General terms and conditions of sale
I. AREA OF VALIDITY
- These terms and conditions of sale apply exclusively; we do not recognise any terms and conditions of the purchaser which deviate from our conditions of sale unless we have expressly consented in writing to their validity. Our terms and conditions also apply if we perform delivery to the purchaser without any reservations despite knowing the purchaser’s deviating terms and conditions.
- All agreements which are concluded between us and the purchaser for the purpose of executing, altering and/or supplementing the concluded agreements must be in writing.
- Our terms and conditions of sale apply only in respect of entrepreneurs within the meaning of § 310 para. 1 of the German Civil Code (BGB).
- These terms and conditions of sale also apply to all future transactions with the purchaser.
II. OFFER - OFFER DOCUMENTATION
- Our offers are subject to change. A contract only comes into effect with our written confirmation of order.
- We retain title and intellectual property rights without restriction to illustrations, drawings, calculations and other documentation. The documentation may only be made accessible to third parties with our prior consent and must be returned to us immediately upon our request.
III. TERMS AND CONDITIONS OF PRICES AND PAYMENT
- Our listed prices are net and binding. Legal sales tax at the statutory rate will also be added on the invoice date.
- If no other written agreement has been concluded, our prices are to be understood ex works. The cost of packaging and transport will be charged separately.
- In the absence of any other agreement, payment shall be made without cash discount deduction and without any other deductions in such a way that we can dispose of the amount on the maturity date. We are entitled to charge interest from the date of maturity at the rate of 8 percentage points over the respective base rate (§ 247 BGB). In other cases the legal provisions apply in respect of the consequences of delay in payment.
- The purchaser is only entitled to set-off rights if his counterclaims have been legally established, are undisputed or have been recognised by us. Furthermore, he is only authorised to exercise a right of retention to the extent that his counterclaim is based on the same contractual relationship.
- All our claims resulting from the business relationship with the purchaser are due immediately when and insofar as our claim for payment is at risk as a consequence of subsequently incurred circumstances which lead to a significant deterioration in the financial situation. In these cases we are also entitled to effect outstanding deliveries only on the basis of advance payment or provision of security. If the advance payment or provision of security are not effected within 2 weeks, we are entitled to withdraw from the contract. All other claims remain unaffected.
IV. RESERVATION OF TITLE
- The delivered merchandise remains our property until all claims to which we are entitled in respect of the purchaser, now and in future, have been met, and including all unsettled balances from current account. If the purchaser fails to meet his contractual obligations, in particular in the event of default in payment, we are entitled to withdraw from the contract and to demand return of the delivered item; the purchaser is obliged to release and return the item.
- The purchaser is entitled to use the delivered item in the normal course of business and also to resell it provided that he is not in default in payment. However, he is not permitted to pledge the reserved items or to assign them by way of security. The purchaser hereby assigns to us the claims for payment against his client in their entirety which result from the resale of the reserved items and also those claims of the purchaser in respect of the reserved items to which he is entitled as a result of any other legal reason against his customer or third parties. We accept the assignment. Following the assignment, the purchaser is authorised to recover the debt in his own name and for his own account. We reserve the right to recover the debt ourselves as soon as the purchaser fails to fulfil his payment obligations and is in payment arrears.
- Processing of the delivered item is always in our name and to our order. If processing takes place together with items which are not our property, we shall acquire co-ownership of the new object in the ratio of the value of the item supplied by us to the other processed items. The same applies if the delivered item is mixed or combined with other items which are not our property.
- If the delivered item is connected to or mixed with immovable property or a movable item in such a way that our ownership of the delivered item lapses, the purchaser assigns to us the security claim in the amount of the ratio of the value of the delivered item to the other connected/mixed items at the time of connection/mixing which he acquires in respect of the third party as a result of the connection or mixing.
- In the event of attachment of the reserved items by third parties or other actions by third parties, the purchaser must refer to our ownership and must inform us immediately and in writing so that we can assert our property rights.
- We undertake to release the securities due to us at the purchaser’s request insofar as their value exceeds the accounts receivable by more than 10%. However, we are permitted to select the securities to be released.
V. DELIVERY TERMS, DELIVERY DATES
- If the buyer does not fulfil his contractual duties in time - this also applies to cooperation and/or additional duties - the terms and dates are prolonged by the period of time during which the purchaser does not fulfil his obligations towards us. The fulfilment of delivery periods requires the punctual receipt of all documentation to be supplied by the customer, of all necessary authorisations and releases, in particular of plans and adherence to the agreed conditions of payment and other obligations of the purchaser. Our rights which arise from delay on the part of the purchaser are not affected.
- The decisive factor for adherence to the delivery terms and dates is the time of dispatch of the goods ex works or ex warehouse. Terms and dates are deemed to have been adhered to when notification is sent of readiness for shipping, if the goods cannot be dispatched on time without any fault on our part; in this case, we have to give proof of the fact that this is not our fault.
