HYDROPNEU GmbH · General Terms of Sales and Delivery · Document status 2014
This text is a translation from the authoritative Terms and Conditions in the German language and for reference purposes only.
1. General information
1.1 Our sales and delivery conditions are valid exclusively; we do not recognize conflicting conditions and terms of the customer different from our sales and delivery conditions, unless we expressly agree with validity in writing. Our terms and conditions of sales also apply if we perform the deliveries unreservedly in the knowledge of conflicting or differing terms or conditions of sales and delivery of the customer.
1.2 All agreements made by us and the customer for the purpose of this contract, are put on record in this contract.
1.3 Our terms of sales and delivery are valid only with merchants if the contract belongs to the enterprise of commercial trade or with legal entities of public law and special estates under public law in the sense of §24 AGB.
1.4 Our terms of sales and delivery are also valid for all future transactions with the customer.
2. Offers, bidding documents
2.1 Our offer is not binding up to the final confirmation of order.
2.2 For cost estimates, drawings, other documents and samples – named information in the following – we reserve property and copyrights; they must not be made accessible to a third party and may only be used for the purpose of contractual negotiations. The technical data of our catalogues, lists and drawings (including weight and dimension data) are carefully worked out, errors excepted. The same applies to all data of our sales records. All changes contributing to the technical progress are subject to change to us even after the confirmation of order.
2.3 The order signed by the customer is a binding offer. We are entitled to accept this offer within two weeks by sending a confirmation of order or by shipping the ordered goods to the customer within this period. We are obliged to make accessible plans, stated by the customer to be treated confidentially, to a third party only with his approval.
3. Prices, payment terms
3.1 Our prices are valid ex factory, exclusively packaging material, calculations for repairs are non-committal. Value added tax (VAT) respective to the legal amount is added to the prices.
3.2 The following payment policies apply, if on an individual basis no differing conditions have been defined. For delivery and service of orders of a value up to 1.000 Euro, a period of payment of 30 days is granted starting from invoice date. Orders of a value of more than 1.000 Euro must be paid in cash without any deduction at a value of 50% upon receipt of the confirmation of order. The remaining amount of 50% is due for payment 30 days after the invoice date, however not before an agreed-upon acceptance fixed by contract. A discount at a value of 2% for the initial payments may be deducted from the payment of the final invoice. With payment within 14 days after invoice date a discount at a value of 2% is granted. A discount may only be deducted if all the preceding invoices have been paid on the due date.
3.3 For any changes of these terms of payment a written agreement is required. We reserve ourselves the right to increase our prices accordingly if, after conclusion of the contract, costs increase in particular because of collective wage agreements or because of price increases for materials. This will be proven to the customer on request.
3.4 Interests for delay will be invoiced with 5% p.a. over the base interest according to §1 rate of discount transition law. They have to be fixed higher or lower if we prove a debit with a higher interest or if the customer proves a lower debit.
3.5 Drafts and cheques will only be accepted for payment; the customer bears the costs for discounting and collection. After the acceptance of drafts we are entitled to return these if the Central National Bank refuses their acceptance.
3.6 The customer has charging rights only then when his counter claims have been determined to be legal, unquestionable or accepted by us. Furthermore the customer is only entitled to execute the right of retention as far as his counter claim is based on the same contractual relationship. The customer is not entitled to a right of retention because of partial services according to §320 Abs. 2 BGB.
3.7 As far as turnover tax-free delivery or service is considered the customer is obliged to procure the necessary proofs and/or to participate in this process. For shipments within the European Community according to §6a UStG the customer has to communicate his turnover tax identification number, he also must prove his entrepreneur’s status as well as support the accountancy and voucher proof for the export. In case the exemption from turnover tax is not acknowledged by the revenue office the customer must dispense us from turnover tax, interests, interests for delay and other expenses and/or pay them to us, unless the non-acceptance can be justified by us. To the right of approval we are only entitled at the customer’s request if he himself apart from the exemption mentioned in the preceding paragraph provides an appropriate advance on costs for the defence proceedings.
