TERMS AND CONDITIONS OF SALE, DELIVERY AND PAYMENT
2. November 200
§ 1 Applicability
(1) All deliveries, services and offers made by the Seller shall exclusively be governed by these Terms and Conditions. They shall apply to all future business relations, even if this is not expressly agreed upon. These Terms and conditions shall be deemed accepted at the latest at the time delivery of goods or services has been made. Acceptance by the Buyer incorporating references to the Buyers’ Terms and Conditions or Terms and Conditions of Purchase are hereby contradicted.
(2) Any agreements made between the Seller and the Buyer in respect of completing this contract are to be made in writing.
(3) Unless otherwise agreed, Intercoms 1990, including amendments thereto effective at the contract date, apply for the interpretation of the standard commercial terms.
(4) Offers are valid for the country in which the enquiring or ordering party is located. The enquiring or ordering party holds the Seller harmless for any disadvantages and liabilities which arise as a consequence of using the goods or services supplied outside the country for which the offer is valid.
§ 2 Offer and acceptance
(1) Offers made by the Seller are subject to change and non-binding. Declarations of acceptance and all orders require written confirmation or confirmation by E-Mail or fax to be legally valid.
(2) Drawings, illustrations, weights and measures or other performance data are only binding when expressly agreed in writing.
(3) The Seller’s sales employees are not authorised to enter into oral side agreements or make verbal assurances that go beyond the scope of the written agreement.
§ 3 Prices
(1) Provided that nothing different has been stated, the Seller shall honour the prices contained in its offers for a period of 30 days after the date of the offer. Otherwise, the prices stated in the Sellers order confirmation plus any Value Added Tax which may be legally due shall be applicable. Additional goods delivered and services provided will be invoiced separately.
(2) Unless otherwise agreed, prices stated are ex works and exclude packaging and freight costs.
(3) If a delivery date is agreed later than 4 months after the execution of an agreement, Seller reserves the right to change his prices accordingly, if cost increases occur on account of new collective bargaining agreements or changes in the price of materials.
(4) Unless otherwise agreed prices are stated FOB German port or DAF German border respectively, standard packing included.
(5) Prices CIF are exclusive of costs for discharge, lighterage and landing, port and quay charges incurred at the port of destination.
(6) Import duties, consular fees and other taxes, levies, charges and related costs which result from legislation originating from outside the Federal Republic of Germany are borne by the Seller. Prices agreed for deliveries including duties or other charges include duties and charges at the rates applicable at the date of the offer. Actual costs will be charged. Value added taxes will be invoiced when applicable.
(7) The supplier is obliged to comply with foreign packaging, weights and measures and duty requirements provided these are confirmed to the supplier in good time. Additional resulting costs are borne by the Buyer.
(8) Should, at the time payment is due, it not be possible to make payment from the country of the payer, the Buyer of the goods remains obliged to ensure that payment of the current value of the liability into a bank account in this country is made by the due date. A loss arising as a result of deterioration in the value of a currency used for payment which is not the agreed currency will be borne by the Buyer and made good by subsequent additional payment.
§ 4 Delivery and delivery date
(1) Delivery dates or periods stipulated for delivery are non-binding unless expressly agreed otherwise. Agreements must be in writing. Delivery periods begin once all technical issues are resolved. Further, the customer is obliged to fulfil all of his obligations in good time.
(2) Should the concerning contract be a transaction for fixed delivery in accordance with Sec. 286 paragraph 2 no. 4 BGB (German Civil Code) or Sec. 376 HGB (German code of commercial law) the Seller shall be liable in accordance with the legal provisions. The same applies if the Buyer is entitled to assert the discontinuance of his interests in the contract after a delay of delivery for which the Seller is responsible. In this case, the liability of the Seller shall be limited to the predictable, typically occurring amount of damage if the delay of delivery is not the result of deliberate breach of contract on the part of the Seller, whereby a fault of the Seller’s representatives or agents is assigned to the Seller.
The Seller is liable to the Buyer for delivery delay in accordance with the legal provisions when such delay results from gross negligent or negligent breach of contract, whereby a fault of the Seller’s representatives or agents is assigned to the Seller. The liability of the Seller shall be limited to the predictable, typically occurring amount of damage if the delay of delivery is not the result of deliberate breach of contract on the part of the Seller.
(3) The Seller shall not be liable for delays in delivery and performance caused by force majeure or by other than temporary events which may hinder or obstruct delivery by the Seller, in particular strikes, lockouts, official measures etc., also to the extent that such circumstances occur among the Sellers’ suppliers or their suppliers. On occurrence of such delays the Seller has the right to extend the delivery period for the period of the delay, and in addition, a reasonable additional period to allow for re-start or to withdraw in whole or in part from the contract because of the unfulfilled part of the contract.
