MAUSER SITZKULTUR GMBH & CO. KG – GENERAL TERMS & CONDITIONS OF BUSINESS

 

  1. GENERAL

    1.1 All offers and contracts of sale are subject solely to these terms & conditions, unless expressly agreed otherwise in writing. The purchaser’s terms of business do not apply unless MAUSER SITZKULTUR has specifically acknowledged them in writing.
    1.2 Contracts based on these terms remain binding, even if individual clauses are or become ineffective. Any ineffective term or loophole should be replaced by an arrangement, which comes closest to reflecting the contracting parties’ commercial intent, to the extent this is permitted by law


  2. OFFERS / SAMPLES

    2.1 All offers are subject to confirmation.
    2.2 Illustrations and technical information detailed in offers and quotations, brochures and cost estimates, in particular weights and dimensions and other technical data are given for information purposes only. This data as well as DIN or VDE standards or any other internal or external standards are merely used to characterise the contractual item and only represent warranted characteristics upon specific written confirmation.
    2.3 All ownership rights to and copyright of technical documentation and cost estimates forming part of any offer are reserved. The recipient of an offer or quotation is obliged to deny third parties access to this documentation and to return it and any copies thereof to MAUSER SITZKULTUR upon request without delay.
    2.4 Obvious errors in the offer or quotation may be corrected up until the order acknowledgement is issued.


  3. ORDERING / ORDER ACKNOWLEDGEMENT

    3.1 By placing an order, the orderer or purchaser accepts these terms & conditions.
    3.2 The orderer or purchaser must specifiy all relevant details in his order. MAUSER SITZKULTUR does not accept any liability for errors or losses arising from incomplete or inaccurate details in the order (e.g. “ as previously ” ) .
    3.3 The contract may only be regarded as having been concluded upon issue of a written order acknowledgement by MAUSER SITZKULTUR. A lack of response shall not be regarded as acceptance and shall not result in the conclusion of a contract. The written order acknowledgement applies to the content and scope of the contract. This also applies to subsidiary agreements, alterations, amendments etc.
    3.4 If, after having forwarded its order acknowledgement, MAUSER SITZKULTUR becomes aware of any basic deterioration in the financial circumstances of the orderer or receives negative information about the orderer’s commercial performance and/or payment method, MAUSER SITZKULTUR can either make performance dependent on payment in advance or provision of another reasonable surety or it can withdraw from the contract.


  4. PRICES, PRICE CAVEATS, PAYMENTS

    4.1 Prices are quoted net, delivered freight paid to the point of use within the Federal Republic of Germany (excluding offshore islands), not including packaging or installation, with no other deductions. If the net order volume is below € 750.00, a transport charge of 7 % or any relevant postage and packing charges will be billed. 
    4.2 Should there by any substantive, unforeseen changes to order-related costs after the date of the order acknowledgement, MAUSER SITZKULTUR reserves the right to make a reasonable and appropriate price adjustment, provided there is a period between order acknowledgement and delivery date of at least six months.
    4.3 Payments must be made to the bank accounts stated on official MAUSER SITZKULTUR letterheads.
    4.4 Where the agreed credit period is exceeded, reminder charges and default interest in the amount of 3% p.a. above the ECB’s base rate will be billed, at a minimum rate of 6% p.a.
    4.5 In the event of default, reminder charges and default interest in the amount of 8% p.a. above the base rate in cases of legal transactions not involving a consumer, or in the amount of 5% p.a. above the base rate in cases of legal transactions involving a consumer, will be billed.
    4.6 The orderer may only offset MAUSER SITZKULTUR claims with non-disputed or legally binding claims of his own.


