General Terms and Conditions of Sale and Delivery

Salamander Industrie-Produkte GmbH
Jakob-Sigle-Straße 58, 86842 Türkheim

I. Applicability 

1) Our terms and conditions apply exclusively. These terms and conditions shall apply to all contracts concluded by us, unless expressly agreed otherwise in writing.

2) Counter-confirmations with reference to deviating terms and conditions of business, sale or delivery are hereby expressly rejected. Corresponding terms and conditions of business of our contractual partners that deviate from our terms and conditions of business shall not become part of the contract even if we do not expressly object to them. Our General Terms and Conditions shall also apply if we are aware of terms and conditions of the contractual partner that conflict with or deviate from our Terms and Conditions.

3) Our terms and conditions of business shall also apply in their currently valid version for future discussions with our contractual partners. Older terms and conditions hereby lose their validity.

4) We are entitled to amend or supplement our terms and conditions at any time with a reasonable period of notice.

5) Third parties - in particular our employees - are not authorized to make verbal collateral agreements or give verbal assurances that go beyond the content of the written contracts. Declarations to this effect shall not give rise to any obligations on our part.

II. Conclusion of the contract

1) Our offers are subject to change and non-binding, unless they contain declarations to the contrary. Orders and commissions are only accepted when they have been confirmed by us in writing. We can accept offers made to us within 1 week.

2) Our orders must be confirmed in writing within three working days of receipt. If confirmation is not received within this period, the contract shall be deemed not to have been concluded.

3) All agreements must be made in writing. The written form can only be waived by written agreement.

4) We reserve the right of ownership and copyright to all illustrations, drawings, calculations, costings and other documents. They may not be made accessible to third parties without our express consent. They are to be used exclusively for the fulfillment of the contractually owed services and are to be returned to us upon request - at the latest upon termination of the business relationship without being requested to do so.

5) For the technical implementation of a new profile shape in accordance with the respective drawing, we reserve the right to withdraw from the contract in the event that the profile shape is not implemented correctly, without any further claims being made against us beyond the reimbursement of the tool costs paid.

III. Subject matter of the contract, prices

1) The subject matter of the contract is the goods in the type and quantity specified in the written order or in the offer.

2) The prices stated in the offer or in the order shall apply to all services. For goods ordered by us, the prices are exclusive of statutory VAT and include freight-free delivery to the place of performance Papenburg including packaging, unless otherwise agreed. We shall only be obliged to return the packaging if this has been expressly agreed. Packaging, which may be charged separately by the supplier, may be returned by us upon receipt and must then be credited by the supplier at the same value upon return.

3) The agreed prices shall apply to goods to be delivered by us. Our prices are quoted in euros and include standard packaging. Not included are VAT, freight costs and customs duties as well as additional costs for special packaging.

4) If significant changes occur in the costs of raw materials, wages, energy or other costs after submission of the offer or after conclusion of the contract, we shall be entitled to demand an appropriate price adjustment, taking into account the change in the price factors, if deliveries or services are not to be provided within 4 months of conclusion of the contract.

5) We are not obliged to accept follow-up contracts and are not bound by the prices agreed for the first or subsequent orders. If the contractual partner does not agree to a reasonable price adjustment, we are entitled to withdraw from the contract without further costs.

IV. Shipment, insurance, transfer of risk

1) The goods to be delivered by us shall be delivered by a means of transportation of our choice, primarily by truck. If our contractual partner requests a special mode of shipment (e.g. express, air freight), the additional costs incurred as a result shall be borne by the contractual partner.

2) At the written request of our contractual partner, the goods shall be insured against transportation and fire damage at his expense. Otherwise, we are not obliged to take out transport insurance.

3) Shipment shall be at the risk of our contractual partner. The transfer of risk during shipment shall take place in accordance with § 447 para. 1 BGB (German Civil Code) when the goods are handed over to the carrier. If the goods are ready for shipment and the shipment or acceptance is delayed for reasons for which we are not responsible, the transfer of risk shall take place upon notification of readiness for shipment.

