Terms & Conditions

General Terms and Conditions of Sale and Delivery

Conrad GmbH, Birkgartenstrasse 15, DE-90562 Kalchreuth, Germany

 

1. Applicability of the terms and conditions
Our deliveries, services and quotations shall be performed solely on the basis of these terms and conditions of business. They shall also apply to all future deliveries even if notification of these terms and conditions is not
repeated. Terms and conditions of business of our contractual partners are hereby explicitly generally rejected in so far as they do not agree with our terms and conditions of business.

 

2. Quotations, conclusion of contract, terms and conditions
a) An order shall be deemed to be legally binding once it is confirmed by us in writing. In the case of deliveries without written confirmation, the invoice shall also represent confirmation of the sales order.

b) Our quotations are non-binding and subject to change without notice, unless otherwise stated in writing and providing no order based on our quotation has been confirmed by us in writing.

c) The prices specified or calculated by us are net prices. The relevant VAT shall be added separately.

d) Agreed order quantities are guide values. The actual quantities we supply may vary upward or downward by 10 %. Overproduction due to manufacturing reasons can be sold by us without restriction.

e) If our costs increase between confirmation of order and delivery, we shall be entitled to modify the price accordingly following immediate written notification. The Purchaser then has the right to cancel the order within 8 days of receipt of the written notification. We reserve the right to execute delivery at the agreed price within 8 days of cancellation of the order.

f) If carriage-paid delivery is agreed, this applies solely carriage-paid to the buyer's goods railway station. Otherwise, delivery shall be ex works or ex distribution centre. In all cases only marine cargo or surface freight shall be paid. Additional costs for express freight or other surcharges shall be paid by the Purchaser. We accept no liability for the choice of cheapest method of shipment. The packing costs and all expenses for any transportation insurance he chooses to take out shall be borne by the Purchaser. Boxes, cartons and crates shall be charged at cost price and will not be taken back.

g) The documents relating to our quotations and/or our order confirmations, particularly drawings and details of performance and weight, are only approximate unless otherwise explicitly agreed in writing.

 

3. Delivery, passing of risk
a) The dates and deadlines stated by us are non-binding unless otherwise explicitly agreed in writing.

b) Unforeseeable difficulties, e.g. plant disruptions of any type or material procurement problems not caused by us, and force majeure entitle us to postpone the delivery deadline correspondingly in so far as these difficulties
hamper fulfilment of contract or make fulfilment totally or partially impossible. If there is a long-term or permanent difficulty or if fulfilment of contract is economically unreasonable for us, we may withdraw from the
contract. In this case the rights of the Purchaser are based solely on Sections 346 et seq. of the German Civil Code.

c) If an agreed delivery deadline is exceeded by more than 4 weeks, the Purchaser has the right to set us an appropriate final deadline. Default is deemed to have occurred at the end of this period at the earliest. In the
event of default, our liability is based on Point 6 of these Terms and Conditions.

d) Part-deliveries are permissible for us if this is reasonable for the Purchaser. These shall be deemed to be stand-alone deliveries in respect of payment and complaints.

e) Risk passes to the Purchaser at the latest when the delivery leaves our works or commissioned store. If the shipment is delayed despite our readiness to ship for reasons for which we are not responsible, risk passes
at the latest at the time of readiness to ship.

f) A delivery deadline begins at the earliest with despatch of our order confirmation, but not before all approvals and documents necessary for execution of the order are available and all significant relevant questions
have been clarified. Timely despatch of the ordered items shall be deemed to fulfil compliance with the delivery deadline. The delivery deadline is delayed as long as the Purchaser is in arrears with his due payments.

g) In the event of failure to take delivery of the ordered goods, we shall be entitled to demand 15% of the value of the relevant goods for expenses already incurred and lost earnings and an appropriate agent's fee unless
the Purchaser can provide evidence that no loss has resulted or that the loss was not of the above-mentioned amount.

h) The Purchaser may assign rights from the contractual relationship to third parties only with our written authorisation.

i) There shall be no change in the burden of proof to the disadvantage of the Purchaser associated with the above regulations.

