TERMS AND CONDITIONS, IHT GmbH – Industrial Products Import & Export
All orders are accepted and fulfilled in accordance with the following conditions, which also apply to subsequent deliveries without further notification. Any purchasing conditions of the customer which conflict with these conditions are null and void and do not form part of any agreement between the parties.
All additional agreements in relation to the purchasing contract, in particular also any verbal understandings reached with representatives, are valid as obligations of the supplier only if the latter confirms these in writing or in the form of other documentation, unless the order is supplied directly from the factory or warehouse for reasons of urgency and an accompanying invoice is issued. In cases where samples are supplied for the purpose of concluding a purchasing agreement, these samples provide only the assurance of offering a technically correct example of the product, and no assurance is provided of the product’s suitability for any particular application.
2.0 Delivery and Transfer of Risk
2.1 As seller, we accept responsibility for any failure to comply with agreed delivery deadlines only in so far as this failure to comply is the result of failures upon our part. In the case of strikes, lockouts, industrial disruptions, force majeur and other hindrances for which the seller is not responsible, we are freed from the obligation to make delivery for the duration of the hindrance; as seller we are also entitled to choose ultimately to withdraw from the obligation to make delivery of that part of the order which cannot be fulfilled, without entitling the purchaser to make any claims against the seller on the grounds of this withdrawal or of the (partially) unfulfilled contract. In the case of delays in delivery exceeding a period of two months, we as seller may withdraw from the terms of the contract without providing further details of the reason.
2.2 Unless otherwise stated in the order confirmation, it is automatically agreed that delivery shall take place “from the factory” or “from the warehouse”. The risk is transferred to the purchaser at the time of delivery “from the factory” or “from the warehouse. If desired by the purchaser, we shall cover the delivery with a transport insurance policy, and any related costs shall be borne by the purchaser. We assume no responsibility for delays in transport or any other form of problem.
3. Notification of Complaints and Liability
3.1 It is a precondition of the entitlement of the purchaser to make claims in relation to guarantees or warranties that the latter has correctly fulfilled its obligations in accordance with clauses 377 and 378 of the German Commercial Code (Handelsgesetzbuch, HGB) in relation to product inspection and the notification of complaints.
3.2 In so far as a defect is present in the product purchased and this defect lies within our area of responsibility, we have the right to choose whether to correct the defect or to make a replacement delivery. In addition, the period covered by guarantees or warranties shall be determined by the statutory provisions of the laws of the Federal Republic of Germany. If it is impossible for us as supplier of the goods to correct the defect or to provide a replacement delivery, or if we are unwilling to do so, the purchaser is entitled to choose to withdraw from the contract or to demand an appropriate reduction of the purchase price, as preferred.
3.3 In the absence of any further provisions in these Terms and Conditions, all additional claims of the purchaser are excluded, irrespective of the legal justifications. We do not, therefore, accept liability for any damage which arises after the processing of the delivered goods, lacquer or paints, in particular if thinners, hardening agents, additional paints or other components which have not been obtained from us as the manufacturer or supplier are mixed with the goods. We are not liable for any reduction in profits or other commercial damages incurred by the purchaser.
3.4 An established exemption from liability shall not apply in cases where the cause of the damage is the result of deliberate actions or gross negligence, and it shall also not apply if the ordering party seeks to claim compensation for damages on the grounds of non-fulfillment in cases where a promised characteristic is not present.
3.5 In so far as we, as seller, fail to comply with an important contractual provision through negligence, our responsibility to provide compensation for any damages to materials or persons shall be limited to the amount of indemnity cover provided for in our product liability insurance. We are prepared, upon request, to allow the purchaser to examine our insurance policy, provided that we regard this as an appropriate measure
3.6 The warranty period extends to at most 12 months, calculated from the date of the transfer of risk. This is also the statutory period of limitation and additionally applies to claims for the restitution of damages resulting from defects, in so far as no claims are submitted on the grounds of incorrect actions.
3.7 In so far as we are excluded from liability or our liability is limited, this also applies to any personal liability of our staff, workers, employees, representatives and agents. Any liability extending beyond the scope of the preceding provisions is excluded, without taking account of the legal nature of the claim submitted.
4.0 Prices and Payment Conditions
4.1 In so far as no other provisions are included in the order confirmation, our prices apply “with effect at the Rossdorf location” or “from the delivery warehouse”. The statutory Value Added Tax (Mehrwertsteuer) is not included in our prices; this is indicated separately in the invoice at the statutory level on the day of preparation of the invoice.