(4) If the delay persists for longer than three months, then the Buyer shall be entitled, after setting a reasonable further or final deadline, to withdraw from the contract in respect of the unfulfilled part. If the delivery time is extended, or if the Seller is released from its obligations, the Buyer shall not have the right to any claim for damages. The aforementioned provisions may only be applied by the Seller if the Seller has informed the customer without delay.
(5) Where the Seller is responsible for the non-fulfilment of the agreed delivery date to which it is bound or is delayed in delivery, the Buyer shall be entitled to claim compensation for delayed delivery amounting to 0.5% of the purchase price for each completed week up to a total of 5% of the invoice value of the deliveries or services affected by the delay. The Buyer shall not have recourse to any further claims unless the delay is the result of at least gross negligence on the part of the Buyer.
(6) The Seller is entitled at all times to make part deliveries of goods and services, unless the part delivery of goods and services is not in the interests of the Buyer.
(7) Fulfilment by the Seller of its delivery and performance obligations requires the timely and correct fulfilment of the Buyer’s obligations.
(8) If the purchaser defaults in accepting delivery, then the Seller will be entitled to claim a compensation for the damage incurred; the risk of unintentional deterioration or unintentional destruction is transferred to the Buyer as of the start of the non-acceptance.
§ 5 Passing of risk
The risk passes to the Buyer as soon as the consignment is delivered to the person performing transportation or as soon as it has left our warehouse for shipment. If dispatch is delayed at the Buyer’s request the risk will pass to the Buyer on the notification of the readiness of the consignment for dispatch.
§ 6 Rights of purchaser in the event of defects
(1) The products are delivered free from manufacturing and material deficiencies. The period of notice for validity of claims for deficiencies lasts one year from the delivery of the product, unless the defect was concealed by the Seller with intent to deceive. In such circumstances the remedies provided under legislation apply.
(2) If the Seller’s operating or maintenance instructions are not complied with by the purchaser, or if changes are made to the products, or if parts are replaced, or expendable materials used, which do not comply with the original specifications, then all claims relating to product defects are void, unless the purchaser is able to disprove a duly substantiated assertion to the effect that said defect only resulted from one of the aforementioned circumstances.
(3) Warranty claims shall be subject to the Buyer having fulfilled the inspection and notification obligations properly in accordance with Sec. 377 HGB. The customer must report any deficiency to the Seller’s customer service department without delay and at the latest within one week after receipt. Defects which in spite of a thorough search cannot be discovered within this time must be reported in writing by the Buyer as soon as they are discovered.
(4) If the Buyer should advise the Seller of a defect the Seller shall, at its own discretion and cost, demand that:
a) the defective part or equipment be returned to the Seller for repair and subsequent return to the Buyer;
b) the Buyer keep the goods available while the Seller’s service technician is sent to the Buyer to carry out the repair.
If the Buyer demands that the repair work be carried out at a certain location determined by the Buyer, the Seller may accommodate this request. Replaced parts will not be charged; however, the Seller will charge for labour hours and travelling expenses at the Seller’s standard rates.
(5) If the repair work should fail to achieve the desired result after a reasonable period, the Buyer may, at his discretion, demand a discount from payment or withdraw from the contract.
(6) If the Buyer demands that the Seller investigate claims for and repair of defects and it is subsequently proved that the goods are free of defects, or that the Seller is not responsible for defects found, the Seller reserves the right to invoice the Buyer for the cost of investigating the defect claim and/or repairs.
(7) Liability of the Seller for normal wear and tear is excluded.
(8) Claims against the Seller on grounds of defects may only be asserted by the purchaser and are non-transferable.
§ 7 Spare parts
The Seller shall be obliged to supply spare parts at the prices for any equipment sold for a period of 5 years from delivery at the price stated in the respective spare parts price list in force at that time.
§ 8 Reservation of title
(1) Until all claims have been settled (including all net claims on current account balances) to which the Seller is entitled from the Buyer now or in the future for any legal reason, the Seller shall be granted the following security that shall be released on request at the discretion of the Seller as soon as the security’s value exceeds 20% of the claims.
(2) The goods shall remain the property of the Seller. Any processing or alteration shall be made for the Seller as the manufacturer without incurring any duties on the part of the Seller. If the Seller’s (part) ownership should be eliminated through combination of the goods with the property of another party, the Buyer agrees herewith to assign the corresponding part of the object by value percentage (value as per invoice) to the Seller. The Buyer shall maintain safe keeping of the (part) property of the Seller without charge. Goods to which the Seller is entitled (part) ownership are referred to henceforth as reserved goods.
(3) The Buyer is entitled to process and sell reserved goods in ordinary business as long as the Buyer is not overdue on payment. Liens and assignments on the goods are not permitted. The Buyer shall, for the purposes of security, herewith assign all claims resulting from further sale or any other legal reason with reference to the reserved goods (including all claims on current account balances) to the Seller. The Seller shall authorise the Buyer to collect all claims assigned to the Seller in the Buyer’s name and on the Buyer’s account. This authorisation may be revoked, but only if the Buyer does not fulfil payment obligations in the proper manner.
