GENERAL TERMS AND CONDITIONS
GENERAL TERMS AND CONDITIONS OF LAND-IMPEX GMBH
1. MISCELLANEOUS PROVISIONS
1.1 These general terms and conditions of LAND-IMPEX GMBH (hereinafter: seller) apply to all sales of goods to entrepreneurs, legal entities under public law or special funds under public law (hereinafter: buyer). Only the general terms and conditions of the seller apply. The seller expressly contradicts contrary general contractual provisions of the buyer. General contractual provisions of the buyer should only apply if this is expressly agreed in writing between the seller and buyer. Individual agreements between the parties take precedence over these general terms and conditions.
1.2 Material, descriptions, quantity, price, delivery and payment are carried out as agreed in the contract.
1.3 The risk of loss of or damage to the goods is transferred to the buyer in accordance with ICC Incoterms 2010.
1.4 In the event of default in payment by the buyer, the opening of insolvency proceedings against the buyer's assets or an application for opening, or in the case of other circumstances that justify the unreliability of the buyer or doubts about his creditworthiness, the seller is entitled to all claims to enforce the contract immediately. In addition, in these cases the seller is entitled to demand advance payments or securities from the buyer or to withdraw from the contract.
1.5 The buyer is not permitted to offset against claims or to reduce them as long as his counterclaim has not been determined by a court or recognized by the seller.
1.6 Each contracting party is entitled to assign claims from this contract. The assignment will take effect from the start if the other party does not object within 4 weeks of becoming aware of the assignment. The assigning party should point this out to the assignee. There is no right of objection in the case of the assignment of claims within a group of companies.
1.7 Offers by the seller are non-binding. Only a written order from the buyer represents his offer to conclude a contract between buyer and seller. The contract is only concluded when the buyer receives a written order confirmation expressly designated as such in response to his written offer. The order confirmation contains the details of the buyer's order. If the order confirmation deviates from the buyer's offer, it is a new offer from the seller, the acceptance of which requires a written confirmation of acceptance by the buyer. Instead of an order and confirmation, the conclusion of the contract can also be brought about by means of a mutually signed sales contract form.
2. INQUIRIES AND REPUBLICATIONS OF THE BUYER
2.1 Upon delivery, the buyer must immediately check the quantity, weight and packaging and note any complaints on the delivery papers.
2.2 The buyer has to carry out a careful and representative quality control of the object of purchase upon delivery.
2.3 Complaints must clearly state the type and scope of the alleged defect and be communicated to the seller in writing, by telegraph, telex or fax within the following deadlines:
(a) Complaint regarding 2.1: within 7 days of delivery.
(b) Complaint regarding 2.2: in the case of obvious defects within 7 days of delivery; in the case of hidden defects, within 7 days after the buyer or his representatives recognized or should have recognized the defect.
2.4 The buyer's warranty rights expire if he processes, uses or transfers the object of purchase in accordance with §§ 929, 930 or 931 BGB.
2.5 The buyer's warranty rights are excluded if the buyer does not notify his complaint in accordance with 2.3 of these General Terms and Conditions.
3. WARRANTY, PERFORMANCE FAILURE
3.1 If one party does not fulfill its contractual obligation, the other party must request it in writing to fulfill its obligation.
3.2 The seller guarantees that the object of purchase has the agreed properties. This does not include an assurance of a property, but an agreement on the quality of the goods.
3.3 In the event of a quality complaint, the parties jointly appoint an independent expert to prepare an expert opinion. If the quality complaint is justified and made in accordance with the provisions of this contract, the seller is obliged to provide supplementary performance at his option in the form of removal of defects or replacement delivery.
3.4 If the supplementary performance fails, the buyer is entitled to withdraw from the contract or to reduce the price as well as to compensation for damages with the restrictions resulting from this contract. 3.5 The buyer's warranty rights are limited to 24 months from the transfer of risk of the purchased item.
