General terms of Payment and Delivery Status 7/2010
I. GENERAL INFORMATION
1. Our Terms of Delivery and Payment shall always apply in the latest version and to all orders in process and to future orders of any domestic or foreign purchaser unless any deviation has been expressly accepted by us in writing. Collateral agreements and subsequent alterations will be binding for us only upon our written confirmation. This also applies to the cancellation of the written form clause. The acceptance of our deliveries and services is deemed to be a recognition of our Terms of Delivery and Payment.
2. Other terms of purchasing issued by the buyer are only binding for after explicit and written acknowledgement. The same shall apply to any other General Terms and Conditions of the buyer or contractual partner.
3. All agreements made between buyers and travelling salespersons, representatives and agents are binding for us only after our written confirmation. Our representatives, agents, and traveling salespersons are only entitled to accept cash and checks upon presentation of collection authorisation
4. We are entitled to process data of the buyers that refer to the business relationship to this, as defined by the German Data Protection Act.
II. OFFER AND CONCLUSION OF CONTRACT
1. Our offers are noncommittal. A supply contract or other contract becomes binding on us only when we have confirmed the customer’s order or other order in writing or have delivered the goods.
2. We reserve the right to modifications to the production process or product composition, as long as the type and quality of the product is not changed to disadvantage.
3. As long as not otherwise expressly agreed upon, published by us in catalogues, brochures and other publications in the form of text or illustration (e.g. descriptions, figures or drawings) shall conclusively characterise the quality of the products supplied by us, and their applications. The information given in this respect constitutes approximate values usual in the industry unless it has expressly been described as binding in the order confirmation. Other manufacturer’s information are not binding.
1. Unless expressly otherwise specified, all prices shall be net prices excluding value added tax, which has to be paid by the contractual partner at the respective statutory rate additionally, and the prices shall apply EX our production location without packaging. Unless specified otherwise, the price information are based on the European currency (euro).
2. We reserve the right to adjust prices without notice if and when bases of calculation change.
3. The prices charged are the prices applicable on the date of delivery, save when a fixed price has expressly been agreed in writing.
1. Any turnaround time (delivery due date) shall begin on the date of our order acknowledgement, however in no case prior to settlement of all technical and commercial details. The delivery deadline shall be deemed to have been observed when the object has left our works or warehouse prior to its expiration, or when readiness for shipment has been announced in the event that the goods cannot be shipped in time through no fault of ours.
2. With regard to deadlines and delivery dates not expressly referred to as “fixed” in the confirmation of the order, the contractual partner may set us a reasonable additional period of time for delivery and/or service after the regular period has been exceeded. We may only be deemed to be in default after expiry of such a grace period.
3. Periods and deadlines shall be extended, by the period of time during which the contractual partner fails to meet its obligations towards us, without prejudice to the rights accruing to us from delayed payments by the purchaser.
4. Unforeseen, exceptional circumstances beyond our control such as industrial action, operational breakdown, government action, transport disruption or other instances of force majeure, irrespective of whether we or our suppliers are affected by such circumstances, will exempt us from the obligation under the relevant contract, although hindrances of a temporary nature shall do so only for the duration of the hindrance in addition to a reasonable start-up period. If as a result of such events it should subsequently become impossible to make delivery, or become unreasonable for one of the parties to make or accept such delivery, both parties shall be entitled to withdraw from the contract.
5. Our liability for loss due to delay arising from slightly negligent breach of duty is excluded, save where the breach of duty results in damage to life, limb or health. No change of burden of proof to the disadvantage of the contractual partner is connected with these provisions
6. We are entitled to make partial deliveries if this may be considered reasonable for the contractual partner. Partial deliveries can be charged separately.
V. INFORMATION AND CONSULATION
Information and consultation in regards to our products is done based on our previous experience. The values stated in this connection are determined average values. Suitability tests of the products supplied and compliance with processing instructions shall not become dispensable by such information or advice. Verbal information is non-binding. Any warranty claims in this respect are covered by section 10 of these terms and conditions.
VI. DISPATCH AND TRANSFER OF RISK
1. Unless otherwise agreed, delivery shall be ex works. If Incoterms have been agreed as delivery terms, the version applicable on the date of contract signature shall apply.
