1.1.For all -alsoDeliveries and services (hereinafter referred to as deliveries) by GUTEX Holzfaserplattenwerk H. Henselmann GmbH + Co. KG (hereinafter also referred to as the seller) are subject exclusively to the following conditions, unless otherwise agreed in writing.
1.2.The general terms and conditions of sale of the seller's customers are hereby expressly rejected and shall only apply insofar as the seller has accepted them in writing.
2.1.All offers and catalogue prices are non-binding.
2.2.Contracts are only concluded once the seller has confirmed the order or delivery in writing. Oral orders and agreements, including those with representatives and field service staff, require written confirmation from the seller.
2.3.Illustrations, drawings, indications of colour, weight and dimensions forming part of the offer are only approximate values, unless they are expressly designated as binding.
3.1.If orders are accepted, the buyer's solvency is presumed.
3.2.If this condition is not met when the contract is concluded, or if it is no longer met subsequently, the seller may cancel the contract or demand immediate payment.
3.3.Lack of solvency may be assumed, for example, if the buyer is in arrears with a previous delivery.
4.1.The seller's prices are exclusive of VAT.
4.2.For delivery periods of more than two months, if the price at the time of delivery has increased due to a change in the market price or an increase in the consideration and/or remuneration demanded by third parties involved in the provision of the service, the resulting higher price shall apply.
5.1.The delivery period begins on receipt of the order confirmation, but not before clarification of all the details of the execution of the order and technical issues, as well as receipt of an agreed down payment.
5.2events that are unforeseeable, unavoidable and not attributable to the seller (e.g. force majeure, strikes and lockouts, business disruptions, difficulties in the supply of materials and energy, transport delays, shortages of labour, energy and raw materials, measures taken by the authorities, as well as difficulties in obtaining permits, in particular import and export licences) extend the delivery period by the duration of the disruption and its effects. This also applies if the impediment occurs at a supplier of the seller (and is not attributable to the supplier) or during an existing delay. If the impediment is not only of temporary duration, both contracting parties are entitled to withdraw from the contract. Claims for damages are excluded in the aforementioned cases.
5.3.In the event of any delay in delivery, insofar as it is not due to intentional fault or gross negligence, the seller's liability is limited, in the case of simple negligence, to 0.5% per full week of delay, but in total to a maximum of 5% of the net invoice amount of the part of the delivery affected by the delay. The right to claim damages in lieu of performance in accordance with point 11 remains unaffected. The buyer shall inform the seller, at the latest when the contract is concluded, of the contractual penalties applicable to his customer.
6.1.The seller will collect the packaging from its head office during normal office hours. The cost of return and disposal will be borne by the buyer. The packaging must be returned clean, free of foreign matter and sorted by type.
7.1unless otherwise agreed, shipment is at the buyer's expense.
7.2.Partial deliveries are permitted - insofar as they are acceptable to the purchaser - and will be invoiced separately.
8.1.Unless otherwise agreed, invoices are payable without deduction within 30 days of the invoice date.
8.2.If the buyer is in arrears, all his payment obligations resulting from the commercial relationship with the seller become due.
8.3.If the payment period (30 days) is exceeded, annual interest may be charged from the due date at a rate of 8 percentage points above the base interest rate, with a minimum of 10% per annum. Other rights remain unaffected.
8.4.The purchaser only has a right of set-off or retention in respect of uncontested claims or claims established by a court decision that has become final and conclusive.
9.1.Ownership of the goods delivered remains reserved; it is transferred to the buyer when he has fulfilled all his obligations arising from the business relationship.
9.2.Goods subject to retention of title must be stored separately from other goods, handled with care and maintained, marked as the property of the seller and insured at the seller's own expense against loss and damage at an adequate replacement value. The insurance policy and proof of payment of premiums must be presented to the seller on request. The buyer hereby assigns the rights arising from the insurance relationship to the seller. As soon as ownership is transferred to the buyer, the assignment shall lapse.
9.3.If the goods subject to retention of title are mixed and combined with other goods, the seller shall acquire co-ownership of the new goods in proportion to the invoice value of the goods subject to retention of title to the invoice value of the other materials.
9.4.The purchaser is authorised to resell the goods subject to retention of title or the new goods in the ordinary course of business; however, he hereby assigns in advance to the seller all claims to the full amount arising for him from the resale or re-use.
9.5.The buyer is authorised to collect the debts assigned to the seller as long as he fulfils his payment obligations from the revenue received.
9.6.If the purchaser no longer meets its payment obligations, the seller may revoke the authorisation for resale and re-use and require the purchaser to inform the seller of the assigned receivables and their debtors, to provide all the information necessary for collection, to hand over the corresponding documents and to inform its debtors of the assignment.
9.7.The seller must be notified immediately of any access by third parties to the goods subject to retention of title. Any costs incurred in defending against such access shall be borne by the buyer, insofar as they cannot be recovered from the third party.
9.8.If the value of the collateral exceeds the seller's claims by more than 20%, the seller will release the collateral at the buyer's request, if he so wishes.
10.1.The buyer is obliged to examine the delivered goods for defects immediately after they have been made available by the seller and, if a defect appears, to inform the seller immediately in writing.
10.2.Infringement of third-party rights shall only constitute a defect if these protective rights exist in the Federal Republic of Germany.
10.3.In the event of a justified complaint, the seller will choose either to replace the goods or to repair them. If the repair fails, is refused or is unjustifiably delayed, the buyer may, after expiry of a reasonable additional period and without result, demand a reduction in the price or - in the event of significant defects - withdraw from the contract and demand damages instead of performance in accordance with point 11. The repair costs incurred as a result of the purchased item being transported after delivery to a location other than the buyer's place of business must be borne by the buyer and reimbursed by the seller.
10.4.The limitation period is 12 months from the transfer of risk, insofar as the seller is not liable for personal injury, has not breached his obligations intentionally or through gross negligence, has not fraudulently concealed the defect or has not assumed a warranty that goes beyond this, or if a longer statutory period is compulsorily provided for.
11.1.Claims for damages of any kind against the seller are excluded if the seller, its legal representatives or its vicarious agents have caused the damage through simple negligence. This exclusion of liability does not apply in the case of personal injury, the assumption of a contractual warranty or the breach of essential contractual obligations which jeopardise the achievement of the purpose of the contract. In such cases, however, the seller's liability is limited to the extent of the warranty or, in the case of negligent breach of essential contractual obligations, to the foreseeable damage typical of the contract. This does not affect the rights arising from the Product Liability Act.
11.2.Claims for damages are subject to a limitation period of one year from the date on which the purchaser became aware of the damage and his obligation to rectify it, or should have become aware of the damage without gross negligence. Claims arising from the Product Liability Act, personal injury and defects remain unaffected by this provision.
12.1.The place of performance is Gutenburg / 79761 Waldshut-Tiengen.
13.1.The United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 is excluded.
13.2.The place of jurisdiction is Waldshut-Tiengen.
Update: August 2022