General Terms and Conditions for Sale of Goods for OEM Distribution GmbH, Egerstraße 2, 65205 Wiesbaden-Erbenheim, Germany
– Date: June 2014 –
These terms and conditions apply to all contracts between OEM Distribution GmbH (hereinafter referred to as “OEM”) and the contracts entered into with the customer, including all offers, deliveries and services, unless otherwise agreed by express written agreement between the parties. Any deviating terms and conditions by the customer is contradicted.
2. Conclusion of Contract, Sales Documents
2.1. The order submitted by the customer, even if it is via the Internet or transmitted by fax, is binding. A contract is considered concluded only after OEM has been accepted it orally, in writing, or via electronic transmission (via the Internet, including e-mail). Delivery or invoicing must be accepted and confirmed in one of these same ways.
2.2. The customer is responsible for the order’s accuracy, and for notifying OEM in a timely manner of any information or specifications required for placing the order. This includes details related to a valid VAT ID no. (VAT) and correct billing and shipping addresses. Charges will be applied to any subsequent changes, for example, billing addresses.
2.3. All OEM sales literature and price lists are strictly confidential and may not be disclosed to third parties, unless it is publicly available information, or unless the customer was already aware of this information through no breach of a confidentiality agreement before OEM made the literature and lists available.
3. Prices, Payment Conditions, Offsetting and Rights of Retention
3.1. All prices calculated according to OEM’s net price list are valid at the time the contract is concluded, and this includes the applicable VAT and shipping costs, unless otherwise agreed. The net prices include the cost of standard packaging. If special packaging is required or desired by the customer, such expenses will be charged additionally. When delivering goods in small quantities worth less than 250. – EUR net value, packing and transportation charges shall be levied according to the current net OEM price.
3.2. The customer must make payment within 30 days after receipt of invoice without taking any deductions (net).
3.3. Payments must be made through bank transfer.
3.4. The following shall apply for long-term business relationships between OEM and the customer: If OEM should become aware of circumstances that indicate that the customer’s credit standing has become negatively affected, or that the customer has become insolvent, then OEM can—contrary to previous business practices with the customer—stipulate that further deliveries require payment in advance. This shall apply even if the circumstances should become known between the conclusion of contract and delivery, or after one or more partial or complete deliveries. Other OEM rights remain unaffected.
3.5. If a bankruptcy petition has been lodged against the customer’s assets, or insolvency proceedings have been initiated, or they have been rejected due to insufficient funds, OEM is entitled to withdraw from the contract without prejudice to any other rights. As soon as the customer has received notification of OEM’s intent to withdraw from a contract, all outstanding OEM invoices and compensation claims are due and payable immediately.
3.6. The set-off by the customer is permitted only with undisputed or legally established claims. Rights of retention can only be asserted by the customer if and insofar as they are based on the same contract.
4. Delivery of Goods
4.1. Goods are delivered from OEM stock or its agents’ inventory. The customer is obliged to request delivery of or take receipt of the goods as soon as OEM has notified the customer of availability for shipment. Otherwise, OEM is entitled to store the goods at the expense and risk of the customer and to charge for it as ex-factory.
4.2. OEM shall make its own decisions regarding shipping and transport. Goods will be shipped at the expense and risk of the customer. Risk passes to the customer as soon as OEM has passed the goods on to the transport company.
4.3. The customer is responsible for enforcing and securing claims for damage during transport against the transport company. Upon request, OEM shall cede their contractual claims against the transportation company to the customer, insofar as such claims exist, and if they do not, insofar as a separate damage has arisen on O.E.M.’s part.
4.4. OEM usually provides goods packaged by the manufacturer. OEM, however, reserves the right to handle its own packaging that it deems appropriate. Customer claims to new, sealed packaging by the manufacturer does not exist for returns.
4.5. Information on delivery dates are legally binding unless a delivery date has not been expressly agreed to in writing and is not legally binding. OEM is authorized to deliver or to perform agreed services prior to expiry of a specified or agreed time. OEM is also authorized to provide partial services to a reasonable extent.
4.6. If the service owed or the goods are not available, and OEM is not responsible for the unavailability, OEM is entitled to withdraw from the contract. In this case, OEM is obliged to inform the customer immediately that the goods are not going to be delivered, and to reimburse the customer immediately for services received services thus far. The same is true in the case of force majeure (e.g., war, embargo, comprehensive breakdown of roadways, etc.).
5. Obligation to Investigate
5.1. The customer must inspect the goods immediately upon receipt. The delivery shall be deemed approved if the customer does not immediately detect any visible defects, or that the delivery is incomplete, or that the wrong goods have been delivered.
5.2. The customer must notify OEM immediately if a defect is discovered later, failing which the goods shall be deemed approved despite this defect. For the purchaser to preserve its rights, it is sufficient to send notification to OEM in a timely manner.
