Terms and Conditions of Sale, Delivery and Payment of the Company Andreas Daub GmbH & Co. KG
1. Scope of application
1.1. We shall provide all our deliveries and services exclusively subject to these Terms and Conditions of Sale, Delivery and Payment. We shall not acknowledge any conflicting or deviating terms and conditions of the customer, unless we have expressly agreed to their applicability.
1.2 Our Terms and Conditions shall only apply to entrepreneurs in terms of Section 14 BGB [German Civil Code].
1.3 Our Terms and Conditions of Delivery and Payment shall also apply to future transactions even if they are not attached in individual cases or if no reference is made to them.
2. Offer and contract
2.1 Our offers shall be subject to confirmation, unless a binding offer has explicitly been issued.
2.2 Our confirmation of order shall be decisive in all cases, which may also be issued in the form of an invoice for the goods. If the customer has objections to the content of the confirmation of order, it shall object to the confirmation of order without delay. Otherwise, the contract shall be concluded according to the confirmation of order.
3.1 Our prices shall apply ex works and shall not include any packaging, freight, customs duties and value added tax.
3.2 SIf cost increases unforeseeable to us occur between the conclusion of the contract and the performance of the contract, we shall be entitled to adjust the prices according to the changed circumstances and without charging any additional profit.
4.1 Our invoices shall be paid according to the terms stated by us in the confirmation of order. All payments shall be made without us incurring any expenses. If we grant a cash discount, it shall only apply if all previous invoices of the customer have been paid.
4.2 Bills of exchange and cheques shall only be accepted by us on account of payment upon express agreement. Discount charges and other costs shall be borne by the customer. Exchange payment shall exclude any cash discount deduction.
4.3 The customer shall be in default if payment is not effected in due time. In such cases, we shall charge interest in the amount of 8% above the base rate.
5. Set-off and retention
The customer may only set off with counterclaims that are undisputed or established as final and absolute. The customer shall only be permitted to assert a right of retention if it is based on the same contractual relationship and if the underlying counterclaims are undisputed or established as final and absolute.
6. Supply of precious metals
6.1 If purchase contracts and contracts for labour and materials stipulate the payment by way of the so-called “split purchase price”, the precious metals shall be provided step by step against delivery of the goods. The precious metals shall be supplied at the customer’s cost and risk. The ownership of the precious metals shall be transferred to us upon delivery. They shall be credited to the customer’s metal account. Cash discount shall not be granted. In case of intentional or negligent late delivery, the customer shall be obliged to compensate us for any related damage.
6.2 If the customer fails to supply the precious metals in due time, we shall be entitled to convert the precious metal claim into a monetary claim and to assert this monetary claim 30 days after the due date.
7. Delivery/transfer of risk/default
7.1 The goods shall travel at the customer’s cost and risk on their way to the customer and also in case of any return that cannot be attributed to a justified complaint. The risk shall be transferred to the customer when the goods are dispatched. This shall also apply if freight-paid shipping by us is agreed in individual cases. If the goods are to be returned, the customer shall select the same mode of shipment used in the previous delivery and shall provide for adequate insurance.
7.2 If we choose the mode of dispatch, the route or the carrier, we shall only be liable for default in selecting such mode of dispatch, route or carrier.
7.3 Claims for compensation due to default may only be asserted to us if the default is to be attributed to any intentional or grossly negligent behaviour of us, our representatives or vicarious agents.
8.1 These terms and conditions shall also apply to selections.
8.2 If goods are provided for selection, they shall be deemed purchased by the customer, unless we receive the goods back within the period of time stated in the attached selection. If no deadline is agreed and stated in the selection, a period of 4 weeks shall apply.
8.3 The samples sent for selection shall be insured by us during the selection period. After its expiry, all risks shall be transferred to the recipient.
8.4 If samples sent for selection are exhibited by the customer, are included in the travel storage, are sent for selection to third parties, are given into commission or are not stored in a safe outside business hours, the customer shall bear as from this time all risks, including the risk of accidental loss. In such cases, the customer shall be obliged to provide for adequate insurance protection for these goods and shall hereby assign any existing claims against the insurance company to us in advance by way of security.
