General Terms and Conditions of Rudolf Ostermann GmbH.
1. Scope of application – General
- Our Standard Terms and Conditions of Supply and Payment apply exclusively.
- The purchaser recognises the same through the placing of the order or the acceptance of the supply or performance. Contrary terms of the purchaser – in so far as they are not stipulated in our respective offers and our written confirmation of order - shall not apply unless we have expressly agreed to the same. Our Standard Terms and Conditions of Supply and Payment also apply where we perform the supply in knowledge of contradictory or deviating terms and conditions of the purchaser.
- All agreements made between ourselves and the purchaser for the purpose of performance of this contract have been laid down in this contract in writing.
- Our Standard Terms and Conditions of Supply and Payment only apply to businessmen within the meaning of § 310, para.1, BGB [German Civil Code).
- Our Standard Terms and Conditions of Supply and Payment also apply to all future business transactions with the purchaser.
- Should it become apparent following the conclusion of the contract that our claim for payment is endangered by lack of solvency of the purchaser, we shall be entitled to demand the provision of security within a reasonable period of time. Should the purchaser fail to comply with this request, we shall be entitled to cancel the contract without becoming liable for damages.
- For technical reasons, colours in the catalogue and/or on the Internet pages may vary from the original tint.
- You will find processing instructions for our products on the corresponding data sheets that you can download from our website.
2. Offers – Conclusion of contract
- Our offers are non-binding unless otherwise expressly agreed in writing.
- The prices quoted in the offer and confirmation of order are net prices. The value added tax applicable on the respective date of delivery/performance is to be added thereto.
3. Prices - Conditions of payment
- Unless otherwise provided in the confirmation of order, our prices apply “ex works”, excluding packaging and transport; these are charged separately.
- Unless otherwise provided in the confirmation of order, the purchase price shall be due for payment within 30 days net cash following the date of invoice. In all other respects, the statutory provisions shall apply concerning the consequences of default in payment.
- In individual cases, the vendor only makes delivery against pre-payment. In such cases, the vendor will inform the purchaser in advance.
- The purchaser shall only be entitled to exercise rights of set-off where his counter-claims have been judicially upheld, are undisputed or acknowledged by us. He shall, moreover, only be authorised to exercise any right of withholding in this respect if his counter-claim is based on the same contractual relationship.
- All our claims shall become immediately due for payment if the purchaser has interrupted his payments on a not simply temporary basis, is over-indebted, if an application has been made for the opening of insolvency proceedings in relation to his assets, if such proceedings have been opened or the opening of such proceedings has been rejected due to lack of assets.
- If the customer does not pay by the due date, the outstanding amounts incur interest at a rate of 5% p.a. starting from said date. This does not affect the right to claim higher interest and further damages in the event of default. The legal regulations apply accordingly.
- The vendor reserves the right during the course of the year to amend prices as against the prices shown in the price list. The applicable prices are always those effective as at the point in time of the order. The prices do not include the statutory value added tax.
- Transport charges: For more information, please refer to the order confirmation/freight cost notice in the online store's shopping cart facility.
- Unless otherwise agreed, our distribution warehouse or the warehouse of the company acting on our behalf shall be the place of performance for the delivery. Each delivery is made for the account and at the risk of the purchaser. In so far as no specific mode of transport has been agreed, we reserve the right to determine the mode of transport.
- We reserve the right to carry out the orders in part deliveries – as far as the purchaser can reasonably be expected to accept the same and in so far as not otherwise agreed. Complaints in relation to part deliveries do not release the purchaser from the obligation to accept in accordance with the contract the remaining quantity of the products ordered. Due to production constraints in the manufacturing of edgings, we may have to deliver +- 20 % of the order quantity. This will be treated as a complete delivery and the balance will not be delivered. You will only be invoiced for the quantity received.
- A pre-requisite of our compliance with our delivery commitments is the punctual and proper fulfilment of the obligations on the part of the purchaser. We reserve the right to raise the defence of non-performance of the contract.
- If the purchaser is in default or culpably in breach of other duties of co-operation, we shall be entitled to demand compensation for the loss we have suffered in this connection, including any increased expense. We reserve the right to make further-reaching claims.
- Should the transport or the collection be delayed or not carried out due to circumstances for which we are not responsible, the risk shall pass to the purchaser on the day of notification of the readiness for transport or acceptance.
- Our liability shall be governed by the statutory provisions in so far as the underlying contract of purchase is a fixed-date transaction within the meaning of § 286, para. 2, no. 4, BGB or § 376 HGB [German Commercial Code]. We shall also be liable in accordance with the statutory provisions where, as a result of a delay in delivery for which we are responsible, the purchaser is entitled to claim that he no longer has any interest in the further performance of the contract.
