Moore GmbH (Moore)
1. General Terms and Conditions
1.1 As far as the following provisions refer to “GTCBD“, the concrete General Terms and Conditions of Business and Delivery (GTCBD) of Moore GmbH in Erfurt/Germany are meant.
1.2 These GTCBD are the basis of all legal relations with the customers of Moore GmbH. They are only applicable to entrepreneurs within the meaning of § 310 par. 1 Civil Code.
1.3 All orders, commissions and agreements –above all as far as they amend these GTCBD– will only have binding force by the written confirmation of Moore.
All -even future– supplies of Moore including proposals, counselling, information and any other additional services will exclusively be carried out on the basis of these GTCBD.
1.4 Any terms and conditions to the contrary are expressly inconsistent.
2. Price, Payment, Delay in Payment and Securities
2.1 Unless otherwise agreed, the prices are ex factory -free carrier– without the legal value-added tax, taxes, customs and any excise duties. If this kind of taxes, customs or excise duties accrue, these will have to be paid separately by the customer. Payment has to be made immediately after the delivery of the commodity in cash or by transfer to Moore. Payments fall due immediately.
2.2 Any discount requires a special written agreement.
2.3 Any change of the due date requires an explicit written agreement. Allowing periods for payment means that the payment falls due, yet that the customer will not get in arrears prior to the expiry of the period for payment.
2.4 Moore will only accept discountable bills of exchange, if this has expressly been agreed. In case of the acceptance of bills of exchange or cheques the debt will only be discharged by definite payment and credit in a bank account of Moore. Any discount charges and all the cost and expenses incurred with regard to the payment of the amount of the bill of exchange or of the cheque will have to be born by the customer. In case of bills of exchange and cheques in foreign currency the credit amount paid in the Moore account, alone, is relevant for the extent of the debts which have been paid. The encashment of cheques on account does not imply that the claim is waived, even if the amount of the cheque covers an essential part of the debts.
2.5 In case of non-compliance with the payment dates default interest to the extent of 8 % above the base lending rate, yet at least 12.0 % p.a., will be charged. For each reminder additionally sent because of default Moore may claim damages to the extent of 10.00 € per reminder. Moore remains authorised to prove a higher damage, and the customer remains authorised to prove a lower damage.
2.6 In case of delay in payment or hazardous outstanding claims as a result of a deterioration in the credit worthiness of the customer Moore is authorised to call due its outstanding claims or to demand the provision of securities. This also applies to any bills of exchange, irrespective of their maturity. Moore is further authorised to effect outstanding deliveries only on advance payment or the provision of securities. A deterioration of the credit worthiness of the customer exists above all, if a trade credit insurance taken out by Moore is cancelled or if the insurer fails or failed to provide cover for the customer, in future. In case the credit worthiness and the financial situation of the customer deteriorates considerably, above all if the insurer rejects cover for a trade credit insurance taken out by Moore, Moore is authorised immediately to demand all outstanding claims, both those due and those with a fixed maturity date.
3. Prohibition of Assignment and Contractual Exclusion of Set-Off
3.1 Moore can offset all claims against all counter claims of the customer. Moore is free to decide against which counter claims set-off will be effected.
3.2 The customer can only transfer contractual rights and claims to third parties with the prior consent of Moore. This does not apply if the contractor is a businessman within the meaning of the Commercial Code of the Federal Republic of Germany (HGB) and if the legal transaction, which substantiates the claim, is a commercial transaction for him (§ 354 a clause 1 HGB). In this case, however, the transfer of the claim does not imply any obligation with regard to Moore. Moore can rather continue to render services with a debt-discharging effect to the hitherto holder of the claim. This also applies if Moore is informed of the transfer of the claim or if it otherwise obtains knowledge to this effect.
3.3 The customer is only eligible for rights of set-off if his or her counterclaims are indisputable, recognised by Moore or have acquired legal force, if a judgement or a legal claim is also recognised or enforceable under German law. The customer is only entitled to exercise his or her right of retention in so far as his or her counter claim is based on the same contractual relationship.
