General terms and conditions of Aquarium Glaser GmbH for delivery and payment for business to business transactions
I. Scope
1. The following sales conditions shall apply to all contracts concluded between the Seller and the Purchaser in respect of the supply of goods, insofar as the Purchaser is an entrepreneur within the meaning of § 14German Civil Code (BGB). They shall also be applicable in respect of all future business relations, even in the absence of said conditions being further expressly agreed. Deviations from these terms on the part of the Purchaser, which are not expressly recognised by the Seller, are not binding for the Seller, even if the Seller makes no express objection.
2. All agreements made between the Seller and the Purchaser in respect of sales contracts are recorded in writing in the sales contract, in these terms and conditions and the Seller’s order confirmation.
II. Offer and conclusion of contract
1. Offers on the part of the Seller are without obligation and not binding, insofar as the Seller has not described such offers expressly and in written form as binding.
2. Weights and measures, diagrams, drawings, packaging quantities as well as other documentation in respect of the non—binding offers on the part of the Seller remain the property of the Seller and are only approximately material, insofar as they have not been expressly described as binding by the Seller.
III. Scope of services
The Purchaser commissions the Seller for supply of the goods (ornamental fish, other creatures, water plants, products for the maintenance of ornamental fish etc.) from those items contained in the list of goods for sale by the Seller. The basis of an order shall be the respective currently valid list of goods for sale.
IV. Minimum order
The scope of the minimum order shall be, insofar as not expressly otherwise agreed, 500.00 EUR and at least 12 boxes.
V. Payment conditions
1. The Seller’s prices shall apply “ex—works” plus V.A.T., insofar as no deviating agreement has been made with the Purchaser.
2. In the case that no other written agreement is made with the Purchaser, the purchase price shall become due for payment in the following manner:
a) in the case of shipping: always by payment in advance, by cash on delivery or by bank debit
b) in the case of collection: payment without any deduction on receipt of goods or by bank debit
VI. Delivery and service time
1. Delivery dates or deadlines which have not expressly been agreed as binding shall be exclusively information of a non—binding nature.
2. Should the Seller negligently not be able to meet a deadline expressly agreed or else for other reasons cause default of performance, the buyer shall grant an appropriate extension — commencing from the day of receipt by the Seller of the written notice of default or in the event of the calendar deadline. Should this extension bear no result, the Purchaser shall be entitled to withdraw from the contract.
3. Insofar as a delivery deadline has been expressly agreed, this shall begin with the dispatch of the confirmation of order, not, however, before the production on the part of the Purchaser of such documents, licences and clearances which may be required, nor before receipt of any payment or deposit which may have been agreed.
4. The Seller shall be liable according to the provisions of the law subject to the following limitations if the contract deals with a fixed date purchase or if the Purchaser is entitled to invoke cessation of interest in fulfilment of the contract as a result of delay in delivery on the part of the Seller.
5. The Seller is liable to the Purchaser in the case of a delay in delivery according to the provisions of the law if the delay in delivery is due to a deliberate or grossly negligent breach of duty which is the fault of the Seller. The Seller shall be made responsible for default of the Seller’s representatives and vicarious agents. If the delay in delivery is not due to any deliberate or grossly negligent breach of duty for which the Seller is responsible, liability of the Seller shall be limited to foreseeable and typically occurring damages.
6. If the delay in delivery for which the Seller is made responsible rests upon the negligent breach of an essential contractual duty, the Seller is liable according to the provisions of the law; whereby liability is limited to foreseeable and typically occurring damages.
7. Further legal claims and rights of the Purchaser in respect of a delay in delivery are unaffected.
8. The Seller is entitled to make partial deliveries and partial services at any time, insofar as this is reasonable for the Purchaser.
VII. Place of performance
The Seller’s place of performance is Rodgau.
VIII. Transfer of risk — shipping/packaging
1. The Purchaser shall collect the goods from the Seller’s place of business in D 63110 Rodgau.
2. A delivery of the goods to the place of business of the Purchaser shall be effected against payment in accordance with separate agreement. Loading and shipping shall be effected without insurance at the risk and cost of the Purchaser. The Seller shall make every effort to comply with the wishes and interests of the Purchaser in respect of means and method of shipping; additional costs thereby arising — including in the case of an agreed freight and carriage paid shipping — are to be borne by the Purchaser.
