General Terms and Conditions
Terms of Payment and Delivery of UNDERCOVER GmbH (as of 01.04.2011)
§1 Scope of application of the General Terms and Conditions (AGB)
(1) All our (including future) deliveries, services and offers, including proposals, advice and other ancillary services, are exclusively based on these terms of payment and delivery. They form an agreed integral part of all contracts concluded with us.
(2) The terms of payment and delivery form an agreed integral part of all contracts concluded with us and shall apply to all future contracts and business relationships even if they are not repeatedly and expressly included as such. Our business partners shall, at the latest, acknowledge our terms of payment and delivery when placing an order with us.
(3) Agreements - particularly insofar as they amend these terms - shall only come into effect upon our written confirmation.
(4) The buyer's purchasing and/or ordering terms, as well as counter confirmations by the buyer, are hereby expressly rejected.
Our offers are subject to change without notice and are not binding. They are limited in terms of time to 30 days from the date of issue provided that no specific contract is concluded with reference to the offer. The right to prior sale is expressly reserved and permissible.
(1) Our prices are exclusive of packaging, freight, insurance and other ancillary services (storage, external inspection) unless otherwise stipulated in Articles 4 and 7. In addition VAT at the statutory rate that applies at the time shall be charged.
(2) VAT is shown separately in the invoices and shall be paid by the buyer.
(3) Partial deliveries shall be paid within the periods stipulated in the terms of payment.
§4 Delivery, delivery periods, delivery note
(1 Dispatch of the goods shall take place at the buyer's risk. When dispatching the goods, the risk shall be transferred to the buyer as soon as we have delivered the goods to the carrier, freight forwarder or other persons or institutions commissioned with the dispatch. Means of transport and route of transport shall be at our discretion. The same shall apply to the choice of the carrier or freight forwarder. In the event of the goods being delivered using our own vehicles, the risk shall be transferred to the buyer when the goods are handed over. If dispatch is impossible for reasons for which we are not responsible, the risk shall be transferred to the buyer upon notice of readiness for dispatch.
(2) Upon conclusion of the contract, the buyer shall stipulate their preferred mode of transport, destination or post town; in this case dispatch shall be carried out at the buyer's expense and for its own account.
(3) In the event that the buyer makes no stipulation in accordance with Subsection 2 above or ignores the above, dispatch shall be carried out according to our best judgment. In this case delivery shall be made free destination if the value of the consignment exceeds the minimum amount of € 500.00. Consequently no liability shall be accepted for the chosen mode of transport or punctual arrival of the goods unless there is an instance of gross negligence or wilful intent.
(4) Our deliveries shall be made within the agreed delivery periods.
(5) If our company fails to deliver on time, the buyer must first of all grant us an extension of three weeks so that we can provide the service.
(6) If we are prevented from honouring our obligations due to the occurrence of unforeseen events that affect us or our suppliers and which, according to the circumstances of the case, we were not able to avoid despite having taken reasonable care, for example, war, force majeure, national unrest, forces of nature, accidents, other interruptions of service and delays in the supply of goods to us, the deadlines shall be extended for the duration of the hindrance and we shall be granted a reasonable period of time for operations to get started again. If it becomes impossible or unreasonable for us to honour our obligation to deliver as a result of the hindrance, we can withdraw from the contract. Strikes and lock-outs are also always deemed to be a hindrance for which we are not responsible within the meaning of this paragraph. An obligation to pay compensation to the buyer is excluded in these cases.
(7) We shall be entitled to make partial deliveries and to charge for these.
(8) Goods delivered properly and correctly can only be returned if the seller authorises the return. The buyer must bear the costs.
§5 Warranty and liability for defects
We shall provide a warranty for defects in our deliveries according to the following regulations:
(1) The buyer shall be obliged to inspect the goods delivered by us immediately upon receipt of such goods. In particular it shall check whether goods other than the agreed goods have been delivered, whether less or more than the agreed amount of goods has been delivered or whether there are any other defects. We must be notified in writing of defects within 14 calendar days following receipt of the goods.
(2) Notice of defects of the type described above that are not obvious and wrong deliveries that are not obvious must be sent to us immediately after they become apparent, at the latest however within one month following delivery of the goods.
(3) The buyer shall not be entitled to submit a notice of defect in the event of deviations in quality, colour, height, width, equipment, weight or design that are usual in the trade, minor or technically unavoidable.
(4) If the notice of defect is justified and has been submitted within the period stipulated, we will remedy the defects in the defective delivery items at our discretion or take back the defective goods and replace them with items of faultless quality (supplementary performance).
(5) We are only obliged to take back defective consignments if, when sending the goods to us, the buyer uses the return slip provided by our company; this shall also apply to wrong deliveries attributable to the fact that goods other than the agreed goods have been delivered or that less or more than the agreed amount of goods has been delivered.
(6) In the event that we default on supplementary performance (remedy of the defect or replacement with flawless goods), the buyer may request a reduction in the purchase price or withdraw from the respective part of the contract if an adequate grace period laid down by the buyer in writing has expired and we have still failed to perform; if the remaining part of the contract is unusable for the buyer, it shall be entitled to withdraw from the entire contract. The aforementioned rights shall also apply in other cases of failure of supplementary performance.
(7) Our warranty obligation for defective consignments expires after 24 months from delivery of the goods.
(8) We do not assume liability for damages that arose due to the following reasons:
Unsuitable or improper use by the buyer or third parties, subsequent modifications by the buyer or third parties, normal wear and tear and negligent or incorrect handling.
