General Terms and Conditions of Sale and Delivery
§ 1 Scope • Conclusion of Contract
1. Our terms and conditions of sale and delivery apply only to enterprises (section 14 BGB). They also apply to all future transactions with the purchaser.
2. Only our terms and conditions of sale and delivery apply. Conditions of the purchaser, which conflict with or differ from our terms and conditions of sale and delivery, will not be recognized; this also applies if the contract is performed without reservation.
3. All agreements made between us and the purchaser for purposes of carrying out this contract must be made in writing in this contract or in an amending contract.
4. Insofar as nothing else arises from these conditions, the terms and definitions of INCOTERMS 2000 apply.
§ 2 Offer • Offer Documentation
1. Documents pertaining to the offer such as drawings, weight details etc. are only approximately definitive, unless they are expressly designated as binding. Prices are without engagement and cost estimates are not binding.
2. In the case of cost estimates, drawings and other documents, the supplier reserves the rights of ownership and copyright. These may only be made available to third parties with our consent.
3. If the order is deemed to be an offer pursuant to section 145 BGB (German Civil Code), we are entitled to accept it within 15 working days.
4. Details within the meaning of paragraph 1 and also in public statements by us, by the manufacturer and his/her qualified assistants (section 434, 1, 3 BGB) only become part of the performance description when expressly referred to in this contract.
§ 3 Prices • Terms of Payment
1. The scope of the delivery is defined by the supplier\'s written order confirmation. Collateral agreements and alterations require written confirmation by the supplier.
2. Our prices are ex works, exclusive of packaging. In the case of shipments with a net goods value over € 1.200 we deliver free of charge to address of buyer including packaging.We only accept orders with a minimum order value of € 1.200.
3. The prices correspond to the cost situation at the time of concluding the contract (date of order confirmation). If the cost factors, e.g. important collectively bargained wages or materials prices, change before the agreed time of delivery, we are entitled to increase prices up to the amount of the higher costs actually incurred.
4. The deduction of cash discount requires a special written agreement. Prompt payment as agreed determines the granting of cash discount.
5. The statutory value-added tax is not included in our prices; it will be separately stated in the invoice at the statutory level on the day of invoicing.
6. All taxes and other charges incurred for our goods and services in the country of receipt are for the account of the purchaser. In the case of shipments within the European Union, the purchaser is required to inform us of his/her VAT registration number when placing the order. If he/she does not do so or does so incorrectly, he/she bears the resulting damage to the supplier.
7. Cheques will only be accepted on agreement and only in lieu of performance and on condition of their discountability. Costs and charges are borne by the purchaser, discount charges will be calculated from the due date of the invoice onwards. No guarantee is undertaken for the timely presentation of the cheque.
8. The purchaser waives the assertion of a right of retention arising from prior or other transactions in the case of current business relations. Setoff against counterclaims is only permissible insofar as they are uncontested or legally established.
§ 4 Transfer of Risk• Supply of Materials
1. Risk passes to the purchaser at the latest with the delivery of the delivery items to the persons entrusted with carrying out their dispatch. If dispatch is delayed owing to circumstances for which the purchaser is responsible, the risk passes to the purchaser from the date on which the shipment is ready for dispatch.
2. In the cases of defective, incorrect or delayed supply of materials, the purchaser bears the costs and damage thus caused to the supplier.
§ 5 Execution of Delivery • Delivery Time • Cooperation Duties
1. The scope of our duty to deliver is stipulated in the order confirmation. Alterations in construction, form and color based on technological improvements or legal requirements are reserved, insofar as the alterations are not material or in any other way unacceptable to the purchaser.
2. If part deliveries are reasonable to expect from the purchaser, these may take place and be invoiced.
3. Our duty to deliver is under reservation as to complete and correct own delivery, unless the non-delivery or delay is caused by us. If we do not receive our delivery in this respect, although we have placed congruent orders with reliable suppliers, we are freed from our obligation to deliver and may rescind the contract.
4. The naming of delivery periods is in principle subject to the reservation of cooperation by the purchaser in conformity with the contract. Compliance with our obligation to deliver presupposes the fulfilment of the purchaser\'s duties in a timely and orderly fashion.
5. Delivery periods begin with the date of our order confirmation. In the event of an industrial conflict, delivery periods are extended for the duration of the disruption caused thereby. This applies analogously to delivery dates.
6. The commencement of the delivery time stated by us presupposes the clarification of all technical questions.
7. Compliance with delivery periods and dates is determined by the time of dispatch from the factory or warehouse. They are deemed to have been kept in the event of notification of readiness for shipping if the goods cannot be dispatched on time through no fault of ours.
