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- SWISS KRONO TEX GmbH & Co. KG
Wittstocker Chaussee 1
1.1 These sales and delivery conditions shall apply to all sales and delivery transactions of SWISS KRONO TEX GmbH & Co. KG (hereinafter referred to as "Seller").
1.2 These sales and delivery conditions shall apply exclusively. Terms and conditions of business of the buyer or amendments to these sales and delivery conditions shall not become part of the contract even if the seller does not object.
1.3 These sales and delivery conditions shall also apply to all future sales and delivery transactions between the contracting parties.
1.4 These sales and delivery conditions shall only apply to persons who, in relation to the contractual relationship, are acting in the exercise of their commercial or independent professional activity or are legal entities under public law or special funds under public law.
2.1 A contract is concluded when the parties agree on all essential elements of the contract, in particular the price, and the seller has confirmed the contract in writing (declaration of acceptance). Consultancy services of any kind, in particular with regard to the suitability of the object of purchase for the buyer's specifically intended use, are not subject matter of the contract. The specifically intended use of the goods, if communicated by the buyer, is also not the basis of the contract. The examination of the suitability of the goods for the specifically intended use of the buyer, if necessary with the involvement of experts such as structural engineers and architects in particular, is the responsibility of the buyer.
2.2 Verbal offers and agreements shall not bind the seller. Written offers made by the seller shall only bind the seller (in particular with regard to prices, delivery times, drawings, illustrations, dimensions, weights or other technical data) if this is expressly stated in the offer.
2.3 The buyer shall be bound by his offers made to the seller or his representative for two weeks from the date of their receipt, unless a longer binding period emerges from the offers.
2.4 All offer, contract and project documents may not be reproduced or made available to third parties without the seller's consent. They shall be returned immediately upon request by the seller, which may be made at any time.
2.5 The seller may withdraw from the contract if the buyer fails to fulfill his obligations to cooperate despite being granted a grace period or if the performance of the service by the seller is not possible due to obstacles to performance for which the seller is not responsible, which could not be foreseen by him or which cannot be overcome permanently and which cannot be remedied at reasonable expenditure; this shall also apply to special specifications, e.g. special productions, required qualities and deadlines.
2.6 The seller may withdraw from the contract if payment of the agreed price is not ensured by the agreed delivery date (e.g. by means of commercial credit insurance, bank guarantee, advance payment).
2.7 If the seller withdraws from the contract pursuant to clauses 2.5 or 2.6, the buyer may not derive any further rights against the seller from this – with the exception of the reclamation of payments made for this contract.
3.1 The agreed price shall be subject to the statutory rate of value added tax applicable in each case. If an exemption from value-added tax is provided for by law, the necessary conditions for such exemption must be fulfilled directly in the temporal context of the delivery. Tax-free EU deliveries: The seller shall be obliged to prove by means of documents that the delivered goods have actually been sent from Germany to another EU member state (so-called confirmation of receipt). The seller sends the confirmation of receipt to the buyer by e-mail. For this purpose, the seller requires a declaration of consent from the buyer to receive the confirmation of receipt electronically (self-collector). The buyer may only send the confirmation by e-mail after the goods have actually arrived in the other EU member state. The buyer shall reimburse the seller for any consequential costs incurred by the seller in the absence of the above-mentioned documentary evidence, e.g. subsequent VAT calculation and any other damage incurred. In all other respects, the agreed price shall be ex works; the dispatch of the goods shall be the buyer's responsibility; he shall bear the costs of packaging, insurance, freight, customs, import and ancillary charges. Packaging shall be non-returnable.
3.2 If changes are agreed upon at the buyer's request after conclusion of the contract, the buyer shall be obliged to pay the seller for any additional expenses incurred. If the price for the additional expenditure is not agreed with the contract amendment, it shall be determined by taking into account the price level of the contract on the basis of the seller's original calculation.
3.3 If raw material or auxiliary material prices, wages or other price-relevant economic circumstances (e.g. exchange rate fluctuations) increase between the conclusion of the contract and delivery for reasons for which the seller is not responsible, the seller may adjust the price accordingly at his reasonable discretion (§ 315 para. 1 German Civil Code (BGB)).
3.4 If advance payment has not been agreed, payments shall be due 7 calendar days after invoicing with 2% discount and 30 calendar days after invoicing without deduction. Partial deliveries are permitted and can be invoiced separately. Payments shall be made exclusively in EUROS.
3.5 If the buyer defaults on payment, he shall forfeit all discounts, sales and freight reimbursements and other special conditions granted in connection with the relevant sales and delivery transaction. If the buyer is in default of payment, he shall owe default interest in the amount of 12 % of the debt p.a. and a lump sum of € 40. Further claims for default of the seller shall remain unaffected. In case of default of payment by the buyer, the seller can suspend further deliveries to the buyer, even if they do not belong to the same sales and delivery transaction.
3.6 Payments shall be made by bank transfer. Bills and checks shall not have the effect of fulfillment. All costs and damages arising from the redemption and non-redemption of bills and checks shall be borne by the buyer.