- Cases of Acts of God and other events which we cannot influence and which make delivery/performance considerably more difficult or impossible release us from out obligations as stipulated in the respective contract; however, in the case of temporary hindrances this only applies for the duration of the hindrance plus an appropriate start-up period after the impediment is removed. If the purchaser cannot be expected to accept the delay, he can withdraw from the contract by means of a written declaration; this does not apply to part-deliveries according to framework agreements.
Part-deliveries are permissible to an appropriate extent insofar as this does not result in unjustifiable additional costs for the purchaser.
VII. DISPATCH AND RISK TRANSFER
- Delivery takes place ex works or ex warehouse. Each dispatch and transport takes place exclusively at the risk of the purchaser. When the goods are handed over to the forwarding agent or carrier, the risk is transferred to the purchaser at the latest when the goods leave the factory or warehouse.
- If dispatch is delayed as a result of circumstances for which the purchaser bears the responsibility, risk is transferred to the purchaser at the time of notification of readiness for dispatch. Any costs incurred as a result of the delay shall be borne by the purchaser.
- If the purchaser is in default of acceptance, we are authorised to store the goods at the purchaser’s expense and risk and to the exclusion of liability on our part, to take all measures which we deem suitable to maintain the goods, and to invoice for the goods as if delivered. The same applies if goods which are notified as ready for dispatch are not called off within four days.
- If dispatch or delivery are delayed at the purchaser’s request by more than one month after notification of readiness for dispatch, the purchaser may be charged, for each commenced month, a storage fee of 0.5% of the cost of the items to be delivered, but a maximum of 5% in total. The parties to the contract shall remain free to provide proof of higher or lower warehouse costs.
- Transport risks are only insured following the purchaser’s written request and at his expense.
VIII. CONFIRMATION OF ARRIVAL / INTRA-COMMUNITY SUPPLY
- The purchaser is obliged to provide us in the case of self-collection or collection by a commissioned carrier a signed confirmation of arrival or an alternative document (in accordance with § 17a UStDV - German law) when the shipment is VAT-exempted. With this confirmation the purchaser declares the arriving of the goods in another EU member state.
- If the purchaser does not comply with this obligation within 3 months, we will debit the value-added tax afterwards. Then it is the buyer's own responsibility to claim the payed value-added tax through his local tax authority.
IX. LIABILITY FOR MATERIAL DEFECTS
Condition of the goods
- Deviations of the delivered goods from the order, in particular in respect of material and execution, are expressly reserved in the context of technical progress.
- The agreed condition of the goods is derived exclusively from the contractually agreed product description, the system descriptions or our product information. We are only liable for the suitability of the goods for certain uses if this suitability is expressly agreed.
- Deviations which are customary in the industry (manufacturing tolerances) are permissible as are excess or short deliveries up to 5%, and these do not constitute any kind of material defect.
- Only minor deviations from the agreed conditions, or only minor impairment of usability, do not constitute a defect. Colour variations in the plastic in accordance with tolerance in the RAL range are not a defect. The same applies to deviations in the execution and the number of parts which were printed and specially equipped for the customer.
- The time of handing over to the forwarding agent or carrier is decisive for the contractual condition of the goods, at the latest the time of leaving the factory or warehouse.
- The purchaser is obliged to examine the goods immediately after delivery and to inform us immediately and in writing of existing defects (§ 377 HGB). Defects which are the subject of a subsequent complaint are excluded from liability for material defects. Notification of defects made against field workers, hauliers or other third parties shall be deemed not to be formal complaints.
- The purchaser shall not refuse to receive deliveries due to minor defects.
Claim for subsequent performance by the purchaser on the grounds of defective goods
- In the case of the correct fulfilment of the obligations in respect of examination and complaints by the purchaser, we are liable for defects in the delivery at our own option by rectification of the defect or by supplying an item which is free from defects (new delivery). The precondition for our liability for defects is that a minor defect is not involved. We are obliged to bear the cost of all expenses incurred for the purpose of making a new delivery, in particular costs for transport, travel, labour and materials to the extent that these are not increased by the object of purchase having been moved to a place other than the place of fulfilment unless the move corresponds to its intended use. The costs of disassembly and installation do not form part of the claim for new delivery and will not be refunded.
- If either or both of the two methods of new delivery are impossible or unreasonable, we are authorised to reject them. We may also refuse to make a new delivery as long as the purchaser does not fulfil his payment obligations towards us to an extent which corresponds the defect-free part of the rendered performance.
- In the event that the above-mentioned new delivery is impossible or fails, the purchaser has the right to choose either to reduce the purchase price accordingly or to withdraw from the contract in accordance with the statutory provisions; this shall apply in particular in case of culpable delay or refusal of new delivery, and also if is unsuccessful for a second time.
