AGB

Thursday, 09 April 2009 11:13

General Terms and Conditions of the Casco International GmbH und Casco Schutzhelme GmbH

1. Applicability of the terms 

(1)  All agreements as well as all deliveries, services and offers are exclusively subject to the terms and conditions of CASCO.

These terms are also valid for all future business relationships. These general terms and conditions are enclosed with each and every order confirmation and delivery. These terms are considered as accepted at the very latest with acceptance of the goods or service. We do not accept any contradictory terms and conditions or terms of the contractual partner unless expressly agreed to in writing by CASCO prior to conclusion of the contract.  This also applies if CASCO has not objected to the general terms and conditions of the contractual partner in individual cases.

(2)  Agreements must be made in writing to be effective, this also applies to a waiver of the written form requirement. Section 127 Paragraph 2 BGB (German Civil Code) is not applicable.

2. Offers and Conclusion of Contract

(1)  CASCO offers are subject to change and without obligation. Only after receipt of our order confirmation in writing or sent by fax or after execution of the delivery or service is the order of the customer considered to be accepted by CASCO.

(2)  The contractual partner bears the burden of proof for agreements made on amendments, changes or sub-agreements outside of the written agreement document. This also applies to agreements made by the parties with regard to illustrations, drawings, measurements, weights or any other service data.

(3)  Employees of CASCO are not authorised to make sub-agreements or confirmations with the contractual partner that go beyond the content of the written agreement, unless CASCO has expressly confirmed an authorisation to this effect.

3. Price

(1)  The prices in offers made by CASCO are subject to change, see No. 2.(1). Only the prices in the order confirmation of CASCO are considered binding. All prices are quoted excluding the currently applicable sales tax.

(2)  Unless otherwise agreed upon, prices are quoted ex works/ warehouse of CASCO.  There will be an extra charge for partial deliveries.

4. Delivery time and time of performance

(1)  Delays in delivery and performance resulting from Force Majeure or from events for which CASCO is not responsible are to be accepted by the contractual partner up to a period of three weeks. CASCO is entitled to withdraw from the contract for the following reasons, insofar as CASCO is not responsible for this reason: Force Majeure, default in delivery of the pre-supplier, also with regard to raw materials or semi-finished products, or any other operating disorders for which CASCO is not responsible. CASCO shall immediately inform the contractual partner about the reasons for non-availability of the goods or service and where applicable reimburse the contractual partner for consideration already rendered.

(2)  If the hindrance for which CASCO is not responsible lasts longer than 4 weeks and an end of the respective events is nowhere in sight, the customer shall be entitled where applicable after setting a reasonable period of grace to withdraw from the part of the contract that has not yet been fulfilled. If the delivery time is prolonged or if CASCO is released from its obligation to perform, then the customer shall have no right to compensation for damages, insofar as CASCO is not responsible for the delay.

(3)  Insofar as CASCO is culpably in default of delivery or performance, the customer must upon request of CASCO declare within a period of 14 days, if he plans to withdraw from the contract due to the delay of the delivery and/or demand compensation instead of the performance or if he demands that the goods be delivered.

(4)  The claims of compensation of the customer are limited, insofar as CASCO has acted with ordinary negligence, to an amount of 0.5% for each completed week of default, however, a total of no more than 5 % of the invoice value of the deliveries and services affected by the default.   The limitation does not apply if the default occurred as a result of intent or gross negligence on the part of CASCO.

(5)  CASCO is entitled to partial deliveries and partial services at any time.

(6)  Short or excess deliveries of up to 5 % are permitted.

5. Risk of loss

The risk shall pass to the customer as soon as the shipment is handed over to the person executing the transport or has left the warehouse of CASCO for the purpose of being shipped. If CASCO has reported that the goods are ready to be shipped and afterwards the service or delivery becomes impossible without CASCO being responsible for this, then the risk shall pass to the customer with notification that the goods are ready to be shipped.

6. Warranty

(1)  CASCO warrants that its products are free from manufacturing and material defects. The warranty period for purchases is 2 years, in all other respects the statutory provisions apply.

(2)  The warranty period begins with the passing of the risk (dispatch). Guarantee claims are no longer valid if changes have been made to the products; parts have been exchanged or used materials applied by the customer, which do not correspond to the original specifications. The customer is entitled to provide counterevidence.

(3)  The customer shall immediately report defects in writing to CASCO, however, at the very latest within one week after receipt of the delivery item.  Defects that are not discovered within this period also after careful inspection are to be reported to CASCO in writing immediately upon discovery.

(4)  If a material defect is discovered within the statute of limitations, then CASCO may at its discretion eliminate the defect or deliver a defect-free object, also if this should be a purchase agreement. Insofar as CASCO chooses subsequent fulfilment to eliminate the defect, then the customer must

a)   send in the damaged part for repair and then send it back to CASCO;

b)   hold the damaged part ready and grant a service technician

of CASCO access to the goods so that he can repair it.

Insofar as CASCO chooses subsequent delivery then the customer must send the defect part to CASCO and shall receive from CASCO a defect-free replacement part.

If the purchaser demands that the warranty work be performed at a location designated by him, then CASCO can meet this demand, whereby the services included in the warranty shall not be charged, however, the services exceeding those included in the warranty shall be charged extra. (for example, travel costs and travel time).

