General terms of delivery and payment of Mathias Fördertechnik
(Frankfurt/Oder, valid from 01.01.2015)
The terms of delivery and payment stipulated below shall be applicable to the entire business relationship with our customers. The buyer shall accept them as binding for the current contract and also for any future business operations. Any deviating provision shall require our written confirmation, e. g. an agreement pursuant to VOB (German standard building contract terms). Any deviating purchasing conditions by the orderer that we do not expressly accept in writing have no binding force for us. Nor will these become part of the agreement as a result of silence or delivery by us. The following terms of sale apply even if we acknowledge conflicting or deviating conditions of the buyer, the buyer’s order without reservation.
II. Offer and conclusion of contract
1. Our offers are always without obligation. We reserve the right of ownership and copyright for quotations, drawings and other documents; they may not be disclosed to any third party and if the order is not placed, they must be returned without delay. Any drafts, detailed plans and quotations prepared at the customer’s request shall be charged at cost price if an order is not placed.
2. We cannot be expected to examine whether the details provided to us by the orderer or any third party are correct.
3. By accepting our order confirmation or returning our drawings etc. with or without acknowledgment on the part of the buyer, the latter shall accept the liability for the correctness of his order.
4. If after more than 4 months from the time of concluding the contract or making the offer rises in standard wage or salary rates occur, or in the prices of materials, taxes etc. , we shall have the right to increase our prices accordingly or to cancel the contract.
5. Each consignment shall be regarded as a business as such; any possible discrepancies in individual consignments shall remain without effect on the others.
6. Call-off orders shall not obligate us to build up stocks; we must be granted a reasonable period of time. Call-of orders shall be effected within a year after confirmation, otherwise we shall have the right to cancel the remainder and make out an invoice for the amount in arrears.
III. Delivery periods
1. Delivery dates or periods that are not expressly agreed as binding are exclusively non-binding. The specified delivery period starts when the technical issues have been resolved. Similarly, the buyer has to fulfil all his obligations properly and on time.
2. If it is as defined in the underlying purchase contract is a firm deal §286 II No4 BGB or of §376 HGB, we are liable under the law. The same applies if the buyer is entitled as a result of delay in delivery caused us to make the continuation of his interest in the further fulfilment of the contract. In this case, our liability to foreseeable, typically occurring damage is limited when the delivery delay is not one of us to deliberate breach of the contract rests with us in one of our representatives or agents belong.
Likewise, we are liable to the purchaser for late delivery in accordance with statutory provisions, if any of us on this due to deliberate or grossly negligent breach of contract, which is our fault our representatives or agents belong. Our liability is limited to foreseeable, typically occurring damage if the delivery delay is not one of us is due to wilful breach of contract.
3. In the event that one arises from a justifiable delay in delivery to the culpable breach of a contractual obligation with us one of our representatives or agents are attributable, we are liable under the statutory provisions with the understanding that in this case, the liability for damages to the foreseeable, typically occurring damage is limited.
4. Any further liability for a delay in delivery to us is excluded. Any further legal claims and rights of the buyer that he is entitled in addition to the claim for damages because of a delay in delivery to us, remain unaffected.
5. If the buyer is in default of acceptance, we are entitled to compensation for the resulting damages and any additional expenses. The same applies if the purchaser culpably violated obligations to cooperate.
6. We are entitled at any time, to do partial shipments if this is acceptable for the customer.
IV. Passage of risk and shipment
1. The dispatch is always at the expense and risk of the purchaser.
2. We accept transportation and all other packaging according to the packaging regulations not back, except for pallets. The buyer has to arrange for the disposal of the packaging at his own expense.
3. The risk shall pass to the buyer, even if delivery on a carriage paid basis has been agreed: Upon notification of the readiness for dispatch, prior to the loading of the consignment parts at our works, even if at the request of the customer, the delivery is delayed.
4. If dispatch or shipment is delayed at the customer’s request by more than one month after the notice of readiness for dispatch was given, the customer may be charged, for every month commenced, storage costs of 0.5% of the net order value; the storage fee shall be limited to 5%, unless it can be proved that the costs incurred were higher.
