Sale Conditions for Custom Chrome Europe GmbH
These general purchasing and sale conditions (hereinafter referred to as “conditions”) shall apply to all deliveries made by us, either now or at any future date, to the exclusion of our Customers’ general terms and conditions of business, and subject to any divergent written agreements. They shall apply exclusively to all contracts concerning deliveries and other performances (hereinafter referred to as “the Delivery”) which we as the supplier conclude with a company as contemplated by Section 310 para. 1 of the German Civil Code (BGB) as a Customer (hereinafter referred to as “the Customer”). Even if we fail to expressly refuse them, Customer’s terms and conditions shall not apply.
2. Offer, Order, Conclusion of Contract and Documents
Our quotations are without obligation. Orders and verbal agreements shall only be binding on us if and as far as we confirm same in writing, by fax or telex, or on a standard form, or comply with same by sending the goods and the invoice. We reserve all rights concerning offers and other documents; they may neither be copied nor made available for third parties without our consent and have to be returned to us after conclusion of the contract or failing to conclude the contract. We assume no liability concerning the rights of the trademarks used in the documents according to clause 9 of these conditions.
3. Calculation, Prices
The prices in our offers shall apply. If no specific agreement on prices has been reached, we shall charge the prices quoted in our price-list as applicable on the date of dispatch, plus the statutory value added tax in force at the same time and plus shipping and packaging costs.
4. Quality, Delivery terms, Shipping and Passage of Risk
Deliveries shall be made in accordance with our standard specifications or the agreed specifications. Conditions of the goods, that the Customer can expect according to our or our agents’ public announcements, in particular in advertisements and in the labelling of the goods or due to trade practice, only from part of the contractual quality of the goods if they have been explicitly described as such by us in an order or in an order confirmation. Guarantees are only binding on us, if they have been described as such by us in an offer or in an offer confirmation and such documents also contain in detail our obligations resulting from such guarantee.
Our obligation to perform is subject to us obtaining correct and timely delivery. Delivery dates are not binding unless expressly specified as being such in writing. Agreed delivery dates shall refer to the date on which the goods arrive. We are entitled to make part deliveries. Invoices issued for such part deliveries shall be payable independent of the entire delivery. Manner and means of dispatch shall be at our option. We shall endeavour to the best of our ability to take Customer’s requests into consideration; any extra costs thus incurred shall be borne by Customer.
If we are to blame for exceeding the delivery date, and if an extra period of grace conceded in writing by Customer expires without results, Customer may withdraw from the contract or demand compensation. In all cases we are liable for damages due to delay in delivery according to the terms as stated in clause 9 of these conditions. Above rights shall lapse if Customer accepts the goods being delivered late.
On dispatch of the goods or on its transfer to the carrier at the latest the risk passes to the Customer. This shall also be valid for partial deliveries and even in those cases where goods are delivered by us. Should the delivery be delayed for reasons within the Customer’s responsibility the risk will pass to the Customer upon the notification of the readiness for shipment being received by the Customer.
We will take out a transport-insurance only on demand of the Customer and only in his name and for his own account.
5. Force Majeure
Unforeseeable operational breakdowns, delayed deliveries or non-performance on the part of our own suppliers (including intra-group suppliers), shortages of energy supplies or raw materials, and traffic disruptions, as well as strikes, lockouts, government orders, and other instances of force majeure shall release the party thus affected from its obligation to either make or take delivery for the duration of such disturbance and to the extent of its effects, provided that the party is not responsible for the disturbance. If making or taking delivery is thus delayed by more than 1 month, then each party shall be entitled - on exclusion of all further claims - to withdraw from the contract in respect of the quantity affected by the factor preventing such delivery from being made or taken.
6. Terms of payment
Unless a specific agreement has been reached, our invoices shall be due immediately and payable without any discount at date of invoice. Reductions for bank charges, post-age etc. shall not be accepted. We shall only accept banker’s drafts by way of payment if this has been expressly agreed. Fees for discounting bills and bank charges shall be paid by Customer. If payment is made by check, Customer shall be liable in the event of the check getting lost during forwarding. Payments with VISA or MASTERCARD are available to all accounts. For direct debits based on SEPA mandates (direct debit mandate/business to business direct debit mandate), the period for the pre-notification is shortened to 2 working-days.
7. Default of Payment
In the event of default of payment, or the existence of any reasonable grounds for doubt-ing Customer’s solvency or credit worthiness, we shall be entitled to demand advance payment for outstanding deliveries and to call for immediate payment of all other claims arising from the business connection. Our obligation to deliver shall be suspended as long as Customer is in default with any payments due. We are entitled to charge interest on the overdue accounts at the statutory rate. We re-serve the right to pursue further claims for damages due to delayed performance. Customer may only offset our claims or assert right of retention in this respect if the counter-claim is undisputed or recognized by declaratory judgment.
