Generales Sales and Delivery Conditions of Priess, Horstmann & Co. D-32479 Hille-Unterlübbe
1. Conclusion of contract
(1) For all sales contracts signed by us, the following conditions are exclusively valid unless deviating agreements are reached in writing or additional conditions are applicable to certain products. This also applies if the purchaser has notified us of his/her own possibly deviating business conditions. We hereby contradict counter-confirmations of the purchaser that refer to his/her deviating business conditions. Silence of the purchaser with regard to our Sales and Delivery Conditions is deemed as acceptance of the latter. The purchase agreement shall not be transferable without our consent. Subsequent maintenance and repair orders will be assumed by us on the basis of our General Conditions for Maintenance Services and Repairs.
(2) Verbal agreements shall only be binding for us if and in as far as they are confirmed by us in writing.
(3) The quotations issued by us are non-binding and non-obligatory. Orders send to us shall require our written confirmation to assume the nature of a contract.
(4) Documents forming part of our quotations, such as figures, drawings, weight and dimensional information, are of an approximate nature only, unless they are expressively specified as binding. We withhold the right of ownership as well as the copyright for cost estimates, drawings and other documentation. Documents handed over by us may not be revealed to third parties. We undertake to only make plans entrusted to us by our customers and specified as confidential, available to third parties if consented to by our customers.
(1) All goods travel at the risk of the orderer, even if the quotation price includes “freight paid to destination“. We fulfil our obligation to supply by handing the goods over to the carrier or other transporter, or by making the goods available when picked up by the purchaser.
(2) Unless especially directed by the purchaser with regard to the itinerary and type of delivery, the delivery shall be made at the discretion of the supplier, without guaranteeing the least expensive freight costs for the cargo. If supplied ‚freight paid’, we shall be free to select the itinerary and type of transport. The purchaser shall bear extra-costs if entailed by his/her instructions.
(3) All delivery dates or terms are non-binding unless a fixed delivery date or term has been expressly agreed on in writing. The delivery time starts with mailing the order confirmation, however, not before the receipt of documents, permits, releases to be submitted by our contract partner and not before the receipt of any down-payment agreed. The delivery term is deemed to be met if the object to be delivered has left our factory or a cargo ready notification has been sent prior to the elapse of this term. Claims for damages on part of the purchaser based on late delivery are excluded, unless the delay can be attributed to gross negligence. In the event of late delivery, the purchaser is entitled to withdraw from the contract if and in as much as he has given a reasonable additional period of time of at least 3 (three) months. Late deliveries caused by Force Majeure and due to events that render the delivery conditions considerably more difficult and make same impossible for us, these especially including strike, lock-out, administrative orders, unforeseeable operational interruptions and factory malfunctions in the production area, delayed production or production made impossible by unavoidable lack of raw materials, and other events, which are not attributable to us, shall entitle us to postpone the delivery by the duration of the hindrance plus a reasonable start-up time, or to withdraw from the contract, as far as the portion of it not yet delivered is concerned, either in part or in full. The purchaser shall not be entitled to derive the right to claim damages from it. Should the delivery be delayed for more than 6 months caused by the above reasons, the purchaser has the right to withdraw from the contract. Claims over and above those mentioned are excluded unless the delay is caused by gross negligence.
(4) If the customer asks to postpone the despatch, he will be invoiced the storage costs, starting 1 (one) months after cargo-ready notification, however, a minimum of ½ (one half) percent of the invoice amount per month. However, we shall be entitled to dispose of the delivery object at our discretion, after setting a reasonable term and its fruitless elapse, and to carry out the delivery to our customers at a reasonably extended date. As for the rest, meeting the delivery term requires the fulfilment of the contractual duties on the part of our customer.
(1) General information
(a) We guarantee that the products are free from defects pertaining to their manufacture and materials. The liability for wear parts and consumables is limited to their functionality at the time of delivery, their correct installation and product-specific operating life; we do not assume any further reaching liability. We are not liable for application-specific damage caused by wear, or for wear resulting from improper use, nor for damage that can be traced back to over-loading, unqualified modification and damage caused by third parties, nor for improper, insufficient or neglected care or maintenance of the delivery object or parts of it, especially if our operating and maintenance instructions are not adhered to or components are replaced or consumables used, which do not comply with the original specification.
(b) Only our direct purchaser shall be entitled to make warranty claims. Such claims are not assignable.
(2) Promotional claims
(a) The contract partner has to prove that a promotional claim was causal for his/her purchase decision.
(b) We decline all liability for promotional claims made by third parties.
