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General Terms of Delivery
§ 1 Preamble
| 1. |
These
general terms and conditions for the sale of
exported goods apply as long as there are no
modifications to the express conditions in a
written agreement between the parties. |
| 2. |
The
offer, the acceptance of the offer, and the
order confirmation or the sale of any product
are subject to the present terms and conditions.
Any kind of terms and conditions or
contract-changing clauses from the buyer are not
accepted; they will only be effective for the
supplier, if the supplier agrees to these
changes in writing. |
| 3. |
These
clauses are the basis for any kind of future
specific transaction between the buyer and the
supplier and they exclude any other agreement. |
| 4. |
Any
falsely conditioned error in the sales brochure,
price lists, offer documents that may arise are
allowed to be adjusted by the supplier, so that
he or she has no responsibility for the damage
due to these errors. |
| 5. |
These
standard conditions apply to merchants only. |
§ 2 Orders and Offer Documents
| 1. |
The
tendered order documents from the buyer are only
accepted by the supplier, if the supplier sends
a written acceptance within 21 days. |
| 2. |
The
amount, quality and description, as well as any
specifications of the goods must meet the
supplier's offer (if the buyer accepts it) or
the buyer’s order (if the seller accepts it.)
All sales records, specifics and price lists are
to be handled strictly confidentially and may
not to be made accessible to a third party. |
| 3. |
The
buyer holds the responsibility in regard to the
accuracy of the order and is, therefore,
responsible to inform the supplier of any kind
of essential information in relation to the
ordered goods within a certain amount of
appropriate time, so that the order can be
conducted according to the agreement. |
| 4. |
If the
goods have to be manufactured, handled or worked
on by the supplier and the buyer laid these
specifications out, the buyer must pay for any
kind of damage, harm, costs or other
expenditures made by the supplier. The buyer
must also be prepared to pay and must pay for
costs due to processing or handling according to
specifications in the contract that breach
patents, copyrights, trademarks or other
protective rights that a third party exposes. |
| 5. |
The
supplier reserves the right to amend the good’s
description in regard to the specifications for
legal requirements, as long as the occurrences
of these changes do not cause a decline in
respect of the quality and the usability of the
goods. |
§ 3 Purchase Price
| 1. |
The
purchase price should be the price named by the
supplier, or when this does not take place, in
particular, then the price in the current
supplier's price list, which is available at the
time. |
| 2. |
The
supplier reserves the right, after timely
information from the buyer and before the
completion of the good’s delivery, to raise the
price in its own manner for reasons outside its
control, like necessary price changes (i.e.:
currency fluctuations, currency regulations,
customs changes, a noticeable rise in material
or manufacturing costs) or because of a
necessary change of suppliers. |
| 3. |
As
long as nothing else is offered or given in the
price lists or as long and no other written
agreement between the supplier and buyer exists,
all of the supplier's prices are on the basis of
„ex works“ (EXW Incoterms 2000). As long as the
supplier is prepared to deliver to other areas,
the buyer must pay for the transport, packaging
and insurance costs. |
| 4. |
Prices
exclude value added tax, which the buyer must
pay additionally to the supplier. |
§ 4 Payment Terms
| 1. |
Place
of payment is the site of the seller. The buyer
must pay the buying price without any allowance,
“free paying place of the supplier” within 30
days after receipt of the invoice. |
| 2. |
Payments should only take place through bank
transfer; cash and payment by check will not be
seen as fulfilling the duty of payment. |
| 3. |
It can
be agreed upon between the contractual partners,
that the buyer can open a documentary letter of
credit at his bank (or [another] bank acceptable
for the supplier.) In this case, it is
determined that the opening of the letter of
credit will be made in accordance with the
Unified Guidelines and Application of Documented
Letters of Credits (ERA), Revision 2007,
ICC-Publication Nr. 600 (ERA 600/UCP 600). |
| 4. |
The punctuality of the buying price payment is a
fundamental contractual obligation. In the case
of the non-scheduled payments is authorized by
supplier from the date due onwards, interest
rates from 8% per year over the basic rate of
interest of the European Central Bank are
desired. |
| 5. |
If the buyer does not make a payment within four
weeks of the due date, the supplier has the
right to inform the buyer of the cancellation of
the contract and to demand recovery of damages. |
| 6. |
Further rights and claims of the supplier remain
reserved. |
§ 5 Delivery of Goods
| 1. |
The
delivery takes place from the factory of the
supplier in Schönstedt (EXW Incoterms 2000).
