General terms and conditions
All business transactions with YSHIELD GmbH & Co. KG (Personally liable shareholder: YSHIELD Verwaltungs GmbH, Business manager: Danner Christian), hereinafter referred to as YSHIELD are executed solely under the following terms and conditions; they shall be considered accepted when the order is placed and at the latest upon acceptance of delivery. Any agreement shall not take effect in the event there is an objection to the validity of these terms in response to an offer made by YSHIELD.
Without the express written approval of any deviating conditions for the customer made by YSHIELD, such conditions shall not be part of the agreement even if YSHIELD does not explicitly object.
Brochures, drawings and other illustrations or descriptions do not constitute a warranty of quality. Written order confirmation shall prevail for the content of the agreement and any deviations become effective only upon written confirmation. All offers are subject to change.
All prices apply to delivery without installation or assembly ex works, excluding packaging. Otherwise, (in general in the case of ongoing business relations) the price is calculating with the prices valid on the day of delivery.
Shipment size, use
YSHIELD reserves the right to undertake partial deliveries on a reasonable scale and a 10 % variance from the shipment quantity shall be deemed in conformance with the agreement.
In the case of call orders YSHIELD is authorised to procure materials for the entire order and produce the entire quantity ordered immediately. Changes requested by the customer can not be considered after the start of order processing unless that right has been explicitly agreed in writing.
YSHIELD may refuse delivery if the customer has open liabilities, even if they are from previous orders.
If, after conclusion of agreement there appear reasonable doubts concerning the credit-worthiness of the customer, YSHIELD is authorised to make the delivery contingent on payment of cash in advance or withdraw from the agreement. The entitlement to payment for services already provided shall remain unaffected.
Delivery times are only binding if expressly agreed in writing. The term for delivery begins with the date of order confirmation, but not before the customer has submitted all required documents. If a deposit has been agreed upon, the term for delivery shall not begin before the deposit is paid.
The delivery time shall be deemed met if the merchandise leaves the production facility before it expires or the customer has been notified the merchandise is ready for shipment.
If the merchandise is not accepted by the customer, the customer will be invoiced for costs resulting from the storage of the merchandise after notification of readiness for shipment or at least 1 % of contract value. In addition, YSHIELD is entitled to otherwise dispose of the merchandise after a reasonable period.
If YSHIELD is prevented from meeting its shipment obligations due to circumstances of force majeure, operational disruptions, delays in delivery or non-delivery of essential raw materials and supplies, labour shortages, strikes or labour disputes, the delivery term is extended to a reasonable extent, at least for the duration the disturbance.
If there are unreasonable delays YSHIELD reserves the right to withdraw from the agreement completely or in part.
If the customer can verify damages caused by late delivery he can claim not more than 5 % of the value of the merchandise in the late shipment. This does not apply if it is proven YSHIELD acted with intent or gross negligence.
Transfer of risk and cost bearing
The delivery of merchandise ordered from YSHIELD is at the risk and expense of the customer.
The risk of accidental destruction and accidental deterioration of the merchandise is in any event transferred to the customer with the handing over of the merchandise to the shipping agent and no later than when the merchandise leaves the premises of YSHIELD, regardless of the obligation to provide freight. If the transfer to the shipping agent is delayed for reasons customer is responsible for, the risk is transferred to the customer one week from the date of the notice of readiness for shipment.
YSHIELD is not obliged to insure the merchandise. At the written request of the customer, YSHIELD will insure the merchandise at the customer’s cost for storage damage, breakage, transport damage and fire damage.
The method of dispatch shall be left to YSHIELD. Special customer requests can only be considered if they have been expressed when placing the order and YSHIELD has confirmed in writing. The additional cost for special delivery requests shall in all cases be borne by the customer. Supplementary and additional orders cannot be considered special requests, but are deemed new orders for which YSHIELD shall issue a separate order confirmation. Calculating freight is also a separate process.
Terms of payment
Payments are to be transferred to one of the bank accounts stated in the YSHIELD invoice without any costs for the recipient.
The customer must pay YSHIELD invoices within two weeks of billing (invoice date). If the term of payment is exceeded the customer is considered in default and will be required to pay statutory default interest. For customers not considered consumers pursuant to § 13 German Civil Code (BGB), this is eight 8, otherwise 5 percentage points above the base rate. YSHIELD reserves the right to claim higher damages.
In the event of payment by invoice, YSHIELD shall only grant a 2 % discount on the gross invoice total if this is expressly stated in writing on the invoice.
Payments by cheque or bill of exchange are accepted only on account of performance. YSHIELD will charge the customer for all associated costs
The customer may only offset against YSHIELD claims or make use of the right of retention if the counterclaims are acknowledged or legally binding.
Retention of title
The delivered merchandise remains the property of YSHIELD until all claims YSHIELD has against the customer have been met. In an ongoing business relationship retention of title applies to all deliveries until full payment of the current account balance has been made. Als Käufer gelten auch dem konkreten Kunden zuzurechnende Konzernunternehmen. Group companies affiliated with the specific customer may also be considered a customer.
The customer may sell the merchandise only in the normal course of business transactions until such time as the current account balance is paid. Pledges and transfer by way of security are expressly excluded from the customer’s right of disposal. If the merchandise is resold the customer has an obligation to YSHIELD to agree to an additional retention of title with his customer.