9. Notification of defects
9.1 The customer shall check every delivery for completeness and damage of the packaging upon receipt. Any objections shall be sent to us in writing without delay. A relevant report shall be prompted at the carrier.
9.2 The customer shall be obliged to inspect the goods immediately and to notify any visible defects to us in writing immediately and no later than within one week. Any hidden defects shall be notified to us in writing immediately after their identification. Otherwise, the delivery shall be deemed approved.
10. Liability for material defects
10.1 If the goods are defective due to reasons we are responsible for, we shall be entitled to supplementary performance by removing the defect or delivering a defect-free item at our option. If we refuse supplementary performance, if it has failed or if it is unreasonable for the customer, the customer may claim its other statutory rights. Any minor reduction of the value or usability shall not establish any claims based on material defects. The provisions set out in item 11 shall apply to claims for damages based on defects.
10.2 The customer shall provide us with enough time and opportunity to carry out all subsequent improvements and replacement deliveries we deem necessary; otherwise, we shall not be liable for any resulting consequences.
10.3 Claims of the customer based on defects shall become statute-barred after 12 months from delivery of the goods. However, the statutory limitation periods shall apply to goods that have been used for a building according to their usual manner of use, if a defect has been fraudulently concealed or if the entrepreneur takes recourse.
11. Limitation of liability/damages
11.1 We shall be liable for intention and gross negligence. We shall only be liable for slight negligence if it is about the violation of essential contractual obligations resulting from the nature of the contract or the violation of which endangers the fulfilment of the contractual purpose. Apart from that, in case of slight negligence, claims for damages of the customer, irrespective of the legal ground, shall be excluded.
11.2 The above limitation of liability shall not apply to claims based on the Product Liability Act or on injury to life, body or health. With regard to claims for damages based on material defects, the limitation of liability shall not apply if we have fraudulently concealed a defect or assumed a guarantee.
11.3 Claims for damages in connection with material defects shall become statute-barred 12 months after delivery of the item. In the cases listed in number 10.3, in case of intention, gross negligence, intentional or negligent injury to life, body or health and with regard to claims based on the Product Liability Act, the relevant statutory limitation period shall apply.
12. Reservation of ownership
12.1 We shall reserve the ownership of all goods delivered by us (reserved goods) until the complete fulfilment of all claims, including future claims and all additional claims against the customer. In case of a current account, the reservation of ownership shall serve as collateral for our relevant balance claim. Where liability for us arises from bills of exchange in connection with payment, the reservation of ownership shall not expire before our liability on the basis of the bill of exchange has been excluded.
12.2 The customer shall store the reserved goods for us free of charge. It shall handle the reserved goods with care. It shall adequately insure the reserved goods at its cost against fire, water and theft. It hereby assigns its claims based on the insurance contracts to us.
12.3 If the reserved goods are pledged by third parties or if third parties otherwise intervene, the customer shall point out our ownership and shall inform us immediately so that we can enforce our ownership rights. The customer shall bear all costs required for the release of the seizure and for the recovery of the reserved goods, unless they can be collected from the third party.
12.4 The customer shall be entitled to process and sell the reserved goods in the proper course of business until we issue a revocation. We shall issue a revocation only for compelling reasons. Compelling reasons particularly include delay in payment, suspension of payment, application for the opening of insolvency proceedings or other justified indications for a deterioration of the customer’s assets that endangers our payment claim.
12.5 Subject to the revocation permissible for compelling reason, the customer shall be entitled to make use of the reserved goods within the scope of the normal course of business. Transfer by way of security and pledging shall not be permitted. The reserved goods may only be passed on by the customer to the purchaser if the customer is not in default with its obligations to us. If the goods are resold, the customer shall hereby assign to us all claims arising from the resale, particularly claims for payment, but also other claims in connection with the sale, irrespective of whether the delivered item has been sold without or after processing. The assigned claims shall serve to protect our interests to the same extent as the reserved goods. If the reserved goods are sold by the customer jointly with other goods not sold by us, the claim arising from the resale shall be assigned to us in proportion of the invoice value of the reserved goods to the invoice values of the other used goods. If goods in which we own a share are sold, a portion corresponding to our share shall be assigned to us. The customer shall be authorised to collect the assigned claims on a trust basis until we permissibly revoke such authorisation for compelling reasons. If there are compelling reasons, we shall be authorised to inform the third party debtors about the assignment of the claims, also on the customer’s behalf. The notification of the assignment to the third party debtor shall cause the expiry of the customer’s authority to collect. If the authority to collect is revoked, we may demand that the customer informs us about the assigned claims and their debtors, provides all information required for the collection, hands over the related documents and informs the debtors about the assignment.
