Business terms
The following conditions of sale, delivery and payment shall be effective immediately.
All previous conditions of sale, delivery and payment shall hereby cease to be in force.
horizont group gmbh – Korbach, 01. January 2011
1. General terms and conditions
1.1. Only the following terms and conditions shall be legally valid and deemed as an integral part of our
offers to enter into a contract as well as our sales contracts. Any terms and conditions stipulated
by the customer will not be recognized by our company, even if we do not expressly object to
such terms and conditions, unless the validity of the said terms and conditions was expressly
approved by our company in writing. Only the terms and conditions stipulated by our company
shall be legally valid, even if the delivery of goods to our buyer is carried out by our company without
reservation and upon full knowledge of any conflicting conditions or conditions which may
deviate from our terms and conditions.
1.2. Our terms and conditions shall also apply to all future business transactions concluded with the
buyer, even if we do not expressly refer to the same terms and conditions again.
1.3. With the exception of the managing directors, ìProkuristenî (holders of a general commercial power
of attorney) and general agents (holders of a general commercial authority), the employees of our
company are not authorized to enter into any agreement which may deviate from these terms and
conditions or from our specification of services.
2. Offers and conclusion of a contract
2.1. Any offers made by our company are always non-binding and without engagement. The formation
of a contract will only take place, if our company confirms the order of the buyer or carries out the
delivery of goods.
2.2. All agreements which have been entered into verbally or by telephone must be confirmed in writing
by our company in order to be valid. The same shall apply to supplements, alterations or collateral
agreements.
2.3. Drawings, illustrations, weights and measures or other specifications are only binding, if this is
expressly agreed upon in writing.
3. Prices and terms of payment
3.1. Unless otherwise provided for in the agreement, our prices shall be effective, without insurance ex
warehouse or ex works, exclusive of packaging and with the addition of the respective statutory
value-added tax.
3.2. Any data contained in brochures, advertisements, price lists and catalogues shall serve only as an
approximate criterion, unless these are expressly stipulated as binding.
3.3. We shall make every effort to maintain the prices stipulated by our company. In the event of unforseeable,
exceptional circumstances, such as price increases by the manufacturer and currency
fluctuations, we shall reserve the right to pass on the price increase to the buyer. If the price increase
exceeds the specified purchase price by more than 10 %, the buyer shall have the right to
withdraw from the sales contract.
3.4. The net invoice amount less 2 % cash discount is due for payment, if our invoice is paid within 10
days after the date of invoice. The full net invoice amount is due for payment, if the invoice is paid
within 30 days after the invoice date.
3.5. We shall have the right to demand that the delivery is to be concurrent with the payment, without
stating the reasons pertaining thereto. If our company recognizes after the conclusion of the
contract that our right to counterperformance is jeopardized through the lack of financial capacity of
the buyer, then we shall have the right to demand cash in advance or the provision of collateral or
security. The same shall apply if the buyer is in default of acceptance or has already violated the
stipulated terms of payment.
3.6. We expressly reserve the right to reject checks or bills of exchange. The acceptance shall always
be effected on account of performance. Discounting and bill charges shall be paid by the buyer and
are immediately due for payment.
3.7. If the buyer is in default of payment, we shall have the right to demand interest on arrears amounting
to 7 % above the current base interest rate in accordance with section 1 of the DÜG. The buyer
shall have the right to furnish proof that our company has not suffered any damage or that the
extent of the damage sustained is much less compared to the damage claimed as a result of the
default. The company reserves the right to assert a claim for higher damages.
3.8. An additional EURO 5.00 will be charged for every dunning notice issued after the due date of the
debt. In the event of default, any agreement pertaining to respite or extension of payment as well as
any period allowed for payment shall become null and void.
4. Delivery
4.1. The delivery of goods shall be effected through a forwarding agency. We will designate the transport
company or the forwarding agent.
4.2. We shall make every effort to deliver the goods within the shortest possible period of time and to
comply with the delivery periods or delivery dates. The dates and periods, which we have specified
to the merchants, are not binding, unless otherwise expressly agreed upon in writing.
