1.1 These conditions of delivery apply to all – including future –deliveries and services. Any conditions of sale issued by the purchaser which contradict the conditions of sale and delivery of the vendor are invalid for this contract and they are not binding.
1.2 The quotations of the vendor are never binding. Contracts and other agreements, especially verbal agreements and assurances from members of the staff of the vendor or his representatives, require written confirmations.
1.3 Drawings, illustrations, technical data, weights, measurements as well as specifications etc. are only approximately binding, insofar
as they are specifically defined as binding in the order confirmation. The vendor reserves the right of ownership and copyright of these documents; and they may not be made available to third parties.
1.4 Insofar as nothing else is specified, the usual terms of contract (known as INCOTERMS), for example EXW, DDP, FOB, which have been defined by the International Chamber of Commerce in their latest version apply.
2.1 The price are ex factory or warehouse, not including all other costs, such as packing, freight costs, duty, insurance etc. which are
a responsibility of the purchaser.
2.2 In the case of deliveries in foreign currencies, the vendor is entitled to charge the purchaser the eventual loss due to currency fluctuations which may occur between conclusion of the contract and receipt of payment.
3. Payment and application of claims
3.1 In the absence of an agreement to the contrary, payment is to be made – without any deduction – in the following manner:
1/2 of the total price, net, upon receipt of the order confirmation and 1/2 net 30 days after shipment.
3.2 The vendor accepts – if specifically stipulated – bills of exchange which are re-discountable and properly stamp- taxed or checks. Any discount fees and associated costs resulting from bill of exchanges and checks have to be borne by the purchaser. Payment is considered made when the bill of ex-change or check sum is credited to the
account of the vendor.
3.3 If payment is received after the agreed payment deadline, the vendor is entitled to charge interest at the current bank rate for overdrafts, at least three percent above the current discount rate. The vendor reserves the right to charge any additional cost arising
from delayed payments.
3.4 The vendor is entitled to usual securities on his claims.
3.5 All claims are due immediately, independent of the validity of accepted bills of exchange, if the terms of payment are not adhered to or if the vendor becomes aware of any circumstances which – in his opinion – reduce the creditworthiness of the purchaser. The vendor is entitled to demand advance payment for deliveries still outstanding and – if this payment is not received, the vendor can withdraw from the contract after an appropriate period of time. The vendor is furthermore entitled to forbid the sale or use of the delivered goods, demand the return of the transfer of ownership to the vendor at the expense of the purchaser or to withdraw his permission with regard to claim collection in accordance with clause 7.5. The vendor is entitled in the aforesaid cases to enter the premises of the purchaser – with advance notice and after setting a deadline – to collect the delivered goods and to sell them on the free market; the proceeds of sale which – less costs incurred – contribute to the settling of the claim against the purchaser.
3.6 The vendor is entitled to apply his claims to any claims the customer may have against him. This also applies if cash payment has been agreed by one party and the other party makes payment by bills of exchanges or other means. Where applicable, these terms relate to the balance of existing claims. When claims are due at different dates, the claims of the vendor mature when his obligations are fulfilled at the latest.
3.7 The application of claims of the purchaser is permissible only in so far as these have been recognised as existing, due and legally valid.
3.8 The purchaser has the right to withhold payment only in so far as this is based on the same contract.
4. Dates of delivery
4.1 Dates of delivery are only approximate unless the vendor has referred to them explicitly and in writing. The terms of delivery commence on the day of the order confirmation, however, not before clarification of all technical and commercial details and presentation of the pertinent approvals by authorities. If the purchaser requests any modification in the design or materials of the item be delivered – within the term of delivery given – the term of delivery can be appropriately extended. Any delay in the return of drawings sent for approval extend the term
of delivery of the item to be delivered.
