Condições de entrega e pagamento (03/2011)

Our terms of delivery and payment as PDF document

The conditions of the supplier also apply to all subsequent orders.

1. Quote

1.1 The quotes of the supplier are non binding. An order is only valid as being accepted and the scope of delivery as determined, when it has been confirmed in writing by the supplier, which may also happen through a delivery note or a bill. In the case of ordering for immediate delivery, even verbal or by telephone, the delivery conditions of the supplier count as having been agreed; hereby the delivery note or the bill is valid as the order confirmation.
Side agreements and changes are only valid if they are confirmed in writing by the supplier. Any objections to a confirmation letter must be raised immediately without undue delay.

1.2 The documents included in the quote, such as illustrations, drawings, indications of weight and measurement are only approximate, if they are not expressly marked as binding. The same applies for details of performance and consumption. The supplier retains the unrestricted ownership and copyright for cost estimates, drawings and similar information of a material or immaterial kind - even in electronic form; it may not be made accessible to third parties. The supplier is obliged not to disclose information and documents described as confidential by the buyer to third parties without their permission.

2. Prices and payment

2.1 Unless otherwise agreed, prices are ex works including loading in the factory, but excluding packaging, freight and unloading plus legal VAT. The most recent price list of the supplier applies.

2.2 Unless otherwise agreed, the payment must be made:

a) For order values below €10,000:

within 10 days of invoice date with 2% early payment discount or within 30 days net.

b) For order values above €10,000:

1/3 on receipt of order confirmation,

1/3 6 weeks before the confirmed delivery date,

1/3 on receipt of final bill,

Payment must be made within 10 days of the issue date of the receipt without deductions.

c) For orders with a value of less than €25, a minimum of €25 plus freight and packaging will be invoiced.

d) The timeliness of the payment depends on receipt of the money by the supplier.

2.3 The buyer only has the right to withhold payments or set payments off against counter-claims, if their counter-claim is determined to be undisputed or legally binding.

2.4 If the supplier becomes aware of a significant worsening of the financial status of the buyer after drawing up the contract, they have the right to demand advance payments, withhold deliveries that have not yet been made, and/or withdraw from the contract, even if note-based or other financing is in place, if the rights of the supplier are endangered in this way.

2.5 If the delivery is made later than 4 months after drawing up the contract, the supplier can adjust the price to comply with the changes to the wage rates and/or material costs that have occurred from drawing up the contract to the time of delivery.

2.6 In the case of intra-community delivery, the buyer is obliged to state their

2.7 VAT ID No. and the other details necessary for assessment of tax exemption, and provide the necessary receipts as evidence of tax exemption. If the buyer does not comply with these obligations in a timely manner, the supplier will treat the delivery as non tax exempted. The supplier is then authorised to calculate and demand the incurred VAT in addition. If the supplier has mistakenly treated a delivery as tax exempted based on incorrect details from the buyer, the buyer must exempt the supplier from the tax liability and must bear all expenses.

3. Delivery time, delivery delay

3.1 The delivery period starts with the dispatch of the order confirmation by the supplier, however not before provision of the documents and details to be obtained from the buyer, about technical details, authorisations, releases and agreed advance payments. In the case of call orders, the call is required at least 3 months before the desired delivery date,

3.2 The delivery date is adhered to, if the goods have left the factory by its expiry or readiness for dispatch has been declared. If acceptance must occur - except in the case of authorised refusal of acceptance - the acceptance date is crucial, or alternatively notification of readiness for acceptance.

3.3 The agreement of delivery times does not constitute a fixed date transaction; periods and deadlines only apply approximately, if they are not expressly indicated as binding in the order confirmation.

3.4 In all cases, in which manufacture and delivery is not possible or not possible in a timely manner for the supplier, for reasons beyond their control (e.g. force majeure, strike, lock out, lack of raw materials and operating materials etc.), the delivery period is extended as appropriate. This also applies if these circumstances occur with sub-suppliers.

The aforementioned circumstances are also not the responsibility of the supplier, if they occur during an existing delay. In important cases the supplier will inform the buyer of the start and end of this type of delay as soon as possible.

3.5 In the case of exceeding an agreed delivery period, the supplier only enters into default, if the buyer has already set them an extension of a month without success. If compensation for default can be demanded afterwards, this is limited in amount and is 0.5% for every full week of delay, but a total of 5% of the value of the part of the whole delivery that cannot be used on time or in accordance with the contract, due to the delay. Further claims are determined exclusively according to fig. 7.

The right of the buyer to withdraw after unsuccessful extension setting remains unaffected.

If the shipping and/or acceptance of the delivery object is delayed by the buyer, then they will be billed for the costs incurred by the delay, starting one month after notification of shipping and/or readiness for acceptance. In the case of storage in the factory of the supplier however they will be billed at least 0.5% of the billing sum for each month. The contractual parties remain at liberty to prove or assert higher or lower costs.