3. In the event of a delay in shipping on the wishes of or through the negligence of the Purchaser, the Seller shall store the goods at the cost and risk of the Purchaser. In this case, advice of readiness for shipping shall be synonymous with shipping.
4. The following shipping methods are foreseen by the Seller:
a) Door to door delivery by TNT (Early morning delivery on request)
b) Shipping by air: from Frankfurt Airport
c) Delivery tour: door to door. Calculation of costs based on proportionate freight costs
Collection: this is possible if prior notice is given.
Shipping costs arising in these respects the responsibility of the Purchaser.
IX. Warranty
1. If the purchase is a business—to—business transaction for both parties, the Purchaser shall examine the goods without delay upon receipt, insofar as this is feasible within the regular course of business, and in the case of defect shall provide the Seller with notice of this without delay.
2. In the case of the shipping of goods, the Purchaser shall, in the event of a defect being evident, also verifiably communicate this to the carrier and also advise the Seller without delay. The same applies when goods are shipped late or are delivered at too low temperatures.
3. In the case that the Purchaser fails to provide such notification, the goods shall be deemed as accepted, insofar as there is not a defect which was not recognisable by examination. Otherwise §§ 377 ff. German Commercial Code (HGB) applies.
4. Claims arising shall be restricted to removal of the defect or delivery of goods free from defect (subsequent performance) according to the choice of the Seller. In the event that subsequent performance is not successful, the Purchase has the right to choose a reduction or to withdraw from the contract.
5. Further claims on the part of the Purchaser, particularly in respect of consequential damage, are fundamentally excluded. This does not apply in the case of deliberate action, gross negligence or breach of essential contractual obligations on the part of the Seller as well as in the event of injury of life, of the body or of health. The right of the Purchaser to withdraw from the contract is unaffected.
X. Exclusion of warranty in the case of used goods
Liability shall be excluded in the event that the objects of sale are second hand goods or such that may be legally determined as such.
XI. Reservation of ownership
1. The Seller shall maintain ownership of the goods (reserved goods) until all payments foreseen in the purchase contract have been made.
2. The Purchaser shall inform the Seller without delay and in writing of any seizure in respect of third parties, in particular foreclosure as well as other restrictions which may be placed on the Seller’s goods. The Purchaser shall refund to the Seller all damages and costs arising through a breach of this duty or which may arise from necessary intervention measures taken against seizures on the part of third parties.
3. In the case that the Purchaser does not fulfil a duty to make payment in spite of a warning on the part of the Seller, the Seller may require the surrender of the goods still within the Seller’s ownership as reserved goods without previously setting any deadline. Transportation costs arising from this shall be borne by the Purchaser. The pledging of reserved goods on the part of the Purchaser shall always constitute a reason for withdrawal from the contract. Upon return of reserved goods the Seller shall be entitled to sell same. The proceeds of any such sale shall be offset against the Seller’s liabilities, after deduction of appropriate sales costs.
XII. Final provisions, applicable law, agreement of place of jurisdiction
1. The relationship between the contracted parties is subject exclusively to the laws applicable in the Federal Republic of Germany. Any application of the standardised law in respect of the international sale of goods and chattels as well as the law in respect of the conclusion of international contracts in respect of goods and chattels is excluded.
2. If the purchaser is a merchant in German law, also in respect of cheques or bills of exchange, the court having jurisdiction for the domicile of the Seller shall be the exclusive place of jurisdiction. The same place of jurisdiction shall apply in the event that the Purchaser does not have at disposal any general place of jurisdiction within the Federal Republic of Germany at the time of instigation of legal proceedings.
3. The Purchaser shall not be entitled to cede claims arising from the contract without the express permission of the Seller.
4. In the event that a regulation contained within these General Terms and Conditions for Delivery and Payment should become invalid or unenforceable, this shall not otherwise affect the validity of said General Terms and Conditions for Delivery and Payment. In this case, insofar as this is legally permissible, a regulation most closely resembling the regulation which has become invalid shall apply.
