General terms and conditions
§ 1 Extent of Validity
(1) The following Terms and Conditions of Sale and Delivery are effective for any and all goods, services and deliveries offered by or sold through A & G Sexton GmbH (“the Seller”) The Buyer recognises and acknowledges the terms stipulated herein no later than with the acceptance of the goods or services ordered.
(2) The Seller hereby rejects any and all general terms of business deviating from the terms stipulated herein unless the effectiveness of any such terms have been duly confirmed in writing by an authorised signatory of the Seller.
(3) The Seller’s Terms and Conditions of Sale and Delivery remain effective for any and all future transactions, even though the Parties do not specifically make any renewed reference to the present Terms.
§ 2 Conclusion of the Contract, Descriptive Matter
(1) The goods and services offered by the Seller are intended exclusively for individuals or enterprises where the transaction is part of their commercial or self-employed business activities (entrepreneur as per Article 14 of the German Civil Code) as well as legal entities under public law and special public-law assets. With each order the Buyer duly declares that he/she is not acting as a consumer.
(2) All goods and services on offer are understood invitatio ad offerendum. The Buyer’s order is a binding offer to the Seller to enter into a contractual commitment. The contract becomes binding with the delivery of the goods or services or the written confirmation of delivery.
(3) The Seller retains any and all property and copyrights on illustrations, drawings and other documents.
(4) In the case of online orders clicking the “Order send button” is a binding offer to the Seller to enter into a contractual commitment. The contract becomes binding with the delivery of the goods or services or the written confirmation of delivery.
§ 3 Prices – Shipping, Handling and Packaging Costs
(1) All prices listed in the Seller’s catalogue are understood „net ex place of consignment”, i.e. exclusive of value added tax, transport and insurance costs. Unless otherwise specified, prices are understood per unit. Graduated prices are understood per type, value and colour unless otherwise specified. Prices for discontinued models or types are solely effective for the goods available on stock.
(2) Delivery is made cost of shipping forward, and will be added to the confirmation documents.
(3) COD shipments are subject to an additional surcharge forwarded to the Buyer.
(4) In principle packaging is not subject to additional charges. The Seller retains however the right to forward the cost of extraordinary packaging to the Buyer.
(5) All prices listed in the Seller’s catalogue or online shops are non-binding. The Seller retains the right to pass on to the Buyer any price increases arising from the manufacturer or exchange rate fluctuations. Should the price increase exceed five percent (5%) of the original price the Buyer may withdraw from the contract.
(6) For deliveries to destinations outside the Federal Republic of Germany the Buyer shall bear any and all additional charges, e. g. bank fees, customs duty, export documents, etc.
§ 4 Payment (1) Buyers may choose between cash with order (CWO) or cash on delivery (COD).
§ 5 Delivery Times, Partial Deliveries
(1) Any information on the availability of any goods is based on the Seller’s regularly updated management information system. Error and omission excepted.
(2) The Seller endeavours to deliver within the shortest period of time.
(3) The Seller cannot be made liable for delays in deliveries or services caused by force majeure or similar circumstances, such as natural catastrophes, terror, embargos, strikes, lockouts, official orders, including any such circumstances involving the Seller’s suppliers. The occurrence of any such circumstances entitles the Seller to postpone the fulfilment of his contractual obligations for a reasonable period of time. The Seller shall inform the Buyer of the occurrence of any such circumstance. Should a Party experience substantial detriment, in particular scheduling problems, said Party is entitled to either in part or entirely withdraw from the contract. Should the impediment persist for a period longer than six weeks, the Buyer is entitled to withdraw from the unfulfilled part of the contract after having given the Seller a reasonable period of respite.
(6) The Seller reserves the right to provide the goods or services ordered by means of a reasonable number of partial deliveries and interim invoices. Interim invoices are payable pursuant to the terms stipulated herein.
§ 6 Shipping Instructions – Transfer of Risk
(1) Deliveries are made through a capable parcel delivery service chosen by the Seller. Sensitive and valuable items will be sent by rail express at the Seller’s discretion.
(2) The provision of shipping insurance is subject separate agreement, costs and premiums forward.
(3) The consignment is shipped cost and risk forward. Risk transfers to the Buyer no later than the moment the consignment has been entrusted upon the haulier or has left the Seller’s warehouse. In the event that the consignment is to be shipped at a future date, risk transfers to the Buyer with the advice of readiness for shipment.