The customer shall relinquish claims against its customers arising from the resale of the property subject to a retention until complete fulfilment of the rights cited in point 1. The customer is obliged to disclose all information and to hand over all documents that YSHIELD requires to assert the rights of the prolonged retention of title to the customer of the customer.
If the value of securities pledged to YSHIELD exceeds outstanding claims against the customer pursuant to point 1 by more than 20%, YSHIELD agrees upon the customer‘s request to release securities exceeding this amount. YSHIELD selects the securities to be released. For the assessment of outstanding claims YSHIELD has against the customer and the securities provided, the nominal purchase prices according to YSHIELD’s invoice and the customer’s nominal purchase price prices from his invoices to his customer shall prevail.
YSHIELD must be informed immediately of any interference with the merchandise subject to retention of title by third parties, for example pledges or confiscation. All costs associated with such an intervention that YSHIELD incurs will be reimbursed by the customer.
If YSHIELD takes back merchandise subject to retention of title in accordance with the collateral agreements cited above, crediting of the outstanding claims will be in the nominal amounts cite indicated in the sales invoices. YSHIELD, however, reserves the right to assert claims separately for damages, in particular for lost profits.
YSHIELD is not liable for damages resulting from improper use of products. The customer is responsible for ensuring that the suitability of the product is provided in terms of the use or further processing of the materials and chemical additives. The customer is obliged to establish the suitability of the merchandise on the basis of sample processing.
The customer agrees in the case of further processing and transfer of the product to clearly state to individual customers the scope of permitted use and the hazards of improper use.
YSHIELD is exempted from any claims by third parties.
Any claims with regard to the quantity and/or quality of a delivery, provided they are considered open defects must be reported immediately (within one week after receipt of the merchandise) to YSHIELD.
In the even there are concealed defects, written claims must be made promptly upon their detection, but no later than one year after the arrival of the merchandise; the statutory limitation periods remain unaffected. The burden of proof that there is a hidden defect lies with the customer. If the customer is a consumer according to § 13 BGB then § 476 BGB applies.
For legitimate claims a rectification of a defect or replacement is provided at the customer‘s option, provided the customer is a consumer as defined by § 13 BGB, otherwise the choice is made by YSHIELD. Should YSHIELD be unable to provide rectification of a defect or replacement or pursuant to § 439 section 3 BGB entitled to refuse rectification of a defect or replacement or if YSHIELD is responsible for the delay of a rectification of a defect or replacement exceeding a reasonable period, or if rectification of a defect or replacement fails twice, the customer shall be entitled at his discretion, to withdraw from the agreement or to demand a reduction of the purchase price.
The customer is only entitled to take legal recourse against YSHIELD if the legal requirements are met. Therefore, there is no recourse if the customer has made agreements with his customer which go beyond the statutory claims for defects within the framework of a guarantee or as a gesture of goodwill.
A one year warranty period shall apply if the legal provisions on the sale of consumer goods (§§ 474 et seq. BGB) particularly with regard to recourse liability (§§ 478 et seq.) do not apply because the statutory requirements have not been met.
The legal consequences of a breach of the commercial obligation of examination and notification of defect (pursuant to § 377 German Commercial Code HGB) remain unaffected.
Damage claims of the customer for whatever legal reason, especially due to the breach of obligations arising from the debt relationship or from unauthorised action, shall be excluded, provided that no compelling legal liability exists in accordance with product liability law, in the case liability for intentional or grossly negligent behaviour, claims arising from death and injury to body and health or in case of breach of fundamental obligations in the agreement.
The claim for compensation for the infringement of essential agreement commitments is, however, limited to agreement-typical, foreseeable damage unless a limitation is excluded for other reasons due to intentional or grossly negligent behaviour as well as claims arising from death and injury to body and health.
Returns that are not based on a customer’s right of cancellation under its warranty rights shall be accepted only with prior consent of YSHIELD. If this has not been granted, YSHIELD may refuse to accept returned merchandise or return the merchandise at the expense of the party that shipped the goods.
When faultless merchandise is authorised for return and provided YSHIELD is not responsible for the return of the merchandise the price valid at the time of invoicing is used for calculating repayment and the freight and processing costs are deducted.
YSHIELD does not grant a warranty that exceeds the statutory warranty.
All YSHIELD documents are copyright protected. These documents may be disclosed to third parties only after prior written consent. Documents that are part of a quotation must be returned to YSHIELD if requested, especially if no agreement is concluded.
YSHIELD provided by the customer receives documents, YSHIELD is entitled to make documents it has received from the customer available to third parties that are commissioned or should be commissioned to provide supplies or services.
YSHIELD is entitled to store in an automated file and process for business processes the personal data received on the customer regarding the business relationship, regardless of whether this data was provided by the customer himself or by third parties, in accordance with the German Data Protection Act.
The customer agrees to the processing of its personal data that becomes known to YSHIELD directly or indirectly via third parties.
Place of fulfilment, court of jurisdiction
The place of fulfilment and court of jurisdiction is the headquarters of the company YSHIELD provided the party to the agreement is a qualified merchant, a legal entity under public law or a public-law special fund. German law shall apply. Application of the Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods - both dated July 17, 1973 - and of the UN Agreement on the Sale of Goods of April 11, 1980 shall be excluded.
* All prices are gross prices which include tax, in addition shipping costs. Copyright © 2016 YSHIELD GmbH & Co. KG