5. Any goods supplied must be accepted by the orderer, even if they have minor defects. Part deliveries are acceptable.
V. Installation and assembly
1. The orderer shall take responsibility for providing, at his own expense and in a timely manner:
a) A support team, such as sub workers and other skilled workers in the numbers required.
b) All ground, bedding, construction and scaffolding work and other auxiliary work, including the construction materials required.
c) All the equipment and devices necessary for assembly and commissioning, such as lifting gear, as well as materials and supplies required, fuels and lubricants etc.
d) Heating, lighting and operating power, including all the necessary connections up to the place of use.
e) Sufficiently large, suitable, dry and lockable rooms for storing the machine parts, materials, tools, as well as adequate workshops and staff rooms.
2. Prior to assembly, the supplied parts required for starting the assembly work must be available on the premises and all masonry, carpentry and other preliminary work must have progressed so far that the assembly can be started as soon as the fitters arrive and that it can be carried out without interruption. In particular, the approach routes and the assembly or erection site must have been levelled off and cleared, in case of indoor installation the walls and ceiling must be fully plastered and doors and windows fitted.
3. If the start of the assembly work is delayed due to circumstances on the building site that are not our fault, the orderer shall bear all costs for waiting time and further necessary travels of the fitters.
4. The orderer shall certify the hours worked by the assembly personnel at weekly intervals and to the best of his knowledge and he shall immediately confirm in writing when the assembly has been completed. We reserve the right to contract suitable sub-suppliers, if necessary.
5. We shall be liable only for the proper handling and assembly of the objects supplied, not for the work carried out by our agents, insofar as this work is not connected with the delivery and assembly or insofar as it has been induced by the orderer.
VI. Liability for defects in the delivered goods
1. Claims of the purchaser are only if the buyer has complied in accordance with § 377 HGB inspection and notification. Wear parts are generally excluded from the warranty.
2. Case of justified complaints, we are excluding the rights of the purchaser to rescind the contract or reduce the purchase price (reduction), the subsequent obligation unless we are entitled under the statutory provisions on denial of remedy. The Buyer shall grant us a reasonable time limit. The defect cannot be chosen by the buyer through the elimination of the defect (repair) or delivery of new goods. We carry in case of repair, the necessary expenses, provided these do not increase, because the contract is at a place other than the place. If subsequent performance fails, the purchaser may at his discretion reduce the purchase price (reduction) or withdraw from the contract. The remedy is with the second unsuccessful attempt, if not adequate given the subject matter hereof, and further attempts are reasonable for the buyer. Claims for damages to the following conditions due to lack of buyers can make claims only when the remedy has failed. The buyer’s right to claim further damages to the following conditions remain unaffected.
3. The warranty claims of the purchaser shall expire one year after delivery of the goods to the buyer, unless we have fraudulently concealed the defect, in which case the legal regulations.
4. We are liable regardless of the following limitations of liability under the statutory provisions for injury to life, limb or health caused by a negligent or willful breach of duty by us, our legal representatives or our vicarious agents, as well as for damages covered by liability under the Product Liability Act. For damages not covered by Theorem 1 and are based on intentional or grossly negligent breach of contract and bad faith by us, our legal representatives or our vicarious agents, we are liable under the law. In this case, the liability for damages to the foreseeable, typically occurring damage is limited, unless we, our legal representatives or our vicarious agents have acted willfully. The extent to which we have delivered on the goods or parts thereof of quality and / or durability, we shall also be liable under this warranty. For damages based on the lack of guaranteed quality or durability, but not directly on the goods, we are only liable if the risk of such damage is evident by the quality and durability.
5. We are also liable for damage that we cause by simple negligent breach of such contractual obligations; the fulfilment of the proper execution of the contract in the first place and on their compliance with the buyer can trust and be trusted. We are liable only to the extent the damage is typically associated with the contract and foreseeable.
