Conditions of sale wh Münzprüfer Berlin GmbH
1. General Provisions
1.1 The following Conditions of Sale apply to all present and future deliveries of goods (Lieferungen) and other services, including any consultancy services and information provided by wh Münzprüfer Berlin GmbH (hereinafter referred to as "Seller"), to entrepreneurs (Unternehmer) as defined by § 14 BGB (German Civil Code), legal entities governed by public law and special funds governed by public law. They shall not apply to legal relationships with consumers (Verbraucher) as defined by § 13 BGB. These Conditions of Sale shall also apply to all follow-up transactions, even if the Seller does not refer to these Conditions of Sale again.
1.2. Deviating or contradictory general terms and conditions of the Buyer have no application whatsoever. They shall not be binding also if the Seller does not expressly reject them again after receiving them. Each implied acceptance of the general terms and conditions of the Buyer is excluded. These Conditions of Sale shall be considered accepted when the order is granted or the confirmation of order is received, however at the latest upon receipt of the Seller's delivery.
1.3. Terms diverging from the following Conditions of Sale, as well as modifications or supplements to the contract, shall be valid only if these are confirmed in writing by the Seller. This also applies to the cancellation of this provision requiring written form.
1.4. The offers of the Seller are non-binding; a contract with the Buyer is only created where the Seller confirms the acceptance of the Buyer’s order. This does not apply where the offers of the Buyer are expressly limited in time; in such a case, a contract is created when the acceptance of the offer on the part of the customer is received by the Seller within the limited time period. Orders shall be considered accepted in a legally-binding manner only if these have been confirmed by the Seller in writing. For deliveries without written confirmation, the invoice shall also serve as confirmation of order.
1.5. Unless otherwise expressly agreed, the Seller retains all title to and copyright in, as well as all other protective rights to offers, cost estimates, diagrams images, descriptions and other documents and materials originating with the Seller or a third party and which are made available to the Buyer. The Buyer shall not make the above-stated materials or the content thereof available to third parties without the express prior approval of the Seller. The use of the above-stated materials and documents and the copying thereof is only permitted to the extent that this is necessary for the conclusion or performance of contracts with the Seller. Where a contract is not concluded, or the above-stated documents and materials are not required for the further performance of the contract, these documents and materials, including copies thereof, shall immediately be returned to the Seller.
1.6. The Seller is entitled to commission third parties to fulfil its obligations.
2.1. Deliveries shall be performed ex works. The Seller shall determine the packaging as well as the route and type of dispatch according to its judgement in accordance with its duties. The Buyer shall bear the risk and costs of shipment, as well as the costs of potential transportation insurance. The Seller will not obtain any transportation insurance in the absence of a request by the Buyer to do so. The risk shall pass to the Buyer when the goods are handed over to the person responsible for transportation.
2.2. To the extent such damage is visible to the Buyer in the ordinary course of business, the Buyer must immediately notify the Seller of any transportation damage, and at the latest, one week after receipt of the goods; this also applies where the Seller is not responsible for the transportation. Further notification duties and obligations of the Buyer remain unaffected.
2.3. If the dispatch of the delivery of goods is delayed at the request of the Buyer or for other reasons for which the Buyer is responsible, the risk shall pass to the Buyer when it receives the notice that the goods are ready for dispatch.
2.4. If the Buyer does not call for the delivery of goods which have been notified to it as being ready for dispatch without delay, or within the agreed period, or if it does not accept the delivery of the goods, in whole or in part, pursuant to the contract, then the Buyer shall bear the additional costs resulting therefrom. In such a case, the Seller shall be entitled, at its option, to dispatch the goods at the cost and risk of the Buyer or store these and invoice for them after a period of one week has expired; this shall not affect the Seller's further legal and contractual rights.
2.5. The Buyer may not reject partial deliveries of a reasonable size and is obliged to pay for these immediately after receiving the partial delivery and the related invoice. Partial deliveries are reasonable where these may be used by the Buyer in the context of the contract’s purpose, where the delivery of the remaining part of the delivery is not affected negatively by the partial delivery and where no additional costs or efforts are incurred by the Buyer as a result of the partial delivery.
3. Delivery Periods and Dates
3.1. Delivery periods and dates shall be non-binding unless the Seller specifies them as binding in writing. Delivery periods shall begin as of the date of the order confirmation of the Seller, however, shall in no case commence before the receipt of all documents which are required for performing the order and other information to be provided by the Buyer, as well as the receipt of an advance payment, where applicable. The delivery period shall also be considered to have been observed if the goods leave the factory or the warehouse at the agreed time.
