I. General information
1. These sales and delivery conditions apply to all business relations between PRIMESails and our customers. They are also valid for all future business relations, even if they are not expressly agreed upon again. At the latest with the acceptance of our goods or services, these terms and conditions are considered accepted, unless otherwise agreed. Counter-confirmations of our customers with reference to their terms and conditions or purchasing conditions are hereby expressly contradicted. They will not be accepted even if we do not expressly object to them again after receipt.
2. Deviating agreements are only binding if they are confirmed by us in writing.
3. The rights of the customer from the contract concluded with us are not transferable.
4. The invalidity of individual contractual provisions shall not affect the validity of the contract as a whole.
5. We store personal data required within the scope of the business relationship in accordance with § 26 Federal Data Protection Act.
Offer
1. Our offers are subject to change and non-binding. Declarations of acceptance and all orders require our written or telex confirmation to be legally effective.
2. The documents belonging to the offers, such as drawings, illustrations, weight and dimensional data or other performance data are only approximately authoritative, unless they have been expressly agreed upon as binding. We are also not obliged to check the suitability of offers
3. If the customer provides us with measurements, patterns, samples, templates or similar, we are not obliged to check them. We are also not obliged to check the suitability of offers.
4. We reserve the sole ownership and copyright of the documents belonging to the offer as well as models, calculations, drawings and drafts. Therefore, these may not be reproduced or made available to third parties without written consent. In case of doubt, cost estimates are to be remunerated appropriately.
5. Prices for individual items of an offer are only valid when the total order for this offer is placed.
6. The documents belonging to the offers may only be used within the framework of the contract, in particular they may not be used for the construction of identical or similar works. They must be returned to the contractor on request if the offer does not lead to the placing of an order.
III. Order confirmation
1. Orders, agreements, assurances etc. including those of our employees require our written confirmation or delivery or an invoice issued, regardless of whether by telephone, fax, e-mail, Internet or in any other way, to be legally effective. Our employees are not authorized to make verbal collateral agreements or to give verbal assurances that go beyond the content of the written contract. Warranted characteristics in the sense of § 459 BGB (German Civil Code) are only present if they are expressly marked as such.
2. Prices are only valid upon acceptance of the confirmed quantity.
3. In the event of price and cost increases between the time of conclusion of the contract and the agreed delivery date, we shall be entitled to make the corresponding reasonable price adjustment, provided that there is a period of more than four months between conclusion of the contract and the agreed delivery date. If the prices at the time of delivery exceed the initially agreed prices by more than 20%, the customer is entitled to withdraw from the contract.
IV. Delivery
1. Delivery is made at the expense and risk of the customer If free delivery has been agreed, the risk is transferred upon arrival of the vehicle in front of the specified delivery address on the ground or at the place which can reasonably be reached by the vehicle. Our customer is obliged to provide the equipment or employees necessary for unloading, insofar as this is technically necessary. The handing over is equal if the buyer is in default of acceptance.
2. Partial deliveries are permitted within the framework of the legal provisions. They are considered as independent delivery. We reserve the right to choose the transport route and means of transport, if not expressly specified by the customer.
3. The delivery is to be checked immediately upon receipt by the customer or his representative for transport damage, completeness and damage and freedom from defects,
4. Better: “Information on delivery periods is generally not binding, unless a specific delivery period has been agreed in writing.
5. Claims for damages against the company PRIMESails because of non-fulfilment or delay are excluded, as far as neither intention nor gross negligence is present”.
6. We are entitled to take out transport and breakage insurance at the customer’s expense.
7. Damage reports must be made immediately upon receipt of the goods and confirmed immediately in a conclusive manner according to type and scope.
V. Right of return
1. The customer has the possibility to return free of charge within two weeks after receipt of the goods without giving reasons, unless it is a matter of custom-made goods or goods specially procured at the request of the customer.
2. The goods must be returned to PRIMESails in a proper condition, without signs of use and free of rights of third parties. Timely dispatch suffices to comply with the deadline.
3. Furthermore, the customer must compensate PRIMESails for the reduction in value or the value of the goods if the goods cannot be properly returned because he is responsible for the deterioration, destruction or other impossibility.
The Customer must use safe transport packaging for the return or return of the goods, which is necessary according to the type of the object of performance.
5. Goods taken back will be credited, depending on their condition, less at least 15 % of the costs. The credit note is issued as soon as we receive the credit note from the manufacturer.
