As far as possible, carrying out all our business relationships with our customers shall be facilitated without resulting in one-sided advantages for one party of the contract. The following terms and conditions apply, and they are to be considered as expressly agreed on for all new, as well as all current, business relations.
1. Conditions of Sale
The following conditions of sale apply to all contracts for the delivery of goods as signed between the seller ( Sierra Madre GmbH ) and our customers. They also apply to all future business relationships, even if they are not expressly agreed on again. Differing conditions of our customers which the seller does not expressly agree to, are non-binding for the seller, even if the seller does not expressly refuse them. The following conditions of sale shall apply even when the seller processes a customer’s order unreservedly, despite being aware of contradicting or differing conditions of said customer.
Partial deliveries are permitted; each partial delivery is considered to be an independent business transaction. Delays in before-material supplies which are not the seller’s fault shall provide the seller with the right to extend the delivery deadline date accordingly. Force majeure or other circumstances over which the seller has no control, such as official measures, breakdowns, strikes, riots and civil commotions and war measures, shall provide the seller with the right to postpone the delivery accordingly or to resign from the contract of purchase, or his part in this contract respectively, without claims being made for compensation of the buyer. The goods travel at the buyer’s own peril, and all deliveries of goods are in general ex works, insofar as no other written agreements have been entered into. In the event of a delivery being processed without the buyer having previously received a confirmation of order, a contract of purchase shall arise via the dispatch of the ordered goods. Delivery dates are non-binding. Claims for compensation due to non-timely delivery shall not be accepted.
3. Complaints and liability for defects
The buyer shall be responsible for immediately inspecting the goods after their delivery or as soon as he has in some other way personally or via his agents obtained the authority to dispose of them. Possible defects are to be reported within 48 hours, in writing or by a telephone call. The period shall begin with the obtainment of the authority to dispose by the buyer or by his agents. The customer is obliged to confirm the correctness and compliance of the goods by means of sufficient sample inspections. In the event of legitimate customer complaints, we are only obliged to take back the goods actually pertaining to the complaint. This taking back extends only to original packaging and unmixed goods. The seller has the right, but not the obligation, to replace such a delivery. Furthermore, there are no additional claims for compensation due to direct or indirect damage as well as resulting damage. Complaints regarding the packaging and underweight are expressly to be noted in writing on the delivery papers upon arrival of the goods, before the receipt of delivery. In the event of underweight of single packages, the actual weight is to be determined in the presence of the delivery driver. If complaints are not noted on the receipt of delivery, the seller shall not be obliged to replace the goods. Even in the event of a complaint, the buyer is obliged to accept the goods. The buyer is to store the goods appropriately until such time as it is possible for the seller to launch an inquiry into the complaint. The goods pertaining to the complaint can only be sent back upon previous approval by the seller.
Insofar as deliveries are carried out via carrier, complaints of damage or wrong quantity shall only be entertained if such a complaint is confirmed in writing on the waybill by the carrier and this confirmed waybill is sent to us without delay. In the event of a handover of the goods by the customer picking them up, any complaints of damage or wrong quantity shall only be possible during the handover, unless the customer is able to prove such a complaint without a doubt even after the handover.
All prices are in euros (€) plus VAT as applicable at the time of the contract or of the delivery. The prices are ex works plus delivery charges. Delivery charges will only apply after they have been agreed on accordingly. In the event of no agreement to the contrary, payment is to be made immediately after the invoice date, net without any deductions. New customers shall settle the delivery invoices in advance until the signing of an amendment agreement, which can also be entered into prior to assuming business relations. The seller is not obliged to accept bills of change. Checks will be credited after payment. The customer’s debt and the invoice due date shall remain unchanged in the meantime. The seller is not liable for a crediting on time. Protest and back load feeds shall be borne by the buyer. Debits shall only be accepted via direct debiting.
If the deadline for payment is exceeded and if one reminder has been sent, the seller may make use of the following rights:
All outstanding future deliveries, including those pertaining to different agreements, will not have to be processed.
The seller may claim any and all damages resulting therefrom.
