General terms and conditions of trade (GTCT) applied for business among enterprises
(Note: This is a translation of the German version. In cases of uncertainty or contradict the German version shall prevail.)
§ 1.0 Guideline
§ 1.1 All services of PRIORIT as well as offers, acknowledgements of orders and invoices base on these sales conditions. Exclusion of their validity in whole or in part can only be excluded by express agreements at each single business transaction.
§ 1.2 General terms and conditions of trade (GTCT)
Especially purchase conditions of the Orderer have no application to deliveries and services of PRIORIT unless PRIORIT accepted them in writing. You also cannot obligate Priorit, if Priorit hasn’t contradicted expressly to those conditions. Does the Orderer not revoke to these conditions in a period of one working week after signing a contract, so he accepted them at full and absolute amount. Acceptance of deliveries and services of PRIORIT include acceptance of trade conditions of PRIORIT without any reservations and resignation of own formularised conditions (Orderer). The same applies to first instalment and first payment by the Orderer.
§ 2.0 Definitions
In sense of these sales conditions seller, service provider, assembler and so on is always PRIORIT and “Orderer” is the buyer or receiver of services.
“Goods” are always subject of the contract which are delivered by PRIORIT to the Orderer or earmarked for collection by him.
“Manufacturing” resp. in view of “manufactured” goods is always meant the intermixture, manufacturing or joining of the good with another movable or unmoveable item.
“New goods” are always goods originate anew by manufacturing with another movable or unmoveable item.
§ 3.0 General
§ 3.1 All offers are free unless otherwise agreed. Orders concerning their kind and volume of deliveries are only binding to PRIORIT at confirmation by PRIORIT. The obligation to delivery comes up by written confirmation of order acceptance, excluding the implied confirmation of order by immediately delivery. The acknowledgements of PRIORIT are also binding without signature. Alterations and supplements of contracts need a written form in any case.
§ 3.2 Reasonable technical and constructional deviations in brochures, catalogue, advertisings, index and written documents as well as model, constructions and material alterations for the technical progress and other development are reserved. No rights are able to deduce from that alterations against PRIORIT.
§ 3.3 The right of expecting partial deliveries and their invoicing is expressively reserved by PRIORIT.
§ 4.0 Prices
§ 4.1 Prices given in PRIORITs’ current price list are net and ex works or ex warehouse and are only valid for asked volume. Prices mentioned at singing of a contract are valid for a period of 4 months, after that period current prices are valid.
§ 4.2 For deliveries intra-community PRIORIT invoices without VAT, in the case that the Value Added Tax Identification Number (VAT ID) of the Orderer was given in advance. Deliveries inside Germany are invoiced according to law prescribed amount. Indications of prices in the current price lists are excluded VAT.
§ 4.3 The prices are always ex works; freight, packaging and insurance extra. Priorit package under observation of individual technical and constructional characteristics of goods.
§ 5.0 Payment conditions
§ 5.1 Payments with release action should be transferred direct to PRIORIT. Representatives have no authority to collect.
§ 5.2 The invoices for goods as well as for services are payable immediately and without deduction. Variant agreements need a writing form.
§ 5.3 In the case of delay in payment Priorit invoices 9 % p.a. default interests of invoice value which are higher compared to the current valid base rate of the European Central Banc. The right for assertion of a damage going further stay unaffected. Should an Orderer come into delay in payment with one of the invoices, all other outstanding accounts of Priorit have to be paid immediately.
§ 5.4 PRIORIT is entitled to charge Orderers’ payment to begin with older commitments. Are there costs and interests accrued in the past, then Priorit is entitled to account on payment first to the cost, continue with interest and at last on the main payment.
The settlement of agreed partial payment is at first possible with service costs, then with equipment and at last with articles.
§ 5.5 The Orderer have the right of set-off, only when his counterclaims are ascertained as legally valid or indisputable. The Orderer is legitimated to claim for the right of retention insofar his counterclaim base on the same contractual relationship. PRIORIT reserves the right to reject suitable currency of accepted bill of exchange and claiming on immediate payment without indication of reasons.
§ 5.6 When after signing of a contract troubles concerning low credit-worthiness of the client come out, so PRIORIT is entitled to withdraw from the contract in whole or in part, as long as the Orderer does not clarify of adequate safety bonds.