(4) If any third party should launch any claims to reserved goods, especially liens, the Buyer shall inform the third party of the Seller’s ownership of the goods and immediately advise the Seller for the Seller to be able to exercise its own ownership rights to the goods. If the third party is not in a position to compensate the Seller for the costs of settlement in and out of court, the Buyer shall be held liable for these costs.
(5) If the Buyer should act in breach of the contract, in particular through overdue payment, the Seller shall be entitled to withdraw from the contract and demand the return of the reserved goods.
§ 9 Payment
(1) Unless otherwise agreed, payment is due immediately after receipt of the invoice from the Seller and is payable strictly without any deduction. Discounts for early payment are only permitted where expressly agreed in writing.
(2) The Seller is entitled to initially set debts off against older debts, irrespective of purchaser stipulations which are to the contrary, and will inform the Buyer of how the funds have been applied. In case other costs and interests have already arisen, the Seller has the right to use payments first to cover these costs, second to cover interests, and third as payment for the goods supplied.
(3) A payment only counts as effected once the Seller can make use of the amount that the Buyer has paid. If payment has been made by check, the payment is considered as made as soon as the check has been cashed in and any cancellation period has expired.
(4) Should the Buyer be in default in respect of payments due the Seller has the right to calculate interest at 8% above the normal basic interest rate as a general allowance for damages. The amounts are lower when the Buyer can evidence that actual damages are lower; the Seller is permitted to evidence higher damages.
(5) Should the Seller gain knowledge of circumstances which give cause to doubt the credit worthiness of the purchaser, in particular when a cheque has not been accepted or the Buyer ceases making payments as due, or the Seller gain knowledge of circumstances which give cause to doubt the credit worthiness of the purchaser then the Seller is entitled to declare that the complete remaining debt be due even if it has accepted cheques. The Seller is further entitled in such circumstances to require advance payments or collateral.
(6) The Buyer is only allowed to withhold net receivables against purchase liabilities, withhold payment or deduct claims if his claims have been legally recognised or are indisputable. However, the Buyer is also entitled to retention of payment on account of other counterclaims arising from the same contractual relationship.
§ 10 Design changes
The Seller reserves the right to make design changes at any time, he is not, however, obliged to make any such changes to products which have already been supplied.
§ 11 Patents
(1) The Seller will hold the Buyer and its customers harmless from damage or loss as a result of infringements of copyrights, trademarks, or patents, except in such cases where the drawings for goods supplied were provided by the Buyer. The Seller’s hold harmless obligation is limited to the foreseeable loss.
In addition, the hold harmless obligation is that the Seller may lead the conduct of legal proceedings and that the legal claim concerns exclusively the construction of the goods delivered by the Seller and is not attributable to connection with or use with other products.
(2) The Seller is entitled to release itself from the obligation in paragraph (1) by
a) purchasing the required licences for the patents allegedly infringed
b) providing the Buyer with an amended product or a part which has been amended the effect of which, when substituted for the product or part, eliminates the infringement.
§ 12 Confidentiality
Unless otherwise expressly agreed in writing, information provided to the Seller in connection with the order is not confidential information.
§ 13 Liability
(1) The Seller shall not accept any claims to compensation for damages regardless of the type of non-fulfilment of obligations, including unauthorised activity, unless intent or gross negligence is involved.
(2) In breach of major contractual obligations, the Seller shall accept liability for every case of negligence, but only up to the foreseeable level of damages. Claims to loss of earnings, expenses saved, from claims from third parties as well as other indirect and consequential damages may not be launched unless the claim involves qualities guaranteed by the Seller that were specifically intended to protect the Buyer from such damages.
(3) The exclusions in the liability limitations described in preceding paragraphs (1) and (2) do not apply to claims arising from deceptive behaviour of the Seller, liability applying to guaranteed qualities, for claims according to German product liability law, or damage to health, injury to persons, or death.
(4) To the extent that the liability of the Seller is excluded or limited applies equally to the Seller’s staff, employees, representatives and to the Seller’s agents.
(1) The law of the Federal Republic of Germany shall apply to these terms of business and to the entire legal relationship between the Buyer and the Seller. The terms of the UN Convention on the International Sale of Goods (CISG) shall not apply.
(2) Inasmuch as the Buyer is a business, a legal entity according to public law or is represented by publicly owned assets, jurisdiction relating to any dispute indirectly or directly arising from the contractual relationship shall be the registered address of the Seller. The Seller is however entitled to take legal action against the Buyer at the registered residential or business seat of the Buyer.
(3) Should any provision contained in these terms and conditions of sale, delivery and payment or reached by any other agreement be or become invalid, this shall not affect the validity of all of the remaining provisions or agreements.