1. Scope
These GTDP are applicable for all delivery agreements. In the event that we are expressly or tacitly waiving rights resulting out of these GTDP, the validity of the GTDP in total remains unaffected. Deviating conditions of the buyer, which have not been accepted by us in writing, shall not be deemed to be valid, even if we have not expressly objected to them.
2. Contract conclusion
2.1 Our offers are non-binding unless otherwise stated. A contract will be
concluded by our written (or by email or fax) order confirmation.
2.2 Any inaccuracies in the order confirmation shall be immediately reported to us. In such a case, a contract is not concluded.
3. Delivery and delay
3.1 The delivery is made FCA (Incoterms 2010) named address unless
otherwise stated.
3.2 Delivery dates are not fixed dates. Therefore, we are only in delay in case of having received a further notice.
3.3 The fulfilment of our obligation to deliver sets forth the fulfilment of the contractual duties of the buyer. The defence of the lack of performance of the contract remains reserved.
3.4 In case of force majeure (e.g. war, riots, labour dispute, energy or raw
material shortage, administrative or judicial decisions) which remains for a consecutive period of 90 days, the parties have the right to revoke from the contract.
3.5 Unless otherwise agreed, our reusable transport packaging must be
returned to us after emptying without undue delay and carriage free in due condition.
3.6 The right of partial delivery and assigning parts of the production to
carefully chosen and qualified external providers remains reserved.
4. Prices and payment
4.1 Unless otherwise stated in the order confirmation, invoices are due for payment within 30 days net after the invoice date. Afterwards, the buyer shall be deemed to be in delay without further notice.
4.2 Setting off is only allowed with undisputed or legally binding debts.
4.3 We are entitled to assign receivables against the buyer to third parties.
4.4 If, during the course of the business relationship, the buyer is in default of payment or reasonable doubt with regards to the ability of the buyer to meet its financial obligations or to its credit worthiness arises, we are entitled to request prepayment for undelivered goods and to call due any further claims/bills outstanding with immediate effect.
4.5 In case of an order has not been processed within four months after
concluding the contract, we are entitled to adapt the prices accordingly, in the event that the manufacturing costs (e.g. costs for raw material, energy, transportation or personnel, public charges) vary more than 5%.
4.6 In any event, we shall have the right to invoice all Products after 30 days of being ready for shipment, if
a) they have not been called off within 30 days, or
b) the delay in delivery is attributable to Customer. Additionally storage fees and one percent per month or part thereof of the total invoiced amount are due.
5. Retention of title
5.1 The delivered goods remain our property until the payment of all related claims has been made in full.
5.2 Our title shall extend to the new products created by processing or
transforming the reserved goods. In the event of processing, intermixture or combination of the reserved goods with third party goods, we acquire joint title in the proportion of the invoice value of the materials.
5.3 The buyer shall perform any processing or transformation on our behalf without occurring any obligations on our side thereof.
5.4 Until the payment, the delivered goods shall be stored separated from
other goods and shall be marked as our property/joint property.
6. Tolerances
6.1 The characteristics and measurements of the goods are subject to certain tolerances which can occur in line with the industry standard. This cannot be deemed as a deficit of the goods.
6.2 In addition, we reserve the right to deliver within the following tolerances: (a) +/- 10 % of the quantity or (b) +/- 100 kg, in case of delivery is made according to weight. This cannot be deemed as a deficit of the goods.
7. Warranty („Gewährleistung“), incoming inspection
7.1 With respect to the ordered goods we warrant that the goods (a) do
conform to applicable laws and regulations in the country of manufacture; (b) conform to the agreed product specifications; and (c) are not adulterated or misbranded.
7.2 The buyer has the obligation and duty to undertake an incoming inspection and to give notice of a complaint according to §§ 377, 381 Commercial Code („HGB“). Defects have to be notified without undue delay („unverzüglich“) after their discovery. For transport damages § 438 Commercial Code shall apply. Punctual dispatch suffices to comply with the time limit.
7.3 If the buyer fails to undertake the duly inspection and/or the notifications of defects in due time, our liability for the respective defect shall be excluded.
7.4 In the event that the buyer did fulfil its obligations according to clause 7.2 GTDP and a defect occurs, we shall – at our discretion – decide between repair and replacement of the defective goods.
7.5 The right of the buyer in case of failure of the repair or replacement to
reduce the purchase price or revoke from the contract remains unaffected.
7.6 This warranty is in lieu of all other warranties whether expressed or
implied.
8. Limitation („Verjährung“)
8.1 The limitation period for claims based on material defects or defects of title, such as, but not limited to, damages in lieu of or besides performance, reimbursement for expenses, reduction of the purchase price, and revocation from the contract or replacement, shall be one year after delivery.
8.2 In deviation of clause 8.1 GTDP the statutory limitation period shall apply in the following cases: (a) §§ 438 I No. 1, No.2, 634a I No. 2 or 479 I Civil Code („BGB“), (b) in case of wilful intent or gross negligence, (c) in case of injury of life, of the body or health impairment, or (d) for claims according to the Product Liability Law („ProdHaftG“).
9. Liability and limitation of liability
9.1 The liability according to the Product Liability Law („ProdHaftG“) remains unaffected.
9.2 We are liable in any case of breach of duty for damages only in the case of wilful intent or gross negligence which can be attributed to us or our auxiliary person („Erfüllungsgehilfe“). In deviation of the aforementioned, we are fully liable for every form of negligence in the case of injury of live, of the body or health impairment.
9.3 In all other cases, we cannot be held liable for indirect or consequential damages, such as loss of profit, loss of market shares and damages to reputation.
10. Intellectual Property and related property rights
10.1 Our brand names and trademarks used on the goods shall not be altered, removed or otherwise used without our written consent.
10.2 We reserve title, copy rights and other property rights to specimen,
illustrations, drawings, documents, as well as to any tools. This shall also apply in case the buyer has paid a proportion of these items.
10.3 We reserve right, title and interest related to all intellectual property or similar rights contained in and forming the basis of our goods.
11. Severability, written form
11.1 If clauses of this GTDP shall become partially or in total invalid, the other clauses shall remain unaffected.
11.2 All changes to the contract and the GTDP shall be made in written form.
12. Applicable law and legal venue
12.1 These GTDP shall be subject to the laws of the Federal Republic of
Germany without giving effect conflict of law rules (e.g. CISG).
12.2 The legal venue is the place of our registered office. Nevertheless, we are entitled to pursue our claims at the buyer’s place of registered office.
12.3 The buyer is obliged to reimburse all the fees, charges and expenses
incurred in asserting Flexiprime’s legal rights in and out of Germany.