Terms and conditions
Standard Terms and Conditions for the Sale and Delivery of Goods
1. PreambleThese Standard Terms and Conditions for the Sale and Delivery of Goods shall exclusively apply, save as varied by express agreement accepted in writing by both parties.
The offer, order acknowledgement, order acceptance of sale of any products covered herein is conditioned upon the terms contained in this instrument. Any conditional or different terms proposed by the buyer are objected to and will not be binding upon the seller unless assented in writing by the seller.
These conditions shall govern any future individual contract of sale between the seller and the buyer to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the buyer.
Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by the seller shall be subject to correction without any liability on the part of the seller.
The provisions of these Standard Terms and Conditions extend to standard contract conditions which are used in a contract with a merchant in the course of business only. In case that the buyer is actually a consumer according to provision of article 13 of the German Civil Code, the buyer is immediately required to notify the seller thereof accordingly.
2. Orders and Specifications
No order submitted by the buyer shall be deemed to be accepted by the seller unless and until confirmed in writing by the seller or the seller’s representative within 14 days after submittal.
The quantity, quality and description of and any specification for the goods shall be those set out in the seller’s order acknowledgement (if the seller accepted the order by the buyer) or the seller´s offer (if the offer of the seller is accepted by the buyer). Any such specification, sales literature, quotation etc. shall be strictly confidential and must not be made available to third parties.
The buyer shall be responsible for the seller for ensuring the accuracy of the terms of the sales contract, and for giving the seller any necessary information relating to the goods within a sufficient time to enable the seller to perform the contract in accordance with its terms.
If the goods are to be manufactured or any process is to applied to the goods by the seller in accordance with a specification submitted by the buyer, the buyer shall indemnify the seller in connection with or paid or agreed to be paid by the seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual rights of any other person which results from the seller’s use of the buyer’s specification.
The seller reserves the right to make any changes in the specification of the goods which are required to conform with any applicable statutory requirements or, where the goods are to be supplied to the seller’s specification, which do not materially affect their quality or performance.
3. Price of the Goods
The price of the goods shall be the seller’s quoted price or, where no price has been quoted, the price listed in the seller’s published price list current at the date of acceptance of the order. Where the goods are supplied for export for Germany, the seller’s published export price list shall apply.
The seller reserves the right, by giving notice to the buyer at any time before delivery, to increase the price of the goods to reflect increase in the cost to the seller which is due to any factor beyond the control of the seller (such as foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of materials or other costs of manufacture) or any change in delivery dates.
Should price-markup demands amount to more than 20 % of the original purchase price, the buyer is hereby entitled to terminate the puchase contract, without prejudice to any further reasons for withdrawal.
Except as otherwise stated under the terms of any quotation or in any price list of the seller, and unless otherwise agreed in writing between the buyer and the seller, all prices are given by the seller on an ex works, and where the seller agrees to deliver the goods otherwise than at the seller’s premises, the buyer shall be liable to pay the seller’s charges for transport, packaging and insurance.
The price is exclusive of any applicable value added tax, which the buyer shall be additionally liable to pay to the seller.
4. Terms of Payment
The buyer shall pay the price of the goods within 30 days after receipt of the seller’s invoice.
Payment shall be effected by inter bank payment transaction only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation.
It may be agreed between the parties that the buyer has to deliver a letter of credit issued by his bank (or any bank acceptable to the seller). In this individual case it is assumed that any letter of credit will be issued in accordance with the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication No. 500.
If the buyer fails of make any payment on the due date then, without prejudice to any other right or remedy available to the seller, the seller shall at his discretion be entitled to:
- cancel the contract or suspend any further deliveries to
the buyer; or
- charge the buyer interest on the amount unpaid, at the
rate of 8 per cent per annum above the base interest
rate from then being valid, until payment in full is made.
The buyer shall be entitled to prove that the delay of
payment caused no or little damage only.
The setting of and enforceability of withholding rights can be asserted by the buyer only in the event of indisputable or judicially recognised outstanding debts. The buyer is furthermore authorised to withholding only in as far as the relative counterclaims affect and are based on the same contractual relationship. In case of assertion by the buyer of a legally identified withholding right incurring due to effectively encountered or alleged defects, said right is however solely limited to the portion of the debts due, whereby withholding can only be in consideration of possible costs incurring for the elimination of said alleged defects and respective settlement in fair and reasonable ratio to the overall debt due and without violation to the principles of good faith. The seller is entitled to disqualify the assertion of withholding rights by way of security provisions, also by way of guarantee.