3.2. The Buyer is not entitled to withdraw from the contract (Rücktritt) due to delays in delivery for which the Seller bears no responsibility. Where the Buyer is entitled to withdraw from the contract, it shall, at the request of the Seller, notify the Seller in writing within a reasonable period of time as to whether it intends to withdraw from the contract or whether it will insist upon specific performance. Where the Buyer provides no such notification within the reasonable period of time (the Seller’s receipt of the notification is determinative), the Buyer is obliged to set a further reasonable notice period and may only withdraw after the expiry of this period. The entitlement of the Buyer to withdraw from the contract does not exist where the goods have been dispatched or are ready for dispatch and this has been notified to the Buyer during the period in which the Seller is obliged to perform under the contract.
3.3. Where incidents occur which are unforeseeable at the time at which the contract is concluded and which are outside the control of the Seller, such as war, rebellion, labour disputes for which the Seller bears no responsibility in the company of the Seller or its suppliers or the transportation agent, acts of state, prohibitions on import and export, general scarcity of raw materials, ancillary materials or factory supplies and other operational shutdowns at the site of the Seller or its suppliers, the delivery periods and dates which have been agreed upon shall be extended by the period of obstruction. The same shall also apply if the Seller’s delivery is delayed.
3.4. If such delays in delivery are longer than two months, both parties shall be entitled to withdraw from the contract. However, the Buyer may withdraw from the contract only if the Seller, within one week of receiving a request from the Buyer, fails to notify the Buyer whether the Seller wishes to withdraw from the contract or perform delivery within a reasonable period.
3.5. To the extent that the Seller purchases the goods or the parts, material or substances required for manufacturing the goods from third parties, the duty of the Seller to perform delivery shall be subject to complete, correct and punctual obtainment of supplies unless it is responsible for not receiving supplies or receiving them with delay. If the supplies are not delivered to the Seller in full and/or punctually without any fault of the Seller, the Seller shall be entitled to withdraw from the contract.
3.6. Damages claims of the Buyer based on delay are limited pursuant to No. 5.7 and No. 5.8.
4. Prices and Payment Conditions
4.1. All prices are quoted ex works; packaging, legally-valid value-added tax, freight, customs duty and insurance shall be charged additionally.
4.2. The Seller is entitled to increase the prices accordingly to the extent that any increase in costs after conclusion of the contract occurs, in particular, due to a change in the cost price of raw materials, ancillary materials and factory supplies or wages and salaries.
4.3. Unless otherwise agreed in writing in an individual case, all invoices must be paid in the agreed currency without any deductions to the accounts of the Seller specified on the invoice within fourteen days of the date of invoice. For payments of all kinds, the payment shall be considered effected on the day on which the Seller can dispose of the payment without any restrictions.
4.4. If the Buyer defaults in payment, the Seller shall be entitled to charge interest of 8% p.a. above the valid base interest rate of the European Central Bank subject to reservation of further damage caused due to default. The Seller reserves the right to assert further damage claims arising from the default.
4.5. The Buyer shall have a right of set-off or retention only if its claims are legally enforceable, undisputed or have been acknowledged by the Seller.
4.6. If the Buyer delays the payment of an invoice by more than two weeks, an application has been filed to commence insolvency proceedings, the Buyer initiates extrajudicial proceedings for settlement of debts or stops payments, its company is being liquidated, execution is enforced against its assets or if other circumstances are revealed which substantially reduce its creditworthiness, the Seller can demand that the Buyer provide security for outstanding deliveries within a minimum period of one week in the form of advance payment or bank guarantee, and may refuse performance until the security is provided. Upon the expiry of a reasonable period of time with no such security provided, the Seller shall be entitled to withdraw from the contract or demand compensation for damage due to non-performance.
5. Warranty and Exclusion of Liability
5.1. All of the representations made with respect to the goods delivered or other performance are statements with regard to the attributes thereof (Beschaffenheitsangaben), and are not warranties: The Buyer is aware that the goods are made in such a way that the coins at the disposal of the Seller can be handled properly and adaptation measures – due to new and/or modified coins or due to foreign coins or counterfeit coins – may be required from time to time. The Seller is only obliged to undertake such measures on the basis of a separate agreement. Furthermore, the Buyer is aware that despite reasonable efforts the Seller cannot guarantee that fraudulent manipulation or similar illegal acts (e.g. coins of other currencies or counterfeit coins) can be stopped, restricted or prevented with the use of the goods.