 

4. Warranty
a) We shall be given the opportunity to assess any claims regarding defects. The relevant goods shall be returned to us immediately on request; we shall pay the transportation costs if the claim is justified. If the
Purchaser does not honour these obligations or performs modifications to the goods about which he has made a claim, the goods shall be deemed to be approved and claims regarding alleged defects shall be excluded.

b) In the case of claims regarding defects, payments of the Purchaser may be kept back to the extent that this is reasonable in relation to the material defects. The Purchaser may only withhold payments there can be no doubt regarding the justification of the claim. If a complaint is unjustified, we shall be entitled to demand compensation for the expenses we have incurred.

c) Objections to invoices or claims regarding defects that were identifiable at the time delivery can only be considered if they are notified to us in writing immediately after receipt of the shipment, and at the latest within 14 days of the delivery itself. Claims regarding latent defects shall be made analogously without delay after their discovery.

d) Our obligation is to deliver goods of "average type and quality", whereby the benchmarks here are our circumstances and the average type and quality of our goods. Furthermore, the quality of the goods is based solely on the agreed technical delivery conditions. If we have to deliver in accordance with drawings, specifications, models etc. of the Purchaser, the latter shall bear the risk relating to suitability for envisaged purpose. The time of passing of risk (as per Point 3 e) is decisive for the contractually compliant condition of the goods. Details and agreements regarding quality do not represent a warranty unless this is explicitly agreed in writing. Any agreed warranty is given subject to the proviso that in the event of a warranty claim, the legal consequences described in Point 4 shall apply.

e) If the delivered goods are defective, the following shall apply irrespective of any rights of recourse of the Purchaser as per Sections 478 and 479 of the German Civil Code (see also Point f below): At our discretion we may remedy the defect or supply a defect-free replacement. Further warranty claims are excluded unless, despite a reasonable final deadline of at least 4 weeks having been set, "supplementary performance" (i.e. remedy/replacement) does not take place, fails, is justifiably refused by us or is unreasonable for the Purchaser. Point 6 shall apply for any compensation claims.

f) The following shall apply for any rights of recourse of the Purchaser in accordance with Sections 478 and 479 of the German Civil Code:

aa) The above regulation in Point 4 e) applies analogously. The Purchaser shall notify us without delay if his customers make warranty claims that the Purchaser cannot himself satisfy by means of "supplementary
performance" (i.e. remedy/replacement) in order that we are able to put him in a position to provide supplementary performance. If notification is not given and supplementary performance between the Purchaser and his customer therefore fails, the Purchaser may nonetheless proceed in terms of recourse in accordance with the provisions in Point 4 e) above, i.e. he may only claim supplementary performance. In addition, Point 4 j) applies analogously.

bb) In addition, the statutory rights of recourse of the Purchaser against us exist only if the Purchaser has made no agreements with his buyer that exceed the statutory claims for defects.

cc) The Purchaser is not allowed make any public statements, particularly advertising statements, about the properties of the goods that are not agreed with us. In the case of culpable infringement, the Purchaser shall be
obliged to compensate any loss or damage suffered by us. Furthermore, any rights of recourse of the Purchaser based on these public statements are excluded.

g) If, for reasons of goodwill and without any legal obligation, we declare that we are prepared to exchange the goods, the Purchaser shall bear the costs of return and inspection of the returned goods – at least 10 % of the
purchase price of these goods – and shall also bear the freight costs and any costs for necessary repair work.

h) Warranty rights do not exist in cases of minor deviation from the agreed quality, minor impairment of usability, natural wear and tear nor for damage caused after the passing of risk as a result of incorrect or careless handling, excess strain/load or use not in accordance with the intended purpose. If repair work or inappropriate changes are made by the Purchaser or by third parties, no warranty rights shall exist for such changes or any
consequences thereof.

i) If an acceptance inspection of the goods or an initial sample inspection has been agreed, no claims for defects shall be allowed which the Purchaser would have been expected to detect had the acceptance
procedure or initial sample inspection been performed diligently.

j) If, in the event of failure of supplementary performance, the Purchaser performs the required repair himself or through a third party, reimbursement of costs is excluded if the expense was increased because the goods were brought to another location after our delivery unless this corresponds with the intended use of the goods.

k) There shall be no change in the burden of proof to the disadvantage of the Purchaser associated with the above regulations.

