General Terms and Conditions
General Terms and Conditions
The following document is a translation of the original German General Terms of Delivery. It is provided for information purposes only. The German version of the General Terms of Delivery shall exclusively be binding.
These terms and conditions apply to all deliveries and services performed by the company Starshine GmbH & Co. KG, based in Plattling, and in the following called vendor or referred to as „we", as well as to all offers and contracts of deliveries (also referred to as goods or products) or services to be made or performed by the vendor, unless deviant agreements have been expressly accepted in writ-ing. These conditions shall also apply to all the vendor's future statements, offers and contracts. Other business or purchasing conditions stipulated by the purchaser (also referred to as customer or client) which the vendor do not expressly accept in writing, shall be considered non-binding in their entirety and shall not enter in any contract, even though the vendor does not explicitly object to them.
§1 | Offer, Conclusion of contract, Terms of contract and similar
The vendor's offers shall not be binding. In case the vendor indicates a price, the indicated price is always the vendor's price effective at the day the offer is made, unless the vendor has espressly de-clared something else.
Every offer respectively every quotation apply exclusively, picking out an individual point or changing sort, quantity or place of delivery is subject to the vendor's agreement; freight, packaging and other transport costs stipulated by the vendor are without obligation.
Properties and obligations of our deliveries and services are exclusively determined in accordance with the agreements expressly made in the contract. Indicating a product by its name or its product and/or type designation in an offer or a contract, automatically means that we are obliged to deliver this product in accordance with the generally valid product or type designations effective at the day the offer was submitted. Specifications in brochures or offers, advertising statements, statements in other publications and statements of third parties do not justify, under no circumstances, contractual fulfil-ment claims, warranty claims or claims for compensation against us.
If and to the extent to which the designated use or the usability is hereby not affected, the value is maintained or increased and the changes are reasonably for the client, the vendor has the right to al-ter the subject of delivery or service compared to the sample, the offer or the description in the con-tract in order to improve the company's delivery or service quality adapting it to production progress or technical improvements, the change also can be brought about by normal discrepancies (customary in trade) regarding weight, quantity, dimensions and measurements, material composition, fabric, struc-ture, surface and color or regarding the nature of the processed materials.
The vendor assumes responsibility or guarantees for the conditions of deliveries and services as well as for any risk incurring their procurement if and to the extent to which it has been expressly agreed on in writing.
The vendor's obligations are subject to reservation – unless something different has been expressly agreed on – of a correct and in time procurement of the matching cover transactions including negoti-ations with subcontractors as well as the supply of raw, auxiliary and/or working materials or for pro-duction or delivery necessary services performed by third parties. (= International and commercial term: "The condition of correct and punctual deliveries to us (the vendor) as the supplier ").
As far as we procure goods or services necessary to meet our contractual obligations to our clients, those incoming deliveries are checked or they are otherwise subject to control in order with our com-pany's interests and needs.
All contracts and performances as well as their modifications or amendments and all the agreements related to a contract or its fulfillment must be in written form.
We are allowed to use either the electronic or the text form; in this case the client is also allowed to submit statements in both ways.
Oral agreements are only valid if they are confirmed in writing withour measureable delay by one of the partners.
If a contract has not been made in written form, the placed order will not be binding for the vendor until the latter has confirmed the order in writing. If the vendor starts to execute an order without explicit agreement or confirmation in writing, a contractual relationship does not come into effect until delivery or service has been completed. The contract signed by both parties, or in default of this, the content of the vendor's order confirmation or commercial invoice constitutes his exclusive obligation.
Any drawings, drafts, models or samples provided by the vendor – not important if they are provided in original or in copy, are only provided by way of lending and remain the vendor's property. They may neither be used for other proposes, nor be duplicated or brought to the attention of third parties and have to be handed back unrequestedly and as soon as possible or on the vendor's demand.
We, the vendor, may store, process and use the electronic data of our business partners for opera-tional purposes; we may also pass on this data to the required extent to third persons who grant us a credit or insure our claims against business partners.
