Allgemeine Geschäftsbedingungen (English)
Angebote / Auftragserteilung
Preisangebote erfolgen freibleibend. Sie erlangen Verbindlichkeit erst mit unserer Auftragsbestätigung. Mit Erteilung des Auftrags erkennt der Auftraggeber die nachstehenden Bedingungen an. Abweichende Vereinbarungen werden nur durch unsere schriftliche Bestätigung gültig. Allgemeine Einkaufsbedingungen des Auftraggebers sind ungültig, soweit diese von unseren Lieferungs- und Zahlungsbedingen abweichen.
Preise
Die Preise gelten ab Wernau, teilweise zzgl. gesetzlicher Mehrwertsteuer je nach Rechnungsstellung.
Liefertermine
Liefertermine werden bei Aufnahme eines Auftrages dem Besteller bestätigt. Ein Rücktritt von der Bestellung oder Schadenersatzansprüche wegen verspäteter Lieferung sind für den Auftraggeber ausgeschlossen. Eine angemessene Nachfrist steht uns in jedem Fall zu. Strafzahlungen wegen verspäteter Lieferungen sind grundsätzlich ausgeschlossen.
Beanstandungen
Beanstandungen müssen innerhalb 8 Tagen schriftlich angezeigt werden. Mängel eines Teils der Lieferung berechtigt nicht zur Beanstandung der Gesamtlieferung. Im Falle einer von uns anerkannten Reklamation muss uns die Möglichkeit einer Nachbesserung oder Ersatzlieferung eingeräumt werden. Die beanstandete Ware geht in unser Eigentum über, wir können darüber in freiem Ermessen verfügen.
Muster
Falls bei Auftragserteilung nicht Gegenteiliges vereinbart wird, steht es uns frei Sonderfertigungen für unsere Eigenwerbung zu verwenden.
Lieferung und Versand
Der Versand erfolgt ab Wernau auf Rechnung und Gefahr des Bestellers. Sofern nicht ausdrücklich andere Regelungen getroffen werden, versenden wir per United Parcel Service oder einem vergleichbaren Express-Service.
Zahlungsbedingungen
Die Zahlung hat wie nachstehend zu erfolgen:
100% Vorkasse; oder
30% bei Auftragserteilung,
30% bei Anzeige der Versandbereitschaft,
40% innerhalb 30 Tagen Rechnungsdatum rein netto.
Bei Bestellung unter einem Auftragswert von € 5.000,-- kann die Zahlung innerhalb von 10 Tagen mit 3% Skonto oder innerhalb von 30 Tagen rein netto erfolgen. Die Zahlung hat per Überweisung auf das in der Rechnung angegebene Konto oder per Verrechnungs-oder Barscheck zu erfolgen. Der Auftraggeber ist auch bei Reklamationen nicht berechtigt ohne unsere Zustimmung Aufrechnungs- oder Zurückhaltungsrechte geltend zu machen. Bei neuen Geschäftsbeziehungen können wir Vorauszahlung verlangen. Im Falle des Zahlungsverzuges sind wir berechtigt Verzugszinsen in Höhe von 2% über dem jeweiligen Diskontsatz der Deutschen Bundesbank zu berechnen.
Eigentumsvorbehalt
Wir behalten uns das Eigentum an sämtlichen gelieferten Waren bis zur Bezahlung aller Forderungen aus der Geschäftsverbindung vor. Bei Zahlungsverzug sind wir berechtigt, die gelieferte Ware zurückzuverlangen.
Allgemeines
Wird ein Teil der vorstehenden Bedingungen durch Sondervereinbarungen unwirksam, bleibt der Vertag davon unberührt.
Gerichtsstand
Gerichtsstand und Erfüllungsort für sämtliche gegenwärtigen und zukünftigen Ansprüche aus der Geschäftsverbindung ist ausschließlich Esslingen am Neckar, soweit nicht die sachliche Zuständigkeit des Landesgerichts Stuttgart begründet ist. Dies gilt auch für Klagen im Wechsel- und Urkundenprozess.