3.6 In the event of non acceptance of a delivery or after receiving notification that the goods are ready for shipment, the supplier has the right to set an extension of 4 weeks. After that the supplier can withdraw from the contract and demand compensation due to non fulfilment.

3.7 Adherence to the delivery date requires the buyer to fulfil their contractual obligations.

4. Transfer of risk, acceptance and assembly

4.1 The risk is transferred to the buyer at the latest with the shipment of the delivery parts, and indeed even if partial deliveries occur or the supplier has taken on other services, e.g. shipping costs or transport and installation. In the event of deliveries "ex works" the supplier can carry out the transfer of the goods to the freight forwarder at the cost and risk of the buyer. At the request of the buyer, for an additional cost, the shipment can be insured by the supplier against theft, breakage, transport, fire and water damages and other insurable risks.

4.2 If shipping is delayed due to circumstances caused by the buyer, then the risk is transferred to the buyer, from the day of readiness for shipment. The supplier is authorised to invoice the goods and obliged to take out the insurance that the buyer requests, at the request and cost of the buyer.

4.3 Delivered objects must be accepted by the buyer, regardless of the rights from section 6, even if they show insignificant defects.

4.4 Partial deliveries are permitted, if reasonable for the buyer.

4.5 Assembly, commissioning and demonstration works are to be paid for separately without any deductions, unless otherwise agreed. Preparation, travel and waiting time will be calculated as work time. Even before the fitters of the supplier arrive, the necessary foundations must be completed and the equipment must be ready in the place of assembly.

The fitters of the supplier must be provided with the necessary lifting equipment, assistants, materials etc. in a timely manner and free of charge, and indeed even in the case that the assembly is included in the price of the individual deliveries or a fixed price is set for the assembly. The preparations for commissioning a machine must be made by the buyer; this also includes the electrical connection of the machine. Agreed fixed prices for assembly or free assembly and demonstration do not include surcharges for any overtime, evening, Sunday and holiday work that become necessary or waiting times due to insufficient preparation work. These can be billed separately. The assemblies connected with the installation of the machine count as being completed with the trial commissioning.

4.6 If exporting the goods, the buyer must adhere to the EU and/or EU member state regulations relevant to the products, as well as those for the USA.

5. Reservation of title

5.1 The goods delivered by the supplier remain the property of the supplier right up to complete payment of all accounts receivable from the business transaction including any refinancing or return bills.

5.2 The supplier is authorised to keep the goods insured against theft, breakage and other damages at the cost of the buyer, if the buyer has not demonstrably taken out insurance.

5.3 The buyer may not pawn nor assign the goods by way of security. In the case of pawning and seizure or other injunctions by third parties, the supplier must be notified immediately.

5.4 The buyer is granted the right, which can be revoked at any time, to re-sell the goods in the normal and proper scope of their business, unless they have already assigned their receivable accounts elsewhere to which they are entitled from the resale or the assignment in advance to the supplier is ruled out. The buyer should assign the accounts receivable from the resale to the supplier already now as security. If the securities should exceed the outstanding debt by more than 20%, the supplier is obliged to release individual securities of their choice, at the request of the buyer.

5.5 If the buyer infringes the contract, in particular in the case of default of payment, the supplier is authorised to redemption and the buyer is obliged to return the goods; the collection authorisation according to fig. 5.4 expires. Due to the reservation of title, the supplier can only demand the return of the supplied goods, if they have withdrawn from the contract.

5.6 The claim to start insolvency proceedings authorises the supplier to withdraw from the contract and to demand the immediate return of the supplied goods.

6. Buyer's duty to notify

The buyer notifies the supplier on request, whether and if necessary to which company a sale or transfer of supplied goods was made.

7. Claims due to defects

The supplier is liable for defects of quality and title under exclusion of further claims - subject to fig. 7 - as follows:

Defects of quality:

7.1 All parts which emerge as being defective as a result of a circumstance before or during transfer of risk, must be improved or replaced without any defects, at the choice of the supplier. The supplier must be promptly notified in writing about the determination of such defects. Replaced parts become the property of the supplier.

7.2 On agreement with the supplier, the buyer must allow the necessary time and opportunity for the supplier to carry out the improvements and replacement deliveries that the supplier deems necessary; otherwise the supplier is exempt from liability for the consequences that arise. The buyer only has the right to rectify the defect themselves or have it rectified by a third party and demand compensation for the necessary expenditures, in urgent cases of endangered operational safety and/or defence against disproportionately large damages, whereby the supplier must be notified immediately.

