General Terms and Conditions of Business and Customer InformationA. General Terms andConditions of Business
1 Area of Application
1.1 These general terms and conditions of thecompany Sortex GmbH (hereinafter referred to as the „Seller“) apply to allcontracts for the delivery of goods which the Seller concludes with anenterprise (herinafter referred to as the "Customer") by usingelectronic means (for example telephone, fax, e-mail) or in written form (forexample by letter) exclusively according to § 312g Paragraph 5 Clause 1 of theBGB (German Civil Code). Unless otherwise agreed, the inclusion of of thecustomer’s own terms and conditions is hereby contradicted.
1.2 These General Terms andConditions also apply exclusively if the Seller makes delivery to the Customerwhile being aware that the Customer has terms and conditions which conflictwith the Seller’s terms and conditions, or deviate from them, even if theSeller does not state this expressly.
2 Conclusionof the Contract
2.1 The products shown on theSeller’s website at www.sorttex.com do not represent a binding offer on the part of the Seller and cannot bepurchased direct from the Seller’s website. The Seller provides the Customerwith a contact form at the above mentioned internet address which the Customercan use to send the Seller a request for a specific offer. Immediately uponreceipt of the Customer’s enquiry, the Seller will send the Customer a bindingoffer for sale of the goods from the Seller’s product range which the Customerhas selected. This offer will be sent by email but may be sent by fax or postby special request. The Customer can accept this offer by sending an acceptancedeclaration to the Seller by fax, email or letter, or by paying the purchaseprice offered by the Seller within 7 (seven) days from the receipt of theoffer. The day the offer was made is not included in the calculation of thisperiod. In the case of acceptance by payment, the day the payment is receivedby the Seller is deemed to be the day of acceptance. If the Customer does notaccept the goods within said period, then the Seller is no longer bound by hisoffer and can dispose of the goods as he pleases.
2.2 If the parties have agreedspecial conditions, then as a basic principle these do not apply to anyconcurrent or future contractual relations with the Customer.
2.3 In case the Customer isunable to fulfill his obligations to the Seller for financial reasons, then theSeller can withdraw from existing exchange contracts with the Customer bywithdrawing from them without needing to give any notice. This also applies ifthe Customer makes an insolvency application. § 321 and § 112 InsO are notaffected. The Customer will inform the Seller in advance about an imminentinsolvency.
3 Pricesand Terms of Payment
3.1 The prices indicated bythe Seller are nett prices and are subect to the addition of statutoryVAT. Packing and shipping costs, loadingcosts, insurance (especially transport insurance), customs duties and fees arecalculated separately.
3.2 In the case of deliveriesto countries outside the European Union, there may in some cases be costs forwhich the Seller is not responsible and which must be borne by theCustomer. For example these could becosts for money transfer by financial institutions (for example remittance fees,foreign currency exchange fees) or import fees or taxes (eg. customs duty).
3.3 Subject to agreement,payment can be made by prepayment to the bank account nominated by the Selleror in cash when collecting the goods personally. From the thrd deliveryonwards, payment can be made agaist invoice so long as this is explicitlyagreed by the Seller.
3.4 If prepayment has beenagreed, the payment is due immediately after the contract has been concluded.
3.5 If the chosen method ofpayment is delivery against invoice, the purchase price is due after the goodshave been delivered and invoiced. In this case, the purchase price is to bepaid without any deductions within 10 (ten) days from receipt of the invoice,unless otherwise agreed.
3.6 A payment is deemed tohave been received as soon as the equivalent amount has been credited to theSeller’s account. In case of a delay in payment, the Seller is entitled toclaim interest for the delay at the level of 10 percentage points over thecurrent base rate. The Seller’s other legal rights in relation to payment delayremain unaffected by this. If receivables are overdue, payments received willbe allocated first to any costs and interest, and then to the oldestreceivable.
3.7 If there are unforseencost increases (for example currency fluctuations, unexpected price increasesby suppliers etc.), then the Seller has the right to pass the price inrease onto the Customer. This only applies, however, if the agreed delivery date ismore than four months after the conclusion of the contract.
4 Terms ofDelivery and Shipping
4.1 The delivery of goods ismade regularly and to the delivery address indicated by the Customer.
4.2 Delivery times ordeadlines are not binding, unless the Seller has expressly agreed that thenominated delivery times/deadlines are binding.
4.3 The Seller has the rightto make partial deliveries, provided that this is reasonable for the Customer.If partial deliveries are permitted, then the Seller has the right to issuepart invoices.
4.4 The Seller reserves theright to withdraw from the contract in the case of incorrect or improperself-delivery. Ths applies only if the Seller is not responsible for thenon-deivery and if the Seller has taken the necessary care to conclude a specificcovering transaction with the supplier. The Seller will make all reasonabeefforts to procure the goods. In case of non-availability, or of partialavailability only, the Customer will be informed immediatly and reimbursementwill be made immediately.