Partial deliveries are acceptable and can be
charged separately in the invoice. |
| 2. |
The
stated period of delivery and unloading times
are always non-binding if it is not explicitly
written that something else is stipulated. |
| 3. |
The
compliance to the delivery requirements from the
supplier is agreed upon in advance and the
technical questions and punctual and proper
compliance of the buyer's secondary obligation
is set in advance. |
| 4. |
The supplier's delivery requirement is always
set at the provision of the punctual and proper
continuance of the supplier's own delivery.
Delivery barriers because of violence or because
of occasions unforeseen and not the fault of the
supplier, such as damages to the business,
strikes, lock-outs, administrative orders, late
discontinuation of export and import
possibilities, as well as the supplier's own
delivery provision, according to paragraph 4,
the supplier delivers their influence on the
requirements for the duration and bredth of
their responsibility, to adhere to the delivery
and unloading times. They authorize the supplier
to cancel the contract in accordance with number
11, paragraph 2 of these conditions, without the
buyer being rightfully entitled to compensation
for damages or other claims. |
| 5. |
After a delay in delivery of over two weeks, the
buyer will claim damages for each following late
week, of 0.5% to, at most, 5% of the worth of
the pieces being delivered, through which the
delay has caused damages. |
| 6. |
As long as the highest amount of the damages
according to paragraph 5 is met, the buyer is
allowed to set a measured period of grace under
the threat of the failure to deliver. The
cancellation of the contract concerning the late
pieces and the partial compliance of the
contract is reasonable and is explained if the
supplier does not fulfill his duties beforehand. |
| 7. |
Further claims against the supplier because of
late delivery are not given. Number 8, Paragraph
5 of these requirements takes affect for
compensation claims for deferred delivery or
non-delivery and is adequate. The supplier,
however, adheres to this in each case for
resolution. |
| 8. |
The
supplier retains the right to lengthen the named
delivery time because he finds fault in the
fulfillment of the contract, if special
occasions justify the cause of serious doubt in
the creditworthiness of the buyer are give or
apprehend that the buyer will not fulfill a
substantial contractual requirement. |
§ 6 Acceptance
| 1. |
The
supplier has to pick up the delivery within ten
days of the announcement of delivery. He or she
is responsible for the costs of storage,
insurance, protection, etc. when it is picked up
late. The supplier has the right to set a
written measured deadline for the acceptance of
the delivery, in the case that the pieces are
not picked up. The right of the supplier to
demand the sales price remains the same. |
| 2. |
After
the deadline, the supplier has the right to
cancel the contract through a written
explanation or partial cancellation and to
demand the general damages of the minimum amount
of the pieces' worth that were not picked up. |
§ 7 Claim of Ownership
| 1. |
The
shipped goods including accessories and any
other delivered items remain the property of the
supplier until paid for in full. |
| 2. |
The
buyer supports the supplier in any legally
permitted process necessary to protect the
property of the supplier in the applicable
country. All costs incurred through this will be
paid by the buyer. |
| 3. |
The
buyer will inform the seller immediately if his
property is at any risk. This especially
includes claims of third partied or government
authorities. The buyer will insure the goods on
his own expense against theft, fire- and water
damages as well as any other risks until the
invoice has been paid in full. He or she will
provide proof of this to the supplier upon
demand. |
| 4. |
After an appropriate amount of time has expired
for the buyer to pay the invoice or fulfill any
other substantial contractual duties, the
supplier has the right to step back from the
contract and to demand back any goods shipped,
including all accessories. |
§ 8 Responsibility of the Supplier for the
Contractual Consistency of the Goods
| 1. |
Inspection and Complaint Duty
The buyer has to inspect the goods immediately
after reception. He loses all rights to
pronounce the contract void if he fails to
inform the supplier about any issues in writing,
all detail, and immediately after becoming aware
of them, or after he should have become aware of
them. The buyer has to ensure the collection of
all evidence after contacting the supplier . |
| 2. |
Handling, Storage and Maintenance
The duty and proof of careful handling,
appropriate storage and maintenance of the
equipment delivered, lies with the buyer. |
| 3. |
Corrections, Replacements
If the goods are not in accordance with the
contract, the buyer has the right to choose
either, even for grave defects, to rectify the
situation through correction or replacement of
the equipment within an appropriate time limit
after being informed about the defect by the
buyer. The buyer is required to participate in
the correction process in exchange for coverage
of costs incurred and according to the
supplier's instructions. |
| 4. |
Reduction, Cancellation
If the supplier does not correct a breach of
contract (or legal fault) according to paragraph
3, the buyer can reduce the purchase price in an
appropriate way. In case of a substantial breach
