§ 1 General information, contradicting general terms of trade
1. All business transactions with DURABLE are conducted subject to the following conditions only. These shall become applicable upon placement of order, at latestupon acceptance of the delivery, unless the purchaser objects to the same within one week after receipt of the order acknowledgement in which DURABLE expressly indicates the validity of the following conditions. lf such an objection is raised, a contractual relationship will not ensue.
2. Terms and conditions of the purchaser which diverge from these conditions shall not become elements of the purchaser contract unless expressly confirmed in writing by DURABLE, even if no specific objection is raised by DURABLE.
§ 2 Prices
1. All prices are stated in Euro (€). These prices shall only apply to traders. VAT shall be added to the prices.
2. Quotations issued by DURABLE remain without commitment if no specific binding period is specified. Otherwise – and an principle where regular business is concerned – invoicing will be calculated on the basis of the prices which are valid on the date of delivery. The list prices relate only to original DURABLE factory pakking units containing the quantities specified in the relevant price list.
3. Any order deviating from the purchase units stated in the price list will only be carried out if this has been expressly acknowledged in writing by DURABLE. The purchaser is otherwise obliged to accept an increase of the order quantity to the next full purchase unit in conformance with the price list and to effect payment for the same. The purchaser will be regarded as having accepted the delivered quantity according to the purchase contract at the latest upon receipt of the so increased delivery, provided no appropriate objection has been raised.
§ 3 Performance
1. The usual commercial tolerances apply to all dimensions, weights, colours, surface finishes and thicknesses.
2. Goods manufactured to the purchaser’s specifications shall, as a rule, be non-returnable. The warranty rights contained in § 8 below shall remain unaffected hereby. In the case of goods manufactured to the purchaser’s specifications, the specifications contained in the written order acknowledgement issued by DURABLE shall be the sole basis for effecting the order unless the purchaser objects to the same in writing and DURABLE receives the objection within one week.
3. DURABLE reserves the right to carry out modifications and further developments to listed articles within the scope of technical progress without special notification, unless such a modification is inacceptable to the purchaser in any specific case.
4. If drawings, models or samples are placed at the disposal of DURABLE by the purchaser for the purpose of effecting his special orders, he is responsible for ensuring that the patent rights of third parties are not infringed by the same. He will indemnify DURABLE against claims by third parties arising from infringements of patent rights and will compensate any damages extending beyond the immediate claims raised by third parties. lf DURABLE is forbidden to execute the special order on the basis of an infringement of patent rights, DURABLE is entitled to stop work on the order until the legal situation has been settled by mutual consent or by legal enforcement.
5. In the case of goods manufactured to the purchaser’s specifications, DURABLE reserves the right to deliver up to 10% more or less than the quantity ordered that is customary in the trade unless the deviation is unreasonable in a particular case.
§ 4 Obligation to deliver, delivery date
1. Should DURABLE be, through no fault of its own, prevented from fulfilling its obligation to deliver as the result of force majeure, interruptions to operations, delays in delivery or non-delivery of essential raw materials or factory supplies, lack of workforce, strikes or the consequences of industrial action, then the deadline for delivery shall be extended for a reasonable period or for at least the duration of the interruption to performance.
2. DURABLE reserves the right to rescind the purchase contract in whole or in part where the length of the delay is unreasonable.
§ 5 Cost and risk bearing
1. The delivery of ordered goods on the part of DURABLE is effected at all times for the account and risk of the purchaser.
2. In all cases, and independent of any obligation to pay freight costs, the risk, also for the accidental loss and contingent deterioration of the goods, passes to the purchaser upon transfer to the freight agent, but at latest when the goods leave the DURABLE plant. lf the transfer to the freight agent is delayed for reasons for which the purchaser is accountable, the risk shall pass to the purchaser upon expiry of one week from the date of the shipping advice.
3. DURABLE is not liable to insure the goods. lf requested in writing by the purchaser, DURABLE will insure the goods for the account of the purchaser against damage during storage and transport or as the result of breakage or fire.
4. DURABLE is entitled to effect orders as part deliveries. The purchaser undertakes to accept the goods accordingly except in cases where in specific cases the receipt of part deliveries is inacceptable.
5. DURABLE shall decide upon the dispatch method. Special shipping details requested by the purchaser can only be taken into consideration if these are specified upon placement of order and confirmed in writing by DURABLE. Extra costs for special delivery and shipment requests are to be borne in all cases by the purchaser. Supplementary and additional orders will be regarded as new orders for which DURABLE will issue a separate order acknowledgement. Freight costs in such cases will also be handled separately.
6. Orders for goods with a net value of less than € 100.00 will be delivered ex works and subject to a surcharge of € 12.50. Orders with a net value of less than € 250.00 will be delivered by us ex works without packaging. Orders of goods with a net value of € 250.00 or more will be delivered free and with packaging to the purchaser’s headquarters within Germany. If the goods’ destination is outside of Germany, delivery shall be free to the German border with packaging.
§ 6 Terms of payment
1. Payments must be made in Euro (€) to one of DURABLE’s accounts listed on the invoice free of charge to DURABLE.
2. The purchaser must pay DURABLE’s invoices within one month from their date of issue (date on the invoice). If the purchaser fails to pay on time, he shall be in arrears and liable to pay statutory interest on arrears. If the purchaser is not a consumer under § 13 of the German Civil Code, interest on arrears shall be 9 % above the base interest rate. DURABLE reserves the right to claim damages of a higher amount.
3. Payment by cheque or biIl of exchange is only regarded as effected upon fulfilment of the same. All costs arising from discharging cheques or bills of exchange will be charged to the purchaser by DURABLE.
4. The purchaser may only exercise a retaining right or offset demands made by DURABLE if his counterclaims have been acknowledged or legally confirmed.