4.5 The risk of accidentaldestruction or deterioration of the goods is transferred to the appropriatetransporter when the goods are handed over. This also applies when the Selleris paying the cost of transport of the goods. Transport insurance is taken outonly at the express request and at the cost of the Customer. If the Seller owesthe erection and installation, the risk passes to the Customer after thecompletion of the erection and installation work and the handover to theCustomer.
4.6 If the delivery cannottake place for reasons attributable to the Customer, for example if the goodscannot pass through the Customer’s entrance door, house door or staircase, orif the customer cannot be found at the address which he has given despite thefact thatthe Customer has been givenreasonable notice of the delivery time, then the Customer is liable to for thecosts of the unsucessful delivery and is obliged to pay compensation for thedelay. This amounts to 1% for each full week of delay, but no more than maximum8% of the total value of the delivery or of the non-accepted part of the totaldelivery. The parties are at liberty to prove a higher or lower level ofdamages.
4.7 In case despatch of thegoods is delayed for reasons attributable to the Customer, the risk passes tothe Customer as soon as the customer is advised that the goods are ready forshipment. The Customer is responsible for any storage costs which become dueafter transfer of risk.
4.8 In the case of collectionby the Customer, the Seller will inform the Customer by email in the firstinstance that the goods which the Customer has ordered are ready forcollection. After receiving the email, the Customer can collect the goods byagreement with the Seller. In this case, no shipping costs will be calculated.
5.1 Call-off orders have to beaccepted and paid for in full latest 12 months after the the date of the order.
5.2 If a cheaper sliding scaleprice has been agreed on the basis of a total call-offquantity, the Seller has theright to make a price adjustment according to the quantity discount scale ifthe Customer does not take the total quantity for reasons attributable to theCustomer.
5.3 After the period of thecall-off order has expired, the Seller has the right to demand compensationafter advising the Customer in writing of an extension period and provided thatthe legal cicumstances exist.
In case of force majeurecircumstances which affect the fulfillment of the contract, the Seller has theright to postpone the delivery for the duration of the force majeure, and incase of extended impediment the Seller has the right to withdraw fully orpartially from the contract without the Seller being subject to any claims.Force majeure events are deemed to be any events which the Seller cannotforsee, or which are beyond the control of the Seller even if they can beforseen, and which the Seller cannot prevent from affecting the contract bymaking reasonable efforts. This does not affect any legal claims by theCustomer.
7 Delay inPerformance
7.1 If there is a delay in theperformance of the contract, the Customer has the right of withdrawal in theframework of the legal provisions only if the delay in performance isattributable to the Seller.
7.2 If the Seller is responsiblefor any delay, the Customer is obliged on the demand of the Seller to declarewithin a reasonable period whether he withdraws from the contract due to thedelay or whether he insists on performance.
7.3 If the Customer claimsdamages or reimbursement of expenses due to delay, he is entitled to claimcompensation at the level of 1% for each completed week for the part of theperformance which cannot be utilized due to the delay, but up to a maximum of8% of this price.
7.4 If shipping or delivery isdelayed at the request of the Customer by more than one month followingnotification that the goods are ready for shipment, then the Customer is liableto pay storage charges at the rate of 0.5% of the price of the subject of thedelivery, up to a maximum of 5%.
7.5 The parties are at libertyto prove higher or lower damages.
7.6 The above mentionedlimitations to liability will not apply in the case of deliberate acts,fraudulent intent, gross negligence and damages to life or limb or health.
8 Reservationof Title
8.1 The Seller retains titleto the goods until payment in full for the selling price which is owed. Furtherthe Seller reserves the title to the delivered goods until all his claimsarising from the business relationship withthe Customer have been satisfied.
8.2 In case the deliveredgoods have been processed, the Seller is deemed to be the manufacturer andacquires title to the newly produced goods. In case the processing is donetogether with other materials, the Seller acquires title in proportion to theinvoice value of his goods in relation to the other materials. If the Seller’sgoods are combined or mixed with a Customer’s product in such a way that thelatter becomes the main product, then the Seller acquires joint ownership ofthe product in proportion to the invoice value of the Seller’s goods to the accountingvalue, or in the absence of the latter, to the market value of the mainproduct. The Customer is the custodian of the goods in this case.
8.3 Objects which are subjectto reservation of ownership or title may not be pledged or used as security. Asa reseller, the Customer is only entitled to resell in the normal course ofbusiness on condition that the Customer has effectively assigned his claims against his customers inconnection with the resale and that the Customer transfers ownership to hiscustomers on condition of payment. By concluding the contract, the Customerassigns his claims against his customers in connection with such resale to theSeller as security, and the the Seller accepts the assignment.
8.4 The Customer is obliged tonotify access to the goods to which the Seller has title or part ownership, orto the assigned claims, immediately. The Customer has to pay all amounts whichhave been assigned, and which he has collected, to the Seller immediately,provided that the Seller’s receivable is due.The above mentionedlimitations to liability will not apply in the case of deliberate acts,fraudulent intent, gross negligence and damages to life or limb or health.