§ 6.0 Service resp. assembling
§ 6.1 For services resp. assembling of build-in/build-up systems, assembling or build-up of door/partition wall systems and distribution cabinets as well as for each kind of assembling work, PRIORIT invoices in accordance with corresponding confirmation of order either flat or at costs (assembling and technician hours).
§ 6.2 The Orderer has to guarantee entrance to arranged assembling places as well as free ways to them. The Orderer has to bear costs caused by assembly losses due to a difficult or impossible entrance – for whatever reason.
§ 6.3 Seminars, trainings and speeches arranged for and by PRIORIT are invoiced either flat or at costs.
§ 7.0 Reservation of proprietary rights
§ 7.1 Delivered goods remain property of PRIORIT until all of the Orderer’s accounts resulting from the business relationship with him have been settled.
§ 7.2 Pledge of goods or chattel mortgage by the Orderer while remaining of property is forbidden. A resale is only allowed to resellers in ordinary transaction and under condition that the equivalent value of delivered goods is paid to the Orderer. The Orderer has to arrange with his customer that he acquires property only by payment.
§ 7.3 It is allowed to the Orderer to process the goods with other movable or unmoveable items. Processing of goods is made for PRIORIT and new goods developed by processing are coffered by the Orderer with an attention of an ordinary merchant.
Processing of the goods with items non-belonging to PRIORIT, PRIORIT obtains co-property on new goods at an amount equal to the value of used goods compared to the value of other processed items while processing. The Orderer and PRIORIT are in agreement about obtaining co-property by PRIORIT on new goods at an amount equal to the value of used goods compared to the value of other processed items while processing provided that the Orderer acquired property.
§ 7.4 In the case of disposal of goods or of new goods the Orderer assigns any claims resulting from the resale against the customer with all secondary rights to PRIORIT, without any further explications. The abandonment includes any balance requirements that may arise. However, the abandonment is only valid at an amount which corresponds with the price of delivered goods indicated in the invoice of PRIORIT. The assigned receivables to Priorit have to be settled priority.
§ 7.5 Does the Orderer combine goods or new goods with premises or moveable items, then, without any further explications, he assigns receivables which belonging to him for the connection and all secondary rights to PRIORIT at an amount equal to the value of the goods resp. the new goods compared to the value of other used items while combination.
§ 7.6 The Orderer is authorised for collection of assigned accounts mentioned in § 7 (Reserved Property) – until withdrawal. The Orderer will immediately pass payment of assigned accounts at an amount of assured debts through to PRIORIT. PRIORIT is entitled to countermand Orderer’s collecting authorisation in the case of an important reason especially at delay in payment, stoppage of payment, initiation of insolvency proceedings, protest of a bill, valid clues for overextension or threat of Orderer’s bankruptcy. Furthermore, PRIORIT is able to reveal assignments of security, to commercialise assigned receivables as well as to claim that assignments of security will be revealed by the Orderer to his customers after previously threaten and observed a suitable period of time.
§ 7.7 To show probably cause of a legitimate interest the Orderer has to furnish particulars and deliver necessary documents to PRIORIT to assert his rights against his customers.
§ 7.8 The Orderer has to inform PRIORIT immediately about distraints, confiscation or any regulations by third parties.
§ 7.9 PRIORIT will release a corresponding part of rights of security due to Orderer’s demand as far as the realised values of all rights of security due to PRIORIT, exceeds the amount of all assured claims above 10 %. However, PRIORIT has a choice between different rights of security for release.
§ 7.10 PRIORIT is entitled to claim on return of goods resp. new goods and/or withdrawal from contract also without fixing of a deadline at breach of duty by the Orderer especially at delay in payment. The Orderer is obliged to return goods immediately. There isn’t a letter of resignation of PRIORIT at a call for return of goods or new goods, unless it is expressly declared.
§ 8.0 Delivery
§ 8.1 The risk of a loss by accident or a random change for the worse of the goods delivered on demand of the Orderer to him or to a third party is transferred to the Orderer with delivery but with leaving PRIORIT at the latest. This is valid with no matter whether the delivery of goods goes from the place of delivery or who pays the freight costs.
§ 8.2 Delivery times indicated by PRIORIT are approximately and non-binding, unless they were expressly arranged as binding.
§ 8. 3 The delivery date is fulfilled when the purchased items have left the plant on the mentioned delivery date or the readiness for dispatch was communicated to the Orderer.