Wernau, den 1.1.2005
1 Interpretation
1.1 In these Conditions: “Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller “Goods” means the goods (including any instalment of the goods of any parts for them) which the Seller is to supply in accordance with these Conditions “Seller” means Thomas Klein, Daimlerstrasse 13-15 in 73249 Wernau (Neckar) Germany or Thomas Klein in the name of EUROTUBES UK (a firm trading from 8 Park Estate Road Easton Portland Dorset DT5 2BE) “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller “Contract means the contract for the purchase and sale of the Goods including these Conditions “Writing” includes telex cable facsimile transmission and comparable means of communication
1.2 Any reference to these Conditions to any provision of a statute shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time 1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation
2. Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller whether a separate quotation or contained in the Seller’s Brochure which is accepted by the Buyer in writing or any written order of the Buyer for customized Goods which is accepted by the Seller subject in either case to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted or any such order is made or purported to be made by the Buyer
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed whether made prior or subsequent to any Contract
2.4Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed
2.5 Any typographical clerical or other error or omission in any sales literature quotation price list acceptance or offer invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller
3. Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms
3.3 The quantity quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation if accepted by the Buyer of the Buyer’s order if accepted by the Seller
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer the specification and design of the Goods including the copyright design right or other intellectual property in them shall as between the parties be the property of the Seller but the Buyer shall nonetheless and notwithstanding clause
3.5 indemnify the Seller against all loss damages costs claims and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent copyright design right trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the specification submitted by the Buyer
3.6 The Seller reserves the right to may any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or where the Goods are to be supplied to the Seller’s specification which do not materially affect their quality or performance
3.7 No order which has been accepted by the Seller may be cancelled by the Buyer except within the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour and materials used) damages charges and expensed incurred by the Seller as a result of cancellation
4. Price of the Goods
4.1 The price of the Goods shall be the Seller’s quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed in the Seller’s published price list current at the date of acceptance of the order Where the Goods are supplied for export from the United Kingdom the Seller’s published export price list shall apply All prices quoted are valid for sixty days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving prior notice to the Buyer
4.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as without limitation any foreign exchange fluctuation currency regulation alteration of duties significant increase in the costs of labour materials or other costs of manufacture) any change in delivery dates quantities or specifications for the Goods which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller and unless otherwise agreed in Writing between the Buyer and the Seller all prices are given by the Seller on a delivery inclusive basis but where the Seller agrees to deliver the Goods otherwise than that the Buyer’s premises the Buyer shall be liable to pay the Seller’s charges for transport packaging and insurance
4.4 The price is exclusive of any applicable Value Added Tax which the Buyer shall be additionally liable to pay to the Seller
5. Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods
5.2 The Buyer shall pay the price of the Goods within thirty days from the last day of the month in which the Seller invoiced the Buyer and the Seller shall be entitled to recover the price notwithstanding that delivery may not have taken place The time of payment of the price shall be of the essence of the Contract Receipts for payment will be issued only upon request
5.3 If the Buyer fails to make any payment of the due date then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:-
5.3:1 cancel the contract or suspend any further deliveries to the Buyer;
5.3:2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriate by the Buyer); and
5.3:3 charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 4 per cent per annum above the Lloyd Bank Plc base rate from time to time in force until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest)
6. Delivery
6.1 Delivery of the Goods shall be made by the Seller delivering the Goods to the Buyer’s premises
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer
6.3 Where delivery of the Goods is to be made by the Seller in bulk the Seller reserves the right to deliver up to 8 per cent more but no less than the quantity ordered without any adjustment in the price and the quantity so delivered shall be deemed to be the quantity ordered
6.4 Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated
6.5 If the Seller fails to deliver the Goods (or any instalment for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then without prejudice to any other right or remedy available to the Seller the Seller may:
6.6:1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.6:2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract
7. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1:1 in the case of the Goods to be collected at the Seller’s premises at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1:2 in the case of Goods to be delivered at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods the time when the Seller has tendered delivery of the Goods
7.2 Notwithstanding delivery and the passing of risk in the Goods or any other provision of these conditions the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price for the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due
7.3 Until such time as the property in the Goods passes to the Buyer the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller’s property but shall be entitled to resell or use the Goods in the ordinary course of its business
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold or mixed with other goods of the Buyer or any third party) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable
8. Liability
8.1 The Goods are sold by the Seller subject to the following conditions:
8.1:1 Subject as expressly provided in these Conditions and except where Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law
8.2 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) order 1976) the statutory rights of the Buyer are not affected by these Conditions
8.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within twenty one days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure If delivery is not refused and the Buyer foes not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract
8.4 Where any claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions the Seller shall be entitled to replace the Goods (or the part in question) free of charge or at the Seller’s sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have not further liability to the Buyer
8.5 Except in respect of death or personal injury caused by the Seller’s negligence the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent) or any implied warranty condition or other term or any duty at common law or under the express terms of the Contract for any indirect special or consequential loss or damage (whether for loss of profit or otherwise) costs expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods except as expressly provided in these Conditions
8.6 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control Without prejudice to the generality of the foregoing the following shall be regarded as caused beyond the Seller’s reasonable control
* Act of God explosion flood tempest fire or accident;
* war or threat of war sabotage insurrection civil disturbance or requisition
* acts restrictions regulations bye-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
* import or export regulations or embargoes;
* strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
* difficulties in obtaining raw materials labour fuel parts or machinery;
* power failure or breakdown in machinery
9. Indemnity
9.1 If the Unfair Contract Terms Act 1977 applies to the Contract between the Seller and Buyer and any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent copyright design trade mark or other industrial or intellectual property rights of any other person then unless the claim arises from the use of any drawing design or specification supplied by the Buyer the Seller shall indemnify the Buyer against all loss damages costs and expensed awarded against or incurred by the Buyer in connection with the claim or paid or agreed to be paid by the Buyer in settlement of the claim Provided That:
9.1:1 the Seller is given full control of any proceedings or negotiations in connection with any such claim;
9.1:2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1:3 except pursuant to final award the Buyer shall not pay or accept any such claim or compromise any such proceedings with the consent of the Seller (which shall not be unreasonably withheld);
9.1:4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1:5 the Seller shall be entitled to the benefit of and the Buyer shall accordingly account to the Seller for all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld or delayed) to be paid by any other party in respect of any such claim; and
9.1:6 without prejudice to any duty of the Buyer at common law the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss damages costs or expenses for which the Seller is liable to indemnify the Buyer under this clause
9.2 If the Unfair Contract Terms Act 1977 does not apply and a claim is mage against the Buyer as more particularly set out in Clause 9.1 above the Seller shall not be liable by reason of any such infringement and shall be under no duty to indemnify the Buyer
10. Insolvency of Buyer
10.1 This clause applies if:
10.1:1 the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1:2 an encumbrancer takes possession of or a receiver or administrative receiver is appointed over any of the property assets of the Buyer, or
10.1:3 the Buyer ceases or threatens to cease to carry on business; or
10.1:4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly 10.2 If this clause applies then without prejudice to any other right to remedy available to the Seller the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary
11. Export Terms
11.1The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them
12. General
12.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice
12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision
12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected
12.4 The Contract shall be governed by the laws of England and the Buyer agrees to submit to the non-exclusive jurisdiction
Wernau, January 1st, 2005