2. If the goods are shipped at the request of buyer to a place other than the place of performance, the contracting party shall bear all costs resulting therefrom. The choice of transit route and carrier will be at our discretion. Transport damage shall be reported by the contracting party in writing immediately after receipt of the goods, stating nature and scope of the damage. Any insurance of the goods against transport damage, transport loss or breakage shall be taken out exclusively at the express request of the contracting party at the charge and for the account of latter.
3. For deliveries ex works, dispatch and transport shall always be at the risk of the contractual partner. This shall also apply to deliveries made ex third party’s warehouse (transfer orders) and for the return of goods or empties (two-way transport packages). The risk passes, even with partial deliveries, to the contractual partner, as soon as the delivery is handed over to the person carrying out the transport or has left our warehouse, or for delivery ex works our works, for the purpose of delivery.
4. If shipment is delayed for reasons attributable to the contractual partner, or if the contractual partner is to take itself charge of the transport of goods, the transfer of risk to the contractual partner shall occur at the moment when the contractual partner is notified of their readiness for shipment. Any storage costs arising after the transfer of risk shall be borne by the contracting party. In case of storage at our works or warehouses, the monthly storage costs will amount to 0.5 % of the invoice amount. We reserve the right to make higher storage charges subject to proof. We are entitled to otherwise dispose of the goods after the fruitless expiration of a reasonable period of time, and to supply the contractual party in an extended reasonable period of time.
5. For deliveries free domicile/warehouse, the risk shall pass to the contractual party, also for partial deliveries, as soon as the products have arrived ready for unloading at his place of business/at his warehouse. Unloading shall be carried out immediately and properly by personnel and unloading equipment to be made available in sufficient number by the contractual party. Waiting periods will be calculated as customary in the industry. If transport to the place of destination fails for reasons lying within the scope of risk of the contractual party, the risk shall pass to the contractual party upon failure of access. This also applies to unauthorised refusal of acceptance by the contractual party. Section 6.4 shall apply accordingly.
VII. PROCESSING OF PARTS SENT IN
1. Parts sent in for processing are to be shipped free to our works and sufficiently packaged accompanied by a delivery note.
2. Gears must be delivered without oil and cleaned.
3. Waste material from the parts sent in for processing shall become our property.
4. In the case of the processing of sent-in material we shall not be liable for defects or damage that arise from inadequacies of the sent in material, insofar as we have not acted wilfully or with gross negligence. For the rest, section 11 is valid. If material sent in becomes unusable during processing as a result of material defects, the processing costs must nevertheless be reimbursed to us, insofar as we have not acted wilfully or with gross negligence.
1. Payments must be made in euros (€) and post and expenses paid. They may only be made to the paying agents specified by us. Bills and cheques count as payment only after they have been cashed and are accepted without obligation of production and protest within the prescribed time.
2. In the absence of a special agreement payment must be rendered in cash strictly net free and namely in the amount of 1/3 of the order amount after receipt of the confirmation of order, 1/3 when the purchaser is informed that the main components are ready for shipment. – The balance will be paid within 30 days of the date of invoice. In the event of failure to comply with due dates for payment we may, at our discretion, charge interest in the amount of 8 percentage points over the base rate (§ 247 BGB) p.a.
3. The offsetting with counterclaims by the contractual partner is permitted only insofar as the counterclaims are undisputed or have been legally upheld. The maximum amount that the contractual partner may retain as a result of defects shall be three times the amount of the expense for subsequent performance. If the contractual partner exercises its right of retention, they shall be obliged to provide security to us at our discretion amounting to the unpaid partial amount either by bank guarantee or by depositing such an amount with a notary of its choice.
4. In case of belated payment we can
4.1 assert all claims against the purchaser arising from the respective or other transactions immediately, even those which have not yet become due;
4.2 retain our deliveries or other services under the order in question or other orders until all claims outstanding under the order in question or other orders have been completely satisfied by purchaser;
4.3 require appropriate security;
4.4 reclaim the goods delivered by us which are still subject to the reservation of title. If the goods are no longer useable or no longer unrestricted useable due to the of time, we have the right to demand compensation.