§ 7 Reservation of ownership
1. Goods supplied remain the property of DURABLE until all claims on the purchaser by DURABLE have been discharged in full. In regular business relations this reservation of ownership applies to all deliveries until the purchaser’s account has been settled. Affiliated companies associated with any specific purchaser are regarded as that purchaser.
2. Until the account of the purchaser has been discharged in full, the purchaser is only entitled to resell the goods within the scope of normal business. The reserved goods are expressly excluded from the disposing powers of the purchaser and may not be employed as collateral or security. When reselling DURABLE goods, the purchaser undertakes to agree extended reservation of ownership with his customers.
3. Until the claims specified in clause 1 have been discharged in full, the purchaser assigns to DURABLE all claims on his customers resulting from reselling the reserved goods. The purchaser undertakes to disclose all information and to present all documents which DURABLE may require for the purpose of enforcing claims on customers of the purchaser resulting from the extended reservation of ownership.
4. lf the value of the security afforded in favour of DURABLE exceeds the unsettled claims on the purchaser within the sense of clause 1 by more than 20%, DURABLE is obliged to release any security in excess of this amount at the request of the purchaser. The choice of security to be released is at the discretion of DURABLE. The nominal purchase prices as invoiced by DURABLE and the purchasers nominal sales prices to his respective customers determine the calculation of DURABLE’s claims on the purchaser on the one hand and the afforded security on the other hand.
5. DURABLE is to be notified at once of any impingement on the reserved goods by third parties, for example as the result of any garnishment or seizure. All intervention expenditure incurrent by DURABLE will be reimbursed by the purchaser in all cases.
6. In the event that DURABLE takes back reserved goods in accordance with the above security provisions, this shall be offset against unsettled claims to the amount of the nominal prices apparent from the sales invoices. However, DURABLE reserves the right to assert separate claims for compensatory damages, in particular for lost profits.
§ 8 Warranty / Liability
1. The purchaser must notify DURABLE in writing of the goods’ defects in quantity and/or quality, if the defects are what are known as obvious defects. Notice must be given immediately or, at the latest, within one week from receipt of the goods.
2. If the purchaser’s notice of defect is justified, DURABLE shall have the option of either improving the goods subsequently or providing a substitute delivery. If DURABLE is not able to improve the goods subsequently or to provide a substitute delivery or if it is entitled under § 439 (3) of the German Civil Code to refuse to provide subsequent improvement or substitute delivery or if the subsequent improvement or substitute delivery is delayed beyond a reasonable length of time or if the subsequent improvement or substitute delivery is unsuccessful twice, the purchase shall be allowed to elect whether to rescind the contract or demand a reduction in price.
3. The purchaser shall only have statutory rights of redress against DURABLE to the extent that the statutory prerequisites are fulfilled. Therefore, the purchaser will not have any rights of redress against DURABLE if it resells the goods and grants its own buyer rights under a guarantee or offers it favourable terms extending beyond the statutory warranty rights.
4. Insofar as the statutory provisions on consumer goods (§§ 474 et seq. of the Civil Code) in particular with regards to liability for redress (§§ 478 et seq. of the German Civil Code) do not apply because the statutory preconditions are not fulfilled, there shall be a one year warranty period.
5. The statutory consequences of a breach of the merchant’s duty to examine the goods and report defects (pursuant to § 377 of the Commercial Code) shall remain unaffected hereby.
6. The purchaser shall have no rights to damages whatsoever, in particular it shall have no rights on account of breach of contract or tort unless DURABLE’s liability is mandatory under the Product Liability Act or it is liable for damage caused intentionally or by gross negligence or it is responsible for injury to life, body or health or it has breached fundamental obligations under the contract.
7. Damages for the breach of fundamental obligations under the contract shall be restricted, however, to contractual damage which is usual and foreseeable unless such restriction is excluded because DURABLE is liable for damage caused intentionally or by gross negligence or it is responsible for injury to life, body or health.
8. Goods, which are returned in connection with the purchaser’s rights of rescission and its warranty rights, will only be accepted by DURABLE if it previously gave its consent to the return. If it has not given its previous consent, DURABLE may refuse to accept the goods or return them to the purchaser at the purchaser’s expense.
DURABLE’s address for reconsignments:
DURABLE - Distributionszentrum, Gruenlandweg 1–5, D-58640 Iserlohn, Germany.
In the case of reconsignment of faultless goods for which consent was given, this will be placed to account on the basis of the price applicable at the time of invoicing – subject to deduction of the freight and reworking expenses incurred.
§ 9 Data protection
1. Any person-related data of the purchaser which becomes known directly or through third parties within the scope of the business association will be stored by DURABLE in an automatic data file and processed for business transactions. (This reference is made in accordance with the Federal data protection laws).
2. The purchaser consents to person-related data which may become known directly or through third parties being processed by DURABLE.
§ 10 Place of performance and venue
1. The place of performance for the reciprocal principal covenants and accessory obligations arising from the contractual relationship and for all mutual claims and commitments shall be Iserlohn.
2. The venue for any disputes arising from or in conjunction with the contractual relationship shall be Iserlohn. It applies only German law under exclusion of the UN purchase right.
DURABLE Hunke & Jochheim GmbH & Co.KG entered the code of honour of the PBS industry and committed itself by signage that the code of honour is obliging for all economical actions within the PBS industry. The contractual partner is authorized at any time to contact the honorary councillor of the PBS industry, if principles, stated in the code of honour, have been infringed. Base of this agreement is the code of honour of the PBS industry of October 10, 2005 in current valid version, as well as the code of procedure of the honorary councillor for economical conflicts within the PBS industry. Both can be inspected on www.pbs-ehrenkodex.de
DURABLE · Hunke & Jochheim GmbH & Co. KG