General conditions of sale and delivery
of the ASTRO Motorengesellschaft mbH & Co.KG
Große Beek 7
27607 Geestland OT Debstedt
(valid from 10/2005)
§ 1 General - Scope of validity
- Our conditions of sale apply exclusively; we do not accept any contradictory conditions or the customer's conditions of sale deviating from our conditions, except when we have previously acknowledged their validity in writing. Our conditions of sale still apply if we are aware of contradictory conditions or conditions of sale of the customer that deviate from our conditions of sale and provide the appropriate delivery to the customer without objection.
- All agreements made between us and the customer regarding the implementation of this contract are noted in writing in this contract.
- Our conditions of sale are only valid in respect of companies according to § 310 Para. 1 of the German Civil Code.
§ 2 Offer - Offer documentation
- In the event the order is defined as an offer pursuant to Section 145 of the German Civil Code, we may accept the offer within a two week period. The offer will be accepted by means of an express declaration or the delivery of the goods.
- We retain ownership and copyright for illustrations, diagrams, calculations and other documents. This also applies to all written documents identified as "confidential". The customer may only be passed on to third parties with our express written consent.
- Any offer provided by us will be binding for 30 days.
- If the customer orders the goods via electronic channels, receipt of the order will be confirmed immediately. Confirmation of receipt does not constitute a binding acceptance of the order. The order confirmation may however be combined with notice of acceptance.
- If the customer orders the merchandise via electronic channels, we will save the contract text and provide it to the customer on request along with these general terms and conditions by e-mail.
- Contracts are agreed subject to the proviso that the deliveries from our suppliers are correct and on time. This only applies in cases where we are not responsible for non-delivery, particularly if a congruent coverage transaction has been agreed with our supplier. The customer will be informed of the lack of availability without delay. Any payment that has been made in advance will be refunded without delay.
§ 3 Prices - Payment conditions
- Our prices are “ex works”, unless our order confirmation states otherwise. They exclude packaging, which is billed separately.
- Value-added tax is not included in our prices. The amount legally required as at the invoice date is shown separately on the invoice.
- The deduction of discounts requires a special, written agreement.
- The net purchasing price (without deductions) is due within 30 days after the invoice date, unless the order confirmation states otherwise. The legal regulations concerning the consequences of late payment apply.
- We reserve the right to make appropriate changes to our price if cost reductions or cost increases occur two months after the agreement is concluded, particularly if these reductions or increases result from wage agreements or changes in the price of materials. The customer can be provided with evidence of these upon request.
- If the customer is unable to pay or insolvency proceedings are filed or refused due to lack of assets, all claims will be due immediately.
- Once the contract has been agreed, if it transpires that the financial circumstances of the customer mean that it would not be in our best business interests to provide services in advance of payment (deterioration in credit rating), we are entitled to demand payment in advance or collateral at our discretion for all claims arising from the business relationship, both those currently due and those due in the future. If the payment in advance or collateral is not provided in a timely manner, we are entitled to withhold performance or withdraw from the contract.
- If the credit rating deteriorates, we can deny the customer further access to our services and the processing thereof, demand return or transfer of ownership and revoke direct debit authorizations. The customer grants their consent to the measures required for such action.
§ 4 Lead time
- The lead time as specified by us only starts when all technical questions have been answered.
- Our adherence to our delivery obligations further requires that the customer fulfils their obligations in a timely and orderly manner. The right to defence of non-performance of the contract is reserved.
- Confirmations of dates for delivery or performance are non-binding and do not entail any guarantee of a transaction on a fixed date or a guaranteed delivery date, unless expressly agreed otherwise. With the exception of express deadlines and transactions agreed on a fixed date, delays will set in after the expiry of an appropriate grace period.
- Delivery dates or transactions that are expressly agreed for a fixed date shall be considered met if the goods have left the plant by this date or it has been made available for the customer to collect and the customer has been made aware that it is ready.
- If the customer is in default of acceptance or otherwise violates other duties to cooperate, we are entitled to demand compensation for the damages incurred by us, including any additional expense. We reserve the right to make further claims.