7.3 Out of the direct costs arising from the improvement and/or replacement delivery - if the complaint emerges as being justified - the supplier bears the costs of the replacement piece including shipping. They also bear the costs for removal and installation as well as the costs of any required provision of the necessary fitters and auxiliaries including travelling costs, as long as the supplier does not incur an excessive burden in this way. If the complaint emerges as not justified, the buyer is obliged to reimburse the supplier for the costs that arise from assessing the complaint, on the basis of the current price list of the supplier.

7.4 In the scope of the legal regulations the buyer has a right to withdraw from the contract, if the supplier - taking into account the legal exceptions - has allowed an appropriate period for improvement or replacement delivery due to a defect in quality, to fruitlessly expire. If there is only an insignificant defect, the buyer only has the right to a reduction in the contractual price. The right to reduction of the contractual price is ruled out, if the supplementary performance was successful.

Further claims are determined according to fig. 7 of these conditions.

7.5 No liability is accepted in particular in the following cases:

Unsuitable or improper use, defective assembly and/or commissioning by the buyer or a third party, natural wear and tear, defective or negligent treatment, maintenance not in compliance with the regulations, unsuitable operating materials, defective construction work, unsuitable foundations, chemical, electrochemical or electrical influences - if the supplier is not responsible for these.

7.6 If the buyer or a third party carries out improvements incorrectly, the supplier is not liable for the resulting consequences.

The same applies for changes carried out to the supplied goods without the prior authorisation of the supplier.

Legal defect:

7.7 If the use of the supplied goods leads to the infringement of commercial property rights or copyrights within the country borders, the supplier, at their own cost, will provide the buyer with the right to further use or modify the supplied goods in such a way that the property right infringement is no longer present, in a way that is reasonable for the buyer.
If this is not possible under economical conditions or in an appropriate period of time, the buyer is authorised to withdraw from the contract. Under the named requirements the supplier also has the right to withdraw from the contract.

Furthermore the supplier will exempt the buyer from claims that have been determined to be undisputed or legally binding, by the affected property right owner.

7.8 The obligations of the supplier mentioned in section 6.7 are conclusive, subject to section 7.2, in the case of an infringement of property rights or copyright.

These only exist if

· the buyer notifies the supplier of the alleged infringements of property rights or copyright immediately,

· the buyer supports the supplier to an appropriate extent in the defence of the alleged claims and/or enables the supplier to carry out the modification measures in accordance with section 6.7,

· the supplier reserves the right to all defence measures including out of court settlements,

· the legal defect is not caused by an instruction of the buyer and

· the legal infringement was not caused by the buyer changing the ordered goods on their own authority or used them in a way that does not comply with the contract.

8. Liability

8.1 If the supplied goods cannot be used by the buyer in accordance with the contract, due to the fault of the supplier, as a result of omitted or defective implementation of suggestions and advice before or after drawing up the contract, or due to the infringement of other contractual side obligations - particularly instructions for operation and maintenance of the supplied goods, then the regulations of sections 6 and 7.2 apply accordingly, under exclusion of further claims of the buyer.

8.2 For damages that did not occur to the supplied goods themselves, the supplier is only liable - for whatever legal reasons -

a) in the case of intent,

b) in the case of gross negligence of the owner / organisation or managing employees,

c) in the case of culpable loss of life, physical injuries or harm to health,

d) in the case of defects, which they fraudulently concealed or guaranteed the absence of,

e) in the case of defects of the supplied goods, if they are liable for bodily injury or material damages to privately used objects, in accordance with the product liability law.

In the case of culpable infringement of important contractual obligations the supplier is liable,
even in the case of gross negligence of non managing employees and in the case of slight
negligence, in the latter case restricted to the contract typical, sensibly
foreseeable damages.
Further claims are ruled out.

9. Guarantee, limitation period

All claims of the buyer - for whatever legal reasons - are limited to 12 months. For compensation claims in accordance with fig. 7.2 a – e the legal time periods apply. They also apply for defects in a structure or for supplied goods, which were used according to their usual method of use for a structure and this caused defectiveness.

10. Software use

If software is included in the scope of supply, the buyer is granted a non exclusive right to use the supplied software including its documentation. It will be granted for use on the supplied goods that it is intended for. Use of the software on more than one system is prohibited.

The buyer can only copy, revise, translate or convert the software from the object code to the source code, within the legally allowed scope (sects. 69 a et seq.UrhG [Copyright Act]). The buyer is obliged not to remove or change manufacturer details - particularly copyright notations - without the express prior authorisation of the supplier.
All other rights to the software and documentation including copies remain with the supplier and/or the software supplier. Issuing sub-licences is prohibited.

11. Applicable law, place of jurisdiction

11.1 For all legal relationships between the supplier and the buyer, the law of the Federal Republic of Germany applies exclusively for legal relationships amongst domestic parties.

11.2 The place of jurisdiction is the relevant court for the headquarters of the supplier. However, the supplier has the right to bring proceedings at the headquarters of the buyer.

Status: 03/2011