Terms and Conditions of Supply and Payment of Salamander GmbH and of Salamander Vertriebs GmbH for Export



1Applicability
1.1Our Terms and Conditions of Supply and Payment apply exclusively. We do not recognize terms and conditions of the purchaser opposing or deviating from our Terms and Conditions unless we have explicitly agreed to the application thereof.
1.2Our Terms and Conditions of Supply and Payment shall also apply exclusively if we execute supply to the purchaser without reservation although we had knowledge of terms and conditions of the purchaser opposing or deviating from our Terms and Conditions.
1.3These Terms and Conditions shall also apply to all future supplies to the purchaser.
2Conclusion of the Contract
Purchase orders placed by the purchaser and alterations thereto shall only be valid if confirmed by us in writing.
3Delivery
3.1Deliveries are effected ex works (warehouse in Feldkirchen - Carinthia/Austria) in accordance with INCOTERMS 2010.
3.2In addition to the purchaser’s postal address, the purchaser must also notify us in writing of its fax number and an e-mail address to which we can send our messages to the customer, in particular concerning goods ready for collection.
4Reservation of Title
4.1The goods delivered remain our property pending payment of the purchase price. The purchaser may, however, sell the goods in the ordinary course of business
4.2Any pledge or transfer to third parties of the aforementioned goods as security in favour of third parties is inadmissible without our consent. The purchaser must inform us without delay of any attachment or other impairment by third parties of the aforementioned security rights. The purchaser shall hand over to us all of the documentation necessary for an intervention and bear the intervention costs we incur insofar as the intervention was successful but the compulsory execution at the third party was unsuccessful due to the ensuing costs.
4.3The purchaser must adequately insure the goods subject to reservation of title against fire, burglary and water damage. Claims against the insurance company with respect to damage to the goods subject to reservation of title are assigned to us now already by the purchaser in an amount equivalent to the value of the goods subject to reservation of title. The purchaser shall notify the insurance company of the assignment of claims.
4.4In the event of behaviour in breach of contract, in particular if the purchaser is in default of payment or if an application is filed for insolvency proceedings to be instituted, we have the right to rescind the contract without giving notice and to demand the surrender of the goods to which we have reserved title, to collect the goods to which we have reserved title or to take direct possession of the goods to which we have reserved title, and to sell them by private sale.
5Delivery Period – Default
5.1Delivery periods given by us are not binding.
5.2If we exceed the delivery period indicated by us, we are not in default until the purchaser has served written notice of default on us setting a period for performance of at least 22 days.
5.3The precondition for compliance with our delivery obligation is the punctual and proper performance by the purchaser of the purchaser’s obligations.
5.4If the purchaser is in default of acceptance or if the purchaser is in breach of other collaboration duties, we have the right to claim the damage, including any additional expenses, we incur. In this case the risk of accidental loss and of accidental deterioration of the goods shall pass to the purchaser as soon as the purchaser is in default of acceptance.
6Force Majeure
Force majeure, industrial disputes (strike and lockout) or government action entitle both us and the purchaser to extend the period for delivery and acceptance by the duration of the impediment, but not exceeding a period of three weeks, excluding claims for damages. After expiry of this period, both the purchaser has and we have the right to rescind the contract. Further claims by the contracting parties are excluded.
7Warranty
7.1Notice of visible defects must be given in writing. Such notice must be given and substantiated within 12 working days after the customer takes delivery of the goods at the warehouse in Feldkirchen (Carinthia/Austria).
7.2In the event of concealed defects, the statutory provisions shall apply to the purchaser’s duty to give notice of defects.
7.3There are no claims on account of defects in the event of an only minor deviation from the agreed quality or of only inconsiderably impaired usability. In particular, natural wear and tear and damage caused after the passing of risk due to unprofessional handling or storage do not constitute defects.
7.4Goods forming the subject of a complaint may only be returned if we have given our consent, unless we fail to respond to the notice of defect within 12 working days.