§6 Liability for other reasons
Any further claims due to defects are excluded; this shall apply in particular to contractual or non-contractual claims for damages that have not occurred in the delivery item itself. This exemption from liability shall not apply in the event of wilful intent or gross negligence on our part and/or on the part of our vicarious agents. Furthermore this exemption from liability shall not apply to physical injury (injury to life, limb and/or health).
(1) Our invoices are deemed to be accepted if not objected to by the buyer in writing within 14 calendar days from date of invoice.
(2) Unless otherwise agreed, payments shall be effected immediately after invoicing. In the event of payment within 10 days of invoicing, we shall grant a 3 % discount; in this case the date of receipt of payment in our business account shall determine punctuality of payment.
(3) The buyer shall only be entitled to a right of retention and a right of set-off if the counterclaims are not in dispute and have been established by a court of law.
(4) In the case of notice of defects the buyer shall not have the right to defer payment of the invoice until supplementary performance has been completed. This shall not apply in the event of major breaches of contract, especially if a major part of the delivery is defective.
(5) When granting credit periods the respective residual amount shall be payable immediately if the buyer is in arrears with part of the total for longer than 10 days.
(6) If no other provision is stipulated by the buyer, payment shall always be used to settle the oldest outstanding debt plus accrued interest.
(7) In the case of payment via third parties, particularly within the framework of a del credere agreement, the goods shall only be considered as paid upon receipt of payment by us.
(8) We only accept bills of exchange, eligible for discount and with taxes duly paid, if this was expressly agreed. If bills of exchange or cheques are accepted, the debt shall only be liquidated when the bill of exchange or cheque has been honoured/cashed. All discounts, expenses and costs incurred as a result of honouring the bill of exchange and/or cashing the cheque shall be borne by the buyer.
9) We shall be entitled to offset any amounts owed to us by the buyer against any amounts that we owe to the buyer.
(10) We shall be entitled to sell and transfer/assign to third parties our claims against the buyer upon payment of the purchase price.
§8 Interest after due date and consequences of default
(1) In the event of payment after the due date, interest amounting to 5 % above the base rate according to § 1 of the Discount Rate Transition Act shall be charged.
(2) As long as the buyer is in default of payment we shall not be obliged to make any further deliveries, irrespective of the legal grounds on which our delivery obligations are based.
(3) In the case of a substantial deterioration of the buyer's financial circumstances or, in particular, in the event that insolvency proceedings are initiated or the initiation of such proceedings is dismissed due to lack of assets, we shall be entitled to claim cash payment prior to delivery of the goods and the credit period granted shall be cancelled.
(4) For deliveries and services to buyers abroad it is deemed to be expressly agreed that the costs of prosecution of an action by the supplier in the event of the buyer being in default of payment, both in and out of court, shall be borne by the buyer.
§9 Reservation of title
(1) Until settlement of all amounts (including all current account balance claims) owed to us by the buyer for any legal reason, now or in the future, we shall be granted the following securities, which, at the discretion of and if requested by the buyer, we shall release if their value persistently exceeds the amounts owed to us by more than 10%.
(2) The delivery item shall remain our property (reserved goods) until all amounts owed have been paid. This includes in particular our respective current account balance claims against the buyer within the context of our business relationship. The buyer shall be obliged to provide us with information about the reserved goods at any time , particularly as regards their respective location.
(3) Processing or transformation shall always be carried out on our behalf as manufacturer, however, without obligation for us. If our (joint) ownership ceases as a result of combination, it shall be agreed as of now that the buyer’s (joint) ownership of the unified item shall be transferred to us as the seller in proportion to its value (invoice value). The buyer shall hold our (joint) property in safe custody free of charge. Goods to which we are entitled as (joint) owner shall hereinafter be referred to as reserved goods.
(4) The buyer shall be entitled to process and sell the reserved goods in the ordinary course of business, provided that the buyer is not in default. Pledging or assignment as security is not permissible. Receivables arising from resale or for another legal reason (insurance, unlawful acts) relating to the reserved goods (including all current account balance claims) are, as of now, assigned in full to us by the buyer by way of security. We shall revocably authorize the buyer to collect the receivables assigned to us for its own account and in its own name. This collection authorization may only be revoked if the buyer does not duly honour its payment obligations.
(5) In the event that third parties seize the reserved goods, the buyer shall make reference to our ownership and shall notify us immediately.
(6) If the buyer acts in breach of contract - particularly in the case of default of payment- we as the seller shall be entitled to take back the reserved goods or, if necessary, to demand the assignment of the restitution claims of the buyer against third parties. Our taking back or pledging the reserved goods does not constitute a withdrawal from the contract unless statutory provisions provide otherwise.
§10 Final provisions
(1) The place of performance for all services is the place of business of our company with which the sales contract was concluded.
(2) The place of jurisdiction for any claims shall be Nuremberg, optionally Frankfurt/Main.
(3) If one or several provisions of our terms of payment and delivery are or become invalid, this shall not affect the validity of the remaining provisions. The invalid provision shall be replaced by another provision that is as close as possible to the commercial purpose of the invalid provision.
(4) The law of the Federal Republic of Germany that governs legal relationships of domestic parties shall apply to all legal relationships between the buyer and us, to the exclusion of the provisions of the CISG (Convention on Contracts for the International Sale of Goods dated 11.04.1980, Federal Law Gazette [BGBI.] II 1989, 588).
(5) We wish to point out that we store the buyer’s data that arises as a result of its business transactions with us in data files and process it in our IT system in accordance with the Federal Data Protection Act.