A. General conditions
I. Conclusion of contract
1. All supplies and services are subject to the present conditions of sale and delivery and the agreements stipulated in the contract. After acceptance of the order Buyer’s conditions of purchase deviating from these conditions will not become part of the contract.
2. Our offers are without engagement. As far as not otherwise agreed upon the contract will become effective with the written order confirmation.
3. We reserve the right of property and the copyright on drawings, calculations and other documents; they shall not, without expressly written consent, made available to third parties.
4. Our sales conditions shall apply also to all future business with the Buyer.
II. Prices and payment
1. As far as not otherwise agreed upon prices are to be understood ex works, however, packing and unloading excluded.
2. Unless otherwise specified our invoices are to be paid within 30 days after date of invoice without any deduction.
3. Buyer’s right to withhold payments or to offset them against other claims is subject to the condition that these claims have been legally established, uncontested and accepted by us. Moreover, he has the right to withhold payments as far as his claim is based on the same contractual relationship.
4. Applicable legal prescriptions in respect of the delay of payment remain unaffected.
5. Prices are to be understood net, legal VAT to be added.
III. Right of property
1. All goods supplied remain our exclusive property (reservation clause) until all demands have been fulfilled, in particular set-tlement of all possible balance claims to which we are entitled within our business relationship.
2. In case of further processing, assembly or integration of the reservation goods by the Buyer with other commodities we will become co-owner of the new equipment to the amount of our invoice related to the overall value of the other commodities. If our property rights will be extinguished due to assembly, integration or processing of our goods, the Buyer already now vests us with the property rights and prospective rights, re¬spectively, he will be entitled to related to the new commodities or goods to the value of the reservation goods, in case of goods processing proportionally to the value of the reservation goods and the value of the goods processed and keeps them for us free of charge. Our co-owner rights are to be considered as reservation goods as defined by clause 1 hereunder.
In case Buyer fails to respect the terms of contract, in particular in case of delay of payment, Seller, after reminding the payment, is authorized to request the return of the goods supplied and Buyer is obliged to return them. However, assertion of property rights as well as seizure of commodities supplied shall not be deemed as withdrawal from the contract.
IV. Place of fulfilment and court of jurisdiction
Place of fulfilment is Burbach and court of jurisdiction for both parties will be Siegen. We are also entitled to sue the Buyer on his respective court of jurisdiction.
B. Execution of the contract and delivery
I. Delivery period
1. Delivery period starts with the date of our order confirmation, however, only after com¬plete clarification of all contractual details; this provision applies to the delivery deadlines, too.
2. Delivery deadline will be kept provided that pre-material will be supplied in good order and time.
3. If Buyer fails to fulfil his contractual obligations – including obligations to co-operation and others – such as opening of the letter of credit, placing at disposal of national or international certificates, transfer of down-payment or negligence of other terms of the contract we have the right to postpone the delivery period in conformity with our production planning irrespective of our rights resulting from delays caused by the Buyer.
4. Delivery periods and deadlines shall start from the date on when the goods leave our works. If goods can not be supplied in time – through no fault from our side – delivery periods and deadlines shall be deemed to be kept on receipt of the notification that they are ready for dispatch.
5. If the delivery time can not be respected due to reasons of force majeure, labour disputes or other events which are beyond Seller’s control, delivery time will be prolonged by a reasonable period of time. The Seller will inform the Buyer in due time about beginning and termination of such circumstances.
II. Dispatch, transfer of risks
1. We will nominate the forwarding agent or carrier. Other agreements shall be made in writing.
2. If loading or transport of the goods will be delayed due to reasons which are under Buyer’s responsibility, we are entitled to store the goods at our own discretion, to take appropriate measures for conservation of the goods and to invoice the goods which are deemed to be supplied, at cost and risks of the Buyer. This procedure shall apply also if the Buyer fails to accept collection of the goods within 4 days after corresponding noti¬fication. Legal prescriptions concerning delay of take-over of goods remain unaffected.
3. In case of transport damages the Seller shall immediately arrange for the discovery of the facts by the relevant authorities. If goods have to be returned to the works, the Seller will arrange for the transportation.