- Should we be in default of delivery on account of a bindingly agreed delivery period, the claim to compensation to which the purchaser is entitled for the loss arising from the delay suffered due to the breach of obligation for which we are responsible shall be limited to 0.5 % / complete week, subject, however, to a maximum of 5 % of the purchase price. This shall not apply where the damage suffered results from the breach of a fundamental contractual obligation (cardinal obligation).
- If, having demanded performance in vain, the purchaser claims compensation in place of performance, and if the breach of obligation for which we are responsible is serious, our liability for damages shall be limited to the foreseeable damage typically suffered in such cases.
- Where the default in delivery for which we are responsible results from the culpable breach of a fundamental contractual obligation, our liability shall be governed by the statutory provisions; however, our liability for damages shall also here be limited to the foreseeable damage typically suffered in such cases. We charge expenses of 20%, at least, however, 20 € (200 SEK, 150 DKK), of the commodity value for goods returned due to reasons for which the purchaser is responsible, unless the purchaser can prove to us that the loss or decrease in value incurred by us is substantially smaller. The return of goods is only possible after prior arrangement between purchaser and us. We only accept the return of packed goods that are sufficiently protected against damage and soiling. Goods made to specification may not be exchanged.
5. Notification of defects
- The customer shall inspect the purchased item without delay and check whether it is in flawless condition and has been supplied in full. This inspection also includes partially removing a protective film to ascertain whether the delivered item displays and colour discrepancies or damage. Any visible faults, wrong or excess amounts are to be notified immediately in writing.
- The purchaser shall no later than 8 days following the discovery of the defect notify us in writing of any defects which were not evident.
- We are to be given the opportunity of examining the defect ourselves and/or to have it examined by specialists instructed by us. We shall be entitled to exercise these rights unless the purchaser persuades us that immediate action needed to be taken on account of danger in delay. The assumption of costs for externally instructed experts requires written agreement on an individual basis. Contractual penalties shall only be effective against us if they have been laid down for each individual case in a separate agreement.
Various dimensional tolerances of our products can be found in the respective technical data sheets (below the product) on our website.
7. Liability for defects
- Decisive for the determination of whether the products delivered by us are free from material defects are primarily the contractually agreed properties.
- We shall be liable as follows for defects in the object delivered: We undertake to rectify defects in the object delivered at our option through remedial action or replacement delivery. Should two attempts at remedial action or one replacement delivery fail, the purchaser may cancel the contract or demand a reduction in the purchase price and – in so far as the statutory conditions are fulfilled – claim damages in place of performance or, in accordance with § 284 BGB, reimbursement of expenditure incurred in vain.
- Where defects have been notified, payments on the part of the purchaser may be withheld to an extent, which lies in a reasonable relationship to the material defects which have arisen.
- The limitation period for lodging claims in respect of defects, in so far as such relate to remedial action or replacement delivery or to damages in place of performance or reimbursement of expenditure incurred in vain, amounts to 1 year, unless the conditions of § 438 para. 1, no. 2, BGB are fulfilled. The respective limitation period shall commence with the passing of risk to the purchaser in relation to the item purchased.
8. Liability - Damages
- Should we be guilty of a breach of duty in the form of deliberate intent or gross negligence, our liability shall be governed by the statutory provisions. We shall likewise liable for damage arising from injury to life, limb or health, which arises from a negligent, or deliberate breach of duty on our part or on the part of our statutory representatives or vicarious agents. The liability for damages by reason of the Product Liability Act remains unaffected.
- We shall further be liable if the damage arising results from the breach of a fundamental contractual obligation (cardinal obligation). A cardinal obligation is such a basic and fundamental contractual obligation, only the fulfilment of which makes possible at all the attainment of the purpose pursued by the purchaser in concluding the contract and on the fulfilment of which the purchaser has relied and was entitled to rely. Should we be liable in this respect, our liability shall be restricted to the damage foreseeable at the point in time of the conclusion of the contract.
- In the case of material and material consequential damage negligently caused by ourselves, we shall be liable in such manner that we limit our liability as towards the purchaser to the replacement sum paid by the general liability or product liability insurance. However, this limitation on liability shall only be effective if the insurance cover sum lies within the scope of the foreseeability of the above-mentioned material or material consequential damage. To the extent that the insurance does not assume payment, without the cover sum being exceeded, we assume the subsidiary liability as towards the purchaser.
- In so far as liability for damages is excluded or limited vis-à-vis ourselves, this shall also apply with regard to the personal liability for damages of our staff, workers, employees, representatives and vicarious agents. By reason of normal trade tolerances, there may be an excess or short delivery in quantity of a maximum of 20 %. The vendor reserves the right to make an additional charge.