5. Delivery
Delivery of the goods shall be made by the buyer collecting the goods at the seller’s premises after the seller has notified the buyer that the goods are ready for collecting or, if some other place for delivery is agreed by the seller, by the seller delivering the goods to that place.
Where delivery of the goods is to be made by the seller in bulk, the seller reserves the right to deliver up to 3 % more or 3 % less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be in the quantity ordered.
If a fixed time for delivery is provided for in the contract, and the seller fails to deliver within such time or any extension thereof granted, the buyer shall be entitled, on giving to the seller within a reasonable time notice in writing, to claim a reduction of 0,5 % per week (and up to a maximum of 5 %) of the price payable under the contract, unless it can be reasonably conclude form the circumstances of the particular case that the buyer has suffered no loss. This limit shall not apply if the business had to be settled on a fixed date or if the delay was caused negligently or intentionally by the seller, his agents or representatives or if there is any further breach of any essential contractual obligation.
If for any reason whatever the seller fails within such time of effecting delivery, the buyer shall be entitled by notice in writing to the seller to fix a deadline after the expiry of which the buyer shall be entitled to terminate the contract. He may also recover from the seller any loss suffered by the buyer by reason of the failure of the seller.
If the buyer fails to accept delivery on due date, he shall nevertheless make any payment conditional on delivery as if the goods had been delivered. The seller shall arrange for the storage of the goods at the risk and cost of the buyer. If required by the buyer the seller shall insure the goods at the cost of the buyer.
In all events of raw material or energy shortages, strikes, lockouts, traffic blocks and/or official ordinances and decrees as well as delivery overruns by upstream suppliers, operational disturbances such as extraordinary workforce deficiencies due to casualties and epidemics, unforeseeable machinery and failures, consequential material shortages, import or export restrictions, all cases of force majeure e. g. mobilisation, war, insurrections riots bans on imports due to embargo provisions further to any other event and/or circumstance going beyond the control of the seller and/or seller´s preliminary or upstream sub-suppliers, the supplier is hereby exonerated from each and every obligation to deliver for the overall duration thereof, in as far as said occurrences may compromise the seller´s supply availabilities or ability to supply. In any one of the foregoing occurrences, the scheduled delivery dates and terms will be extended for the overall duration of the impediment, albeit for a maximum of 4 months.
Once said 4 months extension term has gone by, the buyer is entitled to terminate the contract, without prejudice to any further rights to withdrawal.
6. Transfer of Risks
Risk of damage to or loss of the goods shall pass to the buyer as follows:
- in the case of goods to be delivered otherwise than at
the seller’s premises, at the time of delivery or, if the
buyer wrongfully fails to take delivery of the goods, the
time when the seller has tendered delivery of the goods;
- in the case of goods to be delivered at the seller’s
premises (“ex works”, Incoterms 2000) at that time
when the seller notifies the buyer that the goods are
available for collection.
7. Retention of Title
Notwithstanding delivery and the passing of risk in the goods, or any other provision of these conditions, the property in the goods shall not pass to the buyer until the seller has received payment in full of the price of the goods and all other goods agreed to be sold by the seller to the buyer for which payment is then due.
After termination of the contract the seller shall have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the goods.
Until such time as the property in the goods passes to the buyer, the buyer shall hold the goods as the seller’s fiduciary agent, and shall keep the goods properly stored, protected and insured.
Until that time the buyer shall be entitled to resell or use the goods in the ordinary course of its business, but shall account to the seller for the proceeds of sale or otherwise of the goods including insurance proceeds, and shall keep all such proceeds separate form any moneys or properties of the buyer and third parties. The receivables generated from resale of title retention goods or per any other legal grounds (insurance payments, claims due to tort, etc.), including overall balance claims of current account are as of now assigned to the seller by the buyer, in proportion to their co-ownership share, as the case may be.
The buyer is hereby granted revocable authorisation for collection of receivables. The seller is entitled to revoke said authorisation in the event that the buyer does not perform his obligations to pay, the buyer either runs into payment arrears with the seller, or is subject to the opening of any insolvency proceedings whatsoever. In these cases, the buyer is committed to disclosing to the seller all the assigned claims, to furnishing all the information required to collect the claims and notifies the third party debtors of the assignment. The latter may also be performed by the seller.
If the goods are processed or reshaped by the buyer and if processing is done with goods that seller has no property in, seller shall become co-owner of the goods. The same shall apply if seller’s goods are completely reshaped and mixed with other goods.