V. Delivery, order quantity, default of acceptance

1) The delivery time stated in our order is binding. The supplier is obliged to inform us immediately in writing if circumstances arise or become apparent to him which indicate that the delivery time cannot be met. In the event of a delay in delivery, we shall be entitled to all statutory claims - in particular compensation for damage caused by delay, damages and withdrawal. Furthermore, in the event of a delay in performance, we shall be entitled to demand a special type of shipment (e.g. express delivery). The costs incurred for this shall be borne by the contractual partner in default.

2) Delivery times for goods to be delivered by us are only binding if this has been expressly agreed in writing. Delivery periods shall be suspended for the duration of the hindrance in the event of force majeure or the occurrence of unforeseen hindrances which we are unable to avert despite reasonable care in the circumstances of the individual case, such as labor disputes, official measures at home or abroad through no fault of our own, power failure through no fault of our own, delays in the delivery of essential raw materials through no fault of our own, operational disruptions or operational restrictions at suppliers through no fault of our own, irrespective of where the hindrances have occurred. In the event of impossibility, we shall be released from our obligation to perform. Our contractual partner shall only be entitled to claims for damages in cases where we are guilty of intent or gross negligence.

3) We are entitled to make partial deliveries. Contracts with agreed partial deliveries (call-off orders) obligate us to accept partial deliveries in approximately equal monthly installments.

4) In the case of manufactured goods, the quantities ordered may be exceeded or fallen short of by up to 10%. In this case, the contractual partner shall be entitled to a corresponding financial compensation.

5) If our contractual partner is in default of acceptance or violates other obligations to cooperate, our claim to the contractually agreed consideration shall remain unaffected (Section 326 (2) BGB). Damages and additional expenses attributable to the default of acceptance shall be borne by the contractual partner in default of acceptance. The risk of accidental loss or accidental deterioration shall pass at the time of default of acceptance.

6) Invoices for goods ordered by us must be sent to us separately from the goods on the day of dispatch. A delivery bill must be enclosed with each delivery. The order number and material number must always be stated on invoices, delivery bills, consignment notes and in correspondence. Otherwise we shall not be responsible for delays in processing.

VI. Warranty and liability

1) In accordance with § 377 para. 1 BGB, the contractual partner is obliged to inspect the goods received immediately after delivery by us and to notify us immediately of any defects. If this notification is not made, the goods shall be deemed approved and the contractual partner shall bear the burden of proof for any defects still notified.

2) The statutory limitation periods shall apply (§ 438 BGB).

3) In the event of defects in the goods delivered by the contractual partner, we shall be free to demand subsequent performance or rectification of defects at our discretion or to withdraw from the contract immediately, reduce the purchase price or demand compensation instead of performance.

4) In the same way, if our services are defective, we shall be free to offer the buyer a replacement delivery or rectification of defects at our discretion (§ 439 BGB). The same shall apply to replacement deliveries and rectification of defects as to the original object of performance. In the case of rectification of defects, we shall not bear the additional costs associated with the fact that the delivery item has been moved to a location other than the place of performance. If we are unwilling or unable to make a replacement delivery or remedy the defect, or if such a delivery or remedy finally fails, the contractual partner is entitled, at his discretion, either to withdraw from the contract (§§ 437, 440, 323, 326 BGB) or to reduce the purchase price (§§ 437, 441 BGB). Further claims, in particular claims for compensation for direct or indirect damage, are excluded, unless we are guilty of intent or gross negligence. In the case of delivery by forwarding vehicles, complaints - insofar as they relate to transportation - must be noted on the delivery bill or consignment note. Otherwise we shall be exempt from any liability.

5) Insofar as our liability is excluded or limited, this shall also apply to the personal liability of any vicarious agents. If we have negligently breached a material contractual obligation, our liability to pay compensation for personal injury, property damage and financial loss shall be limited to the sum insured under our public liability/product liability insurance. Upon request, we shall grant our contractual partner access to our policies.

6) Insofar as the supplier is responsible for product damage, he is obliged to indemnify us against claims for damages by third parties on first demand insofar as the causes lie within his sphere of control and organization and he himself is liable in relation to third parties. In this context, the supplier is also obliged to reimburse any expenses arising from or in connection with a recall action carried out by us. We shall inform the supplier of the content and scope of the recall measures to be carried out - as far as possible and reasonable - and give him the opportunity to comment. The supplier is obliged to maintain product liability insurance with a lump sum cover of at least E 2.5 million per claim. If we are entitled to further claims for damages, these shall remain unaffected.