  5. DELIVERY PERIODS

    5.1 The date stated in the order acknowledgement determines the delivery period. Should a specific calendar week be agreed as the delivery period, MAUSER SITZKULTUR reserves th right to determine the exact delivery date during the week stated in the acknowledgement. If a delivery deadline has been stated, this begins when the order acknowledgement is forwarded to the orderer. All delivery periods and deadlines shall be extended by a reasonable period, if the circumstances listed in Item 8.1 arise.
    5.2 In business dealings with commercial partners, the delivery period is considered to have been complied with if the delivery item has left the factory or the orderer has been notified that the item is ready to ship by the expiry of the delivery period.
    5.3 The orderer may give MAUSER SITZKULTUR a formal notice of default if the agreed delivery period is exceeded, but he must grant an additional 2 weeks to enable MAUSER SITZKULTUR to complete delivery. If the orderer incurs any financial loss as a result of a delay caused by MAUSER SITZKULTUR, he shall be compensated in the amount of 0.5% of the total value for each full week that delivery is delayed, up to a maximum of 5% of the value of that portion of the full consignment, which cannot be utilised on time or as per the contract as a result of the delay. Other losses shall only be reimbursed in such cases as listed in Item 12.6 below.
    5.4 Compliance with delivery periods/deadlines by MAUSER SITZKULTUR is always based on the assumption that the orderer meets his contractual obligations.


  6. JOB EXECUTION

    6.1 Design changes that do not impair the utility value of the delivery item may be undertaken without having to notify the orderer. Dimensions, weights and content are stated in offers, order acknowledgements etc. with standard industry tolerances, provided they have not been flagged as binding. German Standards Committee terms apply to material thickness, quality and weight.
    6.2 Partial deliveries and therefore partial invoices are permitted.


  7. TRANSFER OF RISK

    7.1 Risk is transferred to the orderer once the delivery item has been handed over to the haulier or forwarder or has left the factory for shipping purposes, irrespective of whether transfer/shipping is effected from the place of performance, who pays for freight or who completes shipping. That also applies to partial deliveries.
    7.2 If the delivery item is ready to ship and shipping or acceptance is delayed for reasons for which MAUSER SITZKULTUR is not responsible, risk is transferred once the orderer has received a ready-to-ship notification.


  8. DELIVERY (PERFORMANCE) HINDRANCES

    8.1 If acts of God occur or operations are disrupted, irrespective of whether these are due to shortages of raw materials/components, strikes or lock-outs, fire, mobilisation or war or for any other reasons that MAUSER SITZKULTUR cannot control, MAUSER SITZKULTUR is entitled either to request a reasonable extension to the delivery deadline or to cancel the contract in full or in part. This also applies if the above-mentioned events occur at a time when MAUSER SITZKULTUR is itself in default or the above-mentioned events have impacted on sub-contractors. The orderer is not entitled to claim compensation, unless hindrance of delivery was wilful or caused by gross negligence or personal injury occurred.
    8.2 If MAUSER SITZKULTUR is prevented from meeting its delivery obligations for reasons for which it is responsible, the orderer is entitled to claim damages. However the orderer’s entitlement to damages is limited to 10 % of the value of that portion of the order, which cannot be put to its intended use because delivery is not possible. This does not apply if there is mandatory liability in cases of intent, gross negligence, initial incapacity or personal injury. In this case there is no change in the burden of proof to the detriment of the orderer. The right of the orderer to withdraw from the contract remains unaffected.


  9. ACCEPTANCE AND DELAY OF ACCEPTANCE

    9.1 The orderer has an obligation to accept deliveries, even if these have negligible defects or faults.
    9.2 MAUSER SITZKULTUR is entitled to bill the orderer for any delay of acceptance. The orderer shall bear the costs and the risk of storage and of intermediate off-site storage if necessary.


  10. ON-PERFORMANCE BY THE ORDERER

    If the orderer does not comply with the agreed acceptance deadline, MAUSER SITZKULTUR is entitled, as it sees fit, either to claim damages for non-performance or to withdraw from the contract in accordance with § 326 BGB (German Civil Code) or to put the goods into storage elsewhere at the orderer’s expense, if the orderer delays accepting the goods for longer than 4 weeks and MAUSER SITZKULTUR is not responsible for this delay. This shall occur at the expense and the risk of the orderer. The right to compensation remains unaffected. MAUSER SITZKULTUR is also entitled to exercise these rights if the orderer’s financial circumstances deteriorate during the term of the contract or invoices are not paid when due as contractually agreed. These rights extend to all contracts with the orderer during this period of default.