§2 | Prices
Our prices are to be construed in euros, ex works Plattling, without value added tax (VAT) and without other public duties imposed on sales transactions or the movement of goods, and without packaging, insurance, freight, installation and start-up insofar as nothing to the contrary is expressly agreed.
Subject to an explicit agreement to the contrary, in the event that our delivery, performance, part-delivery or part-performance is not due within four months of the conclusion of the contract and there is an increase in the cost of materials, labour, energy, carriage and/or public taxes or such like are newly introduced, we are entitled to offset the increased costs with an appropriate surcharge. This clause shall also apply to fixed price agreements.
Subject to an express agreement to the contrary, we are entitled to claim pre-paymet for products not held in stock at the conclusion of the contract; namely 50.0% of the sum after receipt of the order con-firmation, 40.0% during delivery/working phase and 10.0% before dispatching the last part of delivery.
We may invoice the customer at any time once delivery has been made or service/performance has been carried out and our payment claim shall become immediately due.
§3 | Delivery, Performance, Delay, Exercise of options for the purchaser/client
Delivery or performance times are only binding if they are agreed on in writing. In the event of doubt, the delivery times referred to in the order confirmation shall apply. The delivery period commences with conclusion of the contract; however, not before the fulfilment of existing co-operational duties by the client. In particular, these include the provision of materials and documentation to be procured by the customer and the arrangement of authorizations, releases, agreed deposits or other securities for the fulfilment of his contractual obligations. Once the notice of dispatch readiness has been issued, the agreed deadlines will be considered to have been met, even if delivery or performance cannot take place for reasons which are not our fault.
If delivery or performance deadlines are not met for reasons beyond our control, such as force majeure, war, terrorist attacks, import or export restrictions, labour disputes, restrictions on infrastruc-ture or on exchange of goods or if the aforementioned affects our component suppliers, the agreed deadlines shall be extended for a reasonable period, even if at the time we are in default.
If we do not keep to a fixed delivery or performance deadline, for reasons other than those mentioned in Clause 3.2, the customer has the right to withdraw from the contract, after he has set us in writing a reasonable period within which to deliver or perform and we have not adhered to it.
Further rights of the customer based on our default, in particular compensation, shall be excluded to the extent set out in Clause 7.
We are entitled to part-performance of our contractual obligations, provided that the obligation is di-visible and part-performance does not lead to unreasonable burdens for the customer or to burdens wecannot compensate the customer for.
If the customer has the right to require fulfilment or supplementary performance, or the right to with-draw from the contract and/or claim compensation or expenses as a result of a breach of contract by us, we can demand that he exercises his rights within a reasonable period. If the customer fails to do so, any claim for compensation instead of performance and/or withdrawal from the contract is effective only after the expiry of a newly set reasonable period to be determined by him.
Special glass frames which do not belong to the purchaser, are to be stored adequately and held in readiness for collection. If the frames are not handed back they shall be invoiced by the vendor.
Where delivery on call has been agreed on with the purchaser, the delivery has to be called for within 14 days after the vendor's announcement of a possible delivery date. If the storage of the goods be-comes necessary – for reasons that lie within the responsibility of the purchaser – the goods shall be stored after the above-mentioned period of two weeks at the customer's risk. Furthermore we are enti-telt to claim (appropriate) storage charges.
§4 | Transfer of Risk, Dispatch, Examination and Notice of Non-Conformity
Delivery or performance take place at our registered office (= "ex-works Plattling") where the contract was concluded. Once the product is handed over to the customer the risk of accidental destruction or deterioration of the product is also transferred.
If by request of the customer the product is sent to another place, the method of dispatch may be de-termined by us, if the customer has stated nothing to the contrary. Transport insurance is taken out only on instruction and at the expense of the customer. Handing over the product to the forwarding agent, the carrier or other person or institution chosen to execute the dispatch means a transfer in terms of Section 4.1, Sentence 2.
If the handing over or dispatch is delayed for reasons which we do not have to account for, the risk is transferred to the customer from the day notice is given of readiness for the handing over or dispatch.