8.5 If the value of thesecurity rights of the Seller exceed the level of the secured claims by morethan 10%, the Seller will release a corresponding part of the security rightsat the request of the Customer.
9 Liabilityfor Defects
In case of any defect in thesales goods, the legal requirements will apply. This does not apply to goodswhich are used for building work other than for their intended purpose andwhich have caused defects of the building:
9.1 An insignificant defect isnot grounds for claims for defects and does not give the customer the right torefuse acceptance of the goods. If a part of the goods has significant defects,this does not confer the right to make a complaint about the total delivery ofgoods. Something else will apply if the part delivery is of no interest to theCustomer. In addition, payments from the Customer can only be held back in areasonable proportion to the material defect which has occurred. If the matter is to settled free of charge,the Seller is liable for defects only in so far as he has been guilty of intentor gross negligence.
9.2 No claims for defects canarise as a result of natural wear and tear or damages which occur after thetransfer of risk as a result of incorrect or careless handling, excessivestress, unsuitable operating operating materials, or which occur as a result ofexternal influences not specified in the contract, or as a result of faultswhich cannot br reproduced. If the Customer or third parties make incorrectchanges or repair operations, no defect claims can arise from the consequenceswhich result from these, unless the Customer can prove that the fault which isthe subject of the complaint was not caused by these changes or repair works.
9.3 In the case of used goods,rights and claims for defects are excluded.
9.4 The limitation period fordefect claims is one year from transfer of risk. Any supplementary performance(new delivery or repair) can only affect the defect which triggered thesupplementary performance.
9.5 The above limitations toliability and limitation periods in Points 9.1, 9.3 and 9.4 do not refer tocases of the right of recourse nor to compensation for damages or expensesaccording to § 478 of the BGB (German Civil Code) which the Customer can claimaccording to the legal requirements for defects. These last claims are coveredby Clause 10.
9.6 If the Customer is amerchant according to § 1 of the HGB (German Commercial Code), he is subject tothe obligation to examine and report defects according to § 377 of the HGB. Ifthe Customer fails to comply with the obligation to notify set out therein, thegoods are deemed to be accepted unless the defect is one which could not bedetected during inspection.
9.7 In case of supplementaryservice, the Seller has the right to choose between repair or delivery of spareparts.
9.8 If the supplementaryservice is in the form of spare parts supply, the Customer is obliged to sendthe initially supplied goods back to the Seller within 30 days. The packageused to send the goods back must show the reason for sending back, the name of thecustomer and the number issued for the purchase of the defective goods in orderfor the Seller to be able to allocate the returned goods. In so far as it isnot possible to allocate the goods which have been sent back for reasonsattributable to the Customer, the Seller is not obliged to accept the returnedgoods nor to pay for the returned goods. The Customer is liable for the costsof sending again.
9.9 If the Seller deliversgoods free of defects as a supplementary service, the Seller can demand compensationfor use according to § 346 Paragraph 1 of the BGB (German Civil Code). Otherlegal rights are not affected.
The liability for delay isdefinitively regulated in in Clause 7. Apart from that, the Seller is liable asfollows based on all contractual, contractual-type, legal and tortious claimsfor damages and expenses:
10.1 The Seller has unlimitedliability on any legal basis in the case of intent or gross negligence, in caseof negligent or intentional damage to life, limb or health, on the basis of aguarantee promise, or unless expressly regulated otherwise, on the basis ofstatutory liability such as the law on product liability.
10.2 If the Seller breaches abasic obligation under the contract, the liability is restricted to the typical,forseeable damages, unless the liability is unrestricted according to Clause10.1. Basic contractual obligations are obligations placed upon the Seller bythe contract in order to achieve the aim of the contract, the performance ofthese obligations being necessary to fulfill the contract, and which theCustomer can rely on being regularly observed.
10.3 Otherwise any liabilityon the part of the Seller is excluded.
10.4 The above liabilityprovisions also apply to the Seller’s liability for his agents and legalrepresentatives.
The Customer’s claims againstthe Seller become time-barred - exceptfor claims according to Clause 9 – one year from the notice of the claims, butlatest five years from the provision of the performance, unless Clause 10.1specifies unlimited liability.
12.1 Any rights of retentionor refusal to perform the contract on the part of the Customer are excluded,unless the Seller does not dispute the underlying counter claims or these havebeen upheld by a legal ruling.
12.2 Any assignment by theCustomer of claims arising from the contract with the Customer, especiallyassignment of defect claims by the Customer, is excluded.
13 ApplicableLaw, Place of Jurisdiction, Language of Contract
13.1 The law of the FederalRepublic of Germany applies to all the legal relations of the parties, other lawsconcerning the purchase of portable goods being excluded.
13.2 If the Customer is amerchant, a legal entity under public law or a special fund under public law,the place of jurisdiction for all disputes arising from the present contract isthe location of the Seller. This applies even if the Customer has no general placeof jurisdiction in Germany, nor any domicile there, or his usual abode at thetime the complaint is raised is not known. The power to convene a court inanother place of jurisdiction remains unaffected.
13.3 The language of thecontract is German..