All other payment requests shall be due for instant payment, even non-due ones.
Default interest at the statutory rate, as well as reminder fees
The prices denoted on the price lists for goods and marketing material shall become invalid with the publication of a new price list/marketing material list. The prices for special offers shall only be valid according to each specific offer and shall be limited to the inventory at hand at the time of the publication of said special offer. In general, all offers are strictly subject to change. Price setting is connected to the relevant delivery date.
The seller is to be notified immediately in writing about any changes in ownership, the legal form of the company, the address or any other changes with economical effect or affecting the creditworthiness, in particular an existing or intended global assignment in favor of third parties. Such long-term changes shall provide the seller with the following rights of his choice:
Immediate payment to be made or security to be given in respect of payable or deferred claims arising from all existing transactions.
Refuse to fulfill the contractual obligations until an advance payment has been made or a security has been given, cancel the contract, or claim compensation owing to non-performance.
7. Retention of title
Until all debts to which the seller is entitled from the buyer now or in the future are paid, including all current account balance claims, the delivered goods (reserved goods) shall remain our property. In the event of contract-breaching behaviour by the buyer, e.g. payment delay, the seller reserves the right to take back the reserved goods after a prior setting of an appropriate deadline. If the seller takes back the reserved goods, this will be deemed a resignation from the contract. The seller reserves the right to utilize such reserved goods after taking them back. The utilization proceeds shall be offset against the amounts due to us by the customer, after an appropriate amount for the utilization costs has been deducted. Acquisition of ownership of the reserved goods by the customer in accordance with § 948 or 950 of the German Civil Code by mixing or processing is not accepted.
The customer is obliged to handle the reserved goods with care and to insure them at his own charge against damage by fire, water and theft. The customer reserves the right to lawfully sell and/or utilize the reserved goods in the course of trade, insofar as he is not in default of payment. Pledges or collateral assignments are not permitted. Any claims arising from the resale of the reserved goods or for any other legal reason (insurance, unlawful act) shall be assigned by the buyer to the seller now already, as a security in full extent; the seller herewith accepts this assignment. The seller authorizes the customer, subject to revocation, to collect such assigned claims in his own name for the purpose of his invoices. This authorization to collect can be revoked at any time should the purchaser fail to fulfil its payment obligations. The customer furthermore is not permitted to assign this claim for the purpose of collection of debts by means of factoring, unless an obligation is simultaneously imposed on the factor to effect payment of consideration equal to the amount of the receivables directly to the supplier pending settlement of all accounts receivable by us from the customer.
In the event of third parties having access to the reserved goods, in particular in the event of seizures, the customer shall state our ownership of the items and immediately notify the seller accordingly so that the seller is able to assert his rights of ownership. Insofar as the third party is unable to compensate the seller for the judicial or extra-judicial costs arising from this event, the customer shall be liable. The seller is obliged to release the securities to which he is entitled insofar as the realizable value of the securities in consideration does not exceed the value of the claims being secured by more than 10 %; whereby the seller is authorized to choose the security to be released.
After the suspension of payment by the customer or rather after the claim to start insolvency proceedings or in the event of out-of-cord negotiations, the customer does no more have the right to dispose of the reserved goods. In the event of payments that breach the contract, the seller may resign from the contract without prejudice to any other rights and demand the release of the goods in his ownership.
8. Storage of Data
We would like to draw attention to the fact that the seller has obtained and saved data in accordance with the Federal Data Protection Act. Such data is limited to whatever is most essential for assuring simple and safe business transactions.
9. Exclusion from Contractual Penalties
The seller shall not accept any fixed or no-fault liability claims. Contractual penalties imposed on us shall only be valid if they have been agreed on in individual contracts.
10. Place of Jurisdiction
The place of jurisdiction shall be the court having jurisdiction for our company.
11. Legal Validity
Should one of the preceding conditions be or become invalid, this shall not touch the effectiveness of the remaining conditions. In this event, an effective regulation instead of the ineffective regulation which will come the closest to the economic purpose of the ineffective regulation shall be agreed on by the parties of the contract. The same shall apply to eventual contractual omissions.
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