The product is to be examined by the customer immediately on receipt. The same applies if delivery is not made to him but to a third party named by him. Defects, shortfalls, wrongful deliveries or other ob-jections are to be indicated immediately after knowledge of these has been acquired. Initially, notice is to be given by telephone or fax, so that we can inspect the product and secure any evidence. Obvious defects and deviations are to be indicated to us within 48 hours of receipt of the product. Further obli-gations towards us according to §377 German Commercial Code and the duty to indicate to the carrier at the time of delivery any obvious damage in transit and shortfalls remain unaffected.
§5 | Defects, Warranty, Limitation
If the object delivered by us or our performance is faulty and the customer demands supplementary performance, we have the option whether to remove the defect (rectification of defect) or to deliver a product or performance without defects (delivery of replacement). We will inform the customer imme-diately of our decision. If we choose to rectify the defect, the faulty product is to be sent to us for re-pair. If the objection is found to be justified, we will pay the cheapest dispatch costs from and to the original domestic delivery address of the customer. This applies mutatis mutandi if we come to the customer to carry out the rectification. In order to carry out such work under warranty, the customer must give us or a third party chosen by us the opportunity and a reasonable period of time. Except in cases where §637 German Civil Code applies, the customer is only permitted to carry out such work himself with our approval.
If we deliver a replacement, at our discretion and expense, we can require the customer either to dis-pose of or utilise the defective product and transfer the proceeds of such utilisation less his own ex-penses, as long as the customer trades in such or similar products or the utilisation or disposal is rea-sonable for other reasons.
Claims for defects shall not arise in relation to minor deviations from the agreed characteristics of the product or minor interference with its usability. Colour deviations depend on the respective charges!
In accordance with German law, if supplementary performance is unsuccessful, the customer can cancel the contract (rescission) or claim a reduction in payment (reduction); Clause 7 shall apply to claims for compensation.
Subject to the contractual and non-contractual claims for compensation set out in Clause 7, further or other rights relating to a defect which are not set out in Clause 5 are hereby excluded. In the case of minor defects, the appropriate claim for compensation by the customer is not for the purchase price paid, but for the damage which his legal estate has suffered by the fact that the object is not free of defects.
If a notification of defects is shown to be unjustified, we are entitled to be compensated by the cus-tomer for any expenditure caused by such notification.
The limitation period for claims against us arising from or in connection with defects in our delivery or performance or the violation of a contractual term in the case of purchased things, commences with their delivery, and in other cases commences with the acceptance of our performance
The limitation period is put on hold for the duration of any necessary supplementary performance; it does not begin afresh.
The arrangements in this clause respectively apply to defective titles (which are not due to violation of property or copy rights of third parties) and Clause 5 shall also apply if we have delivered or performed something different or lesser than contracted for.
No liability is taken over for damage incurred from fixing and fastening under high removal moments or in case of defective mounting.
§6 | Industrial and Intellectual Property Rights
Unless regulated by contract otherwise, we are only obliged to deliver the product free of industrial and intellectual property rights in the country of the place of delivery.
§7 | Liability
In the event of a claim for damages and/or compensation for wasted expenditure for the purposes of §284 German Civil Code (in the following referred to together as "compensation") based on a breach of contract or external-contractual duties, our liability is only unlimited in the case of inten-tion or negligence by our legal representatives or our leading employees (for the purposes of §14 paragraph 2 German Employment Protection Act) and intention or gross negligence by our vicari-ous agents.
In the event of liability for slight negligence by our vicarious agents, our employees and workers or by third persons liability is limited to the damage typical for a contract which could be foreseen at the conclusion of the contract. Foreseeable damage typical for a contract is the damage which we foresaw at the conclusion of the contract as a possible consequence of a breach of contract or, based on the circumstances which we knew of or had to know about, would have had to fore-see.