Unless otherwise agreed, the commodity will be delivered unpacked on transport reels. Any other packaging agreed will be charged to the customer. The transport reels are the property of Moore. They should immediately be sent back empty and dismantled to Moore. The cost of return transport will be born by Moore, unless otherwise agreed.
5. Transfer of Risks, Trade Clauses, Dispatch
5.1 The risk will be transferred to the customer at the time of consignment to the forwarder or the carrier, yet at the latest when the commodity leaves the factory. For the interpretation of the trade clauses the Incoterms 2000 are applicable.
5.2 If it has been agreed -in derogation of item 2.1 GTCBD – that the commodity of Moore will be dispatched free destination the choice of the means of transport and of the route will be left to Moore. In this case Moore will also determine the forwarder or the carrier.
5.3 Any commodity which has been reported ready for dispatch has to be called off immediately, otherwise Moore is authorised to store the same at its own discretion at the expense and the risk of the customer and to charge it as delivered ex factory.
5.4 If the customer gets into default of acceptance or negligently infringes any other duties to co-operate, Moore is authorised to claim compensation for the damage sustained so far, including any additional expenditure. Any further claims remain reserved.
5.5 Moore is authorised to carry out part deliveries.
6. Delivery Period, Delivery Delay
6.1 The agreed delivery periods are only valid on condition that all the details of the order are clarified on time and that all the obligations of the customer, such as the production of the requisite, official, particularly customs and import certificates, the opening of a Letter of Credit or making partial or advance payment as agreed, are complied with on time. They refer to the time of dispatch ex supplier’s works and are regarded as carried out when the readiness for dispatch is reported, in case that the commodity cannot be dispatched on time without any fault of Moore.
6.2 If Moore is prevented from complying with its obligations as a result of unforeseen events or force majeure, which affect Moore or its sub-contractors and which Moore is neither able to avert with appropriate care under the circumstances of the case, e. g. war, interventions on the part of sovereign authorities, internal unrest, natural disasters, accidents, government regulations, other kinds of breakdown and delays in the supply of important operating or primary materials, the delivery period will be prolonged by the duration of the obstruction and a reasonable starting period.
6.3 If the obstruction makes it impossible or unacceptable for Moore to effect delivery, Moore can withdraw from the contract; the customer has the same right, if taking delivery is unacceptable due to the delay. The obstructions for which Moore is not liable within the meaning of these GTCBD, in addition to the cases of item 6.2. GTCBD, always include strikes or lockouts as well.
6.4 Moore assumes liability on the basis of the provisions of the law, as far as the underlying sales contract is a transaction for delivery by a fixed date within the meaning of § 286 par. 2 N° 4 Civil Code or of § 376 Commercial Code. Moore also assumes liability on the basis of the provisions of the law, if the customer is authorised as a result of a delivery delay for which Moore is responsible to assert that his or her interest in the further fulfilment of the contract has ceased to exist.
6.5 Moore further assumes liability on the basis of the provisions of the law, if the delivery delay is based on an intentional or grossly negligent breach of contract for which Moore is responsible; any fault by representatives of Moore or its sub-contractors will be attributed to Moore. Unless the supply contract is based on an intentional breach of contract which is the responsibility of Moore, Moore’s liability to pay damages will be limited to the foreseeable typical damage sustained.
6.6 Moore also assumes liability on the basis of the provisions of the law, if the delivery delay which is Moore’s responsibility is based on the negligent breach of an essential contractual obligation; in this case, however, the liability to pay damages will be limited to the foreseeable typical damage sustained.
6.7 In other respects, Moore will assume liability in case of a delivery delay for each completed week of delay within the scope of a lump-sum compensation for default to the extent of 0.5 % of the value of the goods delivered, yet at most 5 % of the value of the goods delivered.
6.8 Any further legal claims and rights of the customer remain reserved.
7. Defects, Period of Limitation, Instructions for Installation and Assembly
7.1 The customer has to examine the commodity immediately after receipt with regard to existing defects and its proper condition. Obvious defects have to be reported within 7 days after the arrival of the commodity by the customer to Moore.
