General Terms and Conditions of Sale and Delivery of Char-Broil Europe GmbH
§ 1 Application(1) These Terms and Conditions of Sale and Delivery (hereinafter referred to as "Terms and Conditions") of Char-Broil Europe GmbH (hereinafter referred to as "Char-Broil") shall only apply vis á vis entrepreneurs within the meaning of sec. 14 of the German Civil Code (BGB), governmental entities, or special governmental estates within the meaning of sec. 310 para. 1 BGB.
(2) These Terms and Conditions shall apply exclusively. Differing or contrary terms of the purchaser shall not apply except if expressly agreed upon in writing by Char-Broil.
(3) These Terms and Conditions shall also govern all future transactions between the parties and shall also apply if Char-Broil perform delivery despite knowledge of differing or contrary terms.
(4) Differently agreed individual contractual provisions have priority over these Terms and Conditions in any case.
§ 2 Offer, AcceptanceInsofar as the order constitutes an offer within the meaning of § 145 BGB Char-Broil is entitled to accept the offer within four weeks.
§ 3 Prices, Payment(1) All prices of Char-Broil are in Euro plus shipping costs, the respective statutory VAT and in the case of an export delivery customs duties and other public charges.
(2) Insofar as the agreed prices are based on the Char-Broil product-pricing list and the delivery is to be made more than four months after the conclusion of the contract, the respective product-pricing list valid at the time of delivery shall apply.
(3) The purchase price is due and payable within 14 days from the date of the invoice. From the due date default interest in the amount of 9 % above the respective base interest rate p. a. shall accrue. Char-Broil reserves all rights to claim further damages for delay.
(4) Objections against the content of a delivery note or invoice must be made and specified in writing without any delay, but not later than two weeks after the receipt. If the purchaser raises no objections within the above designated period, the content of the delivery notes and invoices shall be deemed confirmed.
(5) No cash discount on the purchase price is granted unless otherwise agreed in writing.
§ 4 Offset, RetainerThe purchaser shall be entitled to offset only insofar as the purchaser’s counterclaim is acknowledged, undisputed or assessed in a legally binding judgement. The purchaser is entitled to claim retainer rights only to the extent such rights are based on the same transaction.
§ 5 Delivery(1) Delivery is conditioned upon timely and proper performance of all duties of the purchaser. Defences based on non-performance of the contract are reserved
(2) Delivery dates and delivery deadlines are only binding if they have been confirmed in writing by Char-Broil. Agreed delivery periods begin with the date of shipment. Char-Broil is entitled to deliver prior to the agreed delivery date.
(3) Unforeseeable events such as force majeure, unpredictable difficulties due to lack of raw materials, operating restrictions and shutdowns, production disruptions of the works entrusted with the delivery, floods, storms and thunderstorms, governmental orders and/or controls, and other events beyond influence of Char-Broil ("disruptions") release Char-Broil from the obligation of timely delivery or performance for the duration of the disruption. Agreed upon periods are extended by the duration of the disruption. From the occurrence of the disruption, the purchaser shall be informed by Char-Broil in an appropriate manner. The above mentioned disruptions entitle Char-Broil in whole or in part to withdraw from the contract, even if the transaction has been completed during the occurrence of such disruption.
(4) In case of default in acceptance or other breach of duties to cooperate by the purchaser Char-Broil is entitled to claim any resulting damage including but not limited to additional expenses, if any. Further damages are reserved. In this case, the risk of loss or damage to the goods passes to the purchaser at the time of such default or breach of duty to cooperate.
§ 6 Passing of Risk, ShipmentIf the purchaser demands shipment of the goods, the risk of loss or damage to the goods passes to the purchaser upon dispatch from handing over the goods "ex works" (ex works) either from Kühne & Nagel B.V., 4782 SM Moerdijk, the Netherlands or Kriswell A/S, 8870 Langaa, Denmark to the purchaser.
§ 7 Retention of Title(1) Char-Broil retain title to the goods until receipt of all payments in full. In case of breach of contract by the purchaser including, without limitation, default in payment, we are entitled to take possession of the goods.
(2) The purchaser shall handle the goods with due care, maintain suitable insurance for the goods and, to the extent necessary, service and maintain the goods.
(3) As long as the purchase price has not been completely paid, the purchaser shall immediately inform us in writing if the goods become subject to rights of third persons or other encumbrances.
(4) The purchaser may resell goods subject to the above retention of title only in the course of his regular business. For this case, the purchaser hereby assigns all claims arising out of such resale, whether the goods have been processed or not, to Char-Broil. Notwithstanding the right of Char-Broil to claim direct payment, the purchaser shall be entitled to receive the payment on the assigned claims. To this end, Char-Broil agrees to not demand payment on the assigned claims to the extent the purchaser complies with all his obligations for payment and does not become subject to an application for insolvency or similar proceedings or to any stay of payments.
(5) Insofar as the above securities exceed the secured claim by more than 10 %, Char-Broil shall be obligated, upon its own election, to release such securities upon the purchaser’s request.
§ 8 Warranty(1) Warranty claims shall be time-barred after 12 months of the passage of risk.
(2) If identifiable defects after a diligent inspection are found, the purchaser shall be obliged to inform Char-Broil thereof in writing within 7 working days of receipt of the goods. If the purchaser does not perform the examination of the goods or if the purchaser does not notify Char-Broil of a defect identified by him within the deadline set above, the goods are deemed approved (§ 377 HGB). Char-Broil is given the opportunity to convince themselves of the reported defects.
(3) Unrecognizable defects shall be deemed approved unless they are claimed in writing within 10 days of their discovery or recognizability.
(4) Char-Broil will initially provide warranty for defects through subsequent performance, which, at the discretion of Char-Broil, consists of rectification or replacement.
§ 9 Mutual Returns of Goods(1) For a mutual return, that is a return without legal claim, of the goods to Char-Broil, the buyer needs the prior written consent of Char-Broil. The return is according to the specifications of Char-Broil.
(2) Char-Broil reserves the right not to take back goods that have been used and not to reimburse them, unless there is an otherwise corresponding written contractual agreement between Char-Broil and the purchaser.
(3) Char-Broil is free, after checking already opened goods for completeness, to invoice the purchaser for any components which require replacing.
§ 10 Liability(1) In case of intent or gross negligence on part of Char-Broil or by our agents or assistants in performance we are liable according to the provisions of applicable law; the same applies in case of breach of fundamental contract obligations. To the extent the breach of contract is unintentionally the liability of Char-Broil for damages shall be limited to the typically predictable damage.
(2) Our liability for culpable damage to life, body or health as well as our liability under the Product Liability Act shall remain unaffected.
(3) Any liability not expressly provided for above shall be disclaimed.
§ 11 Data ProtectionChar-Broil is entitled, under the terms of the data protection laws, to store, process and transmit data relating to the trade and payment transactions with the purchaser for personal use. The purchaser hereby expressly agrees to this.
§ 12 Applicable law, Jurisdiction, Miscellaneous(1) This contract shall be governed by the laws of the Federal Republic of Germany (excluding the Convention on Contracts for the International Sale of Goods).
(2) Place of performance and exclusive place of jurisdiction for all disputes arising out of or in connection with this contract shall be Hamburg.
(3) If any differences in meaning arise between the German and the English language version of these Terms and Conditions, the German language version shall prevail.