Terms and Conditions of Sale, Delivery and Payment
Number 1: Entering into a contract
- Only our Terms and Conditions of Sale, Delivery and Payment (General Terms and Conditions of Business) shall apply. The terms and conditions of our customer differing to our own shall be subject to our express written consent.
- Our terms and conditions of business shall also apply for all future business relationships with our customers, regardless of whether reference is made to them again when an individual contract is signed. The version of our terms and conditions of business valid at the point in time at which a contract is signed shall be the version which applies.
- All quotes made by us shall be subject to change without notice. A contract will only materialise once the order has been confirmed by us in writing or we have delivered the goods without separate confirmation.
Number 2: Prices and Terms and Conditions of Delivery
- Our prices do not include value added tax. Packing is to be paid separately. We shall not take back packing materials.
- Unless an agreement has been made to the contrary, invoices are to be paid net within 30 days from the receipt of the goods and invoice.
- From the 2nd payment reminder onwards we shall be entitled to invoice Euro
5-00 for each payment invoice to cover our costs. In the event that a customer who is not a consumer is in default with payment, the interest rate payable on the outstanding amount shall be 8% above the base rate at that time. In the event of default in payment by a customer who is a consumer, the rate of interest payable on the outstanding amount shall be 5% above the base rate at that time. Our right to assert claims over and above these amounts shall not be affected in the event of payment default.
- If serious or considerable reservations arise after the contract has been signed with regard to the solvency and /or willingness of a customer to pay, Arnold Holstein GmbH may withhold its performance until payment is made or until it has been furnished with a security. Moreover, we shall be entitled to collect the entire outstanding sum, and in doing so, secure the delivered items as well as sell them on the open market without having to serve a warning to this effect in order to put the proceeds towards the purchase price owed and our special expenditure, e.g. transport, setting up the goods again, notwithstanding the statutory regulations governing foreclosure sales.
- The customer may only offset an account which is uncontested, or which has been declared final and absolute in a court of law, against our accounts.
Number 3: Delivery
- The stated delivery dates are not binding. Agreed and binding delivery dates or periods shall be subject to written agreement.
- The delivery period shall begin on the date of the final order confirmation, but not however, before all the order details have been clarified in full.
- If the agreed delivery date is exceeded by more than 6 weeks, the customer shall be entitled to set a reasonable subsequent period of delivery of no less than 4 weeks. If we have failed to deliver before the subsequent period set for delivery has expired the customer shall be entitled to withdraw from the contract by making a written statement to that effect. The customer shall not be entitled to claim compensation for damages unless the default is attributable to gross negligence on the part of Arnold Holstein GmbH.
- The physical risk and price risk shall pass over to the customer as soon as our products are handed over to the freight forwarder, even if the freight forwarder has been appointed by us. If the customer is a consumer, the physical risk and price risk shall only pass over once the goods have been delivered to the customer. Compensation will not be paid if incorrect goods have been sent. The goods shall be insured at the customer’s expense against transport and fire damage if the customer demands this in writing. In this case the customer shall undertake to observe his duties incumbent upon him towards the insurer and to the transport company.
Number 4: Duty of inspection / The customer’s right in the event of defects
- Defects shall be rectified as we choose either by subsequent fulfilment – even if this requires several attempts – or by the delivery of fault-free replacement goods.
- If the customer is not a consumer, he shall have to inspect the goods straight away upon receipt and notify us in writing straight away, and within a week from delivery at the latest, of any defects noted in the course of inspection. Defects which cannot be noted even in the course of a thorough inspection are to be notified to us in writing straight away upon discovery.
- The use of spare parts, parts liable to wear and tear and consumables which do not comply with our specifications, or those of the manufacturer as well as the failure to have the inspections or servicing necessary carried out by us or by a skilled man authorised by the manufacturer shall render the warranty invalid.
