General business terms
1. SCOPE
We deliver exclusively at the following terms and conditions. Deviating or more detailed business terms of the buyer shall not be recognised even if we do not explicitly object to these. Changes and addendums require a written form unless with declarations in another form it is sufficiently and clearly expressed that these are to apply irrespective of the written form requirement.
2. RESERVATION OF TITLE
We reserve the property to the goods delivered by us until all claims from the whole business relationship, including the claims established in the future from simultaneously or subsequently concluded contracts, have been settled. The buyer is entitled to sell the goods which are our property in ordinary business transactions or, if it has acquired these for the purpose of use, to use these as intended as long as it satisfies its obligations from the business relationship with us in time. If the buyer is in default or if it becomes insolvent we are entitled to request that the goods owned by us are handed over. The buyer hereby already irrevocably permits us to access its rooms or properties for this purpose as well as if applicable to dismantle and pick-up the delivered goods.
2.1 The buyer is not permitted to pledge or assign the goods owned by us as collateral. The buyer must inform us immediately in case of attachments or other measures of third parties which impair our rights or in case of suspension of payments and provide all information, which is necessary for safeguarding our rights. It undertakes to explicitly inform the stated third parties of our property rights.
2.2 In case of conduct of the buyer which is in breach of the contract, in particular with default of payment, by no later however than with its suspension of payments or with the application for or the opening of bankruptcy or composition proceedings over its assets we are entitled to take the objects of delivery back or end the buyer’s authorisations with the revocation by us, to sell, process or install reserved goods in proper business transactions. This, as well as their attachment by us as supplier, does not represent a cancellation of the contract by us. The buyer must inform us immediately in case of attachment or other interventions of third parties. The property of the supplier will continue to exist even if the object of delivery is forwarded to third parties or installed in other whole properties. Thus, the extended reservation of title shall also apply for the event of the resale or conversion of the delivered goods which are our property. The buyer shall assign its claims against third parties to us in the amount of the open claim and undertakes to disclose this assignment. The buyer must remit the assigned amounts which were collected by it to us immediately insofar as the claims are due and payable.
2.3 If the value of the collateral furnished to us as supplier exceeds the value of the claims which are to be secured by more than 20 % than we undertake to release collateral items at our choice and at the buyer’s request.
2.4 The buyer shall keep the reserved goods in safekeeping free of charge on our behalf. It must insure these against the customary risks such as e.g. fire, theft and water to the customary extent. If the buyer cannot prove any insurance of the goods we shall be entitled to insure the goods accordingly at the buyer’s costs. The buyer hereby assigns its claims for compensation to which it is entitled against insurance companies, or other parties obliged to pay compensation from damages of the afore-mentioned kind, to us in the amount of the invoice value of the goods.
2.5 The assertion of the reservation of title or the extended reservation of title as well as the attachment of the object of delivery by us shall not be deemed as cancellation of the contract.
3 OFFERS AND CONCLUSIONS
Our offers are without obligation. Sales and other agreements shall only become binding for us through our written confirmation. Drawings, diagrams, details of weight, measurements and performance shall only be deemed as approximate details. We reserve the property rights and copyrights to cost estimates, drawings and other documents; they may not be made accessible or disclosed to third parties. Construction drawings shall not be handed over by us.
4 PRICES
The prices are, if not otherwise agreed, for domestic deliveries exceeding EURO 500.– (net goods value) free house by our house carrier or DB [German national railway company] excluding packaging. Deliveries of less than EURO 500.– (net goods value) and spare parts prices are ex works, excluding packaging. The prices shall apply plus value added tax in the respective applicable rate. Packaging or transport and freight costs shall be charged separately. Individual agreements shall apply to overseas deliveries. The weights and measurements determined in the delivered work shall be decisive for the calculation. The packaging will not be taken back.
5 TERMS OF PAYMENT
Insofar as not otherwise agreed payments are to be made within 10 days from invoice date with 2 % cash discount, alternatively 30 days net after the invoice date in the domestic business. The buyer can only deduct cash discount if it is not in default with other liabilities towards us. Individual agreements shall apply to overseas deliveries. In case of delayed payment we shall charge interest in the amount of 8 % above the basic interest rate from the day of the maturity. The retention of payments or the offsetting against counter-claims of the buyer is only permitted if these have been recognised by us or are final and binding. If the buyer is in default of payment or if we become aware of circumstances after conclusion of the contract which are suitable for reducing the creditworthiness of the buyer then we are entitled to only carry out still outstanding deliveries from this or other business transactions against advance payment or provision of collateral. Reminder and collection costs incurred after default of payment shall be for the account of the buyer.
6 DELIVERY TIME
Delivery deadlines and delivery dates shall always apply approximately. They are deemed as observed if the delivery is ready for shipment within the deadline. Delivery deadlines and delivery dates shall be extended irrespective of our rights from default of the buyer by the period of time by which the buyer does not satisfy its obligations towards us. If we are in default of delivery or if the delivery is impossible for us, no matter for what reason, then the buyer is not entitled to claims for damages no matter of what kind (in particular from §§ 325, 326 BGB [Civil Code]) unless we had caused the default or the impossibility through gross negligence.
