Business Conditions

§ 1 Validity of our General Terms & Conditions

All deliveries, services and offers made to our customers are performed exclusively on the basis of these Terms & Conditions. We hereby object to terms & conditions of our customers which are counter to these. Such Terms & Conditions shall not be recognised even if we do not expressly object to them on receipt. Divergences from these Terms & Conditions to be borne by us are only valid if confirmed by us in writing.

§ 2 Offer and signing of contract

All orders sent to us must be in writing in order to be valid. The content of our confirmation alone are definitive. Drawings, illustrations, dimensions, weights and other significant data are only binding if expressly agreed in writing.

We reserve the right to apply design modifications and variations in dimensions and colour insofar as these are deemed acceptable for the customer and the goods are suitable for the application determined in the contract. This shall not imply defectiveness of the goods.

§ 3 Partial performance

We expressly reserve the right to partial performance insofar as this is reasonable with regard to the interests of the customer.

§ 4 Prices

All prices in our offers and price lists are subject to change.

§ 5 Transfer of risk

The risk of accidental destruction shall be transferred to the customer when the consignment is transferred to the freight forwarder or when it leaves our warehouse for shipment.

§ 6 Delivery and performance times

The delivery and performance times stated by us are non-binding on principle unless otherwise expressly agreed in writing. The delivery date for goods ordered begins on the day of our order confirmation and ends on the day when the goods leave our warehouse.

If a customer requires modifications to the order after receipt of our order confirmation, the delivery date shall commence with our written confirmation of the requested modifications. We are entitled to perform partial deliveries and deliver partial performance.

Force majeure entitles us to delay the delivery or performance for the time of the obstruction or to withdraw wholly or partially from the part of the contract still to be discharged. Force majeure is understood to be all circumstances which significantly impede or prevent delivery/performance such as, for example, sovereign acts, strikes, lockouts, disruption of operations (e.g. fire, power cuts) and blockage of transport routes, independent of whether such circumstances occur at our premises, suppliers, freight forwarders or another third party. In such cases the customer can demand a declaration from us whether we wish to withdraw from the contract or fulfil the contract within a reasonable period. After expiration of a reasonable time set by us, the customer may withdraw from the contract insofar as the goods/services are not confirmed as being ready for shipment by the end of this period or a declaration of intent to fulfil is made.  The costs of redirection if the customer refuses to accept delivery shall be borne by the customer.

§ 7 Payment

Our goods and services are payable immediately on receipt. This applies also to partial deliveries in accordance with Clause 3. Discounts and delayed payment dates must be agreed separately.

§ 8 Warranty for companies

We shall provide a warranty for any deficiencies if the recipient is a company in the sense of Article 14 German Civil Code (BGB) in accordance with the following provisions:

The warranty rights of the customer presume that he has duly fulfilled his obligations of inspection and notification of defects in accordance with Article 377 of the German Civil Code (HGB).

The customer shall inspect the goods for any obvious defects immediately after risk is transferred to him with reasonable thoroughness according to the pertinent circumstances. Any defects identified shall be notified immediately, at the latest 14 days after receipt, in writing. On expiry of this period all claims based on such defects shall be invalid (preclusion period).

We are entitled to supplementary performance at our discretion either by taking back the defective goods and replacing them with goods free of defect or by rectifying the defect.

Insofar as the nature of the object, the defect or other circumstances do not require other measures, rectification or replacement delivery shall be considered to have failed with the second unsuccessful attempt. In this case the customer may demand abatement or withdraw from the contract.

If the customer does not surrender the rejected goods to us or to a third party named by us, we shall be entitled to refuse supplementary performance and furthermore shall be entitled to claim damages for all costs and other financial losses caused by non-surrender of goods.

Unless otherwise stated hereinafter, further claims of the customer – for whatever legal reasons – are excluded. Therefore we shall not be liable for damage that occurs other than to the delivery item.

In particular we shall not be liable for loss of profits or other financial losses of the customer.

Should the cause of damage be based on intent or gross negligence, we shall be liable in accordance with the legal regulations. This applies also if the customer wishes to claim damages instead of performance due to the lack of a guaranteed property of the object.

The provision of warranty shall apply for 2 years from the transfer of risk.

§ 9 Warranty for consumers

If the customer is a consumer in the sense of Article 13 German Civil Code (BGB) the legal warranty shall apply.

Claims for damages are excluded unless these are based on injury to life, limb, health or significant gross negligence. The same applies if a warranty for properties was given or a defect was maliciously concealed.

§ 10 Liability

More extensive liability than in Clauses 8 and 9 is excluded, independent of the legal nature of the claim asserted.

We shall be liable, with the exception of injury to life, limb and health, only for intent or gross negligence. The same applies to our vicarious agents.

§ 11 Retention of title

All goods delivered shall remain our property (goods subject to retention of title) until all accounts receivable have been settled, irrespective of the legal basis (e.g. incidental claims, claims for damages, cashing of cheques and drafts, etc.) including future and conditional accounts receivable, also from contracts concluded at the same time or at a later date.

The customer is not permitted to pledge or transfer by way of security any goods during the period of retention of title nor to resell goods until cancelled in the course of his normal business operations; this shall only be permitted under the condition that the customer receives payment from the purchaser or retains the property until the purchaser has fulfilled his obligation to pay. Should the customer sell the delivery item, he shall immediately assign to the supplier by way of security all future claims arising from the sale to the purchaser – including all payment balance requests. If the delivery item is sold with other items, the customer shall assign priority to us over the first priority part of a claim from other claims for an amount which corresponds to the price of the delivery item.

For open accounts the title shall be considered as security for our payment balance request. Regarding the value we shall apply the invoice value plus a security supplement of 20%. However, the security supplement shall not be included if the rights of third parties conflict with it. If the value of the securities provided for us (sale value of the goods delivered) should exceed our claim in total by more than 20%, at the request of the customer we shall be obliged to re-assign or release securities as selected by ourselves to the same amount.

§ 12 No set-off

The customer may only set off such counterclaims that are not disputed by us or which have been asserted in law.

§ 13 Right of retention

If the customer is a merchant, he may only apply right of retention in cases of undisputed or legally asserted claims.

§ 14 Withdrawal

We may withdraw from the contract if the customer has made false declarations regarding his creditworthiness and the declaration refers to a significant factor in determining his creditworthiness or his creditworthiness lapses (cheques and drafts not honoured, application to make a declaration in lieu of oath, non-provision of insurance with Hermes credit insurance, etc.) or an application is made to open bankruptcy or collective execution proceedings with regard to the assets of the customer.

§ 15 Jurisdiction and place of performance

The court of jurisdiction for all disputes arising from the legal relations with the customer – also arising from bank drafts and cheques – shall be the Local Court (Amtsgericht) or the District Court (Landgericht) of Kassel, insofar as legally permissible. Our premises in Hessisch Lichtenau shall be the place of performance for deliveries and services.

This agreement on the court of jurisdiction and place of performance shall not apply if the customer is not a general merchant in the sense of the German Commercial Code (HGB).

§ 16 Written form and nullity, severability clause

Changes to this contract must be made in writing to be legally valid. This applies also to changes to the requirement for the written form. Should one or more clauses or a significant part of these clauses be or become wholly or partially void by law or prove incomplete, the validity of the remaining clauses shall remain unaffected.

FORMAT Tresorbau GmbH & Co. KG - Hessisch Lichtenau - HRA Nr. 2211
AG Eschwege - Managing Directors: Jürgen Feihl (spokesman), Hendrick Matischak