4. Time limits, delivery dates
4.1 Times for delivery start with the date of the confirmation of order, however not before the customer has procured the necessary documents, permits, releases and not before he has paid an agreed-upon deposit.
4.2 The time for delivery is kept if the article to be delivered has left the plant up to its termination or if the readiness-for-delivery has been communicated. This is not valid with an acceptance on contractual terms or if an obligation for installation has been agreed-upon.
4.3 In case of force majeure or any other unforeseeable, unusual, extraordinary and unindebted circumstances – e.g. operational failure, strike, lockout, official interferences, power supply difficulties etc., even if these occur with
the pre-supplier – the time for delivery will be extended for the duration of the handicap and an appropriate initial period if we, by all this, are prevented from the timely fulfilment of our obligation. If delivery or service turns out to be impossible or unreasonable by these restrictions we are released from our obligation for delivery; the customer cannot deduce any requirements for compensation by this. Beginning and end of such circumstances must be communicated to the customer by us in important cases as soon as possible.
4.4 Do we come in default of delivery for reasons we are responsible for the customer may schedule an appropriate extension of time with the instruction that he will refuse the acceptance of the work performance product after the expiration of the period for delivery. After the unsuccessful exemption of the extension of time the customer is entitled to withdraw from the sales contract by written explanation or to claim compensation because of default. However, replacement of the damage caused by delay or compensation of damage because of default can only be required by the customer if we can be charged with intent or gross negligence; with minor negligence only with injury of a substantial contractual obligation at the amount of the damage foreseeable and typical to occur. As far as the delay in delivery is based on the culpable violation of a non-substantial contractual obligation the customer is entitled to demand for each full week a flat-rate default compensation of 0.5% of the value of delivery, however not more than a maximum of 5% of the value of delivery.
4.5 If the delivery is delayed by customer’s request he will be charged for the costs arising from the delay starting 1 month after the announcement for the readiness-for-delivery. We are however entitled after termination and fruitless expiration of a period of grace and on announcement to dispose of the subject of delivery in a different way and to supply the customer within an appropriate extension of time.
4.6 Compliance with the delivery dates requires that the customer has performed the contractual obligations.
5. Passing of risk, receiving
5.1 With delivery to the forwarding agent or freight carrier, however at the latest with the leaving of the plant or supply depot the risk shall pass to the customer. This also applies if freight paid supply has been agreed-upon. The delivery takes place on behalf of the customer.
5.2 If requested by the customer the shipment is insured by us at his expense against theft, wreckage, damage caused by transport, fire or water as well as against other insurable risks.
5.3 Should the delivery be delayed as a consequence to circumstances the customer is responsible for, the risk will be passed on to the customer starting with the day of readiness-for-delivery. However, we are obliged to take out the insurance the customer desires on his request and at his expense.
5.4 Delivered objects must be received by the customer notwithstanding his rights under section 7 hereof, even if they show insignificant defects.
5.5 Partial deliveries are allowed.
6. Reservation of title
6.1 We reserve ourselves the title of the subject of delivery up to the full payment resulting from the business connection with the customer. With customer’s behaviour contrary to the contractual agreements, particularly with delay of payment, we are entitled to take back the subject of delivery. The reacceptance of the delivered items by us does not mean a cancellation of contract, unless we had expressly declared this in writing. The event of attachment of the delivered objects by us always is a cancellation of the contract. After taking back the delivered items we are entitled to their commercialization. The profit of the commercialization is to be credited to the customer’s liabilities – appropriate commercialization charges deducted.
6.2 The customer is obliged to take good care of the subject of delivery and to insure it against damage sufficiently. Insurance claims are transferred to us by the customer already at this point of time.
6.3 The customer immediately has to give us written information in case of attachments or other interferences from a third one, so that we can enter proceedings according to §771 ZPO. As far as the third party is not able to refund to us the judicial and extra-judicial expenses for a law suit according to §771 ZPO the customer is liable for the loss that arose to us.