1
Scope of Application
The terms and conditions set forth below apply to all legal
relationships with our customers irrespective of whether our deliveries
of goods or services originate from a purchase agreement, a contract for
work, or a work performance contract. They apply equally to subsidiary
services provided by our company such as technical instructions,
information and the like. Furthermore, they provide the basis for all
future business relationship even if they are not expressly agreed
again.
2 Contrary Stipulations
Customer stipulations which are contrary thereto shall not be binding
upon us even if we do not expressly repudiate them unless we have
expressly acknowledged them in writing.
3 Execution of the Contract
1 If customer so desires, we shall be pleased to submit a written offer.
We shall be bound by such offer for four weeks after it has been
received by customer, if not otherwise specified in the quotation.
2 If customer places an order without our having made him a definite,
binding offer, the contract shall be deemed to have been made when we
accept customer's order with a written acknowledgement thereof.
3 Should our offer or our acknowledgement of order be based on technical
data provided by customer (pictures, drawings, weights, dimensions,
etc.), then our offer shall be deemed binding only if the contract can
be performed on the basis of the technical data provided by customer.
If, after execution of contract, it appears that the contract cannot be
performed in accordance with the technical data provided by customer,
then we shall be entitled to withdraw from the contract unless customer
is prepared to accept an alternative technical solution proposed by us
and to be bear any additional costs thereby incurred. In the event of
such withdraw from the contract we shall be entitled to require customer
to pay lump-sum damages of 20 % of the net volume of the order.
4 If prior to placement of order, sketches, drafts, samples or similar
advance work are ordered, then we may charge customer for these at cost
if no final order is placed. Such drafts, samples, etc. shall remain the
property of our company.
4 Price and Payment
1 Our prices are quoted net, ex works. When they are invoiced, value
added tax shall be added thereto at the currently applicable rate. Costs
of packaging, shipment, freight, carriage, customs and any other
incidental charges shall be borne by customer. Should customer desire
transportation insurance, then we are prepared to take out such coverage
on its behalf at its expense provided it commissions us to do so in
writing.
2 Remuneration for our services shall fall due immediately on delivery
even after delivery of an instalment. A period of fourteen days after
receipt of invoice shall be allowed for the sum set forth in the
invoice. If payment fails to be made by due date, we are entitled to
charge interest on arrears at a rate of 2 % above the current basic
interest rate of the European Central Bank. The right to claim interest
after due date and any other damages due to default shall not be
affected thereby.
3 In the case of contracts with an agreed delivery date of more then
four months, we reserve the right to raise prices in keeping with the
actual cost increases which have occurred under collective wage tariff
agreements or in costs of materials.
4 An offset against or withhold because of other claims is excluded.
5 Bills of exchange and cheques shall only be accepted with a view to
payment. Discounting and collection costs shall be borne by customer.
5 Scope of Delivery and Delivery in
Instalments
1 The scope of delivery shall be as set forth in our written offer or
acknowledgement or order. Ancillary covenants and amendments require our
written confirmation.
2 We reserve the right to make delivery in instalments within reason.
6 Delivery Lead Time
1 We are equipped to make delivery within a reasonable period of time
following receipt of all materials and feedstock's. Despite careful
planning, we are not always in the position to influence the date of
delivery of such required materials. The specified delivery lead times
must therefore remain non-binding.
2 The delivery lead time shall commence on the date on which the
acknowledgement of order has been dispatched, but not before customer
has provided the documents, approvals, permits required and not before
receipt of any agreed advance payment. The delivery lead time shall be
deemed to have been adhered to, if the goods to be delivered have left
the works or notice has been given of their readiness for shipment.
3 The delivery lead time shall be extended for a reasonable period if
events occur in connection with industrial strife, in particular strikes
and lockouts, or if unforeseen impediments occur which are beyond the
control of our company, to the extent that such impediments can be
demonstrated to exercise a substantial influence on the completion or
the delivery of the ordered goods. This shall apply in cases where the
aforementioned circumstances occur to our sub-contractors. The
aforementioned circumstances shall not be deemed our responsibility even
if they occur during an already existing delay. We shall notify our
customer of the commencement and the end of such impediments without
delay.
4 Should shipment be delayed at customer's request, then, beginning one
month after notification of readiness for shipment, we shall charge
customer for expenses incurred for storage, in the case of storage at
our works at least 0,5 % of the invoiced amount for each month of
storage. After setting a reasonable period of grace and following its
expiry without effect, we shall have the right to dispose of the ordered
goods in some other manner and to make delivery to customer with a
reasonably extended delivery lead time.
7 Transfer of Risk
After expiry of the period during which we hold goods ready for delivery
or upon handing over the shipment, risk of the goods perishing or being
impaired shall be transferred to customer, and this even in cases when
delivery is made in instalments.
8 Warranty
1 As a rule we do not warrant any special characteristics in delivered
goods unless a written note to this effect has been made in our letter
of quotation or the acknowledgement of order. For defects in the
delivered goods as a consequence of a circumstance prior to transfer of
risk we give warranty for twelve months - in the case of use in
multi-shift operations, six months - from delivery date, in accordance
with the provisions set forth below.