9. Reservation of title
- We reserve title in the item purchased up until receipt of all payments under the contract of supply. Where a running account relationship has been agreed between the purchaser and ourselves, the reservation of title also relates to the respectively acknowledged balance. The same shall apply where no balance is acknowledged, but a “causal” balance is drawn, for instance because the purchaser becomes bankrupt or goes into liquidation.
- The purchaser shall be obliged to treat the item purchased with care; in particular, he shall be obliged at his own cost to insure the same adequately against damage through fire, water and theft at the reinstatement value. Where maintenance and inspection works are necessary, the purchaser must carry out the same in proper time at his own cost.
- The purchaser shall inform us immediately in writing in the case of seizures or other interventions on the part of third parties so that we may institute proceedings under § 771 ZPO [Civil Proceedings Rules]. To the extent that the third party is not in a position to reimburse us the judicial and extrajudicial costs of proceedings under § 771 ZPO, the purchaser shall be liable for the loss we have suffered.
- The purchaser shall be entitled to re-sell to third parties within his normal course of business the products delivered under reservation of title. Where he does so, however, the purchaser shall be obliged to assign to us already now all claims accruing to him against his customers from the re-sale. The assignment is restricted to the amount of the claim, which has been agreed between the purchaser and ourselves as the final invoice amount, including VAT. We accept the assignment. The purchaser shall be entitled to collect this debt as long as he is not in default in payment. Where this happens, we shall be entitled to revoke the authority of the purchaser to collect the debt; in such case, the purchaser shall be obliged to provide us with all necessary information to enable us to collect the debt from the customers ourselves. We shall be entitled to revoke the authorisation for re-sale and collection where the purchaser is in considerable financial difficulties or has made an application for insolvency proceedings or the opening of composition proceedings.
- Where the purchaser further processes the product delivered by us under reservation of title, this shall always be carried out for ourselves. Where the purchaser also further processes products of other suppliers subject to a reservation of title, the reserved ownership to which we are entitled in the further processed product extends proportionately to the amount outstanding for the time being of unsettled claims (final invoice amount plus value added tax) as the same was agreed between the purchaser and ourselves.
- Where the product delivered by us subject to reservation of title is indistinguishably mixed with other items/objects, we shall be entitled to the claim outstanding for the time being (final invoice amount plus value added tax), as the same was agreed between the purchaser and ourselves. The purchaser grants us co-ownership in this amount. He shall act as bailee of this co-ownership on our behalf. Should the securities to which we are entitled exceed the realisable value of our claim by more than 20 %, we shall be obliged at the request of the purchaser to release the corresponding securities; the choice of the securities to be released shall lie with us.
10. Recourse against the supplier
Where claim is made against the purchaser by an end consumer on account of a defect in the delivery for which we are responsible, the rights of recourse to which the purchaser is entitled as against ourselves shall lapse by limitation in accordance with the statutory provisions, calculated as from the passing of risk in relation to the respective delivery. The recourse shall, be restricted however to the purchaser’s being able to demand reimbursement from us of the expenditure incurred in the removal of the defect. In all other respects, the provisions of Clause 8 concerning liability and damages shall apply.
11. Data protection
We shall be entitled to collect, store, change, transmit or use data of the purchaser which we receive from the business relationship in so as far as the purchaser himself is able to dispose over the same.
12. General – Court of competent jurisdiction
- The place of performance for our deliveries, performances etc shall be our main place of business unless otherwise provided in the contract of supply itself.
- Exclusively the law of the Federal Republic of Germany shall apply.
- The court of competent jurisdiction for all disputes arising from or in connection with this contract shall be that at the location of our main place of business. We reserve the right, however, also to sue the purchaser at the competent court at his place of residence.
- The purchaser may only transfer the rights under this contract to third parties with our written consent. However, we shall not refuse our consent unreasonably. § 354 a) HGB remains unaffected hereby.
- The purchaser may only use or file applications for trademarks, brand names and other signs of the manufacturer with prior written consent and only in the interest of the vendor. Should individual provisions of these Standard Terms and Conditions of Supply and Payment be or become ineffective, the effectiveness of the remaining provisions shall remain unaffected thereby. The parties to the contract shall in such case be obliged to replace an ineffective provision with one which most closely reflects the commercial purpose of the ineffective provision and is itself effective. This shall not apply in the case of ineffectiveness on account of infringement of the provisions of §§ 305 to 310 BGB. In such case, the statutory provisions shall apply as far as a supplementary interpretation of the contract is required for the purpose of closing the gap.