3.7 Notwithstanding the buyer's repayment terms, the seller may settle payments made by the buyer as follows: Costs of prosecution, interest, principal claim. The settlement may lead to an increase in interest. The buyer must be notified of the settlement within one month of receipt of payment, otherwise the buyer's repayment terms shall apply.
3.8 If the buyer is entitled to claims against the seller (counterclaims), the buyer shall only be entitled to offset, withhold or reduce payment if the counterclaims have been legally established or are undisputed.
3.9 The assignment of claims of the buyer against the seller shall only be effective with the written consent of the seller.
4.1 The seller shall be obliged to deliver the ordered goods at the earliest when payment of the agreed price within the meaning of Clause 2.6 has been guaranteed.
4.2 The seller shall take delivery of the goods at the buyer's premises immediately after notification that the goods are ready for collection. If the takeover does not take place within two weeks thereafter at the latest, the goods shall be deemed to have been taken over and may be stored publicly at the buyer's expense. The buyer shall compensate the seller for any damage caused by the delay in acceptance; further consequences of the delay in acceptance shall remain unaffected.
4.3 The seller may manufacture the goods in modified form, provided that this is necessary due to statutory regulations and no deterioration in quality or usability occurs as a result.
4.4 If unforeseeable events (e.g. operational disruptions, strikes, sovereign measures, traffic disruptions, fire, natural disasters or other cases of force majeure) prevent the observance of agreed delivery dates, these dates shall be extended accordingly without resulting buyer’s claims. The same shall apply if the buyer fails to comply with existing obligations to cooperate, such as the submission of complete planning documents approved for the work preparation and required for the production of the goods.
4.5 If an agreed delivery date is exceeded by more than two weeks by the seller despite having secured payment of the purchase price without the buyer being responsible for this, the buyer may set the seller a reasonable grace period, which must be at least two weeks. The buyer may only withdraw from the contract after the expiry of this period to no effect.
4.6 If the seller is in default of delivery, the buyer's claims shall be limited to an amount of 0.5% of the value of the goods affected by the delay per week of the delay, up to a maximum total of 5% of the value of the goods affected by the delay. Clause 3.5 sentence 2 half-sentence 2 shall apply accordingly in favor of the seller. Any further claims of the buyer shall only be considered in case of intent, gross negligence or breach of a cardinal obligation by the seller.
4.7 Clauses 4.5 and 4.6 shall not apply in the case of a commercial fixed-date transaction; in this case, § 376 German Commercial Code (HGB) shall apply.
5.1 The risk of accidental loss and accidental deterioration of the goods shall pass to the buyer upon notification that the goods are ready for dispatch/collection, at the latest upon acceptance or assumed acceptance in accordance with Clause 4.2 sentence 2.
5.2 If shipment to the buyer has been agreed (regardless of at whose expense), the risk shall pass to the buyer as soon as the seller has made the goods available for shipment.
6.1 The seller's goods consist essentially of wood, a natural product. Its natural properties lead to a range of natural differences in color, structure and other differences and therefore do not constitute a defect. Insignificant deviations from the description of the goods, in particular the deviations listed in the goods guidelines and dimensional deviations of up to 10% in the case of boards with fixed dimensions shall not constitute defects even outside the cases regulated in Clause 4.3. This shall apply accordingly if the cost of eliminating the defects does not exceed 4% of the value of the goods in the sales and delivery transaction.
6.2 If melamine resin-coated products are used outside Europe, the seller shall only be liable for defects if the seller has been notified in writing of the intended purpose and place of use of the goods and the suitability of the material has been confirmed in writing by the seller.
6.3 Warranty claims shall require that the buyer make the defective goods available to the seller for inspection. Return shipments must be agreed upon beforehand between the contracting parties.
6.4 Claims for defects require that the buyer has paid the seller for the defective goods in full when due.
6.5 After the transfer of risk in accordance with Clause 5, the buyer shall be obliged to inspect the goods immediately for defects, including wrong deliveries and quantity defects, and to notify the seller of such defects in writing without delay. This shall also apply if samples of the goods were delivered beforehand. If defects only become apparent later, they must also be notified immediately. In the event of violations of the obligation to inspect or give notice of defects, there shall be no claims whatsoever against the seller.
6.6 In the event of defects, the buyer's claim shall initially be limited to subsequent performance by eliminating the defect; instead, the seller may, at his discretion, provide subsequent performance by way of replacement delivery. Only if the subsequent performance fails or is refused by the seller shall the buyer be entitled to claim reduction of the purchase price or, at his discretion, to withdraw from the contract.
6.7 The seller shall only be liable for property damage and financial loss in the event of intent or gross negligence. The liability is limited to the damage typical of the contract and foreseeable at the time of conclusion of the contract. This limitation shall not apply in the case of injury to health, body or life for which the seller is responsible, nor in the case of breaches of cardinal obligations and claims under the Product Liability Act. The limitation of liability shall apply accordingly to damages resulting from claims of third parties against the buyer.
