General Terms of Trade / Conditions of delivery
1. Validity
All business with us will be conducted under the Terms and Conditions stated
herein and with the purchaser’s express knowledge and acceptance of all
these provisions. The validity of opposing Terms and Conditions - in
particular those of the contracting party - will not be accepted. Any
deviating conditions require our previous consent in writing - even if these
declarations to the contrary remain un-contradicted by us. The supplier and
the purchaser renounce on any oral agreements or amendments. If for any
reason part of these provisions is altered, the validity of the remaining
terms and conditions shall not be affected.
2. Offers
Our offers are non-binding and freestanding unless otherwise stated. All
contracts become valid at the earliest after our written confirmation. This
clause shall also apply for contracts concluded by our representatives.
Additions, modifications or oral agreements require a subsequent written
confirmation by us.
Illustrations, drawings or any information on dimensions, weight and colours
given on the internet, in catalogues, price lists or any brochure are only
approximate estimates as it is customary in our particular branch.
Besides we reserve the right to modifications in production or design.
Orders made to the buyer’s individual specifications (custom-made design)
require without exception a written notice of all modifications (e.g.
finish, dimensions).
3. Pricing Policy
All quoted prices, unless otherwise stated, are ex our warehouse in
Wermelskirchen.
Prices are exclusive of VAT, packing, freight, insurance charges and stamp
duties.
All prices will be those ruling on the day of delivery, unless otherwise
expressly indicated in the contract. Prices are only valid for the point of
destination specified in the order.
Prices quoted in the contract may be revised in a reasonable way in the
event of any considerable increase of the supplier’s costs of production
(e.g. raw materials, energy or wages).
4. Packaging
According to our discretion the supplied goods will be packed to
commercial standard. The packing charges will be paid by the purchaser. The
packing material is calculated at best and cannot be returned.
5. Delivery and shipment
We reserve the right to select the appropriate means of shipment (by
railway, post, transport carrier or lorries provided by us).
If upon the purchaser’s request the goods are delivered directly at its
address the risk of any loss, damage or deterioration of the goods shall
pass to the purchaser as soon as the goods are ready for shipment and are
placed at the disposal of the forwarding agency or at the latest upon
departure from the manufacturing or distributing facility.
The purchaser is bearing the delivery costs. Part deliveries are admissible.
In case of acceptable delay in shipment or delivery the risk passes onto the
purchaser as soon as the goods are ready for dispatch.
6. Delivery time, force majeure, industrial actions
Any quotations of delivery times are made as estimates and are non-binding.
The delivery period begins to run immediately after dispatch of the order
confirmation but not before all detailed documents pertinent to the
execution of the contract have been provided.
The delivery is effected, if the ordered goods have left the factory or
warehouse or are ready for dispatch at the date of shipment without
exceeding the deadlines set out in the delivery terms. Collection of the
customer in due and proper form within the required time limit is permitted.
Will the supplier be unable to commit a delivery contract due to
unforeseeable difficulties beyond of its control such as breakdown of
machinery or inability to secure supplies, the supplier is dispensed from
the duty of performance in time for the duration of such circumstances. In
the event of such an occurrence the supplier shall not be responsible for
non-delivery or non-performance of goods and services. This provision is
also applicable in the event of strikes or out-locks.
If due to these circumstances delivery times are extended or the supplier’s
duty to perform the contract is dispensed the purchaser has no right to
claim any damages arising therefrom. Any discharge from liability will be
void if a defect results from a heavily negligent or intentional breach of
contract occasioned by the conduct of the supplier or one of its chief
executives, or if the purchaser will be bodily injured as a result from a
negligent or intentional breach.
The same regulation applies if the purchaser as a consequence of force
majeure is prevented from fulfilling its obligation to receive the ordered
goods.
The purchaser is obliged to receive deliveries resulting from call-off
orders at the latest 6 months after confirmation of the order.
7. Complaints, warranty / statute of limitation, liability
a) Liability for material defects
After receipt of delivery the supplied goods immediately have to be examined
for quality and completeness, otherwise any complaints or claims about
defects and damages concerning the delivery shall be deemed to be invalid.
We disclaim any liability for defects resulting from ordinary wear and tear,
atypical use or damages caused by service failure, unauthorized or negligent
act, exposure to excessive heat or cold, failure of indispensable
lubrication, electro-chemical or electrical effects.
Our tooling and lighting systems are delivered with a package of care and
maintenance instructions. We advise you to consult the pertinent product
information.
Warranty claims for damages are excluded if the relevant product has been
processed or modified in whatsoever form.
Is the product at time of delivery defective or incorrect, the supplier will
at its discretion, any further warranty claims excluded, deliver a
replacement or make the necessary improvements.
If the supplier has not made a replacement or repaired the defects within a
reasonable period of grace for additional performance – usually a period of
6 weeks - the purchaser has the right to lower payment in degree or to
withdraw from the contract. Further claims are excluded.
Further processing or modification of defective goods is not permitted.
Visible defects have to be reported in a written form to the supplier within
10 days following the receipt of the delivered goods, complaints concerning
defects not visible at the time of delivery have to be stated in writing
immediately after discovery. The purchaser will make any effort to limit the
damages at its best ability. The warranty period expires at the latest 12
months after dispatch of delivery.
The liability for original delivery items shall also apply to the same
extent for replacement deliveries and subsequent improvements. The warranty
period for replacement deliveries is renewed immediately after dispatch. We
shall not be liable for any error or mistake resulting from documentation
(drawings, samples etc) supplied to us by the purchaser. Defects which have
been objected shall not entitle the purchaser to return the whole delivery.