4. LIABILITY
4.1 The seller is fully liable for damage to life, limb or health of the buyer due to his willful or grossly negligent behavior.
4.2 For the violation of cardinal obligations, the seller is liable for willful or grossly negligent behavior and only for direct consequential damage typical of the contract. In this case, the liability amount is limited to the amount of the agreed purchase price.
4.3 In addition, the seller is not liable for damage due to breach of other contractual obligations.
4.4 Further compensation, in particular for indirect consequential damage and lost profit, is excluded. This does not apply if the seller has given a separate assurance against such damage.
4.5 The aforementioned provisions apply accordingly to claims of the buyer for unnecessary expenses.
5. RESERVATION OF TITLE
5.1 The seller retains ownership of the purchase item until all claims against the buyer have been settled in full.
5.2 The buyer is entitled to dispose of the object of purchase in the ordinary course of business or to process it. The authorization does not apply in the cases of 1.4 of these General Terms and Conditions. Processing is free of charge for the seller. The seller is a manufacturer within the meaning of § 950 BGB.
5.3 If the object of purchase is inseparably combined or mixed with other objects owned by third parties, the seller receives co-ownership of the new object in proportion to the purchase price of the objects.
5.4 The buyer assigns to the seller all claims against third parties from the delivery of purchase items that the seller has delivered to the buyer under retention of title. The seller hereby accepts the assignment.
5.5 If all claims of the seller against the buyer are unequivocally secured in the amount of 125% of the nominal value by assignment and retention of title, the seller must release additional securities at the buyer's request. The seller decides on the securities to be released.
5.6 The buyer is entitled to collect claims against third parties due to the resale of the reserved goods. The authorization expires in the case of 1.4 of these General Terms and Conditions.
5.7 If the buyer does not meet his contractual obligations, or if he is in default of payment, the buyer must, at the seller's request, surrender all goods that have been delivered under retention of title and assign all claims against third parties in connection with these goods to the seller. This procedure by the seller is not to be regarded as a withdrawal from the contract.
6. FORCE MAJEURE
The seller is neither responsible nor liable for service disruptions as a result of breaches of contract on the part of the buyer or his assistants, interference by the government or administration, enemies of the state, war, riot, strike or other incidents of force majeure beyond the control of the seller.
7. DEFAULT AND ORDER CANCELLATION
7.1 If the buyer unlawfully withdraws from the contract, the seller retains a down payment received as a lump sum compensation for his claims for damages against the buyer. The seller is entitled to assert additional claims for damages.
7.2 If the seller unlawfully withdraws from the contract before delivery, the seller grants a lump sum for damages in the amount of 10% of the contract volume affected by the withdrawal. Any further claims for damages by the buyer due to the withdrawal are excluded. Any down payments are to be returned interest-free.
7.3 If the buyer is in default of payment, the seller is entitled to claim default interest of 8% above the base rate of the European Central Bank.
7.4 In the event of a delay in delivery, the seller pays lump-sum compensation in the amount of 0.5% of the purchase price of the delayed goods for each calendar week commenced, but not more than 5% of the purchase price. After 10 weeks of delay in delivery, the buyer is entitled to withdraw. Further claims for damages by the buyer due to delay in delivery are excluded.
8. FINAL PROVISIONS
8.1 The parties shall specify the address contained in the contract for all correspondence resulting from this contract. The other party must be notified of the change of address in writing.
8.2 Changes and additions to contractual agreements must be made in writing. This also applies to the written form requirement itself.
8.3 The courts in Landshut, Germany have exclusive jurisdiction for all disputes arising from the contractual relationship between the seller and Käfer.
8.4 German procedural and material law applies. Apart from the ICC Incoterms 2010, international sales law is not applicable.
8.5 Should individual provisions be ineffective, this shall not affect the validity of the remaining provisions. Ineffective provisions will be replaced by those that come closest to the economic interests of the parties.