In the event of damage caused by delay as a result of slight negligence on our part, our liability is limited to 5% of the agreed remuneration (VAT – value-added tax, freight or other additional costs shall not be taken into account)
In the following our liability is determined according to statutory requirements and not to Clause 7.1: Claims for injury to life, body or health, claims based on the acquisition of a warranty or a procurement risk, claims based on breach of essential contractual obligations (also called cardinal duties or obliga-tions), claims for damages instead of performance based on strict liability according to the German Product Liability Act or other statute.
If our liability is excluded or limited, the same applies to the personal liability of all persons who have participated in the preparation, conclusion and/or execution of the contractual relationship; thus in par-ticular our employees, legal representatives and vicarious agents.
The preceding terms do not alter the burden of proof to the disadvantage of the customer.
Clause 7 shall apply unless something to the contrary is stipulated elsewhere in these terms or in the contract itself.
§8 | Reservation of Title
The goods remain our property until all demands, which we are absolutely or partly entitled to from the customer when the (purchase) price is payable, have been settled and/or all bills of exchange, cheques or other documents given to us by the customer are cashed and credited to us. In case of open accounts, the reservation of title applies as security for our balance demands. The transfer of individual demands into an open account, or the recognition of an account balance, does not affect the reservation of title. The transfer of title to the customer is under no circumstances dependent on the fact that the customer fulfils demands of a third party which we have the right to assert or set-off against him.
Until final payment is made, the customer is obliged to treat and keep our goods as immediate holder so that they are identifiable as our property. The customer will keep the property for us free of charge. The same shall apply in cases where we have joint ownership. The customer is obliged to insure our property in his possession against damage to the same extent as he has insured his own property, and to provide us with all necessary information and documentation to allow us to enforce our rights.
The customer is only entitled to resell, further process or install the product which is still our property or in which we have joint ownership in accordance with the following stipulations and only if the claims referred to are exercisable by us:
The customer is permitted to resell the reserved goods as part of his normal business dealings. However, he may not pledge the goods or use them as security.
The processing or reorganization of the reserved goods shall take place for the benefit of us as a manufacturer and we will become the owner of the new object, albeit without incurring liability ourselves. If our ownership is lost due to processing, connecting, blending or mixing our goods with things which do not belong to us, it is agreed that from this moment we shall acquire joint ownership in the new unified object. The share of joint ownership is to be based on the invoice value of our reserved goods against the invoice value of the complete new object.
The preceding authorisations granted to the buyer shall be revoked if the buyer fails to fulfil his duties towards us in time, gets into financial difficulties, fails to make his payments or insolvency proceedings are commenced against his legal estate.
The customer hereby assigns to us any claims he may have from the resale of reserved goods or the object we (co)own, and we hereby accept such assignment. The assignment in each case relates to the whole claim, if its sum is smaller than or as high as our outstanding demand; otherwise the as-signment relates only to the sum of our outstanding demand with priority over any claim the customer has. If the claim is paid in a current account, the „claim" meant by this assignment agreement is the resulting closing balance of the current account.
Notwithstanding our right to debt recovery, subject to a condition subsequent the customer is author-ised to recover assigned claims from the debtor in his own name. This authorisation of the customer ends automatically (point of cessation) if he recognises that he is heavily indebted or he ceases mak-ing payments or insolvency proceedings are commenced against his legal estate.
At our request, the customer shall provide us with the information necessary to enforce any claims assigned to us; this includes handing over all original documentation relating to the claim or granting us access to the documentation, naming the debtors, providing full addresses, stating the sum and reason for the debt and informing the debtors of the assignment.
Without prejudice to other rights, we are entitled to revoke all authorisations relating to our property or rights given to the customer if the customer, despite a reminder, breaches contractual obligations cul-pably or we have an indication which justifies the supposition that the customer has got or is likely to get into financial difficulties and the customer fails to make his continuing solvency plausible.
The customer shall inform us immediately about measures taken by third parties to enforce judgments relating to our reserved goods or claims assigned to us, and the customer shall hand over any docu-mentation necessary to allow an intervention.
In the event of payment default or other culpable breach of contract by the customer, we are entitled to withdraw from the contract in accordance with German law and to require the delivery up of our re-served or jointly owned goods.