§ 8. 4 Correct and on time self-supply remain expressly reserved. At unforeseen obstacles beyond PRIORIT’s will and reach the time for delivery extends accordingly. It does not make sense where these obstacles happening at the plant of PRIORIT or at the respective subsupplier (e.g. breakdown, delays in delivery of essential raw materials, shortage of raw materials etc., also especially at acts of nature, state measures, non-granting of a concession, labour disputes of all kinds for e.g. commotion, industrial action as well as sabotage). The same applies to unforeseen obstacles happening while an already existed delay. In such cases the final deadline set by the Orderer extends according to the duration of the unforeseen obstacle.
§ 8.5 When the Orderer refuses delivery of goods (default in acceptance), Priorit is entitled to set a final deadline of 14 days and to insist on fulfilment of contract or to claim for damages in the amount of 25 % of the purchase price. Nevertheless, Priorit is at liberty to claim for higher damages at corresponding evidence. The pre-mentioned amount of damage is out of question, if the Orderer can prove that in this concrete case a smaller damage was accrued to PRIORIT. This claim is a damage arranged by contract, it isn’t a penalty. The Orderer bears the risk of a loss by accident for the period of time between an arranged and an actually delivery date.
§ 9.0 Liability
§ 9.1 According to legal regulations PRIORIT is liable for cases of intent or gross carelessness by PRIORIT or representatives or subcontractors. Apart from that, PRIORIT is only liable according to product liability law, owing to injury of live, body or health or owing to culpable breach of essential contractual right. However, a claim for damages for breach of essential contractual rights is limited for a characteristic to the contract and predictable damage. When there aren’t any of the exceptional cases mentioned above, liability by PRIORIT in cases of gross carelessness is limited for a damage characteristic to the contract and predictable.
§ 9.2 Liability for damages at legally protected interests of the Orderer by means of delivery item is excluded entirely (e.g. damages at other goods). This does not apply for intent or gross carelessness or for injury of live, body or health.
§ 9.3 Regulations indicated in §§ 9.1 and 2 concern to damages beside performance and damages instead performance, don’t care of legal base, especially owing to defects, breach of obligation duties or civil offence. They also apply for claim on refund of vain expenses. Liability for delay is even regulated by § 8.
§ 9.4 A change of evidence for disadvantage of the Orderer isn’t connected with above-mentioned regulations.
§ 9.5 An exclusion or limitation of a liability by PRIORIT also applies to personal liability of employees, workers, representatives and subcontractors.
§ 10.0 Guarantee
§ 10.1 Orderer’s guarantee rights assume that he has duly attended to his investigation and reproof http://www3.dict.cc/englisch-deutsch/damage.html obligations according to §§ 377 German Commercial Code. Should it come to reclamation, in spite of big attention, then obvious defects have to be asserted immediately (but within 6 work days after receiving resp. collecting goods at the latest), hidden defects have to be asserted immediately after their discovery, otherwise the goods are applied accepted.
§ 10.2 Should, in spite of all spend care, delivered goods have defects at the time of transfer of perils, then PRIORIT will repair or replace goods as requested, under reserve of due and proper claim. Possibility for supplementary performance within an appropriate period has to be granted to PRIORIT.
§ 10.3 When the supplementary performance fail, the Orderer is able to withdraw from contract or reduce the payment without any claim of damages. The Orderer cannot insist on replacement for vain expenses. Consent of PRIORIT might be asked before any return of goods.
§ 10.4 Claims for defects of a minor difference of the arranged quality, of a minor detraction of usage, of natural wearout as well as damages developed after transfer of perils as a result of incorrect or careless handling, immoderate strain, unsuitable fittings, defective building, unsuitable ground or due to special external influences not assumed by contract are not accepted; likewise is valid for improper of reinstatement works, changes or those consequences carried out by the Orderer or third parties.
§ 10.5 PRIORIT does not guarantee that permissions of fire prevention meet Orderers’ requirements. The guarantee become invalid, should the serial number, type designation or similar labels be defaced.
§ 10.6 Assertion of claims by the Orderer is excluded for necessaries used for supplementary performance, especially carriage, freight, labour and material costs; as far as the necessaries increase by reason of delivered goods have been placed subsequently to another place by the Orderer or at his demand and it was not his branch office – unless the transfer correspond to designated use of goods.
§ 10.7 Claims of recourse by the Orderer against PRIORIT are only valid when the Orderer and his customer have no agreements exceeded law prescribed claims for defects.