2 Obvious defects must be reported in writing within one week after
receipt of the goods. |
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3
In the event of a warranty claim, customer may require a reduction in
the price of the goods (abatement) or the cancellation of the contract
(redhibition) only if our efforts to repair or provide a replacement
have failed totally or if we refuse to provide the same. To permit us to
make all the repairs and deliveries which appear necessary to us,
customer shall grant us a reasonable period of time and opportunity.
4 We shall bear the expensed incurred for the purpose of providing
repairs or replacements, in particular the costs of transportation,
travel, work and materials, if customer's complaint proves to have been
justified. We are permitted to have the repairs or replacement provided
by technicians or assistants of our choice. If the costs of repairs or
replacement are increased by the fact that the delivered goods after
delivery were brought to a place other than customer's domicile or
branch, then we shall not bear these additional costs. However, to the
extent that, in order to accommodate customer, we are prepared to
perform such repairs or provide replacements at a place other than at
customer's domicile or branch then we can require customer to pay such
additional expenses incurred by us if it appears that there were no
defects in the delivered goods for which we can be held responsible.
5 Should customer or a third party make improper changes or repairs
without our prior consent, then we give no warranty for any consequences
thereof. No warranty is given for the consequences of unsuitable or
improper use, in particular defective assembly or commissioning by
customer or a third party, natural wear, defective or careless
treatment, unsuitable lubrication of fuels, etc., unless they are due to
a fault on our part.
6 All further warranty claims are barred, in particular on grounds of
damages claims. Liability for consequential damages / pecuniary losses
is barred. This shall not apply in cases of malicious intent, gross
negligence, minor negligence in breach of contractual obligations or the
lack of warranted characteristics where warranty is mandatory.
9 Liability for Subsidiary Obligations
1 If through a fault on our part, as a consequence of the omission of
appropriate suggestions or advice or of defective suggestions or advice
made or given prior to or after execution of contract, or in other
subsidiary contractual obligations - in particular, in the instructions
for operating and servicing the delivered goods - the delivered goods
cannot be utilised by customer as contractually stipulated, then barring
all further claims, customer may apply the provisions of section 8
analogously.
2 With all deliveries, we make the Manufacturer' Declaration along the
lines of EC Directive 89/392/EEC. This Manufacturer's Declaration shall
be deemed an integral part of the present contract.
10 Supplier's Right to rescind the
Contract
If, after execution of the contract, is comes to our knowledge that
customer is in a bad financial position, then, after setting a
reasonable period of grace, we can require that we be given security for
what is due from customer in a manner customary in commercial dealings.
Should customer fail to give us the required security within the set
period of grace, then we shall be entitled to withdraw from the contract
or to claim damages.
11 Reservation of Title
1 We reserve property in the goods delivered by us until all our claims
from the order and any other existing of future claims have been
satisfied in full (extended reservation of title). If customer pays by
bill of exchange or cheque, the claim from the order and delivery shall
remain in force until customer has redeemed the bill. If the claim is
entered on a current account, the extended reservation of title applies
to the respective balance.
2 Reservation of title is extended to all customer claims which the
latter acquires from the resale of the delivered goods to third parties.
The full amount of such claims shall be assigned to us. Customer shall
assign these future claims to us as security at date of origin thereof.
We accept this assignment.
3 Customer may neither pledge nor assign the delivered goods as
security. In the event of levies of execution, attachment or any other
dispositions by third parties, customer shall inform us thereof without
delay.
4 Should customer process the delivered goods so that property in the
delivered goods perishes or if customer processes goods which have only
been machined by us, then such processing shall be deemed performed on
our behalf in such a manner that we acquire a share of property in the
new goods in a proportion equal to the purchase of the delivered goods
or manufacturing value of our processing work on the delivered goods
with respect to the total sales value of the new goods. This processing
clause is extended to all claims acquired by customer through the resale
of the goods subject to this processing clause in the proportion set
forth therein. Customer herewith assigns to us the claims from such
resale of these goods in proportion to the amount set forth in this
processing clause. We accept this assignment.
5 Our rights to surety do not prevent customer from disposing of the
goods in which title is reserved or the claims assigned to us by way of
security in the course of its normal business operations. Normal
business operations no longer exist if customer defaults on payments to
us by more than one month beyond payment deadlines, if its bills are
dishonoured, payments cease to be made and action in bankruptcy is filed
against it. In this case, upon our request, customer shall notify its
customers of the assignment, shall desist from collecting such claims
and shall permit us to perform such collection. Customer shall therefore
disclose to us the addresses of its customers the first time that we
request it to do so.
6 The submission of reservation of title claims and the attachment of
the delivered goods by us shall not be deemed as cancellation to
contract to the extent that this is permitted by law.
7 On customer's request, we are obliged to release goods of our choice
from reservation of title insofar as their realisable value of the
security given to us exceeds the secured claim by 20%. The realisable
value of the securities is calculated as follows:
a. Goods are to be shown at their respective purchase price.
b. Claims are to be shown at 80 % of their nominal value.
12 Concluding Provisions
1 Place of performance and court of jurisdiction shall be Hanover for
all litigation arising between the parties under the contractual
relationship, if customer is a Vollkaufmann (i.e. a business registered
in the German Commercial Register), a legal entity under public law or a
special government entity under public.
2 Our contractual relationship and all other legal relationships to our
customers shall be governed by the laws of the Federal Republic of
Germany.
3 Should any provision of the present terms and conditions of delivery
or a provision contained in any other agreement be or become void, this
shall not affect the validity of any other provision or agreement.
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