5. If, after conclusion of the contract, we become aware of facts indicating a substantial deterioration of the financial circumstances of the contractual partner that might jeopardise our right to counter-performance according to best commercial judgement – to which belong in particular the filing of a petition in in solvency – we may require the depositing of a suitable security within an adequate period of time or performance on counter-performance until the date of performance by such party. Should the contractual partner fail to comply with our justified demand, we may rescind the contract or claim compensation for damage. In this situation we can make all accounts – even deferred sums – due immediately.
IX. RESERVATION OF TITLE AND PROPERTY RIGHTS
1. All delivered goods remain our property until payment of the due remuneration has been made in full, including all ancillary costs. If a check or bill of exchange is accepted, payment is deemed to have been effected only when they have been finally cashed. These accessory claims comprise especially the costs of packing, freight, insurance, bank charges, warning fees, attorney, attorney, court and other costs. The purchaser is obligated to insure the goods subject to retention of title for the invoice amount against the normal insurable risks, especially against theft, fire and other damage. He assigns all claims against the insurer to the supplier.
2. Processing of the reserved goods shall be done on behalf of us as manufacturer within the meaning of § 950 BGB, without obligating us. The processed goods are regarded as reserved merchandise in the sense of section 8.1. If the purchaser processes, combines or mixes the goods to which title is retained with other goods, we shall obtain co-ownership in the new goods in proportion to the invoiced price of the goods to which title is retained to the invoiced price of the other goods. If our ownership expires due to the result of combining or mixing of the goods, the customer shall transfer ownership rights to us now for the new item that it is entitled to us based on the scope of the invoice value of the conditional commodity and shall store it for us free of charge. The subsequently arising co-ownership rights shall be considered title retention goods pursuant to section 8.1.
3. The customer is only entitled to resell the reserved goods and combine them with other things (hereinafter referred in short as “resale”) within the framework of a proper business operation. No other disposal of the reserved-title goods is permitted. We must be informed immediately of any third party seizure or other access to the reserved-title goods. All costs for intervention, e.g., the costs of a third-party intervention against execution in accordance with § 771 ZPO, shall be borne by the customer, insofar as they cannot be collected on first request from the third party (opponent of the intervention) and the intervention was justified. If the customer defers the purchase price for his buyer, he must reserve title to the reserved goods in relation to the latter on the same conditions under which we have reserved title on delivery of the reserved goods; however, the customer shall not be obligated to also reserve the title to claims arising against his buyer only in the future. Otherwise the customer shall be prohibited from any other kind of resale.
4. Claims of the customer from resale of the reserved title goods are herewith already assigned to us. They shall serve as collateral to the same extent as the reserved title goods. The customer is only entitled and authorized to re-sell if he ensures that accounts receivable arising therefrom are transferred to us.
5. If the reserved title goods are sold by the customer together with other goods not provided by us, then the assignment of the receivables from the sale applies only to the amount of the invoice value of the respective reserved title goods sold.
6. If the claim assigned is included in a current accounting, the contracting party shall already herewith assign to us a part of the balance the amount of which shall correspond to such claim, including the closing balance of the current account.
7. The customer is authorized until revoked to collect the receivables assigned to us. We are entitled to revoke this authorization if the customer fails to honour the payment obligations arising from the business relationship with us or if we become aware of circumstances justifying reasonable doubt of the customer’s creditworthiness. If the preconditions for exercising a revocation right are fulfilled, the Customer shall promptly notify us of any assigned receivables with respective debtors, furnish all data required for collection of such receivables, hand over all related documentation and advise the debtors of such assignment. We are also entitled to inform the debtor of the assignment ourselves.
8. In the event that the nominal value (invoice amount of merchandise or nominal amount of the right to recover debts) of the securities existing on our behalf exceed the claims secured by more than 20% in total, we shall to such extent be obliged at the contractual partner’s request to release securities at our discretion.
9. If we assert the reservation of ownership, this shall only be considered as a rescission of the contract when we expressly confirm it by written statement. The right of the customer to hold the reserved-title goods expires, if he does not fulfil his obligations from this or another contract.
10. We reserve title to and copyright in illustrations, drawings, samples and other documentation They must neither be reproduced nor made available to other parties without our approval and have to be returned to us immediately when requested or in case the order is not placed with us.
11. If the property rights of third parties are violated during the manufacture of products according to specimens or other data furnished by thepurchaser, the purchaser shall hold us harmless from any and all claims.