 

5. Industrial property rights, copyright, defects of title

a) Unless otherwise agreed, we are obliged to make delivery solely in the country of the delivery location free of industrial property rights and copyright of third parties (referred to in the following as "property rights").
Where a third party lodges justified claims against the Purchaser for contravention of property rights by goods supplied by us and used in accordance with contract, we shall be liable to the Purchaser as follows:

aa) At our discretion and at our cost we shall either obtain a right of use for the relevant supplied goods, modify them so that the property right is not infringed or replace them. If this only possible for us at a disproportionate
cost, the Purchaser has the statutory warranty rights pursuant to Section 437 Nos. 2 and 3 of the German Civil Code to the extent regulated in Points 4 and 6.

bb) Compensation claims shall be as regulated in Point 6.

cc) Our above-mentioned obligations exist only if the Purchaser informs us immediately in writing about the claims made by third parties, does not admit any wrong-doing and all defence measures and conciliation
proceedings remain reserved. If the Purchaser ceases to use the supplied goods in order to minimize possible damages or for other good reason, he shall be obliged to notify the third party that ceasing to use the goods does not represent acknowledgement of infringement of property rights.

b) Claims of the Purchaser are excluded if he is responsible for the infringement of property rights.

c) Claims of the Purchaser are also excluded if the infringement of property rights is caused by special specifications of the Purchaser, by use unforeseeable for us or because the supplied goods have been modified by the Purchaser or used together with products not supplied by us.

d) In the case of infringement of property rights, the provisions in Points 4b), 4 e) and 4 f) shall also apply analogously for the claims of the Purchaser regulated in Point 5 a) aa).

e) In the event of other defects of title, the provisions in Point 4 shall apply analogously.

f) No more far-reaching claims or other claims not regulated in Point 5 may be made by the Purchaser against us and our agents for defect of title.

 

6. Liability, compensation
Unless a different provision regarding liability has been made elsewhere in these Terms and Conditions, we shall only be obliged as follows to compensate for loss or damage arising for the Purchaser directly or
indirectly as a result of our default, defective delivery, infringement of official safety regulations or for any other legal reason for which we are accountable.

a) A duty to provide compensation normally only exists if we are at fault for the loss or damage caused by us or if we are responsible for an infringement of obligation. No liability for accidental event or force majeure
shall be accepted.

b) Similarly, no liability for loss or damage caused by improper use of the goods shall be accepted.

c) Compensation claims for loss or damage other than such resulting from injury to life, body or health (without prejudice to Point d) shall only arise if an accusation of grossly negligent or intentional infringement of duty can be made against us.

d) In the case of infringement of a significant contractual obligation, we shall also be liable for minor negligence. In such a case, however, compensation shall only be made for loss or damage that is typical for the
contract and could reasonably have been foreseen, not for untypical or more indirect loss or damage, and particularly not for loss of earnings or other financial loss.

e) If a claim is made against the Purchaser for no-fault liability towards third parties in contravention of peremptory law (jus cogens), we shall be liable toward the Purchaser in the same way as if we were directly liable. The basic principles of Section 254 of the German Civil Code shall apply analogously in terms of settling damages between the Purchaser and ourselves. This shall also apply in the case of direct claims against us.

f) Claims of the Purchaser are excluded in so far as the loss or damage is caused by breaches of duty by the Purchaser. We shall be liable for actions of the Purchaser in defence against claims only in so far as we are legally obliged.

g) The Purchaser shall inform and consult with us immediately and fully if he wishes to make a claim against us in accordance with the above regulations. He shall give us the opportunity to investigate the circumstances of the claim. The contractual parties shall come to an agreement on the measures to be taken, particularly in the case of conciliation proceedings with third parties.

h) With respect to the amount of compensation, our economic circumstances, the manner, scope and duration of the business relationship and the value of the supplied goods shall be taken appropriately into consideration to our favour in good faith.

i) The liability of our legal representatives and our agents and vicarious agents is limited in the same way as our liability in accordance with the above regulations.

j) There shall be no change in the burden of proof to the disadvantage of the Purchaser associated with the above regulations. Furthermore, our liability in accordance with peremptory law, in particular the German
Product Liability Act, remains unaffected.

