Terms and conditions for sales and delivery
of EFFEKTA – Regeltechnik GmbH, Tettnang
Preamble:
The following terms and conditions for sales and delivery form the basis of the delivery and service contracts of the contractor (user) and supplement the applicable law.
They are only applicable to businesses where the contract is made in the course of their business, legal entities of the public law or special authorities under public law.
I. Application
1. Orders only become binding with regard to the type and scope of deliveries after the supplier confi rms the order. Any changes and additions must be in writing.
2. Where ongoing business relationships subsist, these terms and conditions also apply to future transactions even where they are not expressly communicated to the orderer. The terms and conditions are deemed to be accepted at the latest when the order is placed or the delivery or service is accepted. If alternative provisions of the orderer or supplier are to apply instead of these terms and conditions, these must be expressly agreed by the partners.
3. Contrary or divergent sales terms of the orderer shall only be binding on the supplier if they have been expressly acknowledged by him in writing.
II. Prices
1. A binding price shall only be deemed to have been set after the supplier confirms the order in writing. This is subject to the proviso that the order details on which the order confirmation is based remain unchanged. The supplier’s prices are in EUR exclusive of any VAT applicable at the time of the delivery, unless other information is specified.
2. If, in the course of a delivery period of more than four months, a change to the price basis occurs (increase in the price of raw materials, change of salary and wage rates), the supplier reserves the right to adjust the price accordingly.
3. Packaging, postage and other shipping costs are not included and will be invoiced additionally.
4. The orderer shall bear the costs of any changes to the product he requests after the order has been confirmed.
5. Partial deliveries may be invoiced separately.
III. Delivery quantity, delivery period
1. Production-related over- or underdeliveries of up to 10% of the order quantity are permitted.
2. The supplier is permitted to make partial deliveries.
3. The delivery periods commence with the date of order confi rmation by EFFEKTA – Regeltechnik GmbH. The delivery periods specified by the supplier refer to the shipping date of the goods. They shall be deemed to have been observed if at this time the goods are
dispatched from the factory or the orderer is informed that they are ready to be shipped.
4. The agreed delivery time is only applicable after all technical and commercial details have been settled. Accordingly, all delivery times are provisional. Delivery times are only binding where they have been confirmed to the orderer as such in writing.
5. If action on the part of the orderer is necessary for the manufacture of an item or the execution of a delivery, the delivery period shall not commence until the orderer has fully completed this action.
6. In the event of a delay in delivery, the orderer may withdraw from the contract should a reasonable grace period expire without results. In the event of impossibility of performance on the part of the supplier, this right is available without the supplementary period.
Delay in delivery is deemed to amount to impossibility if delivery does not occur for more than one month.
Claims for damages (incl. any consequential loss) are excluded, without prejudice to clause 7; the same applies to reimbursement of expenses.
7. The exclusion of liability regulated by clause 6 shall not apply where an exclusion or limitation of liability for damages for death, personal injury or damage to health resulting from a wilful or negligent breach of duty by the user or vicarious agents of the supplier has been agreed; further, it shall not apply where an exclusion or limitation of liability for other loss resulting from a wilful or grossly negligent breach of duty by the supplier or a wilful or grossly negligent breach of duty by a legal representative or a vicarious agent of the supplier has been agreed.
Liability shall not be excluded where the supplier culpably breaches a fundamental contractual duty or a “cardinal duty”, but instead limited to the foreseeable damages typical for the type of contract.
The above applies correspondingly in the event of reimbursement of expenses.
8. The limitations of liability stipulated in clauses 6 and 7 do not apply insofar as a commercial firm deal was agreed; the same also applies where the orderer can assert that he no longer has an interest in fulfi lling the contract due to a delay for which the supplier is at fault.
9. In the event of forces majeures experienced by the supplier or his subsuppliers, the delivery time shall be prolonged by a correspondingamount. This shall also apply in the event of intervention by official bodies, difficulties with the supply of energy and raw materials, strikes,
lockouts and unforeseen obstacles to delivery, insofar as these are not the fault of the supplier. The supplier shall inform the orderer of any such event without delay.
IV. Transfer of risk, packaging and shipping
1. Where the orderer collects the goods from the supplier’s premises, risk passes with transfer of the goods to the orderer. Where the goods are shipped, risk passes on transfer of the goods to the carrier. Where the goods are delivered, risk passes when the goods leave the supplier’s premises.
2. In the event of delays to dispatch that are the fault of the orderer, risk passes on communication of readiness for shipping.
3. Insofar as nothing else has been agreed, the supplier shall select the packaging and shipping type to the best of his judgment. Where requested in writing by the orderer, the goods may be insured against breakage, transport and fire damage at the orderer’s expense.
V. Retention of title
1. The supplier shall retain title to the deliveries until all current and future amounts due from the business relationship have been settled, even where the purchase price of specifically designated amounts due has been paid. In the case of rolling invoices, the retained title of the deliveries (goods subject to retention of title) counts as a security for the payment of amounts due on the supplier’s account.
