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AvanCarte GmbH General Terms and Conditions of Business.
- Application and Scope
The following terms and conditions of business apply to the present transaction on the reverse side as well as all future transactions between the Seller (AvanCarte GmbH) and the Buyer. The contracting parties must separately agree in writing on each individual instance of agreement which may deviate from the present terms, particularly a Buyer’s conflicting terms and conditions, in addition to any and all other agreements, in order for these agreements to be deemed as having contractual value.
- Requirement of written form
All agreements made between the parties which are to be regarded as contractual elements must be made in writing or be confirmed in writing by the Seller to be deemed effective. The Seller’s written confirmation of order or invoice is solely material to the content of all agreements made between the contracting parties, provided that Buyer has not lodged immediate written objection to same upon receipt of said order confirmation or invoice.
- Retention of title
Merchandise supplied by Seller (hereinafter referred to as “Conditional Goods”) shall remain the property of the Seller until all claims arising from the present contract and business relationship with the Buyer upon concluding the contract or which were previously valid or which will not be incurred until a future point in time (including all outstanding balance claims from open accounts), regardless of legal basis, have been duly satisfied.
Buyer is authorized to resell the Conditional Goods to the extent of limited ownership provided said resale occurs within the course of duly proper business operations. Buyer is explicitly not permitted to pledge or assign the Conditional Goods as security.
Buyer hereby assigns in advance all claims and ancillary rights arising in connection with the resale of the Conditional Goods as well as any and all claims against Buyer’s insurer to Seller to secure Seller’s claim. In the event Buyer sells the Conditional Goods together with other merchandise not originating from Seller, any claims, etc., assigned to the Seller shall be in the amount of the invoice value of the Conditional Goods.
Upon Buyer’s request, Seller is obliged to re-transfer its entitled retention to the Conditional Goods and assigned claims to Buyer to the extent that the value exceeds the value due Seller from Buyer by more than 20%.
- Payment, Prices
Contractual prices apply ex Seller warehouse. Should merchandise be shipped to Buyer, Buyer assumes all transport and shipping costs ex Seller warehouse. Risk transfers to Buyer upon the shipping company taking delivery of the goods. All invoices are payable in full within 30 days of the invoice date. Seller grants Buyer a 2% discount on payments made within 14 days of the invoice date. In the event of Buyer being in arrears on payment, Seller is entitled to charge Buyer default interest on the purchase price at the rate of 8 (eight) percentage points above the base lending rate. Should Buyer delay payment, Seller is authorized to assess a 4.00 € fee for each pre-judicial collection notice without prejudicing Seller’s further claims.
- Changes in price
Should merchandise delivery be effected as contractually stipulated or upon Buyer’s request at a point in time later than within 4 (four) months from the order confirmation date, Seller is then entitled to pass on to Buyer the same increase in listed price which may have occurred subsequent said period of time.
Should the legally valid sales tax in effect at the time of confirmation of order have since been changed prior to a shipment being delivered, Buyer will be responsible for the legally valid sales tax in effect on the day of delivery.
- Deferral, Offsetting
Should the parties to the contract agree on purchase price deferral – also in consideration of discounting of bills, etc. – and should circumstances come to light which shed doubt on Buyer’s creditworthiness (non-attachability, insolvency claims, acts of protest, etc.) or should Buyer be more than 10 days in arrears on a purchase install-ment, the entire outstanding purchase price shall become due immediately, regardless of any later maturity to individual bills, etc.
Buyer may only offset Seller’s claims with counterclaims should said counterclaims be uncontested by Seller and be confirmed as due or recognized by declaratory judgment.
- Right of Retention
While Buyer is not entitled to assert any retaining lien against Seller on the basis of counterclaims, Sec. 6 (2) shall apply accordingly.
- Notification of defects
Buyer is obliged to immediately examine all merchandise delivered upon receipt for defects or discrepancies in quantity and promptly notify Seller in writing of any complaints, in no case later than 8 (eight) days subsequent receipt of said merchandise; no Buyer complaints will be accepted after this period. Any hidden defects which could not be determined upon initial examination are subject to the legally valid time limits for notification. In cases of shipped purchases, Buyer shall also immediately examine the merchandise delivered for damages which may have occurred during shipment and promptly report any and all damages to the shipping company, even should the outer packaging be undamaged.
Seller assumes liability for any breach of major contractual obligation. In the event of slight negligence, Seller’s liability is limited to the compensation of typical assessable damage. Apart from major contractual obligations, Seller’s liability is limited to culpable intent and gross negligence.
- Rental equipment
In the event Seller loans Buyer display equipment or sales racks, Buyer (Borrower) acknowledges the obligation to immediately return said equipment to Seller (Lender) upon termination of the business relationship at Buyer’s own expense. Buyer (Borrower) may not assert any right of retention nor other objections against this Seller (Lender) claim for surrender. Should Borrower not have fulfilled this claim for surrender after an appropriate period to do so has been granted, Seller (Lender) shall then be entitled to claim pro forma payment by invoice for reimbursement of declared purchase price instead of return. The purchase price depreciates by 10% for each full rental year.
The courts of Bremen (city of Bremen) shall have sole jurisdiction and venue for any litigation that may arise directly or indirectly from the contractual relationship between the two parties including, but not limited to, matters related to documents, bills of exchange and checks.
- Applicable law
The laws of the Federal Republic of Germany shall apply to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980.
- Severability clause
Should any single provision(s) contained in a contract incorporating the present General Terms and Conditions as an integral part be or become invalid, the remaining provisions of said contract shall thereby remain unaffected.