurs in terms of section 14 of the BGB [German Civil Code], legal entities under public law or Special Funds under public law (hereinafter referred to as „Customer“).
1.2 This terms of contract shall be applicable exclusively. Application of any deviating or supplementing terms of contract of Customer shall be excluded, unless Seller expressly agrees to its application in writing. The present terms of contract shall apply even if Seller performs delivery without any reservation being aware of any terms to the contrary to or deviating from this terms of contract. Customer should print out this terms of contract as a future reference.
2. ENTERING INTO A CONTRACT
2.1 Any offer of Seller shall be non-binding, unless it indicates a period of validity that is binding upon Seller. By ordering any goods, Customer shall declare with binding force its intention to buy any goods ordered. The order shall constitute an offer to Seller for entering into a sales agreement. Seller may confirm any order of Customer by sending an order confirmation by email or by delivering the goods within a period of 7 working days. Customer shall receive an order confirmation in case it has notified its email address to Seller and Seller has been entitled to send the order confirmation to this email address. The German or the English language may be used in order to conclude a contract. Seller shall be entitled to limit any order to quantities usual in commercial practice. To this end, Seller may stipulate a maximum quantity per Customer for a period of time specified by Seller. Furthermore, Seller shall be entitled to stipulate a minimum order quantity.
2.2 Customer may place its order by phone, fax or email.
2.3 Any information given by Seller, including, but not limited to, descriptions, illustrations or information regarding to quality, quantity, weight, measure or performance, shall only be used in order to designate the goods, shall only be approximately authoritative and shall not constitute any information as to properties and condition, unless these are expressly specified as binding in writing. Any properties and condition, fitness, eligibility, specification and function as well as the intended use of our goods shall be determined exclusively according to our information and technical specifications expressly characterizing it that way. Any assurances or guarantees on properties and condition or durability of the goods have to be expressly specified as such. Public comments, recommendations or advertisements of Seller or a third party shall not constitute an indication regarding properties or condition of the goods.
2.4 In case Customer has a trade account with Seller, it shall be obliged to immediately notify Seller of any change in its company name, legal structure, invoice address or bank connection in writing or in text form to firstname.lastname@example.org.
3. TERMS AND DATES OF DELIVERY, PASSING OF RISK
3.1 In case of orders received by 12:00 p.m. on a working day, period of delivery shall correspond to the information stated regarding the respective product. In special cases, Customer shall be informed on any deviating periods of delivery by means of the order confirmation.
3.2 Any delivery of goods shall only be effected upon verification and clearance of Customer data. Within the limit of this verification it shall be followed up on the Customer not being excluded from sales or deliveries by us due to a lack of entrepreneurship subject to number 1.1. Seller may refuse to enter into a contract with Customer as a business customer if entrepreneurship of Customer could not be verified. In such cases, we shall inform Customer by phone, email or fax about possible alternative solutions. 3.3 In case of payment in advance or prepayment, the period of delivery shall begin as of the date of the order confirmation defined in number 2.1. Periods of delivery shall under no circumstances start until a down-payment has been credited to the account of Seller, provided that such a down-payment has been agreed in writing.
3.4 Delivery shall be effected by a transport company to the delivery address specified by Customer when placing the order. In case the transport company does not meet Customer in attempting delivery for the first time, it shall leave a message suggesting a date for a new delivery. Customer has to bear any costs for the redelivery.
3.5 Seller shall reserve the right to deliver in parts if for good reason, unless a partial delivery cannot be reasonably expected to be accepted by Customer. Customer has to provide evidence of partial delivery being unreasonable.
3.6 Any risk of accidental loss or destruction, loss or deterioration of the goods shall pass to Customer upon handing the goods over to a transport company or carrier or any other third party ordered to carry out shipment (the beginning of loading being authoritative). This shall also apply if partial deliveries are made or Seller undertakes to effect any other performances (e.g. shipment or installation). In case shipment or delivery is delayed due to circumstances the reason of which is lying within the responsibility of Customer, risk shall pass to Customer as of the day on which the goods are ready for shipment and Seller notifies Customer accordingly.
4. PRICES, PAYMENT CONDITIONS, RESERVATION OF TITLE
4.1 Any and all prices shall be net (without statutory VAT) in EUR.
4.2 Irrespective of the way of payment, the invoice shall be submitted to Customer by email. If no valid email address is on hand, invoices shall be submitted by post. Customer shall agree to invoices being submitted by electronic means.