(4) The Buyer waives the right to return packing materials and is solely responsible for the due and proper disposal thereof.
§ 7 Export Controls / Export Ban / Embargo Restrictions
The products and services offered by the Seller are intended for use and disposition in the country of destination. Technical equipment, hardware and computer software in particular may be subject to embargo restrictions and the export thereof may be prohibited or subject to export licensing. In addition the Seller may himself be bound to export bans on such items. The Buyer accepts the sole responsibility for the observance of and adherence to the relevant regulations through the final customer at his own cost. The Buyer is in particular responsible for acquiring information on the relevant export and import regulations (e. g. from the German Federal Office for Economics and Export Control in Eschborn, Germany or the US Department of Commerce, Office of Export Administration, Washington D.C.), for observing these regulations as well as any export bans cited by the Seller and for acquiring any and all necessary licenses. The Seller herewith emphases that he is not obliged to cite any export ban. Inasmuch as the Seller provides information on export bans, he cannot assume liability for the correctness and accuracy of such information. Such information does not release the Buyer from his duty to make the due enquiries.
§ 8 Product Information, Manufacturers’ Licensing Provisions, Manufacturer Warranties
(1) The dimensions, weight and other technical specifications as well as the texts and illustrations found in the Seller’s catalogue serve solely as a general reference. Deviations and design changes, in particular in shape, colour or weight, within reason are excepted. The aforesaid provision applies to specifications on data sheets on online media (PDF data sheets on CD-ROM). In case of doubt the latest manufacturer data sheet for the product is deceive.
(2) All product information in the Seller’s catalogue or online shops is made in good conscience. The Seller is not liable to verify the correctness and accuracy of such information. The Seller cannot be made liable for damages caused by incorrect or inaccurate specifications.
(3) Information on product features does not represent a guarantee, but is understood as product descriptions. Any and all guarantees must be explicit and made in writing.
(4) In addition to the Sellers Terms and Conditions of Sale and Delivery a variety of products (e. g. software) are subject to manufacturer license requirements. The Buyer herewith agrees to any such requirements. Any violation of such licence requirements may result in claims for damages.
(5) In addition to the aforesaid provisions the relevant manufacturer warranty provisions apply. The manufacturer warranty does not provide a legal basis against the Seller. The manufacturer must directly warrant any arising warranty claims.
§ 9 Warranty Claims
(1) Should the Buyer or his customer fail to observe operating and maintenance instructions, alter the product, use parts, components or materials, which do not comply with the original specifications, the warranty expires immediately unless the Buyer can prove that the fault is in no way related to the above instances.
(2) Damage to the packaging and obvious transport damage must be immediately reported to the haulier. If possible, the haulier should provide written confirmation of the damage report.
(3) The Buyer undertakes to inform the Seller in writing of any obvious faults or defects within five working days after receipt of goods. For hidden defects the period for complaints commences with the discovery of defect.
(4) At his discretion the Seller is entitled to remedy the Buyer’s warranty claims by either repairing the defective or faulty product or replacement with faultless product (subsequent performance). Should the Seller’s choice of subsequent performance represent a substantial detriment for the Buyer, the Buyer is entitled to demand the other form of subsequent performance. The Seller’s right to reject this form of subsequent performance due to unreasonableness or impossibility remains unaffected. Should the Seller choose to repair the defective or faulty product, he may at his sole discretion have the product returned or send a technician to carry out the repairs on the Buyer’s premises.
(5) Should no attempt to subsequently fulfil the contractual obligations be made within the period of time specified by the Buyer or should a period of respite be legally unnecessary, the Buyer is entitled to take recourse to other statutory warranty rights, in particular the reduction in sale price or the withdrawal from the contract. Should the Seller’s punctual attempt to remedy the warranty claim prove ineffective and an additional period of respite is unsuccessful, the Buyer may take recourse to other warranty rights unless such recourse is unreasonable for the Buyer.
(6) The Seller will only accept returned goods if the provisions for returned good in Article 11, Paragraph 4 are duly observed. If the Buyer is entitled to return defective goods, the Seller shall immediately reimburse the Buyer’s shipping costs.
(7) Compensation for damages due to defective or faulty goods in excess of the statutory regulations are only permissible in accordance to the provisions of Article 10 herein.
(8) The Buyer’s right to recourse as per Article 478 of the German Civil Code remain unaffected. The aforesaid provision does not apply to compensation for damages due to defective or faulty goods.
