1. Scope of Application
The present Terms of Delivery and Payment shall govern the contractual relationship regarding the purchase of goods from Elten GmbH by entrepreneurs. Contradicting and/or additional terms and conditions of the customer shall not become part of the contract.
(1) The order has been placed if it is not cancelled by us in writing within 10 days. Decisive for the setting of the deadline is the dispatch date of the letter of rejection.
(2) Offers published in prospect material, advertisements, price-lists etc. are – also regarding price indications – without engagement, subject to change without notice and not binding.
(3) Secondary agreements must be confirmed in writing in order to become valid.
(1) Unless otherwise agreed, deliveries are made on condition “ex works” at buyer’s risk. The transport costs for domestic deliveries are borne by the seller. Delivery is done in the way which is most favourable for the seller (sea freight, air freight or forwarding agency). For deliveries made abroad, the buyer has to come up for the cost of delivery.
(2) Additional costs for special requests from the buyer (e.g. express, courier) shall be borne by the buyer himself.
(3) If the net order value is less than € 450.00, we will charge a freight and handling fee of € 9.90.
Post and cardboard packing as well as crate- and linen cloth packing will not be charged extra.
5. Title of Property
We shall retain full title to the goods until any and all our current claims against the buyer as well as all future claims against the buyer are fully settled as long as the future claims are associated with the current business relationship between us and the buyer.
The buyer is entitled to resell the delivered goods which are subject to our retention of title in the ordinary course of business. For this case, the buyer hereby assigns any and all claims arising out of such resale to us. If the goods subject to the retention of title are resold after processing and together with other goods which do not belong to us or if the goods subject to the retention of title are mixed with other movable assets the respective claim of the buyer against its customers shall be assigned to us in the amount of the delivery price as agreed for the goods subject to the retention of title.
The buyer shall be entitled to collect the respective claims against its customers also after the assignment of these claims to us. Our right to collect these claims in our own name remains unaffected. However, we shall be obliged to refrain from a collection in our own name as long as the buyer fulfils any and all of its payment obligations vis-à-vis us. If the buyer makes use of its right to collect the claims against its customers we are entitled to the respective proceeds in the amount of the delivery price as agreed for the goods subject to the retention of title.
We shall be obliged to release the securities which we are entitled to upon request if the marketable value of the securities exceeds the secured claims by more than 20 %.
If we accept a bill of exchange as means of payment we shall retain the full title to the goods delivered by us until it is unambiguous that we shall not be called upon with respect to the bill of exchange.
6. Terms of Delivery
(1) In case of force majeure or official actions we as well as the buyer shall be entitled to extend the agreed delivery time – or, due to lack of agreement – to postpone the immediate delivery for the time of duration, however, at the utmost for a period of 6 weeks, under exclusion of any guarantee claims. After expiration of this time limit each party is entitled to withdraw from the contract after having set an appropriate prolongation under the threat of a rejection.
(2) The same applies in case of labour disputes (strikes and lock-outs).
(3) Should the buyer intend to claim indemnification due to non-fulfilment, he is obliged to set us a grace period of at least 24 days giving us notice that he will decline fulfilment after expiration of this grace period. The grace periods shall not begin before the receipt of the letter at the buyer’s premises and not earlier than after expiration of the delivery date. This procedure also applies if the buyer demands fulfilment of the contract.
(4) Transactions for delivery at a fixed date are not carried-out.
7. Guarantees and Liabilities
(1) Should the article delivered be defective or miss the promised characteristics, or the article deteriorates within the guarantee period due to manufacturing or material defaults, we are entitled at the discretion of the buyer under the exclusion of other guarantee claims of the buyer either to perform a subsequent delivery or to grant a price reduction.
(2) The warranty period shall amount to twelve months and shall begin on the date of delivery. This shall not apply to claims for damages arising from the violation of life, body or health, and based on a negligent breach of an obligation by us or from on an intentional or grossly negligent breach of an obligation by one of our legal representatives or by a person assisting us in the performance of our obligations, or to claims for other damages based on a grossly negligent breach of an obligation by a legal representative of us or by a person assisting us in the performance of our obligations; to such claims the applicable limitation period provided for under the applicable laws shall apply.
(3) If the subsequent improvement or replacement delivery fails, the buyer can, under exclusion of other guarantee claims, insist on their correct repetition within an appropriate grace period. Should the further subsequent improvement or replacement delivery fail the further rights of the buyer shall be subject to statutory law.