- If the conditions pursuant to Para. 5 are met, the risk of accidental destruction or deterioration of the purchased item transfers to the customer as soon as they are n default of acceptance or payment.
- We are liable according to the legal regulations provided the relevant purchasing contract is a fixed agreement according to § 286 Para. 2 No. 4 of the German Civil Code. We are furthermore liable according to the legal regulations if the customer is entitled to claim that he is no longer interested in the continued fulfilment of the contract due to a late delivery for which we are responsible.
- We are furthermore liable according to the legal regulations if a late delivery is caused by a deliberate or grossly negligent breach of the contract for which we are responsible. We are liable for the faults of our representatives or agents. If a late delivery is due to a grossly negligent breach of contract for which we are responsible, our liability for damage is limited to foreseeable, typical damage.
- We are furthermore liable according to the legal regulations if a late delivery, for which we are responsible, results from a culpable breach of an important contractual obligation. However, our liability in this case is limited to foreseeable, typical damage.
- In the event of a late delivery, we are furthermore liable for a flat rate compensation of 0.5% of the delivery value for each completed week that the delivery is delayed, up to a maximum total of 5% of the delivery value.
- The customer reserves their statutory rights and is entitled to make further claims.
§ 5 Make and hold orders
- Make and hold orders without a fixed delivery schedule must be accepted within 12 months of the date that the order is confirmed. If the customer fails to place the order despite being requested to do so twice, we are entitled to withdraw from the contract or undertake and charge for the order. The goods can then be stored at the expense and risk of the orderer or dispatched after the orderer is notified. The orderer will be liable for all resulting costs.
- The following minimum values are considered agreed for make and holder orders with no binding delivery schedule agreed when the order is confirmed.
10 items for orders over 50 items
25 items for orders over 100 items
50 items for orders over 250 items
100 items for orders over 500 items
- Individual calls must be for the minimum volumes in Paragraph 2 for make and holder orders without a fixed delivery schedule. The procedure in Paragraph 1 can be followed if such calls are not forthcoming unless the orderer provides compensation for the capital and storage costs.
§ 6 Risk transfer
- Delivery “ex works” is deemed to have been agreed upon if the order confirmation does not state otherwise. The risk of accidental loss or deterioration of the goods is transferred to the purchaser when the goods are handed over to the shipping company, courier or agent charged with transporting the goods. We are only obliged to arrange insurance if explicitly agreed with the customer. The hand-over shall be deemed to have taken place even if the purchaser delays accepting the delivery.
- We will take out transport insurance for the delivery if this is requested by the customer. The respective costs will be borne by the customer.
§ 7 Liability for defects
- For the customer to institute any defect liability claims, they must have appropriately fulfilled their inspection and notification obligations according to § 377 of the German Commercial Code.
- If the purchased item is defective, we are entitled to opt for either supplementary performance in the form of repairs or delivery of a new, defect-free item. We will only cover the costs involved in rectifying defects up to an amount equal to the purchasing price.
- If supplementary performance should fail, the customer is entitled to demand, at their discretion, either cancellation of the contract or a reduction of costs.
- We are liable according to the legal regulations when the customer claims damages that result from deliberate action or gross negligence, including deliberate action or gross negligence of our representatives or agents. Our liability for damages is limited to foreseeable, typical damage unless we are accused of intentionally violating the contract.
- We are liable according to the legal regulations when we culpably breach an important contractual duty. However, our liability is in such cases limited to foreseeable, typical damage.
- If the customer is entitled to compensation for damages in lieu of performance, our liability pursuant to Paragraph 3 is limited to foreseeable, typical damage.
- Liability for death, injuries or damage to health is not affected. This also applies to the mandatory liability according to the Product Liability Act.
- Liability is excluded if not otherwise stated in the above text.
- The statute of limitations for defect claims is 12 months, starting at the time of risk transfer.
- The statute of limitations in the event of a delivery claim according to §§ 478, 479 of the Civil Code is not affected. It extends for a period of 5 years after the delivery of the defective item.