5.2. In so far as goods have been produced on the basis of information, drawings, drafts or specifications provided by the Buyer, or standardised goods have been modified according to the Buyer's specifications, the Seller shall give no warranty whatsoever as to the fitness for use, safety or other characteristics of the goods.
5.3. The Buyer must immediately inspect the delivered goods with reasonable care and must notify the Seller in writing of apparent defects within 10 business days after delivery. Hidden defects must also be notified in the same manner immediately after these are discovered. Should the Buyer fail to notify defects punctually, the goods shall be considered delivered according to the contract and without any defects. The Buyer is liable for damages caused by an incorrect notification of default where the Buyer bears responsibility for this and where it intentionally or negligently failed to recognise that no defect in fact existed, and where instead, the cause of the matter complained about falls within its own scope of responsibility.
5.4. Warranty claims shall become void to the extent that the Buyer processes defective goods without previously carrying out quality inspection, or if it supplies goods which have been notified as defective to third parties without first giving the Seller the opportunity to inspect the notified defects. The same applies to the consequences of unsuitable, improper use of the goods, incorrect assembly or operation by the Buyer or third parties, improper modifications to the delivered goods, natural wear and tear as well as incorrect or negligent handling.
5.5. If the defects are notified within the specified period and they are legitimate, the Seller is obliged, at its option, to remedy defects and/or perform substitute performance. The Seller's liability in this case shall be the same as that which exists for the originally delivered goods. However, the Buyer shall bear the additional costs which arise because the delivered goods have been subsequently relocated to a site other than the place of performance.
5.6. The Buyer shall be entitled to claim against the Seller under a right of recourse pursuant to § 478 BGB only to the extent that the Buyer has not entered into any agreements with its customers which extend beyond legal warranty claims and/or the Seller and the Buyer have not negotiated any other equivalent settlement provision within the meaning of § 478 section 4 BGB.
5.7. The Seller shall be liable for the intentional and grossly negligent actions of its bodies (Organe) [directors and officers] and its agents as well as for death, bodily injury and damage to health regardless of the degree of culpability. The Seller is further liable for the negligence (leichte Fahrlässigkeit) of its bodies and its agents in the event that fulfilment of the contract becomes impossible, for delay in performance, for the breach of a warranty or the breach of another fundamental contractual duty. Fundamental contractual duties are those upon which the supplier places reliance or those which render possible the performance of this contract. In such cases, the liability of the Seller is limited to those damages typical to this type of contract which the Buyer would reasonably have anticipated at the conclusion of this contract. Liability of the Seller extending beyond the above is excluded, regardless of the legal reasons upon which it is based. This applies in particular to all claims for the breach of contractual duties, as well as to claims based on tort (unerlaubte Handlung). All of the above limitations of liability also apply to the benefit of the bodies and agents of the Seller. Claims arising from the Product Liability Act (Produkthaftungsgesetz) remain unaffected.
5.8. In addition, the liability of the Seller for the negligent breach of fundamental contractual duties is limited to a maximum amount of the value of the affected goods delivered.
5.9. All compensation claims of the Buyer, irrespective of their legal basis, shall become statute-barred after twelve months. This shall not apply to claims based on quality defects if longer periods are legally prescribed in § 438 section 1 no. 2 (buildings and material for buildings), § 479 section 1 (right of recourse) and § 634a section 1 no. 2 (defects in construction work) BGB as well as in events of death, bodily injury or damage to health, wilful or gross breaches of the Seller’s duty of care and fraudulent failure to disclose defects. Legal provisions on the suspension of the limitation periods, and the suspension and recommencement of limitation periods shall not be affected thereby. Statutory limitation provisions shall apply to claims for damages in accordance with the Product Liability Act.
6. Intellectual Property Rights, Copyrights
6.1. Unless otherwise agreed in a separate agreement, the Seller is only obliged to deliver goods within Germany which are free from the intellectual property rights and copyrights of third parties. If a third party asserts legitimate claims against the Buyer due to the infringement of intellectual property rights or copyrights resulting from the goods delivered by the Seller and used as stipulated in the contract, the Seller can, at its option and expense, either secure a right of use for the delivered goods affected or modify these in such a manner such that the intellectual property right or copyright is not infringed, or replace the goods. If it is not possible to do so on reasonable terms, the Buyer shall be entitled to assert its statutory right to withdraw from the contract or reduce the purchase price.