7) The supplier shall be responsible for ensuring that no third-party rights are infringed in connection with his delivery. If claims are asserted against us by a third party for this reason, the supplier shall be obliged to indemnify us against these claims on first demand. We are not entitled to make any agreements with the third party - without the supplier's consent - in particular to conclude a settlement. The supplier's obligation to indemnify relates to all expenses necessarily incurred by us from or in connection with the claim by a third party.

VII. Assembly work, ancillary obligations

1) During assembly work, the supplier must observe our safety and assembly instructions, which we will make available to him on request. He is obliged to inform himself exactly about the content of our safety and assembly regulations.

2) Machines and work equipment must comply with European Union law. The currently valid directives must be observed. If there are special guidelines for a machine, these must also be observed. Relevant standards of the European Union must be named in the declaration of conformity. If special standards are not currently available, national regulations apply.

VIII. Technical application notes

All details and information on the suitability and application of the object of performance are non-binding and do not release our contractual partner from the obligation to carry out its own tests and trials. These are essential in view of the variety of conceivable uses of a product and because of the particular circumstances of our contractual partner. Even if we provide technical application support, the contractual partner shall bear the risk of success and the technical/economic usability of his work. Our contractual partner is responsible for compliance with statutory and official regulations when using our deliveries and services.

IX. Tools, designs

1) Tools, sample designs and packaging designs which are produced either by us or by our contractual partners on the basis of our experience and drawings shall become our property, even if costs are charged, unless a contractual agreement with a different content has been concluded in individual cases. Insofar as we are obliged to store tools and drafts, the obligation to store them shall end in any case if our contractual partner does not place any further orders with us within 2 years of the last delivery.

2) The supplier is obliged to use the tools exclusively for the manufacture of the goods ordered by us. The supplier is obliged to insure the tools belonging to us at replacement value against fire, water damage and theft at his own expense. He is further obliged to carry out any necessary maintenance and inspection work in good time at his own expense or to have it carried out professionally. He must notify us immediately of any malfunctions. If he fails to do so, we expressly reserve the right to assert any resulting claims for damages.

3) The Customer shall bear the pro rata tool costs for the manufacture of the tools. The price for the tools does not include the costs for testing or processing equipment or any changes requested by the customer. These costs shall be invoiced separately. This also applies to costs for further sampling than the initial sampling, insofar as the customer is responsible for this. In the event that the customer does not pay these pro rata tool costs or the goods delivered to him or does not pay as agreed, the tools can be used as desired. The tools shall be stored and maintained by us. However, we shall not be liable for damage that occurs despite proper handling.

X. Property rights

With the delivery of our products, we do not assume any warranty for use free of industrial property rights. Even if we undertake delivery in accordance with information, drawings, models or samples provided to us by the contractual partner, the latter shall guarantee that the manufacture and delivery of these items does not infringe the industrial property rights of third parties. If a third party prohibits us from manufacturing and supplying items that are manufactured according to information, drawings, models or samples provided by the contractual partner on the basis of an industrial property right, we shall be entitled - without being obliged to examine the legal situation - to discontinue the manufacture and supply and to demand reimbursement of the costs incurred from the contractual partner, to the exclusion of all claims for damages by the contractual partner. The contractual partner undertakes to indemnify us immediately from license and compensation claims of third parties. For all direct and indirect damages and claims arising from the infringement and assertion of any industrial property rights, the contractual partner shall pay an appropriate advance payment at our instigation. We have the exclusive manufacturing rights to all profiles and other products which are manufactured according to designs, drawings and/or tools developed by us. Imitation or manufacture by the contractual partner or third parties is only permitted with our express permission.

XI. Retention of title

1) Our deliveries and services shall remain our property until full payment of all claims, including all ancillary claims. If our contractual partner acts in breach of contract, in particular in the event of default in payment, we shall be entitled to reclaim our deliveries and services. Taking back the goods does not constitute a withdrawal from the contract unless we have expressly declared this. The seizure of our deliveries and services shall always constitute a withdrawal from the contract. After taking back our deliveries and services, we shall be entitled to utilize them.

authorized to sell them. The proceeds of the realization, reduced by reasonable realization costs, shall be credited.

