General Terms and Conditions of Trade
1. Scope of Application
The following terms and conditions shall apply to all deliveries and sales transactions and to all repair work. They shall also to be applied to all future business relations, even if they are not expressly agreed on again. These terms and conditions shall be deemed to have been accepted at the latest when the goods or services are delivered. The fact that our products are supplied shall under no circumstances imply an acknowledgement of any of the purchaser’s general terms and conditions of trade. Any divergent conditions of the purchaser’s shall only be binding on us if we have expressly acknowledged them in writing.
Our offers are not binding and are subject to change without notice. They only become binding when we have confirmed the order in writing or by telex. The same applies to supplements, alterations or subsidiary informal agreements, and to drawings, illustrations or other service data.
The prices quoted in our confirmation of order plus the statutory value added tax at the rate in force at the time, shall apply. The prices are without any deductions and do not include the cost of packaging, freight, postage and insurance. If no particular instructions are issued by the purchaser the products will be packed appropriately as we think fit. In the absence of any statement to the contrary, we commit ourselves not to alter the prices contained in our offers for a period of 3 months from the date of the offer.
4. Delivery Period and Time Limit for Performance
The dates and time limits quoted by us shall not be binding unless something different has been expressly agreed upon in writing. Even when we have entered into a binding agreement concerning time limits and dates, we shall not be held responsible for delays in delivery and time of performance for reasons beyond our control or as a result of occurrences which make it considerably more difficult or impossible for us to deliver (among these are problems in obtaining materials, even if these occur after conclusions of the contract, interruptions of operations, strikes, lock-outs, staff shortages, shortages of transport facilities, directives issued by the authorities, etc., including such occurrences that effect our supplier or subcontractor). In this case, we shall be entitled to postpone the delivery of performance of the service for the period of the interruption, or to withdraw from the contract in whole or in part with reference to that part which has not yet been fulfilled. If the interruption lasts longer than three months, the purchaser shall be entitled to withdraw from the contract after fixing an appropriate period of grace. If we are responsible for failing to meet deadlines and time limits which we have bindingly agreed to, or if we are overdue in performance, the purchaser shall be entitled to compensation for the delay, amounting to 1% of the value of the goods to be delivered for each complete week of the delay though not more than a maximum of 5% of the value of the total delivery, or, where applicable, of that part of the total delivery which cannot be supplied. A condition for payment of this compensation for delay is that the purchaser shall produce evidence that he has suffered damage as a result of the delay amounting to at least the value of the compensation. We shall not be obliged to make any compensation for damages above and beyond the compensation for the delay.
5. Passing of Risk
Upon delivery regardless of the date of the invoice, the risk of accidental loss, deterioration or destruction shall pass to the purchaser as soon as the consignment has been handed over to the person executing the transport, or has left our warehouse for the purpose of dispatch. At the request of the purchaser, and at his expense, our delivery will be insured against damage caused by theft, breakage, transport, fire, water and other insurable risks.
We warrant that the products are free of manufacturing defects in material. Both for mechanical and for electronic parts, the warranty period is 12 months. The warranty period begins with the date of delivery. Any warranty shall, however, expire if our operating and maintenance instructions are not complied with, if changes are made to the products, or if parts of our equipment are replaced with parts that do not correspond to the original specifications; the same shall apply to improper handling of the equipment. The purchaser undertakes to exempt us from any claims for compensation which might arise on the part of third parties vis-à-vis us, whether resulting from putting into service or from using the equipment. The purchaser must inform our costumer service management in writing about any discernible defects without delay – at the latest, however, within one week after receipt of the delivered item. Defects which do not become discernible within this period, even after careful examinations, must be reported to us by the purchaser in writing immediately after discovery. In the event that the purchaser should report that the products do not correspond to the warranty, we may require at our discretion that either
a) the defective equipment or the defective part is to be sent to us for repair and subsequent return, or
b) the purchaser keeps the defective equipment or the defective part available, and we shall commission an expert who will be sent to carry out the repair.
Transport cost and travelling expenses incurred for the purpose of remedying defects shall be borne by the purchaser.
Defects which occur to the equipment as a result of natural wear and tear shall not be covered by the warranty.
When asserting claims under warranty, it is the duty of the purchaser to prove that the defects were not caused by circumstances which are among the risks within his sphere of responsibility (such as transport damage, improper operation, etc.).
Any further claims in particular claims for damages for direct or indirect damage are excluded.
If after an appropriate time it is not possible to remedy the defect, the purchaser may at his discretion demand a reduction of the payment or cancellation of the contract.
Only the direct purchaser shall be entitled to make warrantly claims against us; such claims are not assignable.
7. Reservation of Title
Until the purchaser price has been paid in full, the goods supplied shall remain our property. The purchaser shall be entitled to resell the equipment. If the goods are resold before the purchase price has been paid in full, the purchaser already at this stage hereby irrevocably assigns to us by way of security the claims against any third party to which he is entitled as a result of the sale or on any legal basis not exceeding the due sales price and any due interest in arrears. In the same way he assigns any right to restoration of possession because of any reservation of title against any third party. We hereby accept the assignment already at this stage. In the event of attachment by third parties of goods to which title is reserved, the purchaser shall draw attention to our proprietary rights and inform us without delay. In the event of the purchaser’s acting in breach of contract – particularly default of payment – we shall be entitled either to demand surrender of the equipment supplied or to enforce against the third parties the purchaser’s claims to restoration of possession assigned to us above.
8. Payment Conditions, Loss of Agreed Discounts
In the absence of any agreements to the contrary, our invoices are payable without deduction 1 month after presentation. Payment shall be deemand to have been made only when the sum is at our disposal. If the purchaser defaults in payment of the purchase price, we shall be entitled to charge interest on the arrears amounting to the rate of interest charged by commercial banks for open current account credits, but amounting to a minimum of 1% per month. Agreed upon or allowed discounts shall not be applied and shall be void in case of judicial or extra-judicial composition or bankruptcy procedures against the customer or in case of the customer’s delay of payment of more then 30 days, or default of payment (§ 284 German Civil Code). Prices will then be recalculated on the basis of our list prices. The purchaser shall be entitled to a set-off, a right of retention or a reduction, even if notice of defects has been given or counterclaims have been asserted, only if the counterclaims have become res judicata or are not contested.
9. Right of Ownership, Copyright, Secrecy
All documents relating to an offer remain our property and must be returned upon request. There shall be no right of retention for any reason whatsoever. Third parties shall not be given access to the documents.
10. Applicable Law, Legal Venue, Partial Nullity
These terms and conditions and the entire legal relationship between us and the purchaser shall be subject to the law of the Federal Republic of Germany as applied between domestic parties. The UN-Convention on Contracts for the International Sale of Goods shall not apply. The legal venue for all disputes ansing directly or indirectly from the contractual relationship shall be – as far as it is legally admissible – Munich or the registered office of the costumer, at our discretion. Should any provision in these terms and conditions or any provision in the framework of any other agreements concluded be invalid, this shall not affect of all the rest of the provisions or agreements. The invalid provision shall then be replaced by a valid regulation which comes as close as possible to the economic intention of the invalid provision.