4.2 Partial shipments are permissible.
4.3 If circumstances arise which are beyond the control of the vendor, delivery will be delayed by the length of time caused by these circumstances, plus a reasonable period of preparation. Reasons of force majeure include the following: war, economic and monetary or other governmental measures, riots, natural catastrophes, fire, strikes, lock-outs, short supply of raw materials for which we are not responsible, interruptions of transport or at the works of other cases of force majeure which hinder, endanger and render impossible the fulfillment of the contact. In such cases the vendor is entitled to withdraw from the contract without granting damages. The purchaser can demand any explanation from the vendor as to whether he withdraws from the contract or whether he delivers within an appropriate period. If there is no statement from the vendor, the purchaser may withdraw from the contract. Partial shipments cannot be refused by the purchaser.
4.4 If the vendor fails to deliver the goods within the agreed period, the purchaser must set an appropriate extension. If the goods to be delivered have not been shipped within the agreed extension period, the purchaser is entitled to cancel the delivery of those parts which have not been shipped by the time the extension runs out. Only if the already delivered goods are of no interest to the purchaser is he entitled to withdraw from the entire contract. If the purchaser suffers damage due to delay for which the vendor is responsible, the vendor shall compensate the purchaser for the proven damages, however, only a maximum of five percent of the merchandise value of the delayed or not effected delivery or services. These restrictions do not apply where the vendor is liable due to intent of gross neglect. The right of the purchaser to withdraw from the contract after fruitless expiration of the extension period by which the vendor has been granted, remains untouched.
5.1 The erection of the delivered goods by the vendor and/or the dispatch of fitters will be agreed individually by a separate contract.
6. Passing of risk
6.1 Where no particular agreement in writing has been made, the goods to be delivered will be shipped unpacked and unprotected. Surcharges will always be levied when packing has been agreed upon in accordance with standard trade practices.
6.2 The goods are always shipped at the expense and risk of the purchaser. When the goods are transferred to the forwarding agent or carrier or – at the latest – on leaving the factory or warehouse of the vendor, the risk passes to the purchaser – even in case of delivery free destination. If there is a delay in the shipment of the goods caused by the purchaser, then the risk passes over to the purchaser on the advice that the goods are ready for dispatch.
6.3 Delivery of goods reported ready for shipment must be ordered immediately. Otherwise, the vendor is entitled to ship the goods at his convenience or to store the goods at the expense and risk of the purchaser and to invoice the goods accordingly.
6.4 Transport insurance coverage will be effective at the expense of the purchaser only when stipulated in writing.
7. Reservation of ownership
7.1 The goods delivered remain the property of the vendor until all his claims – no matter from which legal basis – have been satisfied – even when payments have been effected for specific claims. If a check – bill of exchange method is used between the vendor and the purchaser, the reservation of property remains in force until the vendor no longer has legal obligations due to the bill of exchange.
7.2 If the goods delivered by the vendor are incorporated in other goods delivered by the purchaser, then the vendor is entitled to partial ownership of the whole in proportion to the value of the reserved goods as related to the value of the other goods which make up the whole.
7.3 The purchaser may sell the reserved goods only by ordinary business transactions and under normal terms insofar as he is not in arrears with his payments and on the condition that any claims from the sale (see Clauses 4 to 6) pass to the vendor.
7.4 The claims of the purchaser resulting from the sale of the reserved goods are already transferred to the vendor now. They serve as security to the same extent as the reserved goods. If the reserved goods are sold by the purchaser together with other goods not supplied by the vendor, the claims resulting from the resale is only transferred at the rate of the resale value of the respective reserved goods sold. In the case of the sale of goods to which the vendor has partial ownership – according to clause 7.2 -, the transfer of the claim is at the rate of the value of the partial ownership according to clause 7.2.
7.5. The purchaser is entitled to realize claims resulting from the resale until the cancellation by the vendor which can be made at any time. The vendor will make use of the right of withdrawal only in cases as defined in clause 3.5. The purchaser is entitled to withdraw from claims – including the transfer of claims to factoring banks – only with the vendor’s previous written consent. Upon request, the vendor is obliged to inform his clients immediately of the transfer to the vendor insofar as the vendor does not do this himself and does not give the particulars required for the collection to the vendor.
