§ 1 Scope, defence clause
(1) Our terms of sales shall be exclusively applicable; we do not accept any contrary terms or terms from resellers, purchasers and other buyers (“customers”) which differ from our terms of sale unless we have expressly agreed to their validity in writing. Our terms of sale shall apply even if we deliver goods to the customers without reservation despite being aware of the fact that the customer has contrary terms or terms which are different from our terms of sale.
(2) All agreements which are made between us, in other words between Gerd Eisenblätter GmbH (hereinafter known as EISENBLÄTTER), and the customer relating to the fulfilment of this contract shall be set out in writing in this contract. In addition the statutory regulations shall apply unless a legal agreement has been made by mutual consent to deviate from them.
(3) Our terms of sale shall only apply to non-consumers in the sense of § 310 Paragraph 1 of the Civil Code.
(4) These terms of sale shall also apply to all future transactions with the customer if these tractions are related in type.
§ 2 Order acceptance, written form
(1) Orders must be issued to Eisenblätter in writing and shall not give rise to a contract until they have been confirmed in writing by EISENBLÄTTER.
(2) EISENBLÄTTER shall be entitled to continue to develop its products. It reserves the right to make minor technical or other changes as long as they are within a reasonable framework for the customer.
(3) The information supplied for the various products shall be for the purpose of product description only. It shall not be possible to derive a specific property or the suitability for the products for a specific purpose from such information.
§ 3 Delivery
(1) Lead times shall only be binding if they have been agreed as such in the order confirmation.
(2) If the delivery of the goods is delayed for reasons which are beyond the control of EISENBLÄTTER, in particular as a result of forces majeures, operational problems or labour disputes, the agreed lead time shall be extended tacitly by the reasonable period required to rectify this cause.
(3) The ordered products shall be delivered by EISENBLÄTTER at a charge using the means of transport selected by EISENBLÄTTER, for example by parcel service, or on the basis of a special agreement.
(4) If the EISENBLÄTTER products are shipped to the customer, the risk of accidental loss or random deterioration of the products shall be transferred to the customer at the latest when the products leave EISENBLÄTTER’s warehouse/plant. This shall apply regardless of whether the products are shipped from the place of fulfilment or who is responsible for the shipment costs.
§ 4 Terms of payment
(1) The quoted purchase price shall be binding for a period of 30 days from the date on which the quotation is submitted. Statutory value-added tax is not included in our prices; this shall be charged at the statutory rate on the date of the invoice and shown separately on the invoice.
(2) Setting off or retention against claims of all types shall not be permitted unless these claims have been finalised by a court of law, are undisputed or a decision is pending on them.
§ 5 Warranty
(1) Warranty rights assume that the customer has correctly fulfilled its duties to inspect the goods and complain about them if they are defective under § 377 of the Commercial Code.
(2) If the goods are defective at the time when the risk is transferred, the customer shall be entitled to repeat fulfilment in the form of defect rectification or the delivery of new, perfect goods at the discretion of EISENBLÄTTER.
(3) If the attempt at repeat fulfilment fails, the customer shall be entitled to demand cancellation or a reduction of the purchase price at its own discretion.
(4) Recourse claims under §§ 478 and 479 of the Civil Code shall only apply if the claim was justified by the consumer and shall only apply within the statutory framework, but shall not apply to goodwill agreements agreed with the seller. The customer must notify the seller as soon as possible of any warranty claim made by a consumer.
(5) The statute of limitations for warranty claims for defects against EISENBLÄTTER shall be 12 months starting from the date of delivery of the goods. This shall not apply if the law set out in § 438 Paragraph 1 No. 2 (structures and goods for structures), § 479 Paragraph 1 (recourse claims) and § 634 a Paragraph 1 No. 2 of the Civil Code (design defects) specifies longer statute of limitations and in cases of death, physical injury or health impairment in the event of a malicious or grossly negligent breach of duty on the part of EISENBLÄTTER or its legal representative or agents and in the event of maliciously neglecting to disclose a defect or if a guarantee is accepted for a specific property of the product.