4.2 Payment is due not later than 30 days after the issue of the invoice. After the expiry of this deadline, we are entitled to charge 5 % interest above the Federal discount rate. If payment is made within 10 days after the date of the invoice, we grant a 2 % discount reduction on the straightforward value of the goods. Discount reductions are not permitted on new invoices in so far as any previous invoices which are due for payment have not yet been settled. The settlement of discounts shall be undertaken only on completion, not directly at the time of payment. Bank and discount charges shall be borne by the recipient and shall be paid immediately.
4.3 The right to set off charges against other items is permitted to the purchaser only if any counterclaims have been legally established, or when these are undisputed or have been acknowledges by us.
5.0 Retention of Property Rights
5.1 We reserve the right of ownership of the goods being sold until the receipt of all payments covered by the purchasing contract. In cases where the purchaser acts in a way which is in conflict with the contract, in particular in the case of delayed payment, we are entitled to demand the return of the goods. If the goods are taken back by us, this does not constitute a withdrawal from the contract, unless we have specifically declared this in writing. We are entitled, after the return of the purchased items, to recycle them; the revenue from the recycling shall be offset against the financial liabilities of the purchaser, subject to the deduction of appropriate recycling costs.
5.2 The purchaser is obliged to treat the purchased goods with care, and in particular at the purchaser’s own cost to insure them against damage by fire, water and theft.
5.3 The purchaser shall inform us without delay in writing about any distraint actions or other interventions by third parties, so that we may intervene in good time. If the purchaser fails to inform us promptly, the purchaser shall be liable for any damages incurred by us.
5.4 The purchaser may process, mix, blend and sell the goods using correct and normal business processes. However, the purchaser shall immediately assign to us all financial claims in the amount of any unsettled amounts relating to invoices (including VAT), which arise for him in relation to the further sale of the goods to his customers or to third parties, irrespective of whether the goods have been sold onwards without, or after, further processing. The purchaser remains entitled to collect these outstanding debts even after assigning these claims to us. We therefore hereby accept the assignation of these claims to us by the purchaser. We are also ourselves entitled to redeem outstanding claims of the purchaser. If a withdrawal from the contract is declared by us and we reclaim the goods, we are entitled to demand the repayment of damages by the purchaser for expenditure incurred by us and for any reduction in profits as well as for a reasonable agent’s commission amounting to15 %. The purchaser is nevertheless entitled to provide evidence that no damages have been incurred by us, or that the value of these is significantly lower.
5.5 We undertake to release the securities to which we are entitled, in particular the financial claims assigned to us, upon request by the purchaser, in cases where the value of our securities exceeds the value of the claims which are to be secured by more than 20 %.
Only those containers which are specifically referred to in the invoice as loaned packaging may be returned to us. Costs will be charged to the packaging account if the loaned packaging is not returned to us without any freight charges and within a period of 90 days following the date of the invoice, in closed, clean and undamaged form, to our works at Groß-Zimmern or to our delivery warehouse.
7.0 Place of Completion and Jurisdiction
If the customer is a registered trader in terms of the German Commercial Code (Handelsgesetzbuch, HGB), a legally recognized individual under public law or a special entity regulated by public law, or if the purchaser has no general legal status in Germany, Frankfurt am Main shall be taken as the exclusive seat of legal jurisdiction for all disputes arising directly or indirectly from the contractual relationship. In dealings with business partners in other countries, the laws of the Federal Republic of Germany shall apply. This agreement on legal jurisdiction shall also apply in cases where a contract is concluded with a foreign business partner which has its company location outside the Federal Republic of Germany, provided that agreement has been reached with this country that the United Nations Convention on Contracts for the International Sale of Goods “CISG” shall apply in such cases. As a modification to this Convention concerning unified Trade Law, “CISG” , written documentation shall be required when dealing with foreign business partners for the conclusion of contracts, later amendments of an existing contract or for cancellation of such contracts. Any subsidiary verbal understandings with foreign business partners shall be regarded as null and void.
8.0 We reserve the right to reach an agreement with business partners who have their company location outside the Federal Republic of Germany that the United Nations Convention on Contracts for the International Sale of Goods “CISG” shall apply, provided that the home country of our foreign contractual partner has joined and ratified the Convention referred to. In cases where the CISG Convention cannot be applied, the laws of the Federal Republic of Germany shall apply.
9.0 If individual parts of the sales contract agreed by us and/or of these Terms and Conditions offend against existing legal provisions or should prove to be unworkable for other reasons, this shall not absolve the purchaser from the responsibility to take delivery of the remaining items ordered or from the obligation to comply with the remaining agreed provisions.