of contract, the buyer can demand the
cancellation of the contract after the deadline
has run out without successful correction of the
situation. This cancellation applies only to the
parts of the contract that are in violation of
the agreement and is void if the supplier
rectifies the situation before the deadline has
expired. |
| 5. |
Exclusion of further damages
Unless specified in section 5, paragraph 3 to 7
and section 8, paragraph 1 to 4, the buyer is
not responsible for breaches of contract and
damages - regardless of the legal reason. This
is true for all damages caused by defects,
including production failure, loss of revenue or
any other indirect damages (damages not caused
on the equipment delivered). In case of a breach
of substantial contractual duties, the supplier
can be held liable for no more than 15% of the
purchase price. However, he remains liable for
culpable negligence, for special warranties,
deception, irresponsible damage to life, body or
health or if required by law for personal
damages or damages to private property. |
§ 9 Supplier's Responsibility for Secondary
Obligation, Legal Product Liability
| 1. |
For
the fulfillment of contractual or
pre-contractual secondary obligations, the
supplier is only responsible for conforming
clauses in number 5 paragraph 7, number 8
paragraph 5 and number 10 of these conditions. |
| 2. |
As
long as the supplier finds that he or she is
wholly or partially unable to fulfill his or her
delivery of his or her secondary obligations to
the buyer, the buyer is allowed a written
cancellation because of the unfulfilled part of
the contract. Unless the acceptance of partial
fulfillment is impossible. Number 5 paragraphs
3-7, number 8 paragraph 5 and number ten of
these conditions are used for this
administration. |
| 3. |
The
buyer is required to warn the supplier about
possible dangers that can be averted from the
use of the delivered goods. |
| 4. |
Should
any claims be brought forth against the supplier
based on the contractual delivery and foreign
laws governing product liability, the supplier
will satisfy all valid claims up to 1.500.000
Euro per claim, to a maximum of 3.000.000 Euro
per year, with the buyer covering the exceeding
amounts. The buyer has to insure himself at his
own expense and be able to prove this upon
request. |
§ 10 Other Responsibilities of the Supplier
| 1. |
Unless
explicitly included in the contract or these
terms, all other contractual or legal claims
against the supplier, especially the rights to
cancellation of the contract, reduction or
replacement in case of any kind of damages, even
if not caused on the delivered item itself, are
impossible. Section 8, paragraph 5 of these
terms is valid accordingly. |
§ 11 Force majeure
| 1. |
The
parties of this contract are not to be held
responsible to fulfill their contractual duties
if the reason for this lies beyond their control
or is due to any of the following reasons: Fire,
natural disasters, war, confiscation, export
bans, embargo or other government measures,
general shortage of natural resources,
limitations of power usage, labor disputes or
breach of contract from a supplier. The exact
reason and its end are to be relayed to the
other party immediately. |
| 2. |
Each
party has the right to cancel the contract
through written cancellation, if the fulfillment
is delayed for more than six months, according
to the proceeding paragraph 1. |
§ 12 Limitations
| 1. |
Any
claims of the buyer due to breach of contract
lapse after 12 months starting with transfer of
responsibility (section 5 of these terms). The
legal limitations due to intentional or
deceiving behavior and legal product liability
laws remain untouched. |
§ 13 Accordance with Laws
| 1. |
The
observance of all relevant foreign trade
directives and other laws of his own country and
any countries deliveries are to be made to, are
the sole responsibility of the buyer. The buyer
has to inform the supplier in writing upon
signing the contract of any special
circumstances arising from this. |
§ 14 Other Regulations
| 1. |
If
single sections of these terms are declared void,
this does not influence the remaining sections.
Such sections will be replaced by such valid
regulations as are applicable to fulfill the
economic reasoning of the nullified section as
closely as possible. |
| 2. |
Rights
and duties of the parties from this contract are
non transferable, except for purchase price
demands of the supplier. |
| 3. |
Credit- and withholding rights of the buyer are
impossible unless legally fixed or undisputed by
the supplier. |
| 4. |
The
buyer may only use trademarks, copyrights and
other such symbols from the buyer only with
written consent and permission and only in the
interest of the supplier for marketing purposes
or register them as trademarks for himself. |
§ 15 Place of Fulfillment, Court of Arbitration,
Applicable Jurisdiction
| 1. |
Place
of fulfillment for contractual duties, unless
otherwise specified, is the plant of the
supplier. |
| 2. |
All
disputes resulting from this contract are to be
final and bindingly resolved before the courts
in Germany responsible for the location of the
main office of the buyer. This agreement is
subject to the convention of the United Nations
on international sale contracts (CISG) of
04/11/1980. The material laws valid at the
location of the supplier are also to be applied. |
AGB-Abroad (Date: 28/09/2007) |
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