7.5If the goods are defective, we undertake, at our election, to supply a replacement, rectify the defect or provide a credit note. If the supply of a replacement/the rectification should be abortive, the purchaser has the right to rescind the contract. Claims for a reduction of the purchase price and damages are excluded.
7.6Neither the purchaser nor we may charge any kind of processing fees for complaints.
7.7The aforementioned claims on account of defects become statute barred one year after delivery.
8Prices – Payment Conditions
8.1Unless otherwise agreed, our prices are ex warehouse in Feldkirchen (Carinthia/Austria). Our prices are net prices in Euro. Any value added tax due is charged separately.
8.2Unless otherwise agreed, the purchaser shall pay the invoice amount in advance in Euro; the purchaser has the right to deduct a discount of 3 % from this advance payment.
8.3After the full invoice amount (less the discount) has been credited to the bank account advised by us, the goods shall be made available for collection by the purchaser at the warehouse in Feldkirchen (Carinthia/Austria).
8.4If, as an exception, a mode of payment other than advance payment has been explicitly agreed in writing, the following shall apply:
8.4.1Value dates which amend the due date are inadmissible.
8.4.2Section 286 German Civil Code (BGB) applies with respect to open account payment terms. If the payment term or the payment date is not complied with, Section 288 BGB shall apply. Asserting a claim for further damage is not excluded.
8.4.3A 3 % discount is allowed on cash payments made within 10 calendar days of the invoice date with no deductions for bank charges; otherwise payment of the net amount shall be made within 30 calendar days.
8.4.4In this connection invoices from 01 to 10, from 11 to 20 and from 21 to the last trading day of any month may be combined on the last date of the respective period.
8.5The date of payment is deemed to be the date on which payment is received by us.
9Default, Deterioration of Purchaser’s Assets – Immediate Calling-In of Payment
If the purchaser is in arrears with payment of an invoice that is due or if the purchaser’s financial situation should deteriorate fundamentally, we have the right to rescind that part of the contract not already performed or to demand cash payment for further deliveries or security for the goods without any new deadline having to be set in advance.
10Liability
10.1Save as otherwise provided in these Terms and Conditions of Supply and Payment, we are liable for damages and compensation of wasted expenses within the meaning of Section 284 BGB (hereinafter referred to as “Compensation”) on account of a breach of contractual or extra-contractual duties only in the event of intent or gross negligence on the part of our statutory representatives or of persons employed by us to perform an obligation. These limitations of liability do not apply in the event of fatal or physical injury or damage to health, if a guarantee has been given or a procurement risk taken, in the event of a breach of material contractual duties, on account of mandatory liability under the German Product Liability Act (Produkthaftpflichtgesetz) or on account of any other compulsory liability.
10.2Compensation for the breach of material contractual duties is, however, limited to the foreseeable damage typical for the type of contract, except in the event of gross negligence on the part of our statutory representatives or of persons employed by us to perform an obligation, or on account of liability due to fatal or physical injury or damage to health, if a guarantee has been given or a procurement risk taken.
10.3No change to the burden of proof to the detriment of the purchaser is associated with the foregoing provisions.
10.4Our liability is excluded in all other respects.
11Right of Retention – Offsetting
The exercising of a right of retention by the purchaser is excluded unless this relates to undisputed counterclaims or to counterclaims recognized by final judgment of a court of law. Our claims may only be offset against undisputed counterclaims of the purchaser or against counterclaims of the purchaser recognized by final judgment of a court of law.
12Final Provisions
12.1Place of performance is Langenfeld (Rhineland). In the event of disputes with purchasers who are businessmen, a public law legal entity or a public law special fund, the courts of Langenfeld (Rhineland) have jurisdiction and venue. We also have the right, however, to take legal action at the registered office or domicile of the purchaser.
12.2The law of the Federal Republic of Germany shall apply to all deliveries. The application of the UN Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods (UN Sales Convention/CISG) is excluded, however.
12.3If individual clauses of these Terms and Conditions of Supply and Payment should be or become void or ineffective in whole or in part, the effectiveness of the remaining clauses or the remaining part of such clauses shall not be affected thereby; instead of this the statutory provision shall apply.