- We will not provide the customer with legally binding guarantees.
§ 8 Total liability
- Any liability for damages other than that provided for in § 6 is hereby excluded - irrespective of the legal nature of the claims made. This applies in particular to damage claims resulting from contractual errors, other breaches of duty or tortious claims for compensation for damage to goods according to § 823 of the German Civil Code.
- The limitation according to Paragraph 1 also applies if the customer claims compensation for vain expenditure instead of compensation for the damages suffered.
- The exclusions or restrictions of our liability for damages also apply with regard to the personal liability for damages of our employees, workers, staff members, representatives and agents.
§ 9 Retention of title
- We retain ownership of the purchased item until all payments resulting from the delivery agreement have been received. We are entitled to reclaim the purchased item if the customer breaches the contract, in particular due to late payment. Reclaiming the purchased item implies our withdrawal from the contract. After reclaiming the purchased item, we are entitled to sell it. The proceeds of the sale minus appropriate sales costs have to be set off against the debts of the customer.
- The customer is obliged to treat the purchased item with care. They are, in particular, obliged to insure it at their own expense and for its replacement value against fire, water damage and theft The customer must perform maintenance and inspection work in good time and at their own expense.
- The customer must inform us without delay in writing in the event of attachment or other interference by third parties so that we can institute proceedings according to § 771 of the German Code of Civil Procedure. The customer is liable towards us for the damages resulting from the third party not being able to reimburse us for the court costs and extrajudicial costs according to § 771 of the German Code of Civil Procedure.
- The customer is entitled to sell the purchased item through a normal business procedure. However, upon signing this contract, they have already ceded that part of all claims against third parties to which they become entitled by the sale, corresponding to the final amount (including value-added tax) of our invoice, regardless of whether the purchased good was sold without or after processing. The customer remains entitled to collect the debt after the cession. This does not affect our right to collect the debt ourselves. However, we agree to abstain from collecting the debt as long as the customer complies with their payment .obligations resulting from the collected proceeds and does not pay late, as long as no application for instituting settlement or insolvency procedures has been made and as long as payments have not been suspended In any such event, we are entitled to demand that the customer informs us of all ceded claims and the corresponding debtors, provides us with all information required for collection, provides us with the necessary documentation and informs the debtors (third parties) of the cession.
- The processing or restructuring of the purchased item by the customer is always performed on our behalf. If the purchased item is processed with other items that are not in our possession, we obtain co-ownership of the new product at the ratio of the value of the purchased item (final invoiced amount including value-added tax) to the value of the other items at the time of processing. The rules that apply to the purchased item also apply to the product created by processing.
- If the purchased item is integrated into objects we do not own, we obtain co-ownership of the new product at the ratio of the value of the purchased item (final invoiced amount including value-added tax) to the value of the other objects involved at the time of integration. If the integration is performed in such a manner that the goods of the customer can be seen as the main component, it is deemed to be agreed upon that the customer has granted us proportional co-ownership. The customer administers the solely owned or shared property thus created on our behalf.
- The customer shall also cede any claims against third parties to which it becomes entitled as a result of the purchased item being connected with a piece of real estate.
- At the time of signing this contract, we agree to release the collateral due to us at the request of the customer as far as the realisable value of our collateral exceeds the outstanding amount to be secured by more than 10%. We can choose the parts of the collateral to be released at our own discretion.
§ 10 Assignment
No claim against us may be assigned without our consent.
§ 11 Place of jurisdiction - Place of performance
- The registered office of our company is also the place of jurisdiction, provided the customer is a trader. However, we remain entitled to institute proceedings against the customer in the court competent for their domicile.
- The legal system of the Federal Republic of Germany applies. The United Nations Convention on Contracts for the International Sale of Goods is excluded.
- The registered office of our company is the place of performance, unless the order confirmation states otherwise
§ 12 Returns
- Returns should only be made after consulting with us.
- Returns without prepaid freight costs are not accepted
- We may cover the costs of the return after inspection. However, the costs will only be covered if the customer uses our shipping company for returns.