Any delivery of goods shall normally be effected in accordance with the payment method preferred by customer.
Only the following payment methods may be selected by Customer:
Payment has to be effected to the indicated account according to the credit term indicated on the invoice. Deduction of a cash discount shall only be an option if this has expressly been specified by Seller in the order confirmation. This payment method shall be available only to German Customers subject to a credit check and up to an order value not exceeding €1,000.00.
Payment in advance
Customer shall receive a confirmation of its order by email. Only upon settlement of the purchase price without any deductions, the goods shall be delivered to Customer. Seller shall, however, reserve the right to check or change the payment method selected by Customer. In this case, Seller may only carry out the delivery requested by Customer subject to agreement to the payment method selected by Seller. In order to safeguard the legitimate interests of Seller (including, but not limited to, cases of purchase on account), it shall reserve the right to perform a credit check.
4.3 In case of payment on account, the payment amount shall be debited directly at its due date or has to be paid into the account specified in the invoice.
4.4 Seller shall be entitled to charge a net amount of €2.50 for each reminder upon delay in payment, unless Customer provides evidence that Seller incurred substantially less or no expenses for the respective reminder. Any further statutory rights of Seller due to Customer being in arrears with its payments shall remain unaffected. In case of payment by direct debit and a returned remittance (returned direct debit) of the direct debit through the bank, Customer has to reimburse any bank charges invoiced for the returned remittance to Seller. Customer shall be notified by Seller in this regard in writing.
4.5 Until payment in full of any and all claims of Seller under the business relationship to Customer, Seller shall retain title to any goods. Customer shall be obliged to notify Seller immediately of any attachments or any other detriments to any right specifying any and all details enabling Seller to take any legal actions against these. In case any obligations under this contract with Seller are not fulfilled or Customer is behind schedule, for example by non-payment, Seller may withdraw from the contract where appropriate. In this case, any right of Customer to possession of the reserved goods shall terminate and Seller may demand their return. In this case, Customer has to immediately grant Seller or a representative of Seller access to the reserved goods and surrender them. Seller shall furthermore be entitled to take possession of the reserved goods and to dispose of these goods at the best by private sale or by way of an auction, without prejudice to the payment obligation and any other obligations of Customer. Any sales proceeds shall be credited against any liabilities of Customer by Seller after deduction of any expenses; a possible surplus shall be paid out.
4.6 Customer shall only be entitled to set-off if its counterclaims are recognized by declaratory judgement, ready for decision, undisputed or approved by Seller. Customer shall be entitled to exercise its right of retention only to the extent, its counterclaim is based on the same individual contractual relationship and is recognized by declaratory judgement, ready for decision, undisputed or approved by Seller.
5. CLAIMS FOR DEFECTS, DUTY TO EXAMINE
5.1 Claims for defects of Customer shall require that the goods are examined immediately upon acceptance and Seller is notified about any defect immediately upon receipt of the goods according to section 377 of the HGB [German Commercial Code]. Hidden defects have to be notified to Seller immediately upon being discovered in writing. Defects or damages to goods in transit have to be notified immediately.
5.2 To the extent the goods are defective, Seller shall be entitled at its own discretion to remedy the defect at no cost for Customer or to deliver substitute goods free of defects.
5.3 In case Seller has finally and irrevocably refused to remedy the defect or deliver substitute goods for unreasonable high costs or for any other reason or any remedy of the defect or substitute delivery fails or it cannot be expected to be accepted by Customer or special circumstances exist that justify immediate enforcement of other rights than those specified under number 5.2 considering mutual interest, Customer may at its own discretion according to any legal provisions withdraw from the respective contract concerned by the defective goods or reduce the purchase price.
5.4 Upon each notice of defects, Seller shall be entitled to inspect and check the delivered goods rejected. Seller may demand from Customer that it sends the delivered goods rejected back to Seller at Seller’s expense. In case the notice of defect proves to be unjustified and Customer has realized it or has not realized it by negligence before giving notice of defect, it shall be liable to indemnify Seller for any and all damages arising in this connection, e.g. travel expenses or shipping costs.
5.5 Seller is to be given a reasonable period of time and the opportunity required to inspect and check the delivered goods rejected and for any subsequent performance, as the case may be.
5.6 Seller shall not be liable for any damages resulting from inappropriate, improper or incorrect storage, use, assembly, putting into service, handling or installation by Customer or by wear and tear, unless Seller is responsible for the defects.