6. The taking back of custom-made products or goods specially procured at the customer’s request is excluded.
VI. Warranty and liability
1. Our liability shall be governed exclusively by the following provisions.
2. Obvious defects must be reported to us in writing without delay, but at the latest within two weeks of delivery. The defective delivery items are to be kept ready for inspection by us in the condition in which they were at the time the defect was discovered or sent to us on request. Defects which cannot be discovered within this period even with careful inspection must be notified in writing immediately after discovery. A breach of the above obligations shall exclude any warranty claims against us after the expiry of the statutory warranty period.
3. Negotiations about complaints do not waive the objection that the customer’s complaint was not made in time or not sufficient.
4. If the delivery item is defective or lacks assured properties and becomes defective within the warranty period due to manufacturing or material defects, we shall, at our discretion, deliver a replacement or rectify the defect at our expense, excluding other warranty claims by the customer. Multiple rectifications of defects are permissible. If the repair or replacement fails, the customer may, at his discretion, withdraw from the contract or reduce the remuneration. Beyond this, there are basically no further claims against us, in particular no claims for damages due to direct or indirect damages, unless otherwise agreed below. The right to remedy the defect itself and to demand compensation for the necessary expenses is excluded.
5. The agreement of the guarantee must be in writing. A declaration of guarantee is only valid if it sufficiently defines the content of the guarantee, its duration and its territorial scope.
6. Claims for material damage compensation arising from delay, impossibility of performance, non-performance, positive breach of contract, culpa in contrahendo, tort are excluded both against us and against our vicarious agents and persons employed by us in the performance of our obligations, unless the damage was caused intentionally or by gross negligence or, in the case of main contractual obligations, was caused by negligence or claims for damages arising from warranted characteristics are concerned. In any case, our liability for damages shall be limited to the proven damage, however, to a maximum of 10% of the invoice value of the goods delivered by us, unless the damage was caused intentionally or by gross negligence, or if a warranted characteristic is missing.
7. We are not obliged to provide a warranty as long as the customer has not paid the part of the purchase price which is due taking into account a defect.
8. Would be sold as inferior quality, or used goods is sold to the exclusion of any warranty.
9. Claims for defects become statute-barred in the case of § 634a No. 1 BGB in one year from the legal beginning of the limitation period. In the case of § 634a No.2 BGB, they shall become statute-barred two years from the statutory start of the limitation period. Otherwise, claims for defects shall become time-barred one year after acceptance of the work. Mandatory statutory limitation and liability provisions such as liability for grossly negligent or intentional acts, for injury to body, health, life or essential contractual obligations shall remain unaffected.
VII. Payment
a ) Terms of payment
1. Unless otherwise agreed, our deliveries are payable as follows: 50% of the respective price is due for payment in advance (down payment) upon placement of the order. A bank guarantee can be provided for the advance payment amount. Costs shall be borne by the buyer. The balance of the invoice amount is due on the invoice date. The dispatch of the goods can also be effected by cash on delivery at our discretion. We can also demand advance payment of the remaining outstanding amount when we have notified the goods ready for collection/shipment. In the case of deliveries to countries outside the EC, the value-added tax is always charged if the customer wishes to ship the goods abroad himself. The value added tax will be refunded if a forwarding agent is involved in customs clearance at the border and sends us the duly completed and stamped export declaration (AE) and/or a forwarding agent certificate for value added tax purposes. A VAT-exempt calculation will only be made if the customer is a natural or legal person with a fixed abode abroad and the shipment is made by a forwarding agent, railway or post office.
2. If a discount is granted, it is a condition that all previous invoices have been settled by then. The net invoice amount after deduction of rebates, freight etc. is decisive for the calculation of the discount.
3. We are not obliged to accept bills of exchange and cheques. We accept bills of exchange only subject to the possibility of discounting. Cheques and bills of exchange are only credited after they have been cashed, assignments of claims only after payment. The claim and its maturity remain unaffected until then. We do not assume any guarantee for timely encashment and protest. Discount, protest and collection charges shall be borne by the customer.
4. We are entitled, despite any provisions of the customer to the contrary, to set off payments first against the customer’s older debts and will inform the customer of the type of set-off made. If costs and interest have already been incurred, we shall be entitled to set off the payment first against the costs, then against the interest and finally against the main claim. The customer may only offset against undisputed or legally established claims.