4.3. We shall have the right to effect partial delivery and part performance at any time provided that such
partial delivery or part performance is carried out within a reasonable scale.
4.4. If the buyers are not merchants, then these buyers can withdraw from the contract or claim damages
after a grace period of six weeks which is to be specified and which shall commence as soon
as we have received the appointment of the grace period. However, the latter claim for damages
is only permissible, if intention or gross negligence was committed by our company or by the persons
employed by our company in performing an obligation. The extended liability pursuant to
section 287 of the BGB (“Bürgerliches Gesetzbuch” or Civil Code) shall be excluded.
4.5. Furthermore, the following provisions shall apply to business transactions with merchants:
4.6. The delivery shall be carried out subject to the correct and prompt delivery of goods to us as well as
the successful arrival of the goods. We are not liable for any delays in delivery and performance r
esulting from force majeure or similar circumstances which arise after the conclusion of the contract
and which are beyond our control such as industrial disputes, official directives, irrespective of
whether these delays occur at our suppliers or their subcontractors. In these cases, the delivery
period is extended by the duration of the hindrance plus the length of time corresponding to a
reasonable setting-up period; the maximum extension however, shall be three months. In this
respect, both parties shall have the right to withdraw from the contract after the expiration of this
time limit. The same shall apply if the delay causes substantial disadvantages to any of the contracting
parties.
4.7. In all cases of delayed delivery, any claim for damages asserted by the buyer owing to the delay in
delivery as well as any claim for damages in lieu of performance shall be excluded, even after the
expiration of the time limit which was stipulated to us for the delivery of goods. This shall not apply, if
mandatory liability accrues in the event of intention and gross negligence or as a result of health or
bodily injuries or death. The buyer shall have the right to withdraw from the contract within the
framework of the statutory provisions, only if our company is liable for the delay in delivery. A change
in the burden of proof to the disadvantage of the buyer shall have no connection with the preceding
provisions.
5. Passage of risk
5.1. The goods will be delivered via mail, train, forwarder or company lorry. The mode of transport will be
selected by our company.
5.2. The goods will be transported for the account and at the risk of the buyer. This shall also apply to
any possible sales returns. The risk is transferred to the buyer as soon as the goods are handed
over to the transport company designated to carry the goods or to the forwarding agent. This shall
also apply, if partial deliveries are carried out or if our company has assumed the performance of
other obligations such as transportation charges, carriage and installation. If the forwarding of
goods is carried out at a delivery date which is subsequent to the earliest possible delivery date,
either at the request of the buyer or due to other reasons which are within the sphere of responsibility
of the buyer, then the risk shall be transferred to the buyer upon notification of the readiness to
deliver.
5.3. Upon request and at the expense of the buyer, we will insure the consignment of goods against
theft, breakage, transport damage, damage caused by fire and water as well as other risks.
6. Reservation of ownership
6.1. We shall reserve the propriety rights to the object sold until the payment of all existing and accruing
receivables arising from the business relations. We will release a portion of the corresponding
security interests at the request of the buyer, if the value of all security interests, to which we are
entitled, exceeds the amount of all secured claims by more than 20%.
6.2. The buyer shall have the right to process and sell the goods subject to reservation (reserved goods)
in the course of regular business activity, provided that the buyer is not in default or a petition for the
opening of bankruptcy proceedings against his assets has not been filed. Any pledge or chattel
mortgage as well as assignment of receivables shall be permissible, only if our written consent was
previously issued in this regard.
6.3. If the delivered goods are processed by the buyer, the reservation of ownership with respect to the
goods subject to reservation shall not expire. The processing or reconstruction shall be carried
out for us as manufacturer, without any subsequent obligations being incurred by the company. If
the goods owned by the buyer or by a third party are processed, we shall acquire joint ownership
of the object which results from such processing; the joint ownership acquired shall correspond to
the ratio of the value of goods delivered by our company (invoice value including value-added tax) to
the other processed goods at the time of processing. If there is a union or mixture of the reserved
goods with a principal thing owned by the buyer, then it shall already be stipulated in this agreement
that the buyer shall transfer the joint ownership of the uniform goods to us on a pro rata basis. The
buyer is under obligation to preserve our joint ownership for us without any remuneration. The pertinent
provisions shall apply, if there is any mixture or union of the reserved goods with other goods.