(4) The notice of visible defects has to be submitted in written form. It should be made and proved within 10 days after receipt of goods, in case of delivery before the agreed delivery date, within 10 days after the agreed delivery date.
(5) In case of hidden defects, statutory law shall apply.
(6) The goods subject to a notice of defect may only be sent back to us with our approval and free of charge for us, unless we have not respond to the notice of defect within 10 days.
(7) In case of notices of defects with respect to single pairs the simultaneous return of the goods together with the respective notice is admissible. Such notices of defect have to be settled on our part within 15 days, starting on the provable date of dispatch, otherwise the buyer is entitled to charge the equivalent value. Dispatch from both parties involved has to be made by registered mail. Should the buyer dispatch the goods not by registered mail, the notice of defect has to be dealt with from the seller within 10 days after receipt of the returned material. In this case the dispatch of the goods from the seller can also be made in non-registered form.
(1) Invoices are issued on the day of dispatch of the goods, respectively on taking over of the goods. In the case of early delivery, the agreed delivery date will be regarded as date of issue. Valuations modifying the validity are inadmissible.
(2) An open credit may not exceed 30 days from the date of the invoice. In case of delay of payment beyond the credit period, or beyond the payment date of an agreed prepayment, interest shall be due at a rate of 8 % in addition to the base rate within the meaning of Section 247 of the German Civil Code (“Bürgerliches Gesetzbuch”, abbr. “BGB”). The seller shall remain free to prove a higher loss of interest and the buyer shall remain free to prove a lower loss of interest.
(3) In case of cash payment into a lossless balance within 10 days after the date of the respective invoice we shall grant a cash discount of 2 %.
(4) Invoices from 1. to 10., 11 to 20 and 21 until the last day of the month can be added up to the respective last day of this period of time, unless differing arrangements have been made.
(5) Acceptances and remittances of customers shall not be deemed as payment in cash.
(6) Subject to a respective agreement we and the buyer may agree on the presentation of stamped Three-Months-Acceptances free of charge or bankable remittances of customers. The presentation has to be performed 30 days after the date of the respective invoice at the latest. Ancillary costs shall be borne by the buyer.
(7) The contracting parties may agree upon one or more of the conditions listed above under para. (6).
9. Failure to pay, Deterioration of property
If the buyer is more that 14 days behind the agreed payment, or a considerable deterioration with regard to his property occurs, we are entitled to withdraw from that part of the contract which has not been fulfilled yet, or, with regard to future deliveries, insist on cash payment or guarantee of the goods without the necessity of a (previous) prolongation of time.
10. Transfer of rights for image material
(1) Unless otherwise agreed, the Buyer may only use image material (product photos and graphics, company and product brand logos) for the promotion and presentation of the goods sold that the Seller has provided to the Buyer for this purpose. This image material has been approved for the promotion and presentation of the goods sold in all media used by the Buyer, especially in catalogues, offer flyers, newsletters and advertising films (all online, print, TV, cinema).
(2) To this end, the Buyer shall be granted a non-exclusive, free right of use; this shall be limited in terms of time, content and geographical scope to the promotion, presentation and marketing of the products and brands supplied. With regard to photo material depicting people, a possible further temporal limitation of the right of use shall be communicated in detail upon handover. The Buyer shall be liable for third-party claims which are based on an overrun of the time-limited right of use by the Buyer.
(3) In the case of cessation of sales by the Buyer, whether due to termination of the business relationship or after sell-off of the goods represented in the image material, the right of use shall expire. If updated image material is made available, the right of use to the older image material shall expire. The Buyer shall be permitted to use up print catalogues and other printed advertising materials already created before the updating of the image material. The same shall apply in the event of the cessation of sales.
(4) Any processing of the image material, with the exception of size adjustment, shall not be permitted. The Buyer shall not be permitted to sublicense, except to affiliated companies for the purpose mentioned in paragraph 1 and within the scope specified in paragraph 2.
11. Choice of Law, Place of Jurisdiction
(1) The laws of Germany shall apply. The Convention on the International Sale of Goods shall not apply.
(2). For dealings with merchants, legal persons under public law or separate estates under public law, the courts at the seat of our company (Uedem) shall have jurisdiction over all conflicts arising hereunder, except to the extent that any other courts will have jurisdiction under mandatory provisions of the applicable laws. Also, we shall be entitled, at our choice, to file a lawsuit at the customer’s location instead.
Last revision: Novemer 2015