7.2 Any defects of the commodity arising afterwards have to be reported immediately to Moore. After the acceptance and receipt of the commodity by the customer any notification of defects, which have obviously been identifiable upon acceptance or receipt, will be excluded.
Moore can make its choice between remedying a defective commodity up to two times or subsequent delivery (subsequent fulfilment).
7.3 If subsequent fulfilment fails, above all after a fruitless expiry of a reasonable period of grace granted by the customer, the customer can withdraw from the contract or claim a reduction.
7.4 Claims arising from defects will become time-barred one year after delivery of the commodity, yet fifteen months after reporting readiness for dispatch at the latest.
7.5 As to remedying defects or subsequent deliveries, Moore assumes the same liability for claims arising from defects as for the original delivery; this claim arising from defects will become time-barred one year after expiry of remedying the defect or of subsequent delivery.
7.6 Any further rights arising as a result of defects –above all contractual or non-contractual claims for damages which have not appeared in the commodity itself (consequential damages)– can only be exercised to the extent defined in item 9 GTCBD. This exclusion from liability will not apply in case of fraudulent concealment of the defect or the absence of the assured condition of the commodity, if the assurance has aimed at safeguarding the customer against the damages sustained.
7.7 The above provisions apply accordingly, if other commodity or reduced quantities are delivered instead of those agreed.
7.8 All the claims arising from defects presuppose that the written instructions for assembly and installation of Moore will be complied with just as the specifications on the purpose and the restrictions for use.
8. Reservation of Ownership, Reserved Goods
8.1 The commodity delivered remains the property of Moore (reserved goods) until all the claims have been met, above all the respective balance claims as well, to which Moore is entitled within the scope of the business relations with the customer. This means that ownership will not yet pass to the customer at the time of delivering the commodity to the customer, but that Moore will remain the owner of the commodity until all the debts will have completely been paid to Moore. In case that the customer acts in breach of contract, above all in case of delay in payment, the Moore GmbH is authorised to repossess the commodity. Repossession does not mean a withdrawal from the contract.
8.2 The treatment and processing of reserved goods by the customer are carried out for Moore as the manufacturer, yet without putting Moore under an obligation. The treated and processed commodity is regarded as reserved goods.
8.3 In case of processing, combining and blending the reserved goods with other goods by the customer Moore is eligible for co-ownership in the new article in proportion of the invoice value of the reserved goods to the invoice value of the other used goods. If the ownership of Moore will become extinct by combining and blending, the customer transfers even now the rights of ownership in the new stock or article due to the company to the extent of the invoice value of the reserved goods and stores them free of charge for Moore. The rights of co-ownership of Moore are regarded as reserved goods.
8.4 The customer may only resell the reserved goods in the ordinary course of business, on his or her normal terms and conditions and as long as he or she is not in default in meeting the claims of Moore, provided that he or she agrees a reservation of ownership with his or her customers and buyers and that the claims resulting from the resale will be transferred to Moore in accordance with item 8.5. GTCBD. The customer is not authorised to any other kinds of disposal of the reserved goods. The use of the reserved goods for the fulfilment of contracts for works and services and delivery contracts is also regarded as a resale.
8.5 The claims of the customer arising from the resale of reserved goods are even now transferred to Moore. In case of an allocation of the of resale claim to a current account this applies, to the extent of the same, to the respective balance claims as well. The transferred claims, to the same extent, serve the safeguard of the reserved goods.
8.6 If the reserved goods are resold by the customer together with other goods not delivered by Moore, the claims arising from the resale or the respective balance claims will be transferred to Moore in proportion of the invoice value of the reserved goods to the invoice value of the other goods. In case of the resale of goods, in which Moore has co-owner’s shares in accordance with item 8.3. GTCBD, the proportion of the claim corresponding to its co-owner’s share will be transferred to Moore.