(9) The period of limitation for warranty claims is one year commencing with the day of delivery.
§ 10 Liability for Compensation
(1) The Seller is solely liable for breach of duty inasmuch as such breach represents intention, gross negligence or culpable infringement of a material obligation (“cardinal obligation” as per German law). Any and all other forms of compensation liability are void of legal effectiveness.
(2) Inasmuch as the Seller is liable for negligence as per Article 10, Paragraph (1) herein, his liability is limited to the damage, which the Seller would have had to expect as typical when the contract was concluded. The Seller cannot be made liable for indirect damage, consequent damage or loss profits unless such damage was caused by the gross negligence of one of the Seller’s executives.
(3) The aforesaid exemptions from and restrictions on liability do not apply to guaranteed product qualities, to damages, which must be compensated as per the German Act on Product Liability, as well as to death, injury or illness.
(4) The Buyer is liable to provide proof of guilt.
§ 11 Exchange, Return of Goods
The buyer is responsible for the correct packaging of all products he returns. Damage that results through incorrect packaging must be paid by the buyer. It is at the discretion of the seller if he wishes to carry the transport cost for any returned parts.
§ 12 Retention of Title
(1) The goods supplied remain the property of the Seller until the Buyer has settled all Seller claims arising from the delivery or pending on the basis of the contractual relationship.
(2) The retention of title is prolonged according to the following provisions: processing or redesigning is performed on behalf of the Seller as manufacturer, without obligation on the part of the Seller. Should the Buyer process, combine or in any way mix the privileged property with third-party goods, the Seller acquires at the moment of processing, combining or mixing co-ownership of the resulting products proportionate to the value of the object of sale (invoice value plus VAT). Should the Buyer combine or in any way mix the privileged property with his own property, the Seller hereby acquires co-ownership of the resulting product proportionate with the value of the object of sale. The Buyer shall hold the Seller’s property free of charge.
(3) Inasmuch as the Buyer is not in arrears, he is entitled to process and sell the privileged property. Pledging or any form of hypothecation is not permitted. The Buyer hereby cedes any and all claims arising from the resale or from other legal ground in conjunction with the privileged property to the Seller as a form of security. In the event that the Seller is merely co-owner of the goods for resale, the Buyer hereby cedes such claims proportionate to the invoice value of the goods supplied by the seller. The Seller hereby authorises the Buyer to call-in or collect the ceded claims. Should the Buyer fail to fulfil his contractual obligations, in particular by way of delay in payment, the Seller is entitled to revoke the above authorisation. Upon due request the Buyer shall inform his customers of the above authorisation and provide the Seller with any and all documents and information.
(4) The Buyer shall immediately inform the Seller of any seizure of the latter’s privileged property by a third party. Inasmuch as they cannot be obtained from the prosecuting creditor, the Buyer is liable for the costs incurred through quashing such seizure, in particular such costs involved with filing third-party action against execution.
(5) Should the Buyer be in breach of contract, in particular delay in payment, the Seller is entitled to demand the surrendering of the privileged property immediately and without respite as well as without the Buyer’s prior withdrawal from the contract or to demand the cession of the Buyer’s claim for possession against a third party. The repossession or seizure of the privileged property does not represent the Seller’s withdrawal from the contract. The Buyer is liable for all costs involved in repossessing the Seller’s privileged property. The Seller is entitled to exploit the seized property upon due notification and utilise the proceeds, less a reasonable handling fee, to settle the outstanding claims.
§ 13 Data Protection
The Buyer agrees to allow the Seller to electronically store personal and company data required for the administration of the business relationship. The Buyer may at any time request information on the personal data compiled by the Seller.
§ 14 Place of Fulfilment, Place of Jurisdiction and Applicable Law
(1) Place of fulfilment for all supplies and services is Heilbronn, Germany.
(2) Exclusive place of jurisdiction for all matters of dispute arising directly or indirectly from the contractual relationship is Heilbronn, Germany.
(3) Sole applicable law for the entire legal relationship between the Seller and the Buyer is the laws of the Federal Republic of Germany without recourse to UN commercial law (CISG).
(4) Should any provision herein or in the business relationship between the Buyer and the Seller prove or become ineffective, the remaining provisions remain unaffected.
Inovation and Design
A & G Sexton GmbH
Telefon: 0049 (0)7943 91720
Fax: 0049 (0)7943 9172 34