General terms and conditions of business
Our supplies are effected exclusively on the basis of the following terms, if not otherwise agreed upon and confirmed by us in writing.
Terms of Supply
I. Tender and Contract
The order shall only be deemed to be accepted after our written confirmation. Supplements, alterations or personal agreements, either by telegram, telephone or word of mouth need our written confirmation, in order to become effective.
The various papers forming part of the tender, as e.g. illustrations, drawings, weight and dimension data, constitute an approximate guide only, if they are not expressly stated as being binding. All estimates, drawings and other written or printed matter remain our exclusive property. They may only be made accessible to third parties with our expressly stated consent.
2. Extent of Supply
The extent of supply corresponds to the agreement of the order confirmation.
Protection appliances will be supplied only upon agreement.
3. Prices and Payment
Prices are valid ex factory without packing without erection and putting into operation.
Payments have to be made in cash without any deductions and free of charge to the place of payment at the agreed dates. In case of drafts, all cash for endorsement and collection go to the Purchaser’s account. If payments are respited or delayed, we shall impose - without being obliged to give notice - for the intervening time an interest of 1 % above the base rate of the European Central Bank. Retention of payment or balancing them with possible claims of the Purchaser is excluded.
The prices of our tender are based on wages and costs for material which are valid at the time of submitting the tender. We reserve the right of correcting our prices, if these preconditions change.
4. Time of Delivery
The time of delivery begins when all particulars concerning manufacture are clear and both parties have come to an agreement with regard to all terms and conditions of the business contract; it applies to the completion in the works.
Adherence to this time of delivery depends upon fulfilment of all terms and conditions of the Contract on the Purchaser’s part especially with regard to the agreed terms of payment. Unforeseen circumstances beyond our own will, e. g. Force Majeure, which is understood as but not limited to Acts of God, Public Enemy, Acts of Government, War, Revolution, Civil Commotions, Fires, Epidemics, Quarantine, Floods, Riots, Strikes, Lock-outs, Labour disturbances of same nature and effect as strikes, Freight Embargoes, change of governmental rules and/or regulations, or any other casualties of contingencies, which shall actually affect manufacture and delivery of the commodity, irrespective of our or subcontractor’s default, material spoiled in our factory or with sub suppliers, or new knowledge making alterations necessary, prolong the time of delivery proportionately, also in cases where delay has already occurred. The same applies, if delays arise on account of getting approvals regarding execution of this order from authorities or other third parties, or if papers, documents or any information regarding this order fail to reach us in due time, or if supplementary alterations of the order are made. Partial deliveries are allowed.
We shall not be liable for delay in delivery or performance of all or any part of the contract so long as our failure despite exercising reasonable care in making suitable performance is due directly to the above described unforeseen circumstances beyond our own will.
In all cases despatch will be effected for the account and risk of the Purchaser.
Forwarding instructions should be given together with order. Otherwise the goods will be despatched to the best of our knowledge without liability for most economical forwarding charges.
Packing will be invoiced at cost price. If the packing material is returned free of charge and in a ready-for-use-condition we shall refund 2/3 of its value.
If delivery is delayed on the Purchaser’s fault, we are permitted to put the commodity in storage for the expense and risk of the Purchaser.
6. Passing the Risk
The risk shall pass to the Purchaser at the moment, the goods leave our works, also in cases where delivery carriage paid was agreed upon. If delivery is delayed on the Purchaser’s fault, the risk passes to him at the moment, when the goods are ready for despatch.
Insurance against damage or deterioration during transport is effected only upon advice and at cost of the Purchaser.
7. Liability for Defects
As to elimination of defects we shall be liable to the extent that parts becoming useless within 6 months from the date of delivery (or within 3 months in case of double shifts or 2 months in case of three shifts) shall be repaired or replaced by new ones by us free of charge. We have to be notified of these defects in writing, without delays and upon our request, the parts in question shall be returned to us carriage paid. Prerequisites for our liability are: incurred construction or faulty workmanship. For faulty material we are liable only in so far as this fact could have been recognised with expert attention.