8. Complaints, Warranty
Customer must check whether the goods supplied comply with the contractually agreed standards of quality and are suited to their intended purpose. If no such check is made, or is not carried out sufficiently thoroughly, or if we are not notified about visible defects, including deviations in quantity or incorrect deliveries immediately after receipt of the goods, then the goods shall be deemed accepted in respect of such defects. Hidden defects shall be deemed accepted unless we are immediately notified of such defects upon discovery of same, or within 12 months of the goods being delivered to their dispatch ad-dress at the latest. Notice of visible defects to goods in transit has to be given to us immediately, notice of hidden defects to goods in transit within 3 days of the goods having arrived. Transport damages must primarily be notified to the responsible freight carrier. Complaints must in any case be made in writing, giving specifications of the order, the invoice and consignment numbers, and the code for the goods about which the complaint is being made. We are under no obligation to accept, return or store any goods sent back to us without our prior consent.
Condition warranties are principally not given by us unless explicitly agreed upon in writing. In particular, data in catalogues, price lists and other information material made available to the Customer by us must in no case be understood as condition warranties.
Upon our request, the rejected goods or the rejected parts thereof must be returned to us for examination on our account. If the underlying notice of defects proves to be unjustified we are entitled to an according compensation claim.
Any claims of the Customer which might arise because of a defect shall be limited to the right of subsequent performance. Subsequent performance will be done, at our discretion by elimination of the defect or delivery of goods free from defect. In case of elimination of the defect we are obliged to bear all related costs unless they rise by having the delivery sent to another place than the place of delivery. Further warranty claims, irrespective of what kind, are excluded, except for any restricted damage claims according to clause 9. If the storage specifications and best-before dates given on our packing or in the attached documentation are not ob-served, all liability on our part shall lapse. Onus of proof as regards proper storage and keeping to the best-before dates shall lie with customer.
The limitation period for warranty claims is 12 months form delivery of the goods at the customer’s place of business unless we have acted deliberately or fraudulently. The period of limitation of one year stipulated in sentence 1 does not apply to a warranty furnished by us in accordance with Section 443 of the German Civil Code (BGB) and to damages because of defects if such defects result from acts of gross negligence by our legal representatives or managing clerks or in case of personal injury.
Notwithstanding the provisions of section 377 HGB, the aforementioned rules shall not apply to compensation claims of the customer in respect of goods that have been resold to a consumer. In any case, however, such compensation claims only exist to the extent that the customer has not given any warranties to his buyer (consumer) in addition to the warranties provided for by statutory law. In case the consumer (ultimate buyer) asserts warranty claims against the customer, the customer is obliged to notify us in writing about this without delay, but at the latest within five days from obtaining knowledge of it and in any case before settling such claims. We reserve the right to either satisfy such claims by ourselves or to have them satisfied by the manufacturer of the goods. In case of settlement of warranty claims by the customer himself, we are only obliged to reimburse those expenses which the customer was statutorily obliged to bear. We are entitled to satisfy such recourse claims by the customer at our choice either by payment of the corresponding amount or by granting a merchandise credit. If claims for damages are asserted by way of recourse, the limitations set forth in section 9 shall apply.
9. Limited Liability
We are only liable for intent and gross negligence, as well as slight negligence when breaching a material obligation or a cardinal obligation in a way jeopardizing the purpose of the agreement. In case of liability for slight negligence our liability is limited to such damages and such an extent of damages the occurrence of which we could typically have foreseen. This also applies in case of gross negligence on the behalf of our vicarious agents (i.e. not legal representatives or executives). In case of liability for slight negligence our liability is further limited to an amount equal to thrice the value of the delivery concerned and twice that value in the case of mere pecuniary loss.
Claims for damages shall expire at the latest in two years after our customer has become aware of the damages and irrespective of that knowledge in three years after the damaging event. This shall not apply to claims based on intent.
The aforementioned provisions shall apply to all claims for damages irrespective of the legal cause, including also claims resulting from tortuous acts. The liability because of a culpable injury to the life, body or health of a person remains unaffected; this shall also be valid for the mandatory liability under the German Product Liability Act. In the case of reselling the delivered goods unchanged or after processing mixing or blending with other goods, the Customer exempts us in the internal relationship from claims asserted by third parties for damages resulting from defects caused by the Customer. Furthermore we are liable according to legal regulation for fraudulently concealed defects and for guaranteed condition warranties. As far as not otherwise laid down above, any liability shall be excluded. The aforementioned restrictions on liability shall also apply if the goods are only specified in kind. They shall apply correspondingly to claims against our employees or agents.