4. The Buyer has to bear all risks from the time on when the goods are delivered to the forwarding agent or the carrier, however, when the goods leaves Seller’s works or store at the latest.
5. Partial deliveries are allowed as far as reasonable for the Buyer.
III. Guarantee
1. In case goods supplied are already subject of a defect prior to the transfer of risk, we will remedy at our own discretion the defective item or replace the goods (additional services). If the additional services will not be successful or if they are not reasonable for the Buyer, the Buyer is entitled to reduce the price or to withdraw from the contract. With the exception of the claims stipulated in Article C (Liability) the Buyer is not entitled to any other claims.
2. The Buyer shall agree upon the required period of time and intervention with the Seller to undertake the necessary remedy of the goods or to deliver replacement; otherwise Seller shall not be obliged to assume the responsibility for the consequences resulting thereof.
3. The guarantee period is 12 months after delivery.
4. The Buyer shall give us the opportunity to immediately find out for the default, in particular to place at our disposal the defective goods or samples of the parts. The Seller will arrange for necessary transportation to his works. In case of negligence of these provisions additional costs resulting thereof shall be borne by the Buyer.
5. In particular, the Seller shall not be liable for:
Inappropriate or inexpert use, faulty installation or commissioning of the goods by the Buyer or others, natural wear and tear, faulty or negligent handling, lack of proper maintenance, inappropriate operating means, poor civil works, inappropriate floor ground, chemical, electro-chemical or electrical influences unless they are under Seller’s responsibility.
6. If the Buyer or others undertake inexpert repairs, the Seller shall not be liable for any consequences resulting of such acts. This applies also to modifications of the goods which have not been approved in advance by the Seller.
7. Once the acceptance which was agreed upon has been realized notice of defects which can be determined in the course of this acceptance are excluded.
C. Liability
1. We are only liable if:
a) applicable law forces application of our liability, for example the ProdHaftG (Product Liability Law) or in case of death, bodily injury to persons or health hazards.
b) we failed to respect an important contractual obligation (cardinal error) or guarantee.
c) damages occurred due to gross negligence or wilful misconduct for which we are responsible.
2. Liability in all other cases is excluded irrespective of the legal position. In particular, we are not liable for indirect damages, loss of profit or other damages to property of the Buyer.
3. In any case our liability is limited to the damage which could be reasonably foreseen at the time of the conclusion of the contract under consideration of all circumstances and facts made available to us. However, this provision does not apply to acts as specified in paragraph 1, chapter a) of clause C (Liability).
4. The exclusion of liability and/or limitation of liability according to the aforesaid also ap¬plies to the personal liability of our workforce and executing assistants.
D. Miscellaneous
I. Export certificates
As far as the goods are to be delivered within EC countries, prior to the exportation of the goods, the Buyer has to notify his tax identification number he will use to pay the EC import tax. Otherwise, the Buyer shall pay the applicable legal VAT invoiced for the goods delivered by the Seller.
II. Applicable law
For the execution of the present terms and conditions German law is the only applicable law, to the exclusion of the uniform law related to the international purchase of movable goods and the uniform law related to the conclusion of international purchase contracts of movable goods.
2. In case the Buyer/the user undertakes any modifications whatsoever of the goods supplied it will result in the loss of guarantee, liability and warranty.
III. Important notes
1. Forks, forks extensions etc. shall only be used in conformity with the “regulations for prevention of accidents”, the “recommendations for appropriate and intended use of industrial trucks” and the “operating and maintenance instructions” of the forklift supplier.
2. In case the Buyer/the user undertakes any modifications whatsoever of the goods supplied (machining, welding, etc.) it will result in the loss of guarantee, liability and warranty.
3. If forks without fork hooks have to be welded or fitted with borings we refer to our respective prescriptions which we will place at disposal on request. In case of dimensioning/calculation of bolted forks cross section reduction and fatigue strength must be taken into consideration.
4. Special forks cannot be exchanged. Refunds are not possible.
5. In case of a necessary recall our customers are obliged to document the whereabouts of our products after delivery to the user.
6. If required, documentation in German is included in delivery. In case of resale abroad the purchaser bears responsibility for the documentation in the respective national language.
valid from 1 July 2009
© VETTER Umformtechnik GmbH 2009