(3) Right to claim remedy of a defect
(a) The partner hereto shall only be entitled to claim remedy of a defect when the object purchased shows a considerable defect. Materiality exists when in the opinion of an objective third party, the value or the usability is considerably reduced, especially as a result of a faulty design, poor building materials or improper workmanship. We must be immediately notified of the existence of such defects in writing.
(b) We reserve the right to decide if the right to claim the remedy of a defect shall be met by repair or renewed delivery. Replaced components become our property.
(c) Components subject to warranty shall not be invoiced by us, however, working time and travel expenses for the technicians deployed by us shall be invoiced at the conditions valid at the time.
(4) Right of withdrawal
(a) With the exception of the settlement of claims and rights with regard to a defect, the purchaser is only entitled to withdraw from the contract, if we are in default.
(b) If we were obligated to replace the value in the sense of § 346 Para. 2 BGB (German Civil Code), the right of withdrawal of the purchaser is excluded.
Claims brought forward by the purchaser for compensation and damages are excluded, unless these Business Conditions contain stipulations to the contrary. Excluded from this are damages leading to death, injury or negatively affecting health, as far as we are to be held responsible for the evasion of this duty, and other damages caused by a wilful or gross negligent evasion of our duty. Evasion of duty by us is identical to that by a legal representative or vicarious agents.
(6) Statute of limitations
(a) The warranty period is 12 (twelve) months, or 6 (six) months if the delivered object is used in multi-shift operation. The warranty period commences at the delivery date. This statute of limitations and the commencement of the period are also valid in the event of evasion of duty outside of material or legal defects.
(b) The statute of limitations is not impeded by negotiations commenced upon the request of the purchaser.
All goods to be shipped shall be packed with materials chosen by us, unless agreed otherwise. The agreed prices are to be understood excluding packing.
(1) Our sales prices are to be understood in EURO and ex works, unless agreed otherwise, including loading in our factory, excluding sales tax. The sales tax shall be separately invoiced in the legally fixed percentage valid at the date of invoicing.
(2) Granted rebates, bonuses, credit notes or similar shall be taken into account from the prices excluding sales tax.
(3) Changes to the customs and tax rates possibly taking effect after the purchase date, shall be invoiced to the purchaser. The latter shall also bear all costs incurred after concluding the contract as a result of official or legal obligations. If the contract stipulates that the delivery is made more than 30 (thirty) days after order confirmation date or call-off, the price valid at the delivery day shall be invoiced and is deemed as agreed to.
(4) Payment is due net cash without deductions at the place of payment stipulated by us, unless especially agreed to otherwise, i.e.: 30 % (thirty percent) down-payment after receipt of order confirmation, 60 % (sixty percent) upon receipt of cargo-ready notification by the purchaser that the majority of the goods are ready for shipment, balance within 14 (fourteen) days.
(1) All payment terms commence at the invoice date. Our invoices are due for payment 14 (fourteen) days after delivery without deduction, unless otherwise agreed to. The customer will be in default once this 14 (fourteen) day period has elapsed. Payments for the purpose of meeting our amounts receivable must be made net cash and in accordance with the payment conditions granted by us. The unconditional credit to our account is deemed as payment in cases where remittances to one of our bank or post giro accounts or payments by cheque are made.
(2) If bills of exchange are accepted by us, payment is only considered as received once the bills of exchange are honoured. The purchaser shall bear all discount charges and bank charges, as well as taxes accrued.
(3) In cases where we issue bills of exchange and hand same over to the purchaser or to a third party upon the direction of the purchaser, especially in conjunction with the so-called cheque and bill transaction, payment is only deemed as made when the bill of exchange is honoured by the drawee, particularly in the sense of the regulations under point 7 (seven) of these conditions (retention of title), even if we have already received the purchase price at an earlier date by payment in cash, by cheque, bank remittance or similar. No. 7 Para. 1 of these conditions is valid accordingly.
(4) We are not responsible for the timely and correct presentation, protest or collection of bills of exchange or cheques.
(5) If the purchaser is fully or partially in arrears with a payment, we are entitled to charge interest from the point in time concerned, amounting to the respectively valid bank lending rates, however, at least 8 % (eight percent) above the individual base rate of the Deutsche Bundesbank. We reserve the right to claim damages.
(6) If the purchaser is in arrears with a payment for longer than 3 (three) weeks, or if he does not honour a cheque or a bill of exchange when falling due, or if doubts about his solvency arise for any other reason, all accounts payable to us by the purchaser become due immediately, irrespective of the maturity of possibly accepted bills of exchange. Furthermore, we shall be entitled to demand the presentation of securities for all other amounts receivable, to deliver due consignments only against advance payment or the provision of securities, to interdict the machining, processing and/or sale of delivered items subject to retention of title and to demand their recovery. The purchaser shall be obligated to allow us access to his business and storage rooms and to permit us to recover those items supplied under retention of title.