(5)  If the subsequent fulfilment and/or subsequent delivery fails within a reasonable period of grace set by the customer, then the customer is entitled to make deductions to the remuneration or to withdraw from the part of the contract that is affected by the defect. If due to the warranty case it is deemed unreasonable for the customer to maintain the agreement for the rest, then he is allowed to withdraw from the entire agreement. The rights of the customer to claim for damages are based on the provisions in No. 10.

(6)  Liability for normal wear and tear is excluded.

(7)  Only direct customers are entitled to guarantee claims against CASCO and these claims are not transferable, insofar as this is not a claim for money and the underlying business was commercial for both parties.

(8)  The aforementioned clauses contain the warranty for products and exclude any other warranty claims, in particular claims resulting from so-called “spreading” defects.

(9)  Rejected goods shall be delivered to CASCO free of charge. If the delivery made is not prepaid, then CASCO is entitled to refuse acceptance or to return the goods to the customer after repair or exchange, carriage forward.

7. Retention of title

(1)  Until fulfilment of all demands (including all balance claims of current account) for which CASCO is currently or in the future entitled to from the customer, CASCO shall be granted the following securities, which shall be released upon request and at the discretion of CASCO, insofar as their value sustainably exceeds the demands by more than 20%.

(2)  CASCO shall retain the title on goods until they are paid in full. Processing and transformation of the goods shall be performed always on behalf of CASCO as producer, however without any obligations for CASCO. If CASCO’s (co-) ownership on the object expires due to fusion, then it is already now agreed that the (co-) ownership of the customer on the single object shall be transferred to CASCO in proportion to the invoice value. The customer shall keep the (co-) ownership of CASCO free of charge. Goods for which CASCO is entitled to (co-) ownership are described in the following as goods subject to retention of title.

(3)  The customer is entitled to process and to sell the goods subject to retention of title through proper business transactions as long as he is not in default. Pledging or transfers by way of security are not permitted. As a precautionary measure, the customer already herewith assigns the claims resulting from the further processing and selling or any other legal reason (insurance, unauthorised handling) with regard to the goods subject to retention of title (including all balance claims of current account) to CASCO in their entirety. CASCO grants him revocable authorisation to collect assigned claims for CASCO in his own name.

(4)  In the event of third-party access to the goods subject to retention of title, the customer will refer to CASCO ownership and will immediately inform CASCO of this.

(5)  In the event that the customer is in breach of contract, in particular in case of default in payment, CASCO is entitled to demand surrender of the goods subject to retention of title. The assertion of a right of retention is excluded.

(6)  If a petition in bankruptcy has been filed against the customer, then CASCO is entitled to withdraw from the contract and to demand immediate return of the goods subject to retention of title.

8. Payments

(1)  Unless otherwise agreed, the CASCO invoices are to be paid 8 days after issuance of invoice and without deductions. If CASCO informs in the offer prior to conclusion of the contract that ADVANCE PAYMENT shall be agreed upon, then CASCO shall enclose the advance payment invoice with the order confirmation. The customer is then obligated to settle the advance payment invoice 8 days after order acceptance. If the balance is not settled within the period, then CASCO is neither obligated to produce the goods nor deliver them. CASCO may withdraw from the contract. CASCO shall charge payments of the customer for costs, interest and finally the earliest principal claim, if the customer has not expressly made other payment plan conditions.

(2)  Payment is considered fulfilled only when the sum is available to CASCO. For payment with cheque, payment is considered as made only after the cheque has cleared and the amount is on CASCO’s account.

(3)  In the event of default of payment on the part of the customer, CASCO is entitled to demand interest to the amount of 8 percentage points above the principal interest rate.

(4)  If CASCO becomes aware of circumstances that question the creditworthiness of the customer, in particular if a cheque cannot be cashed in or if he stops making payments, or if CASCO becomes of other circumstances that question the creditworthiness of the customer, then CASCO shall be entitled to demand payment for the rest of the debt, also if CASCO has accepted cheques.  CASCO is entitled in this case also to demand advance payments or securities.

(5)  The customer is only entitled to off-set, retain or make reductions to the invoice, also if notifications of defect or counter claims are being made, if the counter claims have been determined to be undisputed or legally binding. The customer is however entitled to retain the goods against claims for which he is entitled to from the same legal relationship.

9. Design changes

CASCO shall be entitled to change the design of goods at any time. CASCO is, however, not obligated to make these type of changes on products already delivered.

10. Limitation on liability

In the event of breach of obligations occurring as a result of minor negligence, CASCO shall be liable only for contractually typical, predictable and causal damage allocable to CASCO.  This does not apply for injury to life, limb or to health, for assumption of a warranty or a procurement risk, resulting from mandatory liability in accordance with the Product Liability Act or other mandatory liability.

11. Applicable law, place of jurisdiction, severability

(1)  The laws of the Federal Republic of Germany apply to these terms and conditions and the entire legal relationship between CASCO and the customer. The application of UN Convention on Contracts for the International Sale of Goods is excluded.

(2)  Insofar as the customer is a general merchant, in terms of the German Commercial Code (HGB), a legal entity under public law or a special fund under public law, the domicile of CASCO shall be the exclusive place of jurisdiction for all direct and indirect disputes.

(3)  Should a provision of these terms and conditions of business or a provision of other agreements become invalid, the validity of all other provisions or agreements shall not be affected by this.            

Effective: March 2009