6.4. In the event of resale, the buyerís receivables arising from the resale as well as all ancillary rights
pertaining thereto shall be assigned to us by the buyer in order to provide security for our claims.
If our company is only a joint owner of the goods sold, the assignment shall be restricted to the
share of the receivables which corresponds to our joint-ownership share. The buyer shall have the
right, until revoked, to collect, for his own account and in his own name, the receivables from the
resale which were assigned to us. We shall have the right to revoke the authorization to collect, if
the buyer fails to fulfill his contractual obligations, especially in the event of any delayed performance.
At our request, the buyer is under obligation to disclose the debtors of the assigned receivables
and to hand over all the necessary information and documents to us as well as to notify
the debtors of the assignment. We shall have the right to disclose the assignment to the debtors at
any time.
6.5. With regard to the safekeeping of the goods which are owned (jointly owned) by our company,
the buyer is obliged to exercise care and to carry this out at his own expense, to insure the said
goods against the risk of fire and theft and to provide evidence as to the conclusion of an insurance
contract, if requested.
6.6. As soon as the facts are known to the buyer, the buyer is obliged to immediately inform us of any
thirdparty access to the goods subject to reservation and to provide us with all the information and
documents which are needed for an intervention. The buyer shall be liable for all the costs which
have accrued for the revocation of the access (particularly through the institution of a third-party
action against execution), if these costs cannot be recovered from the petitioning creditor.
6.7. If the behavior of the buyer is contrary to the terms of the agreement, especially in the event of a
default in payment, our company shall have the right to withdraw from the contract and to take
back the goods sold. The buyer is under obligation to return the goods and to defray the costs
relating to the taking back of the goods. After the issuance of a warning, we shall have the right to
realize or sell the reserved goods which were taken back. The realization proceeds minus the
appropriate realization costs will be charged to the liabilities of the buyer.
7. Damages
7.1. Any claim for damages and reimbursement of expenses (hereinafter: claims for damages) by the
buyer, particularly as a result of the violation of duties arising from an obligatory relation and from a
tortious act, shall be excluded, irrespective of the legal reason.
7.2. This shall not apply, if mandatory liability accrues, e.g. in cases of intention and gross negligence,
as a result of health or bodily injuries or death, as a result of any breach of major contractual duties
and in accordance with the law on product liability. However, the claim for damages owing to the
breach of major contractual duties shall be limited to the standard contractual, foreseeable damages,
unless an intentional or grossly negligent act has been committed, or mandatory liability exists
due to health or bodily injuries or death. A change in the burden of proof to the disadvantage of the
buyer shall have no connection with the preceding provisions.
7.3. If the buyer is entitled to damage claims according to the aforementioned Article 8, then it is
stipulated in Article 7.7 that these claims shall become statute-barred upon the expiration of the
limitation period which applies to claims based on redhibitory defects. The statutory period of
limitation shall apply to damage claims which are in accordance with the law on product liability.
8. Concluding provisions
8.1. The law of the Federal Republic of Germany shall apply. The applicability of the uniform UN-law on
the international sale of goods (CISG) shall be excluded.
8.2. The place of performance for all obligations arising from this contract shall be Korbach.
8.3. With respect to business transactions with merchants, legal persons under public law or special
assets of the Federal Government, Korbach shall be the place of jurisdiction. This place of jurisdiction
shall be the exclusive place of jurisdiction for all legal proceedings instituted against our company.
We hereby reserve the right to also sue the customer at a legally justified place of jurisdiction.
8.4. Alterations of the contract, supplements and collateral agreements must be made in writing in order
to be valid.
8.5. If compliance with the written form is required under these terms, transmission per telefax or e-mail
shall also be sufficient.
8.6. Should any of the provisions of these general terms and conditions cease to be effective, or if there
is a gap in the provisions of the contract, the validity of the other provisions shall remain unaffected.
The invalid or incomplete provision shall be replaced by a provision which comes closest to the
commercial essence and purpose of the desired provision.
Municipal Court, Korbach
HRB 100