6. ADDITIONAL GUARANTEE
6.1 Products acquired may carry an additional guarantee granted by third parties, suppliers or manufacturers of these products. This guarantee shall only bind any third party and not Seller, unless Seller has expressly granted a guarantee to Customer.
6.2 By repairing or subsequently delivering products or by (partially) reimbursing the purchase price, Seller shall have fulfilled any and all obligations under warranty and shall not be liable for any other damages. This shall not affect any statutory rights of Customer.
7.1 Seller shall be liable without any limitation for any damages arising from injury to life, body or health that are caused by a neglect of duty of itself or any of its legal representatives or agents as well as for any damages that are caused by lack of any properties and condition it guaranteed.
7.2 Seller shall be liable without limitation for any damages caused wilfully or grossly negligent by itself or any of its legal representatives or agents.
7.3 In case of breach of material obligations under a contract caused by slight negligence, liability of Seller shall be limited to the amount that is usually foreseeable at the time of entering into the contract, except of any events specified under numbers 7.1 or 7.4. Material contractual obligations shall abstractly be such obligations the fulfilment of which render possible the duly execution of a contract in the first place and fulfilment of which may normally be relied on by the parties to the contract.
7.4 Any liability according to the Produkthaftungsgesetz [German Product Liability Act] shall be unaffected.
7.5 Any further liability for damages shall be excluded.
7.6 Numbers 7.1 to 7.4 shall apply accordingly to any liability of Seller for futile expenses.
7.7 Seller shall be liable for loss of any data and their recovery only within the limits apparent from numbers 7.1 to 7.4 and only to the extent this loss could not have been prevented by reasonable precautionary measures of Customer, including, but not limited to, making backups of any and all data and programs.
7.8 Customer shall be obliged to take reasonable measures to prevent and reduce any damages.
7.9 The limitation period for damage claims against Seller shall be one year except of events under numbers 7.1, 7.2 and 7.4. Any limitation periods of section 479 of the BGB [German Civil Code] shall be unaffected.
8. DATA PROTECTION
8.1 Information on data protection is available on our website: www.yorkshire-farben.eu
9. FORCE MAJEURE
9.1 Unforeseeable or unavoidable incidents or incidents beyond the reasonable control of Seller including, but not limited to, force majeure, war or natural disasters shall release Seller from its obligations to deliver or perform in time for the duration of such incident. Any time limits agreed on shall be extended for the duration of the incident. Customer shall reasonably be noticed of the occurrence of the incident.
9.2 In case the end of an incident cannot be foreseen or an incident lasts longer than two months, either party shall be entitled to withdraw from the respective individual contract that is affected by the incident without being liable in any respect.
10. GOVERNING LAW AND JURISDICTION
10.1 To the extent permitted by law, exclusive jurisdiction for any and all disputes shall be Krefeld. Seller shall, however, be entitled to file a complaint against Customer at any other statutory jurisdiction.
10.2 The law of the Federal Republic of Germany shall be governing excluding any provisions of the UN Convention on Contracts for the International Sale of Goods („CISG“).
11. GENERAL PROVISIONS
11.1 If any provision of this terms of contract is invalid in whole or in part, the validity of the remaining provisions of this terms of contract shall not be affected.
11.2 In case, Seller does not insist upon the obligations under the respective contract or under this terms of contract being strictly performed or does not make use of any rights or remedies it is entitled to under the contract at any time during term of a contract, this shall not be deemed a waiver of any such rights or remedies and shall not release Customer from its liability to perform its obligations. A waiver relating to any non-performance by Seller shall not be deemed a waiver relating to any other, subsequent non-performances. A waiver relating to this terms of contract by Seller shall only be valid if it is expressly specified as a waiver and notified to Customer in writing. 11.3 The contract concluded between the parties shall be binding upon the Customer as well as any respective legal successors and assignees. Customer shall not be entitled to assign, transfer, sign over or dispose otherwise of any claims or obligations under a contract as well as any rights it may accordingly be entitled to without prior written agreement of Seller. Seller shall be entitled to assign, transfer, sign over, subcontract or dispose otherwise of any claims or obligations under a contract as well as any rights it may accordingly be entitled to at any time during term of this contract.
(Version of January, 2020)
Yorkshire-Farben GmbH ● Mevissenstr. 72 ● 47803 Krefeld ● eMail: email@example.com