  11. ACCEPTANCE

    The orderer is obliged to accept the delivery item / service (also a portion thereof) at his own expense. If the item/service is not accepted within 12 working days after receipt of the ready-to-ship notification, on grounds for which MAUSER SITZKULTUR is not responsible, the item/service shall be deemed to have been accepted after a period of 12 working days, if the orderer has been made aware of this term upon issue of the ready-to-ship notification. Where the orderer has utilised the delivery item / service in full or in part, acceptance shall be deemed to have occurred at the time of utilisation.


  12. WARRANTY AND COMPENSATION CLAIMS

    The following terms apply to warranties, which include properties that MAUSER SITZKULTUR has expressly guaranteed, and to other liabilities:
    12.1 MAUSER SITZKULTUR warrants that its products have been manufactured free from defects in accordance with agreed technical specifications. If products are to be supplied in accordance with drawings, specifications, mock-ups etc. provided by the orderer, the latter shall bear the risk of suitability for any intended use. The time of risk transfer as detailed in Items 7 and 11 above is key to the contractual status of the delivery item.
    12.2 No guarantee is given for defects caused by unsuitable or inappropriate storage or use, incorrect installation or commissioning by the orderer or third parties, normal or natural wear and tear, improper or negligent handling or caused by inappropriate alterations or repairs undertaken by the orderer or third parties, yet not authorised by MAUSER SITZKULTUR. Industry-standard technical alterations to dimensions and design and non-remediable, e.g. material-inherent, colour or structural discrepancies do not constitute grounds for complaint. These restrictions on liability do not apply in cases of personal injury.
    12.3 The warranty period complies with German law.
    12.4 The orderer must report in writing any obvious defects without delay upon receipt of the goods and any hidden defects without delay after identifying the defect or fault – however no later than six months after risk has been transferred as per Items 7 and 11 above. All notifications of defects must be sent to the head office of MAUSER SITZKULTUR and not to one of its branch offices. MAUSER SITZKULTUR must be given the opportunity to establish the cause of any defect that is reported. Rejected goods should be returned to MAUSER SITZKULTUR at its request; return shipping costs will be accepted, provided the complaint is justified. Should the orderer not meet these obligations or should he make alterations etc. to the goods he has already complained about without the approval of MAUSER SITZKULTUR, he shall forfeit any entitlement to claim under warranty.
    12.5 Where any complaint is justified and is submitted within the deadline, MAUSER SITZKULTUR can choose whether to rectify the defect or replace the item, in order to meet its warranty obligations. Should MAUSER SITZKULTUR not comply at all or not comply within a reasonable period as per the contract with these warranty obligations, the orderer is entitled to set a final deadline in writing, within which MAUSER SITZKULTUR must meet its obligations. If the deadline expires without remedial action being taken, the orderer can demand a discount, can withdraw from the contract or undertake any necessary remedial action himself or via a third party at the expense of MAUSER SITZKULTUR. If this remedial action is carried out successfully by the orderer or a third party, any claims that the orderer may have will be deemed to have been met if the necessary costs he has incurred are reimbursed. Other claims that the orderer may have, in particular claims for damages, which have not affected the delivery item itself cannot be accepted. This exemption from liability does not apply in cases of intent or gross negligence on the part of MAUSER SITZKULTUR’s legal representatives or executives or in cases of culpable breaches of fundamental contractual obligations. In cases where it culpably breaches fundamental contractual obligations, MAUSER SITZKULTUR – except in cases of intent or gross negligence on the part of its legal representatives or executives – is only liable for losses that could have been reasonably foreseen and are typical for this type of contract. Furthermore this exemption from liability does not apply in cases where there is liability in accordance with product liability laws for faults in the delivery item, which cause personal injury or damage to non-commercially used property. This exemption also does not apply to an absence of characteristics that have been expressly warranted, if and to the extent that warranting such characteristics was intended to safeguard the orderer against damage, which did not occur to the delivery item itself.
    12.6 Unless specified hereinafter, any other claims that the orderer may have cannot be accepted. This applies in particular to claims for damages in cases of delay, the impracticality of performance, culpable breach of secondary contractual obligations, fault at contract conclusion or unauthorised action. MAUSER SITZKULTUR is therefore not liable for damage that has not occurred on the delivered goods themselves. In particular MAUSER SITZKULTUR is not liable for any loss of income or other financial losses incurred by the orderer. The above-mentioned liability limitations do not apply in cases of intent or gross negligence on the part of MAUSER SITZKULTUR’s legal representatives or executives and in cases where it culpably breaches fundamental contractual obligations. In cases where it culpably breaches fundamental contractual obligations, MAUSER SITZKULTUR – except in cases of intent or gross negligence on the part of its legal representatives or executives – is only liable for losses that could have been reasonably foreseen and are typical for this type of contract. Furthermore this exemption from liability does not apply in cases where MAUSER SITZKULTUR has liability in accordance with product liability laws for faults in the delivery item, which cause personal injury or damage to non-commercially used property. This exemption also does not apply to an absence of characteristics that have been expressly warranted, if and to the extent that warranting such characteristics was intended to safeguard the orderer against damage, which did not occur to the delivery item itself.