Objected goods can only be returned with our explicit previous agreement. On
request of the supplier the purchaser has to return the goods at lowest
price.
b) Further claims
We exclude all claims and damages due to impossibility of performance,
default of payment, violation of mutual confidence in the preparation of the
contract or unauthorized acts as long as the damages are not caused by
wilful intent or gross negligence of our chief executives or persons
employed in the performance of their obligations and unless these claims are
not based on an injury to life, body and health. Liability under the German
Product Liability Act remains unaffected.
8. Payment Terms
All prices are quoted in EURO. All alterations in exchange rates occurring
after the conclusion of contract (date of order confirmation) are to the
purchaser’s debit.
All invoices are to be paid within 10 days of invoice date at 2 % discount
and within 30 days net without any deductions. Bills of exchange and cheques
are only accepted on account of performance with prejudice of protest if
they are discountable and a special agreement has been concluded. Failure to
fulfil payment of the invoiced goods on the due date entails discount
charges from the date of default which are payable immediately by the
purchaser. If the purchaser is in debt we are allowed to levy default
charges at a rate of at least 3 % above the discount rate of the Federal
Bank of Germany. According to the supplier’s payable debit interests the
purchaser may be charged interests at even higher rates. When dealing with
new clients we reserve the right to ask for payment on delivery or payment
in advance.
Orders are only accepted if the creditworthiness of the purchaser is
assured. If there are any doubts about the purchaser’s ability to pay the
amounts due within an agreed period because of insolvency proceedings,
immediate suspension of payment or suchlike difficulties we have the right
to withdraw from further deliveries and to cancel the contract. The supplier
shall never be liable for any damages by reason of such rescission. The
purchaser is obliged to fulfil the obligations resulting from the
performances already executed by us according to the contract.
The purchaser has only the right to withhold payments or to set-off any
counter-claims if these claims are recognised by us as undeniable and legal.
9. Reservation of ownership
Until full payment of all claims arising from the contract concluded between
supplier and purchaser and until discharge of all bills and cashing of all
cheques the property in the delivered goods remains with the supplier. In
deviation from the provisions stated in art. 449, paragraph 2 of the German
Civil Code (BGB) the supplier is entitled to withdraw from the contract if
the purchaser is in default of payment.
The purchaser is entitled to transfer the reserved goods within the ordinary
course of business, pledging or transfer of ownership by way of security is
not permitted.
The purchaser’s claims accrued due to the disposal of the reserved goods are
assigned to the supplier. The supplier will acknowledge this assignment. The
customer is entitled to collect these claims as long as he fulfils his
obligations against the supplier. Upon request of the supplier the purchaser
is obliged to give notice of any third-party debtors and to signal the
assignment to them.
Further processing and modification of the goods forming the subject matter
of a reservation of ownership are executed by the client in the name of the
supplier. The supplier however shall not have any obligations toward these
reworked goods. If the delivered goods are processed or become constituents
of other products the ownership remains with the supplier, but he will
become co-owner of the newly manufactured items according to the outstanding
claim. The amount of ownership is determined by the proportion of the
invoiced value of the goods forming the subject matter of a reservation of
ownership to the value of the reworked items.
If the goods forming the subject matter of a reservation of ownership are
resold or disposed of after they have been processed or become constituents
of other products the assignment in advance mentioned above applies only to
the amount of invoice relating to the reserved goods.
If third parties have access to the reserved goods, especially in the case
of execution proceedings or execution in the assigned claims, the purchaser
has to inform the supplier of the matter without delay and is obliged to
hand out the documents required for an intervention.
On request and at the discretion of the purchaser the supplier is obliged to
release the provision of securities according to the regulations mentioned
above if the value of the securities exceeds the claims at a rate of 20%.
10. Tooling costs
The tooling costs are invoiced separately from the invoiced value of goods.
a) The purchaser will not acquire title of the tools produced or furnished
by the manufacturer regardless of any expenses charged to the purchaser. The
tools will remain the sole property of the manufacturer. The manufacturer is
compelled to preserve the tools for the purchaser up to one year after
performance of the last delivery.
If the purchaser signals within a time limit of one year his intention to
pass further orders within the following year the preservation period
relating to these tools is prolonged for another year.
If the purchaser has not placed any supplement order within the time limit
of one year the tools will be at the disposal of the manufacturer.
b) We reserve the right to invoice accrued tooling costs relating to orders
cancelled in the stage of development (due to difficulties in transformation
or design) or in the initial stages of the contract.
aa) In the event of cancellation prior to approval of the tool design the
accrued manufacturing costs for the first set of tools are charged to the
purchaser.
bb) In the event of cancellation of contract subsequent to approval of the
tool design the total costs for production tooling, special installations
and templates are charged.
Work-in-progress at the expense of the customer remains with the
manufacturer for inspection for a period of four weeks. Upon expiration of
this time limit the tools are sent to be scrapped.
The manufacturer is not obliged to present the elaborated technical plans
and engineering drawings in order to protect the applied techniques.
11. Choice of law, Place of Jurisdiction, Place of Performance
With respect to the choice of law, the contractual parties expressly agree
to the applicability of German law (BGB - German Civil Code, HGB - German
Commercial Code). Application of the uniform law on the sale of goods as
well as other laws shall be excluded.
The place of contract fulfilment shall be the registered office of the
company. Any legal disputes that might arise between supplier and purchaser,
insofar fully qualified merchant as defined in business law, legal person
under public law or special asset under public law, shall be submitted to
the competent court having jurisdiction at the place of the company’s
registered office. Still we reserve the right to institute proceedings at
the purchaser’s court of jurisdiction (place of residence or registered
office).
© Copyright 2002 by SETOLITE, all rights
reserved.
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