- If our customer is not a consumer, the period of limitation for the customer’s claims on account of a defect in the delivered goods shall be one year. If the customer is a consumer, the period of limitation concerned will be 2 years. The period of limitation shall begin at the point in time at which the goods are delivered or acceptance. No warranty shall be furnished for used goods, unless the customer is a consumer; in this case the period of limitation shall be one year.
- If a manufacturer or other third party furnishes his own warranty or guarantee, our warranty obligations shall not be extended under any circumstances. The resulting claims are to be asserted against the manufacturer or other third party.
Number 5: Liability
In the event of a breach of contractual or non-contractual duties we shall only be liable – and this also includes our agents and assistants – in cases of intent or gross negligence, and to be more precise, in each case only up to the value of the order.
Number 6: Reservation of title
- We shall reserve the title to the delivered goods until all our accounts under the business relationship with the customer or his association of firms with us have been paid. The customer shall possess the products to which we have title (goods subject to reservation of title) as custodian with business-like care. The customer shall be obliged to insure the goods subject to reservation of title at his own expense against fire, water and theft so that cover will provide new goods in the event of a claim being made. The customer shall assign his claims under the respective insurance policy and other claims on account of the loss or destruction of the goods subject to reservation of title to us here and now. It shall be forbidden for the customer to assign the goods subject to reservation of title by bill of sale as a security. Such goods may only be sold in the course of a normal commercial transaction, and the goods subject to reservation of title may only be processed by the same token.
- The customer’s accounts when reselling or processing the goods subject to reservation of title shall be assigned to us here and now for the amount of our outstanding accounts. If the goods subject to reservation of title are installed as an important part into the property of a third party, the customer shall assign to us here and now the accounts for payment created against the third party or against the party concerned up to the residual amount of our account still outstanding with all ancillary rights including those for a mortgage to secure a claim to be granted with higher ranking before all other accounts.
The customer of the goods subject to reservation of title is authorised to collect on our behalf accounts created by the resale of goods. We shall reserve the right to collect the account ourselves. Upon our request the customer shall be obliged to notify his customer of the assignment and we shall be entitled to disclose the assignment to the customer concerned. The customer shall be obliged to pass over the information and documents we require for this.
- In the event that the customer’s conduct is in breach of contract, in particular he is in default with payment, we shall be entitled to take back the goods subject to reservation of title at the customer’s expense and to demand that the customer’s rights for the goods to be handed over to him against his customer(s) are assigned over to us. Our customer shall not be able to withdraw from the contract if we take back, or levy execution upon, the goods subject to the reservation of title, if the customer is not a consumer.
- The customer has to notify us straight away of a levy of execution or other impairment by a third party.
Number 7: Plan drawings, other documents
Drawings, diagrams and cost estimates shall remain the property of Arnold Holstein GmbH. These must not be reproduced without our consent nor made accessible to third parties as a whole or in part. If a contract is cancelled subsequently, such documents are to be handed back straight away. The diagrams serve only for purposes of illustration; we shall reserve the right to make design amendments as this appears appropriate to us. Arnold Holstein GmbH is continually working to improve design, which is why the stated dimensions and weights, descriptions and diagrams in our catalogues and leaflets are not always those of the latest models and are therefore not binding.
Number 8: Other provisions
- The place of fulfilment is D-88677 Markdorf. The sole place of jurisdiction is Überlingen in the event that the customer is not a consumer. The agreement on the place of jurisdiction shall also apply in the event that the customer does not have a place of jurisdiction in Germany and if, after the contract has been signed, the customer changes his place of residence or normal whereabouts to a location beyond the area covered by the (German) Code of Civil Procedure or his place of residence or normal whereabouts are unknown at the point in time at which legal action is taken. These terms and conditions of business shall be governed by German law.
8.2 Should a provision of these terms and conditions of business be invalid, the validity of the remaining provisions shall not be affected as a result. The invalid provision is to be interpreted in a legal manner in such a way so that it comes as close as possible to the aim and objective of the contract.