(7) The purchaser shall only be entitled to offset if expressly consented to by us in writing. The claiming of a retention right by the purchaser for amounts receivable from our side is excluded.
(8) Payments received shall always be attributed to cover the oldest receivable accruals and the interest accrued.
7. Retention of title
(1) All delivered items remain our property until all – also future – amounts receivable are paid, which we are entitled to receive from the purchaser out of the business relationship.
(2) The purchaser is only entitled to sell the goods supplied by us under retention of title until the full purchase price is paid, and within the framework of a proper business transaction.
(3) Hereby, the purchaser assigns to us the full scope of amounts receivable, including all secondary rights that he acquires towards his purchasers by the sale of items under our retention of title or co-owned by us; if the item delivered is co-owned by us, the assignment is limited to the portion of the amount receivable that complies with the portion co-owned by us. If items under our retention of title are sold together with other items at a total price, the assignment is limited to the portion of the total price that complies with the pro rata value of items delivered by us in relation to the value received for all items sold at the total price.
(4) The purchaser is entitled to collect the amounts receivable assigned to us. He shall return the proceeds to us at the latest at the due date. In the event of late payment or considerable deterioration of the financial position, we are entitled to disclose the assignment and to demand immediate payment to us by our customer’s purchaser. Upon our request, the purchaser is obligated to notify his purchasers of the assignment and to hand over all documents required for the enforcement of the assigned amounts receivable, and to give information on our behalf. He is also obligated to submit to us a precise list of the amounts receivable assigned to us, should we so wish, including the names of debtors, the amount of the individual amounts receivable, the invoice dates and all other information required by us.
(5) We are also entitled to execute our rights ensuing from co-ownership (see para. 2) or from amounts receivable assigned to us (see para. 3) together with other persons, especially other creditors of the purchaser, or to assign the rights or their enforcement to other persons. In this case, neither the reason for nor the amount of the individual pro rata rights need to be proven.
(6) Pledging, transfer of securities and assignment of securities of the items delivered by us under retention of title or of amounts receivable assigned to us by the purchaser are expressively forbidden.
(7) The purchaser is also expressively not allowed to conclude and execute global contracts of assignment or so-called factoring contracts (assignment of amounts receivable to a factoring company or to a third party as a hedge transaction, bogus factoring), in as far as such contract refers to amounts receivable that are assigned to us within the framework of these General Sales and Delivery Conditions. The purchaser is obligated to inform us, if he has already signed contracts with a third party of a nature as described above at the time of entering into business relations with us or when receiving these business conditions.
(8) The purchaser is obligated to immediately notify us of possible third-party access to the items under our retention of title or to the assigned amounts receivable, and to support us in protecting our rights in any possible way. Especially in the case of a possible seizure, he/she shall inform the enforcement officer that the seized object is our property. He/she shall immediately send us the protocol of seizure and to confirm to us in writing that the seized object is our property. Should damage to our property occur as a result of third-party access, the purchaser shall replace such damages. The purchaser shall bear all costs incurred by our intervention.
(9) If we recover the objects under our retention of title or if we collect the purchaser’s amounts receivable assigned to us, this shall not be interpreted as a withdrawal from the contract; the mentioned measures are only taken to secure our amounts receivable. The purchaser shall remain obligated to fulfil the contract.
(10) Should the value of the securities entitled to us exceed our own amounts receivable against the purchaser by more than 20 % (twenty percent), we shall release amounts receivable or other rights at our discretion upon request of the purchaser such that the excess amount or rights no longer exceed 20 % (twenty percent).
(1) If one or more covenants of these conditions be or become invalid, this shall not affect the efficiency of the remaining conditions. Any covenant possibly invalid shall be reworded or supplemented such that its economical intention is reached as far as legally permitted.(2) The General Sales and Delivery Conditions shall apply to all future business even if they are not repeated.9. Place of performance and place of jurisdiction(1) The place of performance of our delivery obligations is the place from where we dispatch the goods or where we make same available to be picked up by the purchaser. The place of performance for the payment obligations of the purchaser is Hille.(2) The place of jurisdiction for all mutual claims and obligations, also for claims with regard to bills of exchange and cheques is Bad Oeynhausen for general merchants and purchasers who have their general place of jurisdiction within Germany.(3) The legal relationship of the parties hereto are subject to the law of the Federal Republic of Germany. The application of the uniform law governing the international purchase of movable items and of the law governing the conclusion of international sales agreements for movable items is excluded.