7.6 If the customer of the purchaser pays by check, it becomes the property of the vendor as soon as the purchaser receives it. If payment is made by bill of exchange, the purchaser transfers his resulting rights to the vendor in advance. The payment will be kept for the vendor by the purchaser – if he does not obtain direct possession -, then his transfer claim against third parties is ceded to the vendor in advance. The purchaser will pass this payment on to the vendor with his endorsement.
7.7 If the vendor evokes the reservation of property then this can only be construed as withdrawal from the contract if explicitly declared by the vendor in writing. The right of the purchaser to own the reserved goods extinguish if he does not fulfill his obligations from this or
7.8 The purchaser must immediately inform the vendor of a seizure or other infringements by third parties.
7.9 If the value of the existing securities exceeds the claims secured by them by more than ten percent, the vendor is obliged to release securities of his choice at the insistence of the purchaser.
8. Warranty claim for damages
8.1 The purchaser must examine the delivered goods immediately and with due care. The vendor must be informed of any defect within a
period of two weeks, either by letter or by email. Defects which are not immediately obvious must be reported within two weeks of their
8.2 The following do not count as defects:
1. Damages due to wear and tear of wearing parts, such as chains, rubber and belts, bearings, sprockets, shafts, gear-boxes etc.
2. Damages due to inappropriate handling, in particular inadequate or neglected maintenance.
3. Damages due to improperly made electrical connections, meaning electrical connections not made in accordance with U.L.
4. Damages due to not observing our operating and maintenance instructions.
8.3 The vendor is obliged to remedy justified damages which have been reported to him promptly. Alternatively – at our own choice and with the appropriate consideration for the interest of the purchaser – the vendor is allowed to deliver a replacement or to give a refund for the reduction in value. The purchaser must allow an appropriate time for the carrying out of repairs and permit the vendor at least two repair attempts.
8.4 If the repair is not carried out by the vendor or not done according to the contract or if the repair fails and if the vendor does not make
amendments otherwise, according to clause 8.3, the purchaser has the right to reduce payment or to withdraw from the contract, whichever he prefers.
8.5 If the purchaser does not give the vendor the immediate opportunity to examine the claimed defects, then all claims resulting from defects become void.
8.6 Other more far – reaching warranty claims are excluded. This applies also to claims for the repair of damages – other than to the delivered (second order damages). Claims resulting from missing qualities are only admissible to the extent to which the purchaser was to be safeguarded against damages of this kind.
8.7 Warranty is only valid for six months after the purchaser is in possession of the goods delivered by the vendor. Warranty for deliveries and services in accordance with labor contracts is six months from the date of acceptance. Goods are deemed to have been accepted when acceptance has been declared to the vendor after delivery or if they have been put into their appropriate use unless they have already been accepted at the works of the vendor.
9. Limitations of liability and superannuation
9.1 The vendor is liable only according to these general terms of delivery. All claims which are not expressly mentioned under these terms, in particular, claims for damages due to impossibility, delay, violation or minor contractual obligations, fault at the conclusion of the contract, illicit action – also insofar as such claims are related to the warranty rights of the purchaser -, are excluded unless they are based on gross negligence or intent.
9.2 All claims against the vendor, for whichever legal reason, become invalid after one year at the latest – except when shorter
terms apply according to law or where they have been agreed upon in the general terms of contract.
10. Place of fulfillment, domicile and applicable law
10.1 Place of fulfillment of deliveries made by the vendor – in case of deliveries ex factory – is the factory of the vendor or otherwise the
warehouse of the vendor.
10.2 Domicile – in cases of disputes from bills of exchange and checks the vendor can sue the purchaser at his domicile.
10.3 For all legal issues between purchaser and vendor, Federal law of the United States of America applies.