6.2. The foregoing obligation of the Seller shall apply only if the Buyer notifies the Seller in writing of the claims asserted by third parties without any delay, does not acknowledge an infringement and the Seller remains entitled to all defensive measures and to enter into settlement negotiations.
6.3. Claims of the Buyer are excluded to the extent that it is responsible for infringing intellectual property rights. Furthermore, claims of the Buyer shall not be accepted if the infringement of intellectual property rights is caused due to the specifications of the Buyer, a use which cannot be foreseen by the Seller, or because the delivered goods are modified by the Buyer or used together with other products which have not been supplied by the Seller.
6.4. The duty to pay damages, if occasion arises, is based on sections 5.7 and 5.8 of these Conditions of Sale. The claims shall become statute-barred within the period specified under 5.9.
7. Retention of Title
7.1. The delivered goods (goods subject to retention of title) shall continue to be the property of the Seller until all claims of the Seller arising from this business relationship have been satisfied, in particular, until the balance of outstanding current accounts has been settled.
7.2. If the delivered goods are processed or combined with other objects which do not belong to the Seller to form a single new object, the Seller shall be entitled to co-ownership of the new object proportionate to the value of the goods subject to retention of title (Vorbehaltsware) in relation to the value of the other goods which are processed and/or added as of the time when they are processed and/or combined. The resulting co-ownership rights shall be considered goods subject to retention of title as defined by these provisions.
7.3. The Buyer is entitled to sell the goods delivered in the ordinary course of business, but may not grant rights in the goods as security or pledge the goods. The Buyer hereby assigns to the Seller all claims in the amount of the final amount of the invoice (including value-added tax) of the claims of the Seller which the Buyer is entitled to assert against its customers or other third parties by virtue of the sale of the goods delivered. Like the retention of title provided for in section 7.1 of these Conditions of Sale, the assignment serves to secure the claims of the Seller in the same amount. The Buyer remains authorised to recover on these claims regardless of the assignment. However, the Seller is authorised to recover on these claims where the Buyer fails to meet its payment obligations or delays in making payments, or where a petition for the commencement of insolvency proceedings is filed, or the Buyer ceases to make payments. In the event of such an occurrence, the Seller is entitled to revoke the authorisation to recover on the claims. In addition, the Seller may demand that the Buyer immediately notify the Seller of the assigned claims and the debtors thereto, provide the Seller with a written declaration of assignment and make available to the Seller all of the information and documentation necessary in order to recover on the claims.
7.4. As long as the retention of title exists, the Buyer is not entitled to assign or pledge claims. If third parties restrict the Seller's right of retention of title in any way (e.g. due to levy of execution or attachment), the Buyer must immediately notify the Seller thereof in writing. In the event of attachment (Pfändungen) or other recourse effected by third parties, the Buyer shall immediately notify the Seller thereof in writing in order that the Seller may file an action pursuant to § 771 ZPO (German Code of Civil Procedure). Where the third party is not able to reimburse the Seller for the judicial and/or extra-judicial costs of an action pursuant to § 771 ZPO, the Buyer shall be liable for the outstanding amount.
7.5. If the Buyer delays in settling the claims of the Seller in whole or in part, the Seller shall be entitled to claim recovery of possession of all or a part of the goods subject to retention of title and to suspend outstanding deliveries without giving any further reminders or setting deadlines; this also applies where the Seller has not withdrawn from the contract. The assertion of rights of retention of title (Eigentumsvornehaltsrechte) shall not be regarded as withdrawal from the contract.
7.6. If the value of existing security interests exceeds the claims for which security was provided by more than 20%, the Seller is obliged to release the excess security of at its discretion upon request of the Buyer.
8. Final Provisions
8.1 The purchaser is obliged to return the goods delivered within the European Union to the Seller after commercial use. Should he fail to do so, he guarantees that he will duly dispose of the goods at its own cost in accordance with the national provisions which implement Directive 2003/108/EG (the ElektroG for the Federal Republic of Germany).
8.2. The place of performance for obligations of both parties based on this contract and the exclusive place of jurisdiction shall be Berlin. The Seller is also entitled to bring an action against the Buyer at the Buyer's principal place of business.
8.3. This contractual relationship is governed by the law of the Federal Republic of Germany excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
8.4. These Conditions of Sale serve as a convenience translation of the German-language conditions of sale of wh Münzprüfer Berlin GmbH (Verkaufsbedingungen der wh Münzprüfer Berlin GmbH). The original German-language version is determinative; questions of interpretation shall be resolved with reference thereto.
As at: August 2008
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