Our liability on the supplied equipment shall apply only if proper maintenance of the equipment is performed in accordance with the requirements of the applicable maintenance instructions.
Our liability does not apply to defects resulting from normal deterioration.
In order to be in a position to carry out all necessary alterations and to supply parts or machines as replacement, the Purchaser shall grant all time and opportunity free of charge and - upon request - shall provide assistant personnel.
If we acknowledge the claims to be correct, all resulting cash go to our account, otherwise to the Purchaser’s account.
If the Purchaser does not meet his financial obligations, we are not Iiable to remedy any defects.
Our liability does not apply, if improper repairs or modifications carried out by the Purchaser or third parties not authorized by us render remedy of defects - either by repair or replacement - more difficult.
The absence of any agreed characteristics shall also be deemed as defect in the sense of these Terms of Supply.
In case of claims from Purchasers abroad, we carry costs up to an amount which would have arisen for remedy of defects in our country.
We reserve the right, to modify the equipment or the applicable technical documents and maintenance instructions at any time without prior notice, for the purpose of quality control and reliability or technical progress.
We are not liable for any consequential damages or incidental expenses.
8. Industrial Property Right Infringement
If we have to use third parties or customers samples, drawings or other specifications on behalf of the customer, we are whether liable for the correctness of the herein given specifications nor the infringement of any industrial property rights.
9. Purchaser’s Right of Termination
The Purchaser has the right to terminate the contract, if we fail to remedy any claimed and acknowledged defect within a reasonable additional period or if the repair or replacement of a defective part is impossible or if the remedy of a proved defect was declined. All other claims of the Purchaser are excluded, especially all other compensations The reasonable additional period begins after the claim was acknowledged or has been proved.
10. Vendor’s Right of Termination
If it comes to our knowledge - after conclusion of the contract - that the Purchaser’s business affairs are in an unsatisfactory financial condition, we are entitled to ask for securities or to terminate the contract and to put down all expenses to the Purchaser’s account. If it appears - after conclusion of the contract - that the agreed manufacture of machines or apparatuses is impossible, we are likewise entitled to terminate the contract, either partially or completely.
11. Place of Settlement and Jurisdiction
Place of settlement for supply and payment is Lübeck.
All disputes arising out of or in connection with the interpretation of the contract or the herein listed general terms and conditions and which cannot be amicably settled by the parties shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three arbitrators appointed in the accordance with the said Rules. Place of arbitration shall be D-23568 Lübeck, Germany. The language of the proceedings shall be English unless otherwise agreed upon. The award of the arbitration tribunal shall be final and binding on both parties.
12. Proprietor’s Reserve
We reserve the right of property in the object of supply until receipt of all payments of the contract. If the Purchaser sells the object of supply, the money due for the object under proprietor’s reserve has to be ceded to us in advance. The Purchaser is bound to re-sell the object to his buyer under the same reservation. The right of property remains reserved not only until receipt of all purchase payments resulting from the supply, but until final settlement of all obligations out of the contract.
We are entitled to insure the object of supply against fire, water and other damages - if the Purchaser has not already done so -and place the costs to the Purchaser’s account.
An assignment as pledge or transference of property as security is inadmissible. We have to be given immediate notice of seizures by third parties.
The assertion of our proprietor’s right or the seizure of the object of supply by us should not be deemed as termination of contract.
It is left to our decision to draw up further agreements regarding reservation of proprietor’s right in particular cases.
13. Governing Law
For the interpretation of our general terms and conditions the German substantive law shall be authoritative. The same applies to the contract, if not otherwise agreed upon. The UN-Convention on Contracts for the International Sale of Goods (CISG of April 11, 1980) is applicable.
These general terms and conditions remain valid, even if some parts are ineffective.
In the event that any individual clause of the applicable contract should be invalid or that the contract should contain gaps, this will not affect his validity. Instead of the invalid clause, the parties will agree on a clause that corresponds to the meaning and objective of what should sensibly have been agreed in the first place.