2) Our contractual partner is not entitled to pledge the reserved goods before final payment, to assign them to third parties as security or to encumber them in any other way with third-party rights. In the event of seizure or other interventions by third parties, our contractual partner must inform us immediately in writing so that we can file a suit in accordance with § 771 ZPO (German Code of Civil Procedure). If the third party is not in a position to reimburse us for the judicial and extrajudicial costs of an action pursuant to Section 771 ZPO, our contractual partner shall be liable for the loss incurred by us.

3) Our contractual partner is entitled to resell our reserved goods in the ordinary course of business. However, he hereby assigns to us all claims in the amount of our final invoice amount, including VAT, which accrue to him from the resale against his customers or third parties, irrespective of whether the items delivered under retention of title have been resold without or after processing, mixing or other transformation. We accept this assignment. Our contractual partner shall remain authorized to collect its receivables from customers even after the assignment. Our authorization to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as our contractual partner meets its payment obligations from the proceeds received, is not in default of payment and, in particular, no application for the opening of insolvency proceedings has been filed and payments have not been suspended. However, if one of the above circumstances occurs, we may demand that our contractual partner informs us of the assigned claims and their debtors and provides us with all information necessary for collection, as well as hands over the associated documents and discloses the assignment to us to the debtors.

4) Our contractual partner shall also assign to us the claims to secure our claims against him which accrue to him against a third party through a connection of our items delivered under retention of title with a property. We accept this assignment.

5) We are obliged to release the securities to which we are entitled at the request of our contractual partner to the extent that the value of the securities exceeds our claims to be secured by more than 20%. We shall be responsible for selecting the securities to be released.

XII. Payments

1) The agreed terms of payment shall apply. If these are not expressly agreed, payment shall be due immediately with the net amount (immediately net).

2) Payment of invoices by us shall be made within 14 days with a 3% discount, within 30 days with a 2% discount or within 60 days strictly net, whereby the invoice dates of a decade shall be summarized and referred to the last day of the decade (decade settlement), unless expressly agreed otherwise in writing.

XIII. Payment by installments

1) Insofar as payment by installments has been agreed, the installment discount shall lapse if our contractual partner is in arrears with an installment in whole or in part for more than one week, or if a bill of exchange or check is not honored. If a bill of exchange is protested or a check is dishonored, all other bills of exchange and checks of this contractual partner shall also become due for immediate redemption and payment.

2) Bills of exchange and checks are only accepted on account of performance without guarantee of protest and only by agreement and subject to discountability. Discount charges shall be borne by our contractual partner from the due date of our invoice claim.

3) The basis for the conclusion of our contract is the creditworthiness of our contractual partner. If reasons become known which give rise to justified doubts as to compliance with contractual payment obligations, e.g. if insolvency proceedings are applied for or opened or if over-indebtedness, insolvency or discontinuation has occurred or is imminent, we shall be entitled to withhold deliveries not yet made until appropriate security has been provided and/or to withdraw from the contract if suitable security is not provided within a reasonable period of time.

XIV. Rights of set-off and retention

We shall be entitled to rights of set-off and retention to the extent permitted by law. Otherwise, set-offs may only be declared and rights of retention only exercised with counterclaims that are legally established, undisputed or recognized by us.

XV. Authorization to collect

Authorization to collect on our behalf requires that our written power of attorney and our receipt are presented. Our contractual partner is obliged to make sure that he is authorized to collect.

XVI. Place of performance, place of jurisdiction, applicable law

1) The place of performance for all obligations incumbent on us is the location of our registered office, unless otherwise agreed in writing in individual cases.

2) The place of jurisdiction for all types of disputes with contractual partners who are registered traders, legal entities under public law or special funds under public law is the court responsible for our registered office. However, we reserve the right to bring an action at the registered office or domicile of our contractual partner.

3) The legal relationship with our contractual partner shall be governed exclusively by the law of the Federal Republic of Germany, excluding the uniform law on the sale of goods and excluding the UN Convention on Contracts for the International Sale of Goods.

XVII. Severability clause

Should any of these provisions be or become invalid or unenforceable in whole or in part, this shall not affect the validity of the remaining provisions. The invalid or unenforceable provision shall be replaced by a provision that comes as close as possible to the economic purpose of the invalid or unenforceable provision.