At the request of the customer and at our discretion, we agree to release securities due to us based on the preceding clauses, if their value exceeds our demands according to list prices applying to the customer at the time by 15% or more.
§9 | Payment, set-off, due date
Provided that nothing to the contrary is agreed in writing or a case arises to which Clause 2.4 applies, we will invoice the customer at the time of delivery and payment is due without deductions within 10 days of the invoicing date.
In case of major orders we have the right to invoice 50.0% of the sum after receiving the order confir-mation, 40.0% during delivery and 10.0% on completion of the order.
At the end of this period the customer is in default. We also have the right to make deliveries depend-ent on receipt of payment (including by cash on delivery or direct debit); Clause 2.4 remains unaffect-ed. In single cases we have the right to require prepayment.
Payment is to be made in cash or by transfer to the account stated in the invoice. Payment discounts offered by us are calculated from the invoicing date.
Settlement of an invoice by bill of exchange or cheque shall be only accepted on account of performance and is only permitted by separate agreement. Discount charges, exchange fees and other expenses are calculated from the day payment of the invoice is due and are payable by the customer. Any risks and costs related to payment of the invoice amount shall be assumed/met by the customer.
If the customer is culpably in default of payment, we are entitled to charge interest for the default at the rate required to cover our own credit expenses or at the rate of 8% above base interest rate. The customer pays the entire costs of the proceedings - also our lawyer's fees. Our right to assert further or statutory claims for compensation remains unaffected.
In the event of a culpable default in payment by the customer, we are entitled to cancel arranged payment dates and to demand payment of the complete debt arising from our business relationship and to require immediate cash payment and to revoke any discounts or other agreed benefits, even if such are not openly indicated in the customer order, contract or invoice. This right is not excluded by the granting of an extension or by acceptance of cheques or bills of exchange. Furthermore, we are entitled to make any outstanding deliveries only against payment in advance or the provision of securi-ties. Our rights arising from §321 German Civil Code remain unaffected in any case, and we are enti-tled to exercise them once the customer is culpably in default of payment based on this or any other commercial transaction with us.
A set-off against our demands is permitted only in relation to claims by the customer which are not disputed, or are legally binding, or to which the customer is entitled based on a logically substantiated assertion relating to the transaction from which we are asserting our demand. A right of retention based on earlier or other transactions (i.e. not the present contractual relationship) cannot be assert-ed. The assignment of claims requires our written approval.
If the customer encounters financial difficulties (= over indebtedness, insolvency or imminent insolven-cy) and as a result an application to commence insolvency proceedings is brought against his legal estate, all our claims against him become due and are unconditionally payable at the time of the appli-cation; the same applies to old claims, claims subject to a condition subsequent and claims subject to a condition precedent. If at this time we have claims against the customer which are non-monetary or whose monetary value is yet to be decided or is uncertain, we are entitled at our reasonable discretion to estimate the monetary amount owed and to claim such amount.
If insolvency proceedings are brought against the legal estate of the customer, we are entitled to offset against his demands claims which are conditionally or not yet payable. If at this time claims are brought against the customer which are non-monetary or whose monetary value is yet to be decided or is uncertain, we are entitled at our reasonable discretion to estimate the monetary amount owed.
§10 | Place of Jurisdiction, Applicable Law
The place of jurisdiction is Deggendorf always when the customer is merchant, entrepreneur within the meaning of §14 German Civil Code or a legal person within the meaning of Book 1, Section 1, Title 2 of the German Civil Code or a legal entitiy under public law. The plaintiff also has the right to com-mence proceedings against the defendant at the court in the district where the defendant has its regis-tered office and which in accordance with the national regulations of the defendant is responsible for the legal dispute.
It is agreed that German law shall apply to all legal relations between us and the customer excluding German International Civil Law and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
If individual provisions of these terms are invalid, this shall not affect the validity of the remaining pro-visions. An invalid provision is to be replaced by agreement with a provision which corresponds with its intended economic purpose. The same shall apply if these terms are invalid as a whole.