6. Any further liability is excluded, regardless of the legal nature of the claim; this particularly applies to tort claims or claims for reimbursement of expenses in lieu of performance. Insofar as our liability is excluded or limited, this applies also to the personal liability of our officers, employees, representatives and agents.
7. Damage claims by the purchaser due to a defect shall be one year from date of delivery. This does not apply in the case of ourselves, our legal representatives or our vicarious agents of injury to life, limb or health, or if we, our legal representatives have acted intentionally or with gross negligence, or if our vicarious agents have acted intentionally.
VII. Retention of title and extended right of lien
1. All deliveries shall be effected under retention of title to the goods delivered. The ownership shall pass on to the buyer as soon as he has fulfilled all his obligations from our business relationship. This applies also if the purchase price for certain consignments specified by the buyer has been paid.
2. If the buyer has an open account, ownership is retained as a security for paying the balance. The machining or processing of goods delivered by us, which are still our property, shall always be executed on our behalf, without any liabilities arising for us. If the goods supplied by us are mixed or combined with goods of a different origin, the buyer shall at that stage transfer to us his ownership or co-ownership rights to the mixed goods or new items and keep them for us with due commercial diligence. The buyer shall be authorised to resell or use the delivered goods in the ordinary course of business as long as he is not in default of payment. However, any pledging or transfer of securities shall not be permitted.
The buyer shall immediately notify us of any forthcoming pledge or other impairment of our rights by third parties so that we can enforce our property rights. If the third party is unable to reimburse us arising in this context, judicial or extrajudicial expenses, shall be liable to the purchaser.
3. If the buyer resells the goods supplied by us – irrespective of their condition or whether they are sold alone or together with other goods -, he already transfers to us his claims resulting from the resale against his buyers, together with all ancillary claims, until all our claims have been balanced. At our request the buyer shall be obliged to inform the sub-orderers about the transfer of title and to give us the information needed to enforce our claims against the sub-orderer and to hand over all related documentation to us. He shall not be authorised to conclude agreements with his customer that would curtail our rights. If the value of the security assigned to us exceeds our claims from the deliveries by more than 10%, we shall be obliged to retransfer the adequate value at the customer’s request. The orderer shall be entitled to collect the assigned claims. However, we shall be entitled to revoke this authority at any time.
4. In relation to a claim from the contract we shall hold a contractual lien to the items supplied.
We are even entitled to private sale of seized goods in our possession. If we exert our right of sale of pledged property, it will suffice to send a written notification announcing the forthcoming sale of pledged property to the last known address of the orderer, in as far as the new address cannot be established by the registration office.
VIII. Terms of payment
1. For orders up to € 10.000, — the amount is due within 30 days net cash.
2. For an order value of € 10.000, — or more the following payments shall be due:
One third as an advance payment on the day of placing the order.
Two thirds upon delivery or notification of readiness for dispatch in net cash.
Any repair or contract work shall always be paid immediately net cash.
Cheques and bills of acceptance will be accepted as payment only on account of a special agreement. All bill and discount charges according to the rates of the banks shall be at the purchaser’s expense.
The purchaser may only assert a right of retention insofar as it is based on the same contractual relationship. He shall not be entitled to offset it against our claim unless we have accepted the counterclaim or unless it has been assessed by a definite and binding court decision. Payments to employees or representatives are only valid if these are authorised to receive payments.
3. If the buyer is advised with payment of a bill in arrears, deferred liabilities are payable immediately.
4. Unless we get after contracting circumstances note, which can suggest a substantial deterioration in the economic situation deteriorates; we may require advance payment of an appropriate size or rescind the contract.
IX. Jurisdiction / Place / Right Choice
Jurisdiction and performance are Frankfurt/Oder provided the customer is a merchant in terms of Commercial Code. The relationship between the parties shall be governed exclusively by the laws of the Federal Republic of Germany.
Should a provision be or become invalid or unenforceable, this shall not affect the validity of the remaining provisions. Rather, the obligation is a valid or enforceable provision exists in the place to put the invalid or unenforceable that meets the economic and ideological terms, as far as possible.