  13. RETENTION OF TITLE

    13.1 Delivery items remain the property of MAUSER SITZKULTUR until payment in full of all receivables (including any costs and interest) arising from the business relationship with the orderer. This also applies to the insertion of specific claims into a current invoice and to acquired receivables subsequently due from the orderer in respect of repairs to or the supply of spare parts for the delivery items, provided that retention of title has not yet expired as a result of offsetting receivables arising from the contract. Despite this retention of title the orderer shall bear the risk of loss or deterioration of the goods.
    13.2 This title also extends to new items that result from processing, blending or mixing. In such cases MAUSER SITZKULTUR acquires co-ownership in proportion to the value percentage of its input. The orderer is obliged to store and secure any goods subject to retention of title with care.
    13.3 The orderer is entitled to on-sell the delivered items subject to retention of title as part of any proper business transaction; pledging or assigning the goods as security in full or in part is not permitted for as long as retention of title still applies. Should the orderer sell the delivered items subject to retention of title to a third party, the receivable due from that third party in the amount of MAUSER SITZKULTUR’s final invoice total shall be deemed to have been assigned to the former. MAUSER SITZKULTUR herewith accepts this assignment. Upon demand by MAUSER SITZKULTUR (to which it is also entitled), the orderer is obliged to inform the third party about this assignment and to provide all the information required to enable MAUSER SITZKULTUR to exercise its rights.
    13.4 The orderer must inform MAUSER SITZKULTUR by registered letter without delay about any foreclosure action taken against third parties in connection with the goods subject to retention of title or in connection with receivables or other collateral assigned to MAUSER SITZKULTUR by forwarding the documentation required for intervention. The orderer shall bear all costs that have to be incurred to rescind access or to take repossession of the items in question, provided these costs are not for the account of the third party. If the orderer fails to notify or notifies MAUSER SITZKULTUR late, he is obliged to compensate MAUSER SITZKULTUR for any loss it may incur.
    13.5 If MAUSER SITZKULTUR asserts its retention of title or removes or seizes any delivery item, this shall not be deemed as a withdrawal from the contract, unless MAUSER SITZKULTUR has made an express statement to this effect in writing.
    13.6 MAUSER SITZKULTUR shall release any collateral to which it is entitled in accordance with the above-mentioned provisions upon request by the orderer, to the extent that the value of the goods subject to retention of title exceeds the secured receivables by more than 20 percent.


  14. PLACE OF PERFORMANCE AND JURISDICTION

    14.1 The place of performance is where the supplier is located. In respect of the orderer’s payment obligations the place of performance is MAUSER SITZKULTUR’s headquarters.
    14.2 The court in the place where MAUSER SITZKULTUR’s headquarters are located is the agreed place of jurisdiction.


  15. CHOICE OF JURISDICTION

    German law applies exclusively to this contract. The United Nations Convention on Contracts for the International Sale of Goods (CISG) does not apply.


  16. CHANGES

    MAUSER SITZKULTUR must be informed immediately in writing of any changes to the orderer’s or the delivery address, since if it is necessary to trace a new address, these costs will be charged to the orderer.


  17. DATA PROTECTION

    The orderer is aware that his personal data shall be stored in MAUSER SITZKULTUR’s computer system in compliance with the Data Protection Act for the purposes of automatic processing in relation to this contract (invoicing, accounting)


    As at: February 2004 

 

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