8.7 The customer remains authorised to collect the transferred claims. The authority of Moore to collect the claims itself remains unaffected from this stipulation. Moore undertakes to refrain from collecting the claims, as long as the customer meets his or her financial obligations from the proceeds collected, is not in delay in payment and has, in particular, not filed a petition in bankruptcy or for institution of composition or insolvency proceedings or has not suspended payments. If this is, however, the case Moore can require the customer to disclose the transferred claims and its debtors, to give all the details required for collection, to hand over the pertaining documents and to inform the debtors about the transfer.
8.8 The customer is under no circumstances authorised to any other transfer of claims. This also applies to factoring, which is neither permitted to the customer on account of a collection authority. Moore is, however, prepared to agree to factoring in individual cases, if the proceeds of sale will finally flow to the customer and if the satisfaction of the claims of Moore is not put in danger.
8.9 In the case mentioned in item 2.6. GTCBD Moore is also authorised to prohibit the treatment and processing and the resale of reserved goods. In these cases and in case of breach of the obligations laid down in item 8.4. GTCBD by the customer Moore can also demand the return of reserved goods at the expense of the customer to the exclusion of a right of retention.
8.10 The customer authorises Moore even now to enter or to drive to its company and premises and to take possession of the reserved goods. Taking possession of the goods does not imply a withdrawal from the contract. Any marking of goods for Moore is regarded as taking possession of them. Authorised representatives of Moore may take possession of the goods. The authorised representatives of Moore are required to prove their identity by a written power of attorney.
8.11 If the value of existing securities exceeds the securities, for which cover is provided, by more than 10 % in total, Moore is obliged to release securities up to that amount at the request of the customer and at his or her option.
8.12 The customer is obliged to inform Moore immediately of a seizure or other impairments by third parties (e. g. landlord’s lien).
8.13 Unless a reservation of ownership can be agreed with the customer on the basis of the applicable law, a lien on the commodity, on the processed commodity or on the claim of the customer against third parties will be considered as agreed accordingly. A lien means that the commodity serves up to the full payment of the purchase price as a security for Moore and may, consequently, only be reprocessed or resold by the customer with the consent of Moore.
9. Liability / Damages
9.1 The liability of Moore is limited to damages resulting from negligent harm to life, limb and health, in other respects from wilful or grossly negligent breach of duty, as well as from negligent breach of essential contractual obligations, as far as they jeopardise he achievement of the purpose of the contract.
9.2 The same limitation of liability is applicable to the legal representatives and sub-contractors of Moore.
9.3 Except for damages resulting from negligent harm to life, limb and health and other wilful or grossly negligent breach of duty the liability is limited, in its extent, to the compensation of the typical contractual, foreseeable damage, yet no more than the contract value.
9.4 Mandatory claims under the law remain unaffected.
10. The Place of Fulfilment, Jurisdiction, Applicable Law
10.1 The place of fulfilment are the headquarters of Moore.
10.2 The place of jurisdiction for all lawsuits, including procedures deciding claims arising out of bills of exchange and cheque payment enforcement proceedings, are the headquarters of Moore. Moore can also sue the customer at his or her general place of jurisdiction. Moore is, under German procedural law, also authorised to assert claims for payment by default summons.
10.3 The law of the Federal Republic of Germany exclusively applies to all legal relations between Moore and the customer.
10.4 The validity of the UN Sales Convention is excluded.
10.5 In case of differences between the German and the English version of the ALB/Terms and Conditions the text of the German ALB is exclusively binding.
11. Data Protection, Clause Concerning the General Credit Protection Agency (Schufa)
11.1 The customer agrees that the data in respect of the order will be stored and processed in accordance with the Law on Data Protection of the Federal Republic of Germany, as far as these are required for the settlement of accounts, customer service and the fulfilment of the contract.
11.2 The customer consents to the transmission of data in respect of the contractual relationship by Moore to Schufa- Holding AG or to other approved trade credit insurance and to the request for information about the customer at Schufa- Holding AG, as far as these are required for the safeguard of the justified interests of Moore.
12. Safeguarding Clause
If individual GTCBD or regulations in the GTCBD are or will become ineffective, the other GTCBD or regulations in the GTCBD remain unaffected.