If third parties take up steps to pledge to otherwise dispose of the goods, the buyer shall immediately notify the seller in order to enable the seller to seek a court injunction in accordance with § 771 of the German Code of Civil Procedure. If the buyer fails to do so in due time he will be held liable for any damages caused.
The seller shall on demand of the buyer release any part of the collateral if the value of the collateral held in favour of the seller exceeds the value of the collateral suitable for him.
Upon request, the buyer is committed to providing data and information on the current stock existence of the goods subject to retention of title. The seller is hereby irrevocably authorised to inspect the goods subject to retention of title, during standard office hours.
8. Warranties and Exclusion Clauses
The buyer shall examine the goods as required by German Law (§ 377 of the German Commercial Code) and in doing so check every delivery in any respect.
Claims by the buyer due to material deficiencies, are statute-barred one year after commencement of the limitation period. Notwithstanding the aforesaid all legal regulations on limitations are effective provided the claim results from a grossly negligence or intentional breach of contract on the part of the seller.
The seller warrants that all items delivered under this agreement will be free from defects in material and workmanship, conform to applicable specifications, and, to the extent that detailed designs have not been furnished by the buyer, will be free from design defects and suitable for the purposes intended by the buyer.
The seller shall not be liable for the goods being fit for a particular purpose unless otherwise agreed upon, to which the buyer intends to put them.
The above warranty is given by the seller subject to the following conditions:
- the seller shall not be liable in respect of any defect in
the goods arising from any design or specification
supplied by the buyer;
- the seller shall not be liable under the above warranty if
the total price for the goods has not been paid by the
due date for payment;
- the above warranty does not extend to parts, materials
or equipment manufactured by or on behalf of the buyer
unless such warranty is given by the manufacturer to
the seller;
- compensation due to delivery of insufficient goods is
excluded, if the insufficiency is not essential;
- the seller is not liable for any loss of profit, indirect
damages and any non-materialistic indemnification of the
buyer,
- the seller is not liable for damages which could not be
foreseen at the time of conclusion of the contract,
- the seller is not liable for indirect damages, e. g. for
damages occurred not at the delivered goods. The seller
is not liable for the loss of profit and other financial
losses of the buyer.
This warranty does not cover defects in or damage to the products which are due to improper installation or maintenance, misuse, neglect or any cause other than ordinary commercial application.
Any discharge from liability will be void if a defect results from a grossly negligence or intentional breach of contract on the part of the seller. The same applies if the seller may be held responsible for the breach of any further essential contractual obligation.
Any claim by the buyer which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to the seller in accordance with these conditions, the seller shall be entitled at the seller’s sole discretion to either replace the goods free of charge or repair the goods. If the seller is neither ready nor able to either repair or replace the goods the buyer shall be entitled at the buyer’s sole discretion to claim for a reduction of the contract.
9. Miscellaneous Clauses
The seller reserves the right to improve or modify any of the products without prior notice, provided that such improvement or modification shall not affect the form and function of the product.
This agreement supersedes and invalidates all other commitment and warranties relating to the subject matter hereof which may have been made by the parties either orally or in writing prior the date hereof, and which shall become null and void from the date of the agreement is signed.
This agreement shall not be assigned or transferred by either party except with the written consent of the other.
Each party shall be responsible for all its legal, accountancy or other costs and expenses incurred in the performance of its obligation hereunder.
10. Choice of Law; Place of Jurisdiction
This agreement shall be governed by and construed in accordance with German law and each party agrees to submit the jurisdiction of the courts having jurisdiction for the seller. The UN Convention on Contracts for the International Sale of Goods (CISG) shall be excluded.
The seller shall have the right to bring a claim before a court at the buyer’s principal place of business or at his discretion before any other court being competent according to any national or international law.
(As of October 2008)
Standard Terms and Conditions for the Purchase of Goods
1. Preamble
These Standard Terms and Conditions for the Purchase of Import Goods shall exclusively apply, save as varied by express agreement accepted in writing by both parties. These conditions shall also apply if the buyer accepts delivery of Goods under the existence of the seller’s contradictory Standard terms not being subject of the contract.
Any agreement being concluded between buyer and seller shall only be binding between the parties if they are laid down in writing. Any conditional or different terms proposed by the seller are objected to and will not binding upon the buyer unless assented in writing by the buyer.
These conditions shall govern any future individual contract of purchase between buyer and seller to the exclusion of any other terms and conditions. These provisions extend to standard contract conditions which are used in a contract with a merchant in the course of business only.
2. Formation of Contract
The Contract shall be deemed to have been entered into when, upon receipt of an order, the seller has sent an acceptance in writing, the time limit of fourteen days hereby fixed by the buyer.