6) § 6 shall apply for compensation claims.
§ 6 Liability
(1) Claims for compensation and for the reimbursement of expenses on the part of the customer (hereinafter known as compensation claims), regardless of their legal basis, in particularly as a result of a breach of duties from an obligation based on an illegal act, shall be excluded. This shall not apply in the event that a guarantee has been given or a purchase risk exists. This shall also not apply if binding liability applies, for example under the Product Liability Law, in cases of malice or gross negligence, in cases of death, physical injury or health impairment and in cases of breaches of major contract duties. This shall not involve any change in the burden of proof to the disadvantage of the customer.
(2) The compensation claim for the breach of major contract duties shall be limited, however, to the foreseeable damage typical for this type of contract unless gross culpability applies or in the event of liability for death, physical injury or health impairment. This shall not involve any change in the burden of proof to the disadvantage of the customer.
(3) If liability for compensation on our part is excluded or limited, this shall also apply to the personal liability for compensation of our staff, employees, colleagues, representatives and agents.
§ 7 Reservation of title, copyright
(1) For contracts with business people, EISENBLÄTTER shall reserve title to all the supplied EISENBLÄTTER products until all claims relating to the business relationship have been settled in full. In the case of customers who are not business people, EISENBLÄTTER shall reserve title to supplied EISENBLÄTTER products until the purchase price has been paid in full.
(2) Resellers shall only be entitled to resell the products which are subject to reservation of title under § 7 No. 1 within the framework of their normal business activities. They shall not be entitled to dispose of these products by any other method or by pledging them. The reseller hereby assigns its claims accrued from the resale of the products together with additional rights to EISENBLÄTTER in order to secure all the claims accrued by EISENBLÄTTER under § 7 Paragraph 1. The reseller shall be entitled to collect the assigned claims. If seizures are made against the products subject to the reservation of title described in § 7 Paragraph 1 or if they are exposed to other action by third parties, the customer must notify EISENBLÄTTER without delay. If the value of the securities held by EISENBLÄTTER exceeds the value of its total claims by more than 15%, EISENBLÄTTER shall release the securities of its choice at the request of the customer. If insolvency proceedings are opened against the assets of the reseller or if the reseller is insolvent or indebted, its entitlement described in § 7 Paragraph 2 shall automatically be voided.
(3) In the event of the customer acting against this contract, in particular in the event of the customer being in default or a breach of a duty set out in § 7 Paragraph 2, EISENBLÄTTER shall be entitled to withdraw from the contract and demand the return of the goods.
(4) EISENBLÄTTER shall reserve the title and any copyright to photographs, drawings, catalogues and other documents which are supplied to the customer, including quotations and documents relating to price calculations, etc. If these documents do not belong to documentation, descriptions and instructions for data processing programs for which separate contractual provisions apply, they must not be copied or disclosed to third parties without the written consent of EISENBLÄTTER.
(5) In addition the documents supplied by EISENBLÄTTER are protected by copyright. The grant of any utility rights shall require a special agreement. Under no circumstances shall it be permitted to make copies or to permit a third party to do so. This shall not include end customers who have been expressly permitted to do this by EISENBLÄTTER.
§ 8 Concluding provisions
(1) Any assignment of the rights or transfer of the duties set out in this contract shall require the prior written consent of EISENBLÄTTER.
(2) If a provision in these terms of sale and delivery should be or become invalid, the other provisions shall not be affected.
§ 9 Place of jurisdiction and applicable law
(1) If the customer is a businessman, legal entity under public law or a special fund under public law, our registered business address shall be the place of jurisdiction. However, we shall also be entitled to sue the customer at his home address. The same shall apply if the customer does not have a general place of jurisdiction in the Federal Republic of Germany or his place of abode or normal place of residence are not known at the time when the lawsuit is lodged.
(2) The law of the Federal Republic of Germany shall apply. The validity of the UN Convention on Contracts for the International Sale of Goods shall be excluded.
(3) Unless specified to the contrary in the order confirmation, our registered business address shall be the place of fulfilment and payment.
Date of issue: November 2008