12. In the event that an order is not placed with us, we shall be entitled to claim an adequate remuneration for product samples created by us.
1. We do not accept liability for unsuitable or improper use of the products.
2. Upon receiving the goods, the contractual partner is obliged to carefully examine them for completeness and regularity without delay, even if a sample has been provided beforehand. The delivery will be considered as approved if written (by telex, fax or e-mail) notice of defects is not received within three (3) working days of arrival of the goods at their destination or, if the defect was not noticeable in an ordinary inspection, within three (3) working days of its discovery. This also applies to additional deliveries. If an additional delivery is not complained of within three days after receipt of goods at destination, it shall be deemed to have been accepted. Our field staff are not authorised to acknowledge quantity or deficiency complaints.
3. In the event of a justified complaint, the contracting party shall at first be entitled to subsequent performance which we shall render at our discretion by the supply of faultless products (against return of the goods complained of) or by the removal of defects. In the event the subsequent performance fails or the contractual partner is unreasonable (§ 440 BGB) or unnecessary, because
a. we finally reject the subsequent performance
b. we fail to effect subsequent performance at a contractually agreed date or within a determined period and the contracting party has linked its continued interest in such performance with the timeliness of the performance, or
c. if other particular conditions apply, after taking both parties’ mutual interests into consideration, that justify immediate withdrawal from the contract (§ 323 para. 2 BGB), the contractual partner is immediately entitled to reduce the purchase price or at his choice to rescind the contract and demand damages instead of performance in accordance with section 10.
4. Expenditure incurred for the purpose of subsequent performance, notably transport, tolls, work and material costs shall be borne by us. This does not apply when expenses are increased because the product has been transferred after delivery to a place other than the place of performance, unless the transfer is in accordance with the intended use of the item.
5. Where the contractual partner accepts a defective good although he has knowledge of the defect, he is only entitled to the claims and rights of defects, if he has explicitly reserved this right with regard to a defect at the time of acceptance.
6. The right to assign claims due to defect of the purchaser to third parties is excluded. In the case of complaints, the due settlement payments of the buyer may only then be withheld to the extent, that such are in an appropriate relationship to the deficiencies suffered.
XI. LIABILITY FOR COMPENSATION
1. We accept liability for damages arising from injury to life, limb or health in accordance with statutory provisions.
2. Our liability for breach of duty and our noncontractual liability shall, moreover, be limited to malicious intent and gross negligence. Liability for gross negligence by our employees, staff and vicarious agents is hereby excluded.
3. Excluded from section 11.2 is the violation of contractual obligations (cardinal duties) In this case we also bear liability for slight negligence for own fault as well as for the fault of one of our employees, staff, or vicarious agents.
4. Liability shall be limited to the contractually typical damage whose occurrence we had to expect on the basis of the circumstances known to them at the time of the conclusion of the contract.
5. Any further liability shall be excluded regardless of its cause in law. We are especially not liable for insufficient economic success, missed profit, indirect damages, damages resulting from defects and claims of third parties.
6. The described restrictions of liability apply the same for claims on compensation for futile expenses (§ 284 BGB).
7. Claims against us for damages on any legal grounds whatsoever shall become statute-barred within two years of the statutory commencement of the limitation period, but no later than the delivery date of the item.
8. The above provisions do not entail any shift in the burden of proof to the disadvantage of the contractual partner.
9. Damage claims pursuant to the German Product Liability Act remain unaffected.
XII. PLACE OF PERFORMANCE, PLACE OF JURISDICTION, APPLICABLE LAW
1. Place of performance for obligations of both parties is the headquarters of Kachelmann Getriebe Vertriebs und Konstruktions GmbH.
2. The exclusive place of jurisdiction for all disputes shall be our domicile as stated in the Commercial Register, if the buyer is a merchant or an entity under public law within the meaning of § 29 a) para. 2 ZPO However, we are also entitled to take proceedings against our contractual partner at his statutory court of jurisdiction.
3. The relations between the contractual partners and ourselves are governed by the law of the Federal Republic of Germany under the exclusion of the United Nations Convention regulating the international sale of goods (CISG) and the rules of private international law. In addition, interpretations of the agreement shall be subject to the INCOTERMS.
4. In the event that any provisions should be invalid or lose validity due to circumstances arising at a later date, the validity of the remaining provisions shall not be affected.