 

7. Retention of title

a) The goods supplied by us will remain our property until full payment of all claims against the Purchaser resulting from the business relationship or other legal reason.

b) The purchaser shall store the goods under retention of title free of charge. He is obliged to insure them against fire and theft.

c) The Purchaser shall be entitled to sell the goods under reservation of title in a regular business transaction provided he honours his obligations in the business relationship with us in a timely manner. He may not however pledge the goods under reservation of title nor assign them as security. He shall be obliged to safeguard our rights in the event of reselling the goods under reservation of title on credit.

d) If the Purchaser defaults on payment, we shall be entitled after the passing of a reasonable final deadline without payment to withdraw from the contract and demand return of the goods under reservation of title at
the cost of the Purchaser. The Purchaser hereby authorises us to enter his business and collect the supplied goods. The statutory provisions regarding the dispensability of setting a time limit remain unaffected. Following
withdrawal from the contract, we can demand assignment of any Purchaser claims for return against third parties.

e) The Purchaser hereby assigns all claims and rights from the sale of the goods under retention of title to us as security. We hereby accept the assignment. The Purchaser is authorised to collect the assigned claims provided he honours his payment obligations from the Contract. We undertake to release the securities to which we are entitled provided their value exceeds our claims by 20 %.

f) The Purchaser is obliged to inform us without delay of any impairment of the goods under reservation of title or of the assigned claims by third parties and to hand over any documents required for intervention.

g) If there are special preconditions or formal regulations in the country of the Purchaser for the assignment of the supplied items or securities, the Purchaser shall ensure compliance with these at his own expense.

 

8. Payment

a) Unless otherwise agreed, the purchase price shall be due for payment within 30 days of the invoice date. A discount of 2 % shall be granted for payments received by us within 14 days of the invoice date. Discounts are
not allowed though if previous due invoices are still unpaid. Discounts are not allowed on cheque payments. Cheques are only accepted by us on account of performance.

b) If the Purchaser becomes in default, we shall be entitled – without prejudice to the statutory regulation – to charge normal bank interest of at least 8 % above the basic interest rate if the Purchaser is a business
person/contractor. We reserve the right claim further damages. In addition, the costs entailed in issuing reminders and collection shall be reimbursed.

c) If a due payment claim is not settled even after a reminder has been issued, all our claims from the business relationship with the Purchaser shall become due immediately. In this case we shall be entitled to make
further deliveries only if the Purchaser makes payment in advance or provides sufficient security.

d) The Purchaser may only offset against our claims if the claims of the Purchaser are uncontested or have been established legally.

 

9. Drawings and descriptions
Drawings, models, cost estimates and other documents remain our property even if sent to the Purchaser. We retain all copyright in such documents. The documents may not be reproduced nor made accessible to
third parties without our written authorisation.

 

10. Data protection
We shall be entitled to store and use for our common business interests data about the Purchaser regarding the business relationship or in connection with this relationship irrespective of whether such data originates from the Purchaser himself or from third parties. We shall be entitled to pass on data regarding goods traffic and payment transactions with the Purchaser in so far as this is necessary for handling the contract.

 

11. Force majeure
Force majeure, industrial disputes, riots, measures taken by the authorities, suppliers defaulting on their supply obligations to us or other unforeseeable, serious circumstances beyond our control shall discharge
the contracting parties from their obligations of performance for the duration of the disturbance and to the extent of its impact. This shall also apply if such events occur at a time when the relevant contractual party is in
default. The contractual parties shall be obliged without delay to provide each other with the necessary information, within reasonable bounds, and to adapt their duties to the changed circumstances in good faith. Point 3 b) shall remain unaffected.

 

12. Place of performance, jurisdiction, applicable law and partial
nullity

a) These terms and conditions of business as well as all legal relationships between the Purchaser and Seller shall be subject to the laws of the Federal Republic of Germany. The application of the United Nations
Convention on Contracts for the International Sale of Goods (CISG –"Vienna Sales Convention”) is excluded.

b) The place of performance shall be Kalchreuth if the contractual parties are business persons.

c) The place of jurisdiction shall be Erlangen if the contractual parties are business persons.

d) Should a provision in these terms and conditions of business or any provision made in the context of any other agreements be or become invalid, this shall not affect the validity of all other provisions or agreements.
Should this event arise, the contractual parties undertake to replace the invalid provision with a legally valid provision whose economic effect most closely resembles that which the invalid provision intended to achieve.