10. Retention of Title
By way of security for all claims to which we are entitled vis-à-vis customer by reason of the present and any future business relations, we shall retain ownership of the goods supplied until such time as all balances have been settled. By way of security, customer here and now assigns to us to the extent of our share in ownership any claims arising from sales of goods subject to reservation of title and delivered either now or at any future date, along with all ancillary rights. If goods subject to reservation of title are sold along with other items for an overall price, such assignment shall be limited to the proportionate amount of our invoice (including sales tax) for the goods subject to reservation of title included in such sale. As long as customer duly honours the obligations arising from his business relations with us, he may in the ordinary course of business dispose over the goods to which we have retained title, and himself collect the claims assigned to us. Transfer of ownership by way of security and the pledging and assignment of claims may be carried out by the customer only with our consent. In the event of default of payment, or the existence of any reasonable grounds for doubting customer’s solvency, we shall be entitled to revoke the rights of disposal and collection granted here, and to collect the assigned claims our-selves and take back the goods subject to reservation of title without prior rescission of the contact; however, rescission of the contract shall only be deemed the case if we expressly confirm same in writing and does not require the prior setting of a grace period. If, under the statutory regulations applicable in customer’s country, retention of title is not admissible or only admissible to a given extent, then the scope of our aforementioned rights shall be restricted to that which is legally permissible.
11. Return and exchange of goods
Except as provided in section 8 of the present terms and conditions of sale concerning the return of defective goods, the customer may claim the exchange of faultless goods and their return against crediting of the purchase price in accordance with the following provisions:
The return and exchange of goods can only take place, if the customer has received a Return Merchandise Authorization number (RMA) in advance. Such Return Merchandise Authorization number is available on written or telephonic demand with us; the customer shall indicate his dealer number, the part number(s) to be returned, the invoice number and the reason for his return. The RMA number must be clearly displayed on the outside of the returned package. Returned goods, that have not received an RMA number or without RMA number displayed on the package in the aforementioned way will be refused and returned to the customer freight collect. Returns must be shipped according to the instructions of our customer service representative and be carried out for the account and at the risk of the customer. We will provide for RMA-forms. Goods returned more than six months from the date of the invoice must be approved for return by the competent Sales Manager; in addition a 10% restocking fee of the amount in-voiced will become due if original package is intact and re-usable. When original packaging is damaged a restocking fee of 15% will be charged. Minimum charge of restocking is 15 Euro per item.
Return and exchange of damaged or used goods or any product in other than “as new” condition or that was not originally purchased from us, is excluded; in such case the goods will be returned to the customer freight collect. Close-out and discontinued products will not be accepted for return or credit either. Electrical parts that have already been installed by the customer or a third person will not be accepted for return or credit as well. Any serialized product that has a Manufacturer’s Statement of Origin (MSO) issued for it must be returned with the MSO to us; otherwise return and exchange are excluded.
Moreover, items returned on an RMA will not be eligible for reimbursement of labour or paint costs.
We reserve the right not to accept goods for return or credit, if the reason for the return indicated on the RMA does not correspond to the truth. In case we refuse return or exchange according to the aforementioned provisions without legitimate reason, the customer must object within 60 days; otherwise return and exchange are excluded.
12. Refused Shipments
In case the customer refuses shipments of goods ordered and duly delivered, we may claim a restocking charge of 15% of the amount invoiced plus all freight and packaging costs. After two refused shipments within one calendar year the account of the customer will be put on a pre-pay status.
13. Trademark Rights and other Industrial Property Rights.
The trademarks protected for or licensed to us may only be used in connection with products manufactured by customer with our express written consent.
In the event that the Customer directs by special instructions, data, documents, drafts or drawings the manufacturing process of the goods to be delivered by us, the Customer is responsible that the rights of third parties, e. g. patents, registered designs, or other industrial rights and copyrights are not violated thereof. The Customer exempts us from all claims of thirds parties resulting from a possible violation.
The customer is obliged to take out an appropriate theft and fire insurance as well as a liability insurance.
15. Place of performance
Place of performance for every delivery and every payment is Grolsheim.
16. Jurisdiction and applicable law
Unless exclusive venue exists according to legal provisions, the place of jurisdiction for all pecuniary claims shall be Grolsheim; for claims by us the customer’s place of jurisdiction may also apply. The United Nations Convention on Contracts for the international Sale of Goods explicitly does not apply. The contract law of the Federal Republic of Germany applies exclusively.
If any provisions of these Terms & Conditions of Sale are invalid in case of doubt this shall not affect the validity of any other provision.
We store and process business-related personal data. Any references by customer to existing business relations with us for publicity purposes need our express approval.