8. If it turns out after conclusion of the contract that the purchaser is not able to offer an adequate guarantee of his/her ability to pay and our claim to payment is at risk, we are entitled to refuse delivery until the purchaser has made payment or provided collateral for it. If payment or the provision of collateral does not take place within 7 working days of such a request, we are entitled to rescind the contract.
9. If the purchaser is in delay in drawing down, accepting or collecting the shipment or if he/she is responsible for a delay in dispatch or in delivery, we are entitled, without prejudice to more far-reaching claims, to demand a lump-sum amounting to locally customary storage costs, regardless of whether we store the goods ourselves or with a third party. The purchaser retains the right to prove that no damage or less damage has occurred.
10. Returned merchandise will only be accepted after prior consultation and our express consent; the credit note will be issued immediately subject to a minimum processing fee of 30%.
11. In the case of special executions, quantity deviations of the ordered quantity up to ± 10% are admitted.
§ 6 Delay in Delivery
1. If the agreed delivery period cannot be kept owing to circumstances beyond our control on our part or that of our suppliers, it is extended to an appropriate extent. We shall inform the purchaser immediately in such a case. If the hindering circumstances still persist one month after expiry of the agreed delivery period, either party may rescind the contract. More far-reaching claims owing to exceeding the delivery period through no fault of our own are excluded.
2. If we are in delay in delivery due to our own fault, the purchaser is entitled to demand compensation of a maximum of 1% of the value of our outstanding delivery/service for each full week of delay, subject to a limit of10% of the outstanding delivery value, if he/she shows that damage has ensued to him/her from the delayed delivery. Other or more far-reaching claims to compensation by the purchaser are excluded in all cases of delayed delivery or performance of services, even after expiry of any extension of time granted to us, unless our delay is due to intent or gross negligence. The purchaser\'s right to rescind remains unaffected, however only after unsuccessful expiry of any extension of time granted us, which must amount to at least15 working days.
§ 7 Supply • Transfer of Risk
1. If the goods are sent to the purchaser at his/her wish, the risks of accidental destruction and accidental deterioration pass to the purchaser on their delivery to our shipping agent, at the latest however on leaving the factory or the warehouse independently of whether dispatch is from theplace of performance and who bears the freight costs. If the goods are ready for shipment and the dispatch or the acceptance are delayed owing to grounds for which the purchaser is responsible, the risk passes to the purchaser on receipt of notification of readiness for shipping.
2. The choice of the means and route of transport is at best judgement, unless special instructions have been given. No liability is accepted for the cheapest and quickest shipment.
§ 8 Reservation of Ownership
1. Ownership of the goods delivered remains reserved until such time as all our claims on the purchaser arising from the business relationship, including any future claims arising from contracts concluded simultaneously or at a later date, have been settled. This also applies where claims have been posted to a current account and the balance hasbeen struck and is recognized.
2. The purchaser is entitled to sell or process the goods in the ordinary course of business. Any processing is undertaken on our behalf, without duties ensuing for us therefrom. In the case of processing, joining or commingling of the goods subject to reservation of ownership with other goods, our joint ownership in the new corporeal thing arises in principle, in the case of processing in the proportion of the value (= gross invoiced value including incidental expenses and taxes) of the goods subject to reservation of ownership to the value of the other goods. The purchaser holds the sole ownership or joint ownership in safe custody for us.
3. The purchaser hereby assigns to us all claims against a customer or third parties which accrue to him/her from the resale. The purchaser remains empowered to collect such receivables also after their assignment. Our right to collect such receivables is not affected thereby; however, we undertake not to collect such receivables as long as the customer meets his payment and other commitments in the proper manner. The purchaser is required on request to disclose to us the assigned receivables and the names of the debtors, supply all particulars necessary for collection, make available the records pertaining thereto, and inform the debtors of the assignment.
4. In the case of conduct in violation of the contract by the purchaser, in particular in the case of late payment, we are entitled to rescind the contract and recover the goods. For purposes of recovery of the goods, the purchaser hereby irrevocably allows us to enter his/her business and ware house premises unimpeded and take the goods away.
5. The purchaser is not permitted to assign for security or pledge goods or items manufactured with them without our consent, so long as the reservation of ownership subsists. The conclusion of financing agreements (e.g. leasing) which include the assignment of our rights of reservation require our prior written consent, unless the agreement binds the financing institution to pay us directly the purchase price portion due to us.
6. In the event of attachment and other intervention by third parties, the customer is required to notify us in writing without delay. He/she is forbidden to make arrangements with his/her customers which could interfere with our rights.
7. We undertake to release the collateral we are entitled to at the request of the purchaser to the extent that the realisable value of the collateral exceeds the value of the receivables to be secured by more than 20%, or their nominal value exceeds the value of the receivables by more than 50%.