§ 10.8 Assertion of ulterior or other claims for defects not mentioned above by the Orderer against PRIORIT and his subcontractors are excluded.
§ 10.9 Claims for guarantee are non-transferable. Furthermore, PRIORIT pass any assumption of a guarantee by the manufacturer at full volume on the Orderer, without to be responsible on ourselves. In the case of claim for guarantee PRIORIT choose between amendment and replacement.
§ 10.10 PRIORIT is entitled to claim on replace of necessaries, when after the inspection of a claim for defects a claim for guarantee does not exist. Costs for inspection and repair will be invoiced at the current service prices of PRIORIT.
§ 10.11 Only authorised workers by PRIORIT are allowed to repair on spot.
§ 11.0 Limitation
§ 11.1 Limitation period for claims and rights for defects of goods – for any reasons – is one year. In cases according to § 438 par. 1 no. 1 German Civil Code (defects of title at unmovable things), § 438 par. 1 no. 2 German Civil Code (edifices, things for edifices), § 479 par. 1 German Civil Code (claim for recourse of the company) or § 634a par. 1 no. 2 German Civil Code (edifices or plant whose success is to fulfil plan or control services) the limitation period is three years.
§ 11.2 Limitation periods according to § 11.1 clause 1 are also applied to any claims for damages in connection to defect against PRIORIT – independent from the legal basis of the claim. The same applies to claims for damages of any kind against PRIORIT not associated with a defect.
§ 11.3 Limitation periods according to § 11.1 and 2 are applied to following conditions:
Limitation periods are not valid in the case of intention.
They are also invalid, when PRIORIT has maliciously kept defects a secret or PRIORIT has accepted guarantee for conditions of the goods. In the case that PRIORIT keep defects a secret, limitation periods prescribed by law are valid, which also would be valid without malice under exclusion of deadline extension for malice according to §§ 438 par. 3 resp. 634 par. 3 German Civil Code, provided that there are no other exceptions according to par. 3.
Limitation periods are invalid for claims for damages in the cases of injury of live, body or health or freedom, for claims according to German Product Liability Law, for roughly careless breach of duty or for breach of essential contract laws.
§ 11.4 Beginning of a limitation period for all claims is the delivery of the goods resp. readiness for collection or acceptance of works services.
§ 11.5 As far as not expressly mentioned, conditions prescribed by law remain intact over the beginning of limitation, escapement of progress, escapement and restart of period.
§ 11.6 An alteration of evidence for disadvantage of the Orderer is not connected with above-mentioned settlements.
§ 12.0 Third party rights
§ 12.1 PRIORIT does not assume liability that product covered by contract injury industrial trade marks rights or copyrights of third parties. The customer has immediately to inform PRIORIT about all claims against him resulting from mentioned reason.
§ 12.2 As far as delivered products were manufactured according to the Orderers’ blueprints or his instructions, the Orderer has to release PRIORIT from all claims which could be claim by third parties due to injury of industrial trade marks rights and copyrights. Any legal costs are adequately to be advanced.
§ 13.0 Protection of privacy
§ 13.1 The Orderer gives his explicit agreement for processing of data become known in connection to contract relations with PRIORIT and necessary data for processing of order.
§ 13.2 The Orderer also approves that PRIORIT uses the data given in the sense of data privacy act resulting from the business relation for commercial purposes.
§ 13.3 PRIORIT saves and uses Orderers’ personal data for commercial transaction of deliveries or services as well as using them within the framework of purposes of the closed business.
§ 14.0 Additional agreements
§ 14.1 All promises and agreements as well as by phone and by telegraphic or by telex arranged between PRIORIT and the Orderer which contradict above-mentioned conditions or exceed those as well as alterations of any kind especially payment conditions, need a written conformation by PRIORIT for being accepted. That applies especially to any additionally oral agreements of representatives of PRIORIT or to any alterations or exclusions of our GTCT.
§ 14.2 Should a condition of that GTCT or a condition of supplementary agreements being or become invalid, so other conditions remain intact.
§ 15.0 Place of jurisdiction
§ 15.1 These conditions and the entire right relations of all parties are subject to the right of the Federal Republic of Germany under exclusion of the UN Convention on Contracts for the International Sale of Goods (CISG)
§ 15.2 The exclusive local place of jurisdiction for kind of coflicts – as well as documents and bill lawsuits – shall be the Land- bzw. Amtsgericht Hanau (Hessen), Germany, depending on the subject matter of the dispute.