Any weights, dimensions, capacities, prices, performance ratings or any other data contained in catalogues, circulars, advertisements or price lists constitute an approximate guide and shall not be binding save to the extent that they are by reference expressly included in a contract. Any such data submitted to the seller prior or subsequent to the formation of the contract remain the exclusive property of the buyer. They must not be communicated to a third party.
3. Price of the Goods
The price of the order or the seller’s quotation and offers as accepted by the buyer shall be binding and shall be based on “delivery (duty paid)”. Prices as agreed upon shall include the cost of packing or protection required under normal transport conditions to prevent damage, and shall also include VAT.
4. Terms of Payment
Payment shall be made in the manner and at the time or times agreed by the parties. If not agreed upon otherwise, payment for the delivery shall be made within fourteen days after delivery and receipt of invoice with a 2 % discount or within thirty days net.
5. Delivery
Delivery shall be effected on due date as fixed in the contract or the order of purchase being subject to the contract. Agreed delivery dates are binding.
The seller is obliged to give notice in writing to the buyer if a delay in delivery is to be expected.
If the seller fails for any reason whatsoever to effect delivery on due date the buyer shall be entitled by notice in writing to the seller to recover from the seller any loss suffered by reason of such failure (i. e. for additional costs for transportation, insurance, storage etc.) but not exceeding an amount of 10 % of the total contract price.
6. Transfer of Risks
Save as provided in an individual contractual agreement the time at which the risk of damage to or loss of the goods shall pass shall be fixed in accordance with the Interpretation of Trade Terms (Incoterms 2000) of the International Chamber of Commerce. If no further indication is given in an individual contract of purchase (import), the goods shall be deemed to be sold “ddp” (delivery duty paid, Incoterms 2000).
7. Warranties
7.1. Warranties relating to the quality of goods
The seller warrants that all items delivered under this agreement will be free from defects in material and workmanship, conform to applicable specifications, and, to the extent that detailed designs have not been furnished by the buyer, will be free from design defects and suitable for the purposes intended by the buyer.
Seller’s warranties hereunder shall extend to any defect or non – conformity arising or manifesting itself within two years after delivery. For repaired or replaced parts the period of limitation starts anew. For defects notified within the limitation period, the period shall end no earlier than six months after assertion of the notice of defects. The seller shall not object on the grounds of delayed notification (Arts 377, 381 par 2 Commercial Code (HGB) for all other than obvious defects. With respect to items not in accordance with any such warranties, the buyer, without waiving any rights or remedies provided by law and/or elsewhere under these Standard Terms and Conditions, may require the seller to correct or replace such items at the seller’s risk and expense or refund such portion of the price as is equitable under the circumstances. Any items corrected or replaced shall be subject to the provisions of these Standard Terms and Conditions in the same manner as those originally delivered hereunder.
7.2. Warranties of compliance with laws
The seller warrants and undertakes to the buyer that in the performance of any contract of sale he will comply with all laws, rules, regulations, decrees and other ordinances issued by any governmental, state or other authority relating to the subject matter of these Standard Terms and Conditions and to the performance by the parties hereto of their obligations hereunder.
7.3. Warranty of title
The seller warrants that the goods are in his absolute property and none are subject of any option, right to acquire, assignment, mortgage, charge, lien or hypothecation or any other encumbrance whatsoever or the subject of any factoring arrangement, hire purchase, conditional sale or credit sale agreement.
8. Assignment
The seller shall not be entitled to transfer either the execution of the contract or its contractual claims in whole or in part to third parties without the buyer’s prior written agreement. Subcontractors of the seller shall be named to the buyer on request.
9. Miscellaneous Clauses
This agreement supersedes and invalidates all other commitments and warranties relating to the subject matter hereof which may have been made by the parties either orally or in writing prior to the date hereof, and which shall become null and void from the date the agreement is signed.
This agreement shall not be assigned or transferred by either party without the written consent of the other.
Each party shall be responsible for all its legal, accountancy or other costs and expenses incurred in the performance of its obligation hereunder.
10. Place of Jurisdiction; Choice of Law
Place of jurisdiction shall be the domicile of the buyer, or at the buyer´s choice the seller´s general place of jurisdiction. All legal relations between the buyer and the seller shall be governed by the prevailing law of the Federal Republic of Germany to the exclusion of the law on the United Nations´convention of April 11, 1980, concerning agreements in respect of the international purchase of goods (CISG) in the currently valid version.
(As of October 2008)
