Status 2007-07
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General
Only the following terms and conditions shall apply for all goods and services rendered by Klasse 4 Dental GmbH (hereinafter known as "Klasse 4") unless an agreement is made in writing to the contrary between the Buyer and Klasse 4.
Agreements or supplements differing from these terms and conditions shall not be binding unless they have been confirmed by Klasse 4 in writing and shall in any case only apply for the order for which they have been agreed.
Terms and conditions of the Buyer differing from these terms and conditions shall not apply. This shall also apply if Klasse 4 does not expressly reject the Buyer’s terms and conditions.
Materialisation of the contract
Offers made by Klasse 4 shall be subject to change until they have been confirmed and shall not be binding for follow-up orders.
If an order is placed in writing or verbally, the Buyer shall be bound by his offer to enter into a contract for 7 days. Once this period has expired, the contract shall materialise if Klasse 4 has not rejected the offer to enter into a contract within this 7-day period.
Prices
All goods shall be supplied on the basis of the Klasse 4 price list valid at that point in time.
All prices shall be ex works plus value added tax at the rate in force at that time. Dispatch costs are not included in the offer prices.
Dispatch costs shall be invoiced at 5 EUR per packing unit for delivery addresses within the Federal Republic of Germany. Dispatch will be free of charge for orders with a net worth in excess of 200 € within the Federal Reublic of Germany.
All public charges (Taxes, fees, customs duties) incurred in connection with handling the contract for delivery outside the Federal Republic of Germany shall be borne by the Buyer.
Returnable box system / recycling plaster (only applicable in Germany)
If consignments are dispatched in returnable boxes the Buyer shall pay a deposit of 7.67 € per box. The Buyer shall have the deposit credited to him if the returnable box is returned to the Klasse 4 depot (Donaustraße 16, D-94365 Parkstetten) or to a field staff member of Klasse 4.
Klasse 4 shall take back waste from the plaster it has delivered in the Klasse 4 returnable boxes at the terms and conditions stated in the Klasse 4 "Gipsrecycling" information sheet.
Terms and conditions of payment / default
Invoices for deliveries within Germany are to be settled in full within 20 days from presentation of invoice. Deliveries to other countries are to be paid in advance less 3 % discount.
If the Buyer authorises his bank to pay by direct debit, Klasse 4 shall allow a prompt payment discount of 3% for individual invoices and 2% for monthly invoices. Klasse 4 is entitled to collect the invoiced amount from the 3rd day after the presentation of invoice.
In the event of default the Buyer shall be obliged to reimburse Klasse 4 for payment reminder costs amounting to EUR 3.00 per payment reminder.
In the event of default with payment interest amounting to 8% above base rate shall be invoiced – irrespective of other statutory rights.
Klasse 4 shall be entitled to withhold subsequent consignments if the Buyer is in arrears with his payment obligations.
Counter claims may only be offset against the accounts of Klasse 4 if they have been declared final and absolute in a court of law or if they are not contested. The Buyer shall not be entitled to rights of retention.
Delivery
Delivery times stated by Klasse 4 are not binding unless an express agreement has been made to the contrary in writing. The delivery period shall have been observed if the Buyer has been notified that the goods are ready for dispatch or the goods have been handed over to the carrier before the delivery period has expired.
If force majeure (including strike and lock out, operational stoppages caused by water, fire, inclement weather, shortages of raw materials, irrespective of whether these factors affect Klasse 4 or one of its suppliers) prevents supply, the delivery period shall be extended accordingly. If the hindrance lasts for more than one month, both parties to the contract shall be entitled to withdraw from the contract with regard to the part of the contract not yet fulfilled. The Buyer shall not be entitled to compensation for damages as a result.
Klasse 4 shall be entitled to deliver part-deliveries. Part-deliveries may be invoiced by Klasse 4 immediately.
Passing of risk
Risk shall pass over when the goods are dispatched to the Buyer at the latest. This shall also apply in the event that part-deliveries are dispatched or if Klasse 4 has taken over the shipping costs. If dispatch is delayed as a result of circumstances for which the Buyer is to blame, risk shall pass over to the Buyer on the day on which the goods are ready for dispatch.
Reservation of title
The delivered goods shall remain the property of Klasse 4 until all accounts under the business relationship with the Buyer have been fulfilled in full.
The goods must not be pledged or assigned to a third party as a security as long as they have not been paid for in full.
The Buyer may sell and process the goods subject to reservation of title in the course of a normal commercial transaction.
All processing and treatment of the goods subject to reservation of title by the Buyer or third party shall be carried out for Klasse 4. Klasse 4 shall be entitled to co-ownership of newly created things in proportion to the value of the items he has delivered to the newly-created thing.
The Buyer hereby assigns all accounts created by the sale to Klasse 4 as a security for the accounts of Klasse 4 irrespectively of whether the item has been sold unprocessed or having been processed.
The Buyer is entitled to collect accounts created by reselling the goods subject to reservation of title as long as Klasse 4 does not revoke this collection authorisation.
Upon request, Klasse 4 shall undertake to release the securities to which the Buyer is entitled to the extent that the estimated value of the securities at the point in time at which the Buyer demands their release exceeds the value of the accounts to be secured by more than 50%. The selection of the securities to be released shall be incumbent upon Klasse 4.
Claims based on defects
The Buyer shall have to inspect the goods for defects immediately upon receipt and notify Klasse 4 in writing without delay. If defects are only discovered in the course of processing or using the goods (concealed goods), such defects are to be notified in writing straight away once they have been discovered. If the Buyer fails to notify defects in writing and on time, claims based on such defects shall not be recognised.
Minor impairments to use, damage incurred after the passing of risk as a result of faulty or negligent handling, excessive loads or as a result of improper storage shall not substantiate claims asserted on the basis of quality defects.
In the event that there are quality defects, Klasse 4 shall be entitled as it sees fit to repair the defective goods or to supply a replacement. The Buyer may withdraw from the contract if he has set Klasse 4 a reasonable period for subsequent fulfilment and Klasse 4 has not rectified the defect or supplied a replacement within the period set for subsequent fulfilment.
The Buyer’s right to assert warranty claims shall become time-barred one year from the delivery of the goods.
The Buyer’s warranty claims are definitively regulated subject to the regulation in No 10 (Liability).
Liability
The Buyer’s compensation claims for damages and the reimbursement of expenses against Klasse 4, its executive bodies, legal representatives and / or its assistants, regardless of whatever reason, in particular on account of breach of contractual and pre-contractual obligations, and/or on account of unlawful acts are excluded. This shall not apply provided that Klasse 4, its executive bodies, representatives or assistants have acted with intent or gross negligence and / or have in breach of important contractual duties. In the event that important contractual duties have been breached, the scope of liability shall however be limited to making good damage which is typically foreseeable if Klasse 4, its executive bodies, legal representatives and / or its assistants are charged with ordinary negligence, whereby for ordinary assistants this limit of liability shall apply for all types of negligence.
Moreover, liability shall not be limited in those cases in which Klasse 4 has compulsory liability under the law, e.g. in accordance with the German Product Liability Act and / or in the event of loss of life, personal injury and physical harm.
Miscellaneous
Only the law of the Federal Republic of Germany shall apply. UN law (CISG) shall not apply.
The exclusive place of jurisdiction for all claims created by the contractual relationship shall be Augsburg. Klasse 4 may also take legal action against the Buyer at the courts having jurisdiction where the Buyer is based. |
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