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



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
When orders are placed for the first time, the order shall be deemed accepted if not explicitly rejected by us within 20 working days; a period of 10 working days applies to subsequent orders.
3Delivery – Passing of Risk – Packaging Costs
3.1Delivery is ex works, free domicile at the risk of the purchaser in the manner most economical for us.
3.2The additional costs of special requests of the purchaser (e.g. dispatch by courier or express delivery or by any other means of dispatch deviating from what is customary, labelling, special order picking) shall be borne by the purchaser.
3.3Orders with an order value of less than Euro 550 for one delivery date (Euro 275 for subsequent orders) shall be delivered freight collect.
4Reservation of Title
4.1 All goods delivered remain our property pending payment of all accounts receivable under the business relationship including ancillary claims to which we are entitled. The purchaser may, however, sell or further process the goods in the ordinary course of business.
4.2 In addition, the purchaser hereby assigns to us as security for all existing and future claims up to the amount of the value of the goods we have delivered, those accounts receivable to which the purchaser is entitled from the resale of these goods or which will still accrue to the purchaser. We hereby accept the assignment. In the case of a current account relationship, the security conferred on us shall serve to secure performance of our claim to the balance on account.
4.3 Any 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.
4.4 The value of the goods supplied by us within the meaning of section 4.1 is the purchase price itemized in the invoice plus 10 %. If the value of the security conferred upon us exceeds our claims by more than 10 %, then, at the purchaser’s request, we are obliged to assign back or release the assigned claims to purchase price at our discretion in this amount.
4.5 The 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.
4.6 In 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 10 working days after receipt of the goods; if the goods are delivered before the agreed delivery date, then within 10 working days after the agreed delivery date.
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 10 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.
7.8The foregoing provisions do not apply insofar as the mandatory provisions on the sale of consumer goods set forth in Section 474 et seqq. German Civil Code (BGB) apply.
8Prices – Payment Conditions
8.1Unless otherwise specified in the contract, our prices are ex works. Our prices are net prices. The respective statutory value added tax is charged separately.
8.2Invoices are issued on the day of dispatch or acceptance of the goods; if the goods are delivered in advance, the agreed delivery date shall be deemed to be the issue date.
8.3Value dates which amend the due date are inadmissible.
8.4Section 286 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.
8.5A 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.
8.6In 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.
8.7Bills of exchange, customer drafts and cheques do not constitute cash payment. They are always only accepted by us on account of performance.
8.8If agreed, stamped, three-month bills of exchange, free of charges to us, or bankable customer bills may be given. They shall be submitted no later than 10 calendar days after the invoice date. Ancillary fees are to be paid by the purchaser.
8.9The 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 a bill of exchange accepted by the purchaser is protested 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. The application of the UN Convention on Contracts for the International Sale of Goods 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.