5.3. If OEM has fraudulently concealed the defect(s), then OEM cannot invoke these provisions.
6. Claims for Defects
6.1. The customer’s warranty claims based on defects shall expire twelve (12) months after the goods have been delivered to the customer. The foregoing provision shall not apply in case of intentional, fraudulent concealment of a defect, in the absence of a guaranteed quality, in case of impairment of life or freedom, or injury to body or limbs or health, or if the law, particularly § 479 paragraph 1 BGB (the German Civil Code) (recourse for claims), dictates necessarily longer periods. OEM consent must be obtained before returning any goods.
6.2. If, despite all due care, the delivered goods have a defect that already existed at the time of transfer of risk, OEM shall, at their discretion, either repair or replace the goods (subsequent performance). OEM must always be given a reasonable amount of time and the opportunity to rectify the situation. Rights of recourse shall remain unaffected by the above rule.
6.3. If subsequent performance fails, the customer may—without prejudice to any claims for damages— withdraw from the contract or reduce the refund.
6.4. Claims for damages as a defects liability exist only within the scope of the following Limitation of Liability that are part of these General Terms and Conditions.
6.5. Customer claims regarding the requirements necessary for the purpose of fulfilling supplementary performance—in particular transport costs, infrastructure costs, labor costs and material costs—are excluded if the expenses increase because the goods were subsequently taken to a place other than the customer site, unless the transfer is in accordance with its intended use.
6.6. The customer’s rights of recourse against OEM exist only if the customer has not entered into any agreements with its purchaser that exceed the mandatory statutory claims for defects. In addition, para 6.5 applies accordingly in terms of the scope of the customer rights of recourse against OEM.
7.1. In cases of intentional or grossly negligent breach of contractual obligations, OEM is liable without contractual restrictions.
7.2. In the event a simple negligent violation of contractual obligations, OEM is only liable for and limited to typical, foreseeable damages. This provision does not apply in case of fraudulent concealment of a defect, in the absence of guaranteed quality, or if OEM is culpable for injury to life, body, health or freedom. In these cases, OEM is also liable without contractual restrictions.
7.3. Liability under the product liability law remains unaffected.
8. Changes to the Goods
OEM is allowed to change and improve goods to match current state of the art without notifying the customer of this action ahead of time as long as the changes/improvements do not permanently alter/impair the function or shape of the product. OEM is entitled to deliver to the customer the successor to the model ordered if the ordered model is no longer available, and the successor model does not appreciably differ in function or form from the successor model.
9. Delivering Software
Regarding delivery of software, special delivery provisions for delivery of OEM software shall apply above and beyond these General Terms and Conditions, or, if the software originates with a third party and has its own license terms, then they shall use the third-party provisions.
10. Retention of Property Rights
10.1. Delivered goods shall remain the property of OEM until all existing claims against the customer that are related to the business relationship have been settled.
10.2. After justified cancellation of the contract, OEM has the right to reclaim the goods, to otherwise dispose of them, or to otherwise do with them as they wish, as long as the purchase price has not been paid in full.
10.3. The customer shall hold the goods in trust for OEM until full payment has been made, and the customer shall also store the goods separately from his own property and that of the third party. Furthermore, the retained property shall be properly stored, secured and insured, and shall be labeled as OEM property.
10.4. The customer may use the goods in the ordinary course of business or resell under retention of title until full payment has been made. In the event of resale, he hereby assigns the resulting receivables in the amount of the invoice amount with all ancillary rights and privileges of rank to OEM, who shall assume this. The customer is revocably entitled and obliged to collect the assigned claims. OEM can show the customer’s buyers proof of this assignment at any time. The value of the reserved goods shall be the invoice amount.
10.5. If the goods have been further processed and this further processing occurred in parts where OEM does not have any property, then OEM shall acquire the proportionate value of the goods corresponding to fractional ownership. This also applies to the case of mixing OEM materials with those of others.
10.6. The customer does not have the right to transfer or to pawn the reserved goods as a way of securing the goods. The customer is obligated inform OEM immediately in the event of seizure, or in the event of any kind of third-party intervention.
10.7. The retention of proprietary rights shall also apply if individual OEM claims have been invoiced in current accounts or balance is recognized, that is, unless the balance is cleared,
10.8. If the customer ceases to make payments, or if insolvency proceedings have been applied for or instituted regarding the assets of the customer, or if an a provisional liquidator is appointed, then the previous customer rights to resale, processing and collection of the resulting receivables become invalidated.
10.9. If the resulting OEM collateral exceeds its rightful claims by more than 20%, then at its discretion, OEM shall be obliged to release them at the request of the customer, or at the request of a third party that has been affected.
11. Severability Clause, Jurisdiction, Other
11.1. Should individual provisions of these General Terms and Conditions be or become invalid, then the validity of the contract or the remaining General Terms and Conditions shall not be affected.
11.2. German law applies under exclusion of the UN sales law and conflicts-of-law provisions of German law.
11.3. If the customer is a merchant, then Saarbrücken, Germany is the court of jurisdiction. OEM is entitled to sue the customer at his general place of jurisdiction.
11.4. Subsidiary agreements, amendments or supplements to the contract, including the repeal of this clause, must be in writing.