2. In the event of conduct constituting a breach of contract on the part of the orderer, in particular late payment, the supplier is entitled to reclaim the goods. The orderer hereby agrees to the goods being reclaimed under these circumstances. Reclaiming the goods only represents a withdrawal from the contract where the supplier expressly declares this to be such. Any costs incurred by the supplier in reclaiming the goods (in particular transport costs) shall be borne by the orderer. Further, the supplier is authorised to prevent the orderer from selling on or processing the goods subject to retention of title and to revoke any direct debit authorisation that may have been issued.
Once the purchase price and all costs have been paid, the orderer can require any goods reclaimed without an express declaration of withdrawal to be despatched.
3. The orderer undertakes to handle the goods with care.
4. The orderer may neither mortgage, pledge as security nor assign the goods delivered and corresponding amounts due. In the case of seizure or other third-party intervention, the orderer shall immediately inform the supplier in writing in order for him to file a claim in accordance with section 771 of the Civil Procedure Code. Any remaining costs outstanding to the supplier despite successful litigation as per section 771 of the Civil Procedure Code shall be borne by the orderer.
5. The orderer is permitted to sell on, process or mix the goods in the normal course of business. In doing so he hereby assigns to the supplier all amounts due from selling on, processing, mixing or other legal grounds (in particular from insurance or non-permitted actions) to the extent of the fi nal invoice amount agreed with the supplier (incl. VAT).The orderer remains authorised to collect these amounts due even after assignment, without prejudice to the authorisation of the supplier to collect the amounts due himself. However, the supplier undertakes not to collect the amounts due for such time as the orderer fulfi ls his payment obligations from the revenue received, is not in default of payment and no application to instigate insolvency proceedings has been made and no suspension of payment is in force.
If this is the case, the orderer is required to notify the supplier on request of the assigned amounts due and debtors, to provide all information required for collection, to deliver up the associated documents and to notify the debtor (third party) of the assignment.
The direct debit authorisation may be revoked by the supplier in the event of breaches of contract (in particular payment default) by the orderer.
6. The retention of title also extends to the products arising as a result of processing, mixing or combination of the delivered goods to the extent of their full value, whereby these processes shall be deemed by the supplier to constitute manufacture. In the event of processing, mixing or combination of the goods with goods to which a third party retains title, the supplier obtains co-ownership in proportion to the objective values of these goods.
7. For the purpose of securing the amounts due against the supplier, the orderer also assigns to the supplier the amounts due which arise in favour of a third party through the combination of the delivered goods with land.
8. The securities owing to the supplier are not included where the value of his securities exceeds the value of the secured claims by more than 30%.
9. The enforceability of the retention of title in the event of default on payment or exposure to loss and seizure of the delivered goods by the supplier represents withdrawal from the contract.
VI. Terms of payment
1. All payments must be made in Euros exclusively to the supplier.
2. Insofar as nothing else has been agreed, the purchase price must be paid via cash on delivery or advance cheque. In the latter case delivery shall proceed once the cheque has cleared. In exceptional cases payment terms of 14 days strictly net may apply.
3. If the orderer defaults on payment, the supplier is permitted to demand default interest at eight percentage points above the base interest rate. The supplier may at any time produce evidence of higher interest damages and charge for these.
4. Failure to observe the terms of payment, default or circumstances that pose a risk of reducing the orderer’s creditworthiness will result in all of the supplier’s claims becoming due for payment immediately. Further, the supplier is permitted after a reasonable grace period to withdraw from the contract or demand damages instead of performance.
5. The orderer may only exercise offsetting rights if his counterclaims have been legally established, are indisputable or have been acknowledged by the supplier.
6. The orderer is permitted to exercise a right of retention insofar as his counterclaim is based on the same contractual relationship.
7. The supplier is under no obligation whatever to accept cheques and bills of exchange. Credit of this type is in all cases subject to redeemability (on account of payment, not on account of performance) and is deemed to be redeemed on the day that redemption value is available to the supplier. In the case of bills of exchange, any discount on presentation, stamp duty, bank charges and any direct debit charges shall be passed on by the supplier.
8. The right to pursue any further contractual or statutory claims in the event of default is reserved.
VII. Responsibility for defects
If the orderer fulfi ls the duty of inspection, notifi cation and rejection required of him in accordance with section 377 of the Commercial Code, the supplier is liable for defects of the delivery to the following extent:
1. In the event of a not inconsiderable defect of the purchased goods, the supplier may choose either to correct the defect or supply a defect-free product (supplementary performance). In the event of failure of the supplementary performance, the supplier is authorised to undertake a further act of supplementary performance. Further, in the event of repeated supplementary performance, the supplier decides between re-supply or correction of the defect. Should one or both of these methods of supplementary performance be impossible or not proportionate, the supplier is permitted to refuse them. The supplier may also refuse supplementary performance for such time as the orderer does not fulfil his payment obligations towards him proportionate to the defect-free part of the performance.