Cases of force majeure and other events beyond our control and which render the delivery essentially more difficult or impossible for us, such as e.g. interferences to operation of all kinds, difficulties in the procurement of materials or energy, transport delays, strikes, lock-outs, proved rejection as well as the non-delivery, the incorrect or delayed delivery by our suppliers, no matter for what reasons, shall release us from our obligations from the supply contract. Impediments of a temporary nature, however only for the duration of the impediment plus a reasonable start-up period. Insofar as it cannot be deemed reasonable for the buyer to accept deliveries as a result of the delay it can cancel the supply contract through an immediate declaration towards us. Partial deliveries are permitted, each delivery shall be deemed as an independent business.
7 PASSING OF RISK
The risk shall pass to the buyer, even if carriage paid delivery has been agreed, when the goods are handed over to the carrier or freight forwarder, by no later however than when they leave our plant or warehouse. The INCOTERMS 2000 shall apply to the interpretation of the trade clauses. If the shipment is delayed for reasons, for which we are not responsible, the risk shall pass with the notification that the goods are ready for shipment. Storage costs after passing of the risk shall be borne by the buyer. The assumption of the assembly by us shall have no influence on the passing of the risk.
8 ASSEMBLY
Our respective applicable rates shall apply to the assembly. The helpers and aids of all kinds which are necessary for the assembly are to be provided in time and free of charge by the Customer even if the assembly is included in the order or we have taken over the order at the fixed price. The customer shall be responsible for the liability towards third parties for the helpers it provides. The assumption of responsibility for the assembly at a fixed price without knowledge of the local conditions presumes that the objects which are to be assembled can be transported up to the place of assembly without further problems, there is a smooth flooring at the place of assembly, the construction work has been completed at the start of the assembly and the foundations are dry and set. The additional costs, which arise as a result of abnormal assembly conditions, shall be charged. The provisions concerning delivery deadlines and delivery dates shall apply accordingly to agreed assembly deadlines and assembly dates.
9 ACCEPTANCE
In case acceptance has been agreed this can only be carried out in our plant. It must be carried out by no later than immediately after the report that the goods are ready for shipment. The acceptance costs shall be borne by the buyer. If the acceptance is not carried out, not in time or not in full either after the setting of a reasonable final deadline we shall be entitled to ship the goods without acceptance or to store these at the costs and risk of the buyer. The goods shall be deemed as delivered as per contract when they are shipped or stored. The same shall apply to those objects which have been changed or repaired by us.
10 WARRANTY
The delivered goods are to be inspected for quantity and quality by the buyer immediately after receipt. In case of a proper inspection recognisable complaints are to be reported to us immediately in writing, by no later than within eight workdays after receipt of the goods (excluded period). In case of delivery with assembly the assembled plant is to be inspected before the fitter leaves the location. A subsequent complaint of obvious defects is excluded. In case of defects or the absence of a warranted quality of the goods we are, at our choice, obliged to redhibitory action, reduction, subsequent improvement or substitute delivery. In case the subsequent improvement or substitute delivery fails the buyer can, at its choice, request redhibitory action or reduction under the exclusion of all further claims, no matter of what kind and no matter for which legal grounds. All other claims to which the buyer may be entitled owing to or in connection with defects or warranted qualities of the goods, no matter for what legal grounds, in particular claims for damages owing to non-performance, claims from positive breach of contract, claims from fault upon conclusion of contract and claims from tortious act, notably product liability are excluded; however this shall not apply insofar as we at least acted gross negligently as well as for claims for damages from warranted qualities, which should protect the buyer against the risk of possible consequential damages from defects. Warranties concerning energy requirement, performance and speed shall have been observed if the energy requirement is exceeded by up to ten per cent and the performance is fallen short of by up to ten per cent. Deviations from the stated speeds are permitted up to + or – 5 per cent. The details concerning speeds and energy requirement shall not cover the start-up times.
11 OTHER CLAIMS FOR DAMAGES
We shall also only be liable outside of the field of the warranty liability and the liability owing to impossibility or delay in case of gross fault of our legal representatives and vicarious agents; this shall in particular apply to damages through breach of duty upon conclusion of the contract, positive breach of contract, tortious act and product liability.
12 TAX AND CUSTOMS REGULATIONS
The buyer shall be liable for the damages suffered by us due to the fact that the buyer provides incorrect or late details for the treatment under tax or customs law, in particular with regard to value added tax. We are not obliged to examine these details ourselves.
13 DATA PROTECTION
We are entitled to process the data about the supplier within the meaning of the BDSG [Federal Data Protection Act] which we receive from the supplier itself or from third parties within the framework of or in connection with the business relationship.
14 FINAL REGULATIONS
The place of performance for all obligations from the contractual relationship is Düsseldorf. The place of jurisdiction for all differences arising from the contractual relationship, also for bill of exchange and cheque obligations is Düsseldorf. We are however entitled to file action against the buyer at another court of jurisdiction. The law of the Federal Republic of Germany shall apply.
15 ESCAPE CLAUSE
Should one provision of these terms and conditions be or become invalid this shall have no effect on the other provisions. If individual provisions are disputed or are invalid these shall be replaced by a regulation which shall as far as possible correspond with the original intention.
HEINRICH DE FRIES GmbH Edition March 2022