12.6 The customer shall always process the reserved goods on our behalf. We shall be deemed the manufacturer within the meaning of Section 950 BGB without any further obligation. If the reserved goods are processed jointly with other items that do not belong to us, we shall acquire co-ownership in the new item in proportion of the value of the reserved goods (final invoice amount including value added tax) to the other processed items at the time of processing. Apart from that, the provisions on the reserved goods shall apply to the new item resulting from processing.
12.7 If the reserved goods are inseparably combined or mixed with other items that do not belong to us, we shall acquire co-ownership of the new item in proportion of the value of the reserved goods (final invoice amount including value added tax) to the other combined or mixed items at the time of combining or mixing. If the reserved goods are combined or mixed so that the customer’s item is to be regarded as the main item, the customer and we hereby agree that the customer shall transfer co-ownership to us on a pro rata basis. If the reserved goods are combined or mixed with movable goods of a third party so that the third party’s item is to be regarded as the main item, the customer shall hereby assign to us the remuneration claim it is entitled to receive from the third party in the amount corresponding to the invoice value of the reserved goods. The new item resulting from combining or mixing and/or the (co-)ownership rights in the new item we are entitled to and/or to be transferred to us as well as the remuneration claims assigned to us shall serve to secure our claims in the same manner as the reserved goods themselves.
12.8 If the customer behaves contrary to the contract, particularly if it is in delay with payment, we shall be entitled to take the reserved goods back after having set a reasonable grace period for fulfilment. The costs accruing for the return shall be borne by the customer. If we take back or pledge the reserved goods, this shall constitute a withdrawal from the contract. We shall be authorised to utilise any reserved goods taken back by us. Any proceeds from the utilisation remaining after the deduction of a reasonable amount for the costs of the utilisation shall be set-off against such amounts the customer owes us.
12.9 If and insofar as the reservation of ownership or the assignment of claims are ineffective or unenforceable under indispensable provisions of law of other countries, such security as corresponds to the reservation of ownership or assignment of claims and is valid in the country concerned shall apply. If a contribution of the customer is required for this purpose, it shall take all measures and issue all statements required to establish and preserve the security.
12.10 We undertake to release the securities we are entitled to on the customer’s demand at our option if their value exceeds the claims to be secured by more than 20%.
13. Deterioration of assets
13.1 If we become aware that protests regarding bills of exchange are lodged against the customer, debt enforcement measures have been initiated against it or there is some other form of essential deterioration of its assets, we shall be entitled to demand advance payment of accounts receivable that are not yet due or to require security for these receivables, and to refuse any delivery by us in the meantime. If the customer fails to fulfil our demand despite us having set a reasonable grace period and threatened refusal to accept, we shall be entitled to withdraw from the contract or claim damages at our option.
13.2 We shall furthermore be entitled to bar the customer from reselling the goods and – subject to further rights based on reservation of ownership – recover the goods not yet paid for at the customer’s cost.
13.3 If the goods are irreversibly recovered due to the customer’s financial difficulties or insolvency, a credit note shall be issued. As the resale to other customers is usually no longer possible due to fashion-related obsolescence of the goods, a credit note shall generally only be issued at the value of the metal.
14. Place of performance, place of jurisdiction, applicable law
14.1 Place of performance for delivery and payment shall exclusively be Pforzheim for both parties.
14.2 Place of performance for all legal disputes arising from the contractual relationship and about its conclusion and effectiveness shall be Pforzheim for both parties if they are merchants. We may also sue the customer at its registered office at our option.
14.3 The contractual relationship shall exclusively be subject to German law. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Pforzheim, Commercial Register of Mannheim, HRA 500121
Personally liable shareholder: Daub Beteiligungs GmbH, Commercial Register of Pforzheim, HRB 4037
Managing Director: Kurt Daub