X. INDUSTRIAL PROPERTY RIGHTS; DEFECTS IN TITLE
- Unless otherwise agreed, we are obliged only to make delivery in the country of the place of delivery free from the industrial property rights and copyrights of third parties. In the event that a third party asserts a justified claim against the purchaser on the grounds of violation of property rights by us in respect of deliveries made by us and used in accordance with the contract, then at our option and expense we shall either obtain a right of use for the relevant deliveries, change them in such a way that the property right is not infringed, or exchange them. If this is not possible under reasonable conditions, the purchaser is entitled to the statutory right to withdraw from the contract or to reduce the price.
- The above-mentioned obligations shall exist only insofar as the purchaser informs us immediately and in writing about claims lodged by the third party, does not admit to an infringement, and we are authorised to take all defence measures and make settlement negotiations. If the purchaser ceases to use the goods for reasons of mitigation of damage of for other important reasons, he is obliged to inform the third party that cessation of use is not connected with an admission of an industrial property right.
- Claims by the purchaser are excluded insofar as he bears responsibility for the infringement of the property right, in particular as far as infringement of a property right is caused by the purchaser’s special requirements, by an application which could not be foreseen by us, or as a result of the goods being changed by the purchaser or used together with products which were not supplied by us.
- Further claims or claims other than those dealt with in this section by the purchaser against us and our agents concerning a defect in title are excluded.
XI. LIABILITY AND LIMITATION OF LIABILITY
- Unless specified otherwise below, further claims by the purchaser, regardless of the legal grounds (in particular claims for damages resulting from infringement of contractual secondary obligations, tort and other tortious acts and claims for repayment of expenses with the exception of those according to § 439 Abs. 2 BGB), are excluded; this applies especially to claims for losses beyond the item purchased, installation and disassembly costs, and lost profit.
- The liability exemption above does not apply (a) if an exclusion or a limitation of liability for damage to life and limb or health is based on a culpable violation of duty by us, our legal representatives or our vicarious agents; (b) in the case of damage based on a deliberate or grossly negligent breach of duty on our part or a deliberate or grossly negligent breach of duty on the part of a legal representative or vicarious agent; (c) in the case of the assumption of a guarantee or the assurance of a characteristic if a defect covered thereby activates liability. A guarantee or assurance in the sense of an intensification of liability or assumption of a special obligation to meet claims are only deemed to have been given if the terms “guarantee” or “assurance” are expressly mentioned.
- In the event of a culpable breach of a material contractual obligation (a so-called “cardinal obligation”), liability is not excluded but is limited to foreseeable damage typical of the contract.
- In the event of reimbursement of expenses, the above shall apply accordingly.
- Recourse claims of the purchaser in accordance with § 478 BGB (entrepreneur recourse) are excluded insofar as we supply the purchaser with parts which are incorporated in the end product. Insofar as the purchased item is resold unchanged to the end customer, recourse claims exist only insofar as the purchaser has not come to any agreements with his customer which go beyond the legal claims based on defects.
- Insofar as we are liable for compensation for a defect in accordance with the provisions of the Product Liability Act (ProdHaftG), the extent of liability shall be exclusively subject to the provisions of this law. Any further liability shall expressly require a written agreement.
Claims based on material defects shall expire 12 months after transfer of risk. This shall not apply insofar as the law (BGB) provides for longer periods and in cases of injury to life, limb or health, a deliberate or grossly negligent violation of duty on our part, and if a defect was fraudulently concealed. The legal regulations concerning the suspension, interruption and recommencement of the limitation periods shall remain unaffected.
XIII. PLACE OF PERFORMANCE AND JURISDICTION
- Insofar as the purchaser is a businessman, the sole place of performance is our company’s registered office; however, we are also entitled to assert our claims at any other permissible place of jurisdiction.
- Solely non-unified German law (BGB/HGB) shall apply. The provisions of the Vienna UN Convention dated April 11, 1980, in respect of the international sale of goods (UN Sales Convention) shall be excluded.
XIV. PARTIAL INVALIDITY
If individual parts of these General Terms and Conditions of Sale are or become legally invalid, the validity of the other provisions shall not be affected by this; the same applies to the filling of gaps in these General Terms and Conditions of Sale.
XV. DATA PROTECTION
- Within the framework of execution of the contract we also process personal data belonging to our customers and their employees (e. g. contact data, other personal data related to execution of the contract). These data are attributed to the legal person of the purchaser and only processed by us or by companies in the Phoenix Mecano group and any sales representatives which may be active for them. All our employees and sales representatives are obligated to maintain data secrecy in accordance with § 5 of the German Federal Data protection Act (BDSG) and process these data subject to the BDSG.
- Likewise the purchaser undertakes to keep confidential, in accordance with the provisions of the BDSG, any personal data which he receives from us.
The English-language version of the contract is a faithful translation of the original German-language version. However, only the original German-language version is valid in a court of law.