§ 9 Industrial Property Rights, Tools, Models and Drawings
If deliveries are made according to drawings or other details provided by the purchaser, the latter bears the responsibility for their correctness and that property rights of third parties are not infringed. He/she is obliged to indemnify us against all claims by third parties in this respect. Chills, models, tools and equipment required for the purchased goods may be invoiced by us in full or in part. They remain our property, even if we have manufactured them on behalf of the purchaser and/or the purchaser has paid for them in full or in part. If they have been manufactured according to instructions from the purchaser, they will be used exclusively for deliveries to the purchaser, as long as the latter meets his/her acceptance and payment obligations and the business relationship subsists.
§ 10 Material Defects
1. With respect to material defects, the purchaser is in the first instance subject to the statutory inspection and complaint duties pursuant to section 377 HGB (German Commercial Code).
2. The purchaser may not derive any further rights from material defects which do not or do not materially impair the value of the goods and their suitability for the purpose recognizable to us.
3. If the goods exhibit a material defect at the time of the passing of risk, we are entitled and bound to subsequent performance. Subsequent performance takes place by rectification or substitute delivery, at our choice. The costs of subsequent performance, in particular transport, travel,
labour and materials costs are for our account. If the costs amount to more than 50% of the value of the delivery, we are entitled to refuse subsequent performance.
4. To the extent that the subsequent performance is unsuccessful, does not take place within a reasonable period granted by the purchaser, or is refused, the purchaser is entitled, at his/her choice, to rescind the contract, to demand a reduction of the purchase price (abatement) corresponding to the impairment in value or - within the limits of the following paragraphs - compensation for damages instead of performance.
5. If a material defect leads to damage, we are liable in accordance with the statutory regulations, insofar as injury to a person is concerned, the damage is covered by the Product Liability Law or is based on intent or gross negligence.
6. Insofar as the damage is based on a culpable breach of a main contractual obligation or cardinal obligation, we are otherwise only liable for damages typical for the type of contract.
7. More far-reaching claims by the purchaser in con-tract or in tort are excluded. In particular we are not liable for damages which have not occurred in connection with the delivered item itself; nor for loss of prospective profits or other economic loss by the purchaser.
8. The above regulations do not apply to used goods. We are only liable for material defects in the event of express acceptance of a guarantee, intent or gross negligence, not otherwise.
9. No guarantee can be given for damages arising for any of the following reasons:
- unsuitable or improper use,
- incorrect installation, non-observance of existing guidelines and test specifications on installation of our goods in plant,
- erroneous assembly and/or commissioning, repair
-or maintenance by the purchaser or third parties,
- erroneous, forcible or careless treatment,
- unsuitable expendables,
- components damaging to materials or excessive
- pollution of the water, gas, oil or other media used,
- and also natural wear and tear.
10. Section 478 BGB remains unaffected by the above-mentioned paragraphs 2 to 9.
§ 11 Other Liability for Compensation in Damages
1. The above-mentioned regulations in § 10 also apply to claims for compensation in damages on account of other breaches of obligations.
2. In the event of breach of a pre-contractual obligation or of an obstacle to performance already in existence on conclusion of the contract (sections 311 II, 311a BGB), our obligation to compensate is limited to the negative interest.
3. The regulations in the above-mentioned § 10 apply analogously to our liability in tort.
4. Insofar as our liability is excluded or limited, this also applies to the personal liability of our staff, workers, employees, representatives, executive bodies and vicarious agents.
§ 12 Limitation
1. The purchaser\'s entitlement to subsequent performance is statute-barred, subject to sections 438, 479 BGB, two years after delivery of the goods. Guarantee is excluded in the case of used goods. There are correspondingly no guarantee rights in used items.
2. In the case of compensation for damages, the period of limitation is one year, subject to sections 438, 479 BGB. In the cases of claims under Product Liability Law and of intent and gross negligence, the statutory limitations apply.
§ 13 Place of Performance • Place of Jurisdiction for Domestic Contracts
1. Unless otherwise apparent from the order confirmation, the place of performance is the registered office of our Company.
2. Insofar as the purchaser is a fully qualified merchant, the place of jurisdiction is our registered office; however, we are entitled to bring an action against the purchaser at his/her registered office.
3. The law relating to the legal relationships of domestic parties at our registered office applies to all legal relation ships between us and the purchaser.
§ 14 International Business Dealings
1. German law applies exclusively to international business dealings with us, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
2. Our above-mentioned conditions presented in sections 1 to 13 inclusive also apply to international business dealings, subject to the application of German law.
3. In cases of doubt, the INCOTERMS 2000 are definitive for the interpretation of trade terms.
§ 15 General
1. The purchaser\'s rights under this contract are not transferable.
2. The invalidity of individual provisions does not affect the validity of the remaining provisions.
FT Manovia GmbH, December 2006