5. The assertion of rights of retention is excluded, unless these rights of retention are based on the same contractual relationship.
b) Default of payment and creditworthiness If the agreed payment deadlines are exceeded and our customer acts in breach of contract in any other way, we shall be entitled to the following rights after enforcement:
1. To withdraw from all contracts and to claim damages for non-performance, to assert our reservation of title, to take possession of delivered goods, to demand securities, to realise securities provided, to declare all outstanding payments due and to execute outstanding deliveries only against advance payment.
2. To charge interest on arrears from the due date of at least 3% above the Bundesbank discount rate.3. to claim further damages for delay.
c ) Changes in ownership, business form or other circumstances affecting the economic circumstances as well as changes of address must be notified to us in writing without delay. Such changes in the person or the economic circumstances of the customer entitle us, in our opinion and at our discretion, to
1. To claim payment or security due to due or deferred claims from all existing contracts This also applies to bills of exchange accepted.
2. To refuse to fulfil existing contracts until advance payment or security has been received.
d) Our customers shall always be entitled to prove that we have incurred no or significantly lower damages.
VIII. Force majeure, contractual obstacles
Force majeure of any kind, unforeseeable operational, traffic or shipping disruptions, fire damage, floods, unforeseeable shortages of labour, energy, raw materials or auxiliary materials, strikes, official decrees or other hindrances for which the party obliged to perform is not responsible and which delay, prevent or make unreasonable the performance of the service, the shipment or the acceptance. Exempt from the obligation to provide the service or acceptance for the duration and extent of the disturbance. If binding deadlines are exceeded by more than ten weeks as a result of this disruption, each party shall be entitled to withdraw from the contract.
VII. Retention of title
1. Until the fulfilment of all claims (including balance claims from current account) to which we are entitled against our customers now or in the future for any legal reason, we shall be granted the following securities, which we shall release on request and at our discretion, insofar as their value exceeds our claims by more than 10%.
2. The goods remain our property. It shall only become the property of the customer when the customer has fulfilled all his obligations arising from the business relationship with the contractor, including incidental claims, encashment of cheques and bills of exchange and claims for damages. Processing or assembly is always carried out for us as manufacturer, but without any obligation for us. If our (co-)ownership expires due to combination or mixing, it is hereby agreed that the customer’s (co-)ownership of the uniform object shall pass to us in proportion to its value (invoice value). The customer shall store our (co-)ownership free of charge. In addition, the Customer is obliged to carefully store the reserved object for the Contractor, to maintain and repair it at his own expense and to insure it against loss and damage to the extent necessary at his own expense and to the extent required by a prudent businessman. Goods to which we are entitled to (co-)ownership are hereinafter referred to as reserved goods.
3. Our customer is entitled to process and sell the reserved goods in the ordinary course of business as long as he is not in default. Pledging or transfer by way of security as well as the agreement of prohibitions of assignment are not permitted. The customer hereby assigns to us in full all claims arising from the resale, processing or on any other legal grounds (insurance, tort) in respect of the reserved goods (including all balance claims from current account). All our rights of retention of title (simple, extended, prolonged and current account retention) shall not expire even if goods originating from us are acquired by another buyer as long as the latter has not paid for the goods with us. This applies in particular to sales within the framework of affiliated companies. We revocably authorise the customer to collect the claims assigned to us for our account in his own name. This collection authorization can only be revoked if the customer does not properly meet his payment obligations.
4. In the event of access by third parties to the reserved goods, the customer shall refer to our ownership and notify us immediately.
5. In the event of conduct on the part of the customer in breach of contract – in particular default of payment – we shall be entitled to take back the reserved goods and, if necessary, to demand assignment of our customer’s claims for return against third parties. The taking back as well as the seizure of the reserved goods by us does not constitute a withdrawal from the contract, unless the instalment law is applicable.
VIII. Place of performance and jurisdiction
1. German law applies exclusively.
2. Place of performance for the delivery is the respective place of dispatch of the goods. The place of performance for all obligations of the customer is the registered office of our company.
If the customer is a registered trader within the meaning of the German Commercial Code, a legal entity under public law or a special fund under public law, the registered office of our company is the exclusive place of jurisdiction for all disputes arising directly or indirectly from our legal relations with our customers. Furthermore, the contractor is entitled to assert his claims at the general place of jurisdiction of the customer.
IX. Validity clause
Should any of these provisions not be applicable for whatever reason, the validity of the remaining clauses shall not be affected.
The parties shall replace an invalid provision with a valid provision that comes as close as possible to the economic purpose of the invalid provision.