6.8 The seller shall only be liable for defects of title in connection with patent rights in the event of intent or gross negligence.
6.9 Any claims for defects by the buyer against the seller shall become time-barred after one year. This does not apply to goods according to § 438 para. 1 No. 2 BGB. The course of the limitation period begins with the transfer of risk in accordance with Clause. 5.
6.10 The recourse claims of the buyer against the seller based on the regulations on the consumer goods purchase shall only exist to the extent that the buyer has not established any claims with his contractual partner in the supply chain that exceed the statutory claims for defects. Recourse claims of the buyer shall become time-barred after one year; § 479 para. 2 BGB shall not apply. Clauses 6.7 and 6.9 shall apply accordingly. Payment targets, rebates, discounts, the assumption of transport services and comparable services granted to the buyer shall be deemed equivalent compensation in accordance with § 478 para. 4 sentence 1 BGB. The buyer shall be obliged to notify the seller immediately of any recourse occurring in the supply chain.
6.11 The guarantee obligation for defects expires if the goods are changed, processed or handled improperly.
6.12 If, after a claim has been made against the seller by the buyer on the grounds of guarantee, it emerges that the seller has no guarantee obligation, the buyer shall reimburse the seller for the expenses incurred.
7.1 The delivered goods shall remain the property of the seller until the seller's claims against the buyer arising from the sales and delivery transaction have been met in full. The inclusion of individual claims in a current invoice or the settlement of a balance and their acknowledgment by the seller shall not cancel the retention of title.
7.2 The goods delivered shall remain the property of the seller until all claims of the seller against the buyer, irrespective of their legal basis, now or in the future, have been satisfied in full. Clause 7.1 sentence 2 shall apply accordingly.
7.3 The buyer shall be entitled to combine, mix and process the reserved goods in the ordinary course of business, and specifically for the seller as manufacturer, but without any obligation on the part of the seller. If the seller's ownership of the goods delivered expires due to combination, mixing or processing, the buyer shall already transfer to the seller co-ownership of the new item in proportion to the value of the goods delivered to the buyer's item at the time of combination, mixing or processing.
7.4 The buyer shall bear the risk for the seller's goods. He shall store them carefully, mark and separate them as the property of the seller and insure them against loss, theft, fire, etc. He hereby assigns the claim against the insurance company in the event of damage to the seller accepting this. In case of seizure or other impairment of the seller's rights by third parties, the buyer shall inform the third party of the seller's rights and notify the seller immediately in writing. Costs (including those of legal action) and damages arising from the seizure or other impairment or from the failure to refer to the seller's rights shall be borne by the buyer.
7.5 The buyer is entitled to sell the seller's goods or the new item in the ordinary course of business. Pledging or transfer of securities is excluded. The buyer hereby assigns any claims that have resulted or are resulting from the sale to the seller, who accepts this. The buyer is obliged to keep the proceeds for the seller separate from his own or third party assets and to document this by making a corresponding note in his accounts or on his invoices. If the buyer's claims arising from the sale are included in a current account with a third party, the buyer shall object to this with reference to the seller's rights and shall inform the seller immediately in writing. The seller authorizes the buyer to collect the assigned claims in his own name; the authorization is revocable in the event that the buyer defaults on the performance of obligations to the seller.
7.6 If the value of the aforementioned securities exceeds 20% of the Seller's claims on a sustained basis, the seller shall release them to such extent at his discretion.
7.7 The buyer shall be obliged to do everything, in particular to make every legal declaration to the seller or third parties in order to make the above agreed retention of title fully effective, also according to foreign law of the place of delivery or the buyer's registered office.
8.1 In the internal relationship, the buyer shall be liable solely as a joint manufacturer in accordance with the Product Liability Act. He shall indemnify the seller from third-party claims.
8.2 If the buyer has provided the seller with specifications for the manufacture of the goods, the implementation of which leads to an infringement of patent, copyright, trademark or other industrial property rights of third parties, the buyer shall indemnify the seller against third-party claims.
9.1 All disputes shall be settled in accordance with substantive German law. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
9.2 If the buyer does not have a general place of jurisdiction in Germany (§ 38 para. 2 ZPO) or if the buyer is a merchant, a legal entity under public law or a special fund under public law (§ 38 para. 1 Code of Civil Procedure (ZPO)), Neuruppin shall be the exclusive place of jurisdiction for all disputes relating to the contractual relationship.
9.3 Place of performance for all obligations concerning the contractual relationship is Heiligengrabe near Wittstock.
9.4 If individual provisions of the contractual relationship are or become invalid, the validity of the remaining provisions shall not be affected. The contracting parties shall be obliged to agree on a new provision which comes closest to the purpose of the invalid provision.
9.5 No oral collateral agreements to the contractual relationship have been made. Any change must be made in writing, whereby sending the written declaration by fax is sufficient. This also applies to the change of the written form requirement itself. The written form requirement shall also apply to declarations with a formative effect, in particular withdrawal, as well as for setting deadlines.
Heiligengrabe, May 2019