2. If supplementary performance as per clause 1 is impossible or fails, the orderer has the right either to reduce the purchase price accordingly or withdraw from the contract in accordance with the statutory provisions. These rights are open to the purchaser particularly where the supplier culpably delays or refuses the supplementary performance or if it fails for a second time. Insofar as the following (clause 4) does not provide otherwise, further claims of the orderer, regardless of their legal ground (in particular claims arising from the breach of contractual conditions and warranties, reimbursement of expenses with the exception of that provided for in section 439 subsection 2 of the German Civil Code, unlawful acts and other tortious liability) are excluded. This applies in particular to claims for damages beyond the thing purchased and for claims for the reimbursement of lost profi ts. This also covers claims that do not result from the defectiveness of the thing purchased.
3. The above provisions also apply to the delivery of a different item or a lesser quantity.
4. The exclusion of liability under clause 2 does not apply where an exclusion or limitation of liability for damages for death, personal injury or damage to health caused as a result of a wilful or negligent breach of duty by the user or wilful or negligent breach of duty by a legal representative or vicarious agent of the user has been agreed. It also does not apply where an exclusion or limitation of liability for other damages caused as a result of a wilful or negligent breach of duty by the user or wilful or negligent breach of duty by a legal representative or vicarious agent of the user has been agreed. Liability shall not be excluded where the supplier breaches a fundamental contractual duty or a “cardinal duty”, but instead limited to the foreseeable damages typical for the type of contract. It is further excluded under clause 2.
The exclusion of liability shall not apply if liability for personal injury or material damage to privately used items in the event of defects to the thing supplied applies under the Product Liability Act.
Further, this also applies in cases covered by a guarantee by the supplier or where assurances were made as to specifi c properties of the goods purchased. Here a defect in this regard triggers the supplier’s liability. The above applies correspondingly in the event of reimbursement of expenses.
5. Claims for supplementary performance, damages and replacement goods/services are subject to a time limit of one year after delivery of the goods.
This does not apply to goods which have been deployed in a building in accordance with their standard application and have caused this to become defective. The time limit here is five years.
Claims for abatement and the exercise of the right to withdraw from the contract are excluded where the time limit for a claim for supplementary performance has been exceeded.
In the case of clause 3 the purchaser may refuse to pay the purchase price to the extent that he would be entitled in the event of withdrawal or abatement. In the case of an exclusion of withdrawal and subsequent refusal to pay, the supplier is permitted to withdraw from the contract.
6. Claims resulting from right of recourse to the producer are not affected by this section.
7. No liability is accepted for damage resulting from unsuitable or improper use, defective installation by the orderer or a third party, defective or negligent handling or natural wear. Further, the supplier bears no liability for any damages caused by unsuitable equipment, defective building work, replacement materials, chemical and electrochemical or electrical infl uences (insofar as these are not the fault of the supplier) and improper alterations or maintenance work made without prior approval of the manufacturer on the part of the orderer or third parties. The same applies to unauthorised re-working or improper handling.
8. Transport damages must be reported immediately to the delivering transport company. The carrier’s instructions on subsequent procedure must be followed
VIII. Breaches of duty
1. The supplier’s liability for breach of duty is limited to grossly negligent or wilful breaches of duty.
2. Any liability for the infringement of intellectual property rights of third parties is excluded, in particular when performing production tasks in accordance with the orderer’s specifi cations. The supplier is not subject to a duty of scrutiny in regard to the intellectual property rights of third parties.
IX. Software
Insofar as programs are part of the scope of delivery, the orderer obtains individual unlimited usage rights, that is he may not copy them or use them for any other purpose. Multiple usage rights shall be subject to written agreement. In the event of an infringement of these usage rights, the purchaser shall be liable for the full extent of any resultant loss.
X. Place of performance, jurisdiction and applicable law
1. The place of performance is Rottweil.
2. The court of jurisdiction is Rottweil, insofar as the orderer is trading in the course of a business. The supplier is permitted to bring an action against the orderer in other permissible jurisdictions.
3. The law of the Federal Republic of Germany applies with regard to all claims and rights resulting from this contract. The application of UN sale of goods law (CISG) is expressly excluded.
XI. Closing provisions
1. Any changes to the contract or supplementary agreements are only effective if they have been approved in writing by the supplier.
2. Rights of the orderer arising from the legal transaction with the supplier are not transferable.
3. Should any individual provisions of these terms and conditions become partially or wholly ineffective or invalid, this shall not affect the validity of the remaining provisions. The parties to the contract undertake to agree to a ruling by means of which the purpose intended by the ineffective or invalid provision is largely achieved.
(As of: November 2006)