General Terms of Delivery
§ 1 Preamble
1. These general terms and conditions for the sale of exported goods apply as long as there are no modifications to the express conditions in a written agreement between the parties.
2. The offer, the acceptance of the offer, and the order confirmation or the sale of any product are subject to the present terms and conditions. Any kind of terms and conditions or contract-changing clauses from the buyer are not accepted; they will only be effective for the supplier, if the supplier agrees to these changes in writing.
3. These clauses are the basis for any kind of future specific transaction between the buyer and the supplier and they exclude any other agreement.
4. Any falsely conditioned error in the sales brochure, price lists, offer documents that may arise are allowed to be adjusted by the supplier, so that he or she has no responsibility for the damage due to these errors.
5. These standard conditions apply to merchants only.
§ 2 Orders and Offer Documents
1. The tendered order documents from the buyer are only accepted by the supplier, if the supplier sends a written acceptance within 21 days.
2. The amount, quality and description, as well as any specifications of the goods must meet the supplier’s offer (if the buyer accepts it) or the buyer’s order (if the seller accepts it.) All sales records, specifics and price lists are to be handled strictly confidentially and may not to be made accessible to a third party.
3. The buyer holds the responsibility in regard to the accuracy of the order and is, therefore, responsible to inform the supplier of any kind of essential information in relation to the ordered goods within a certain amount of appropriate time, so that the order can be conducted according to the agreement.
4. If the goods have to be manufactured, handled or worked on by the supplier and the buyer laid these specifications out, the buyer must pay for any kind of damage, harm, costs or other expenditures made by the supplier. The buyer must also be prepared to pay and must pay for costs due to processing or handling according to specifications in the contract that breach patents, copyrights, trademarks or other protective rights that a third party exposes.
5. The supplier reserves the right to amend the good’s description in regard to the specifications for legal requirements, as long as the occurrences of these changes do not cause a decline in respect of the quality and the usability of the goods.
§ 3 Purchase Price
1. The purchase price should be the price named by the supplier, or when this does not take place, in particular, then the price in the current supplier’s price list, which is available at the time.
2. The supplier reserves the right, after timely information from the buyer and before the completion of the good’s delivery, to raise the price in its own manner for reasons outside its control, like necessary price changes (i.e.: currency fluctuations, currency regulations, customs changes, a noticeable rise in material or manufacturing costs) or because of a necessary change of suppliers.
3. As long as nothing else is offered or given in the price lists or as long and no other written agreement between the supplier and buyer exists, all of the supplier’s prices are on the basis of “ex works” (EXW Incoterms 2000). As long as the supplier is prepared to deliver to other areas, the buyer must pay for the transport, packaging and insurance costs.
4. Prices exclude value added tax, which the buyer must pay additionally to the supplier.
§ 4 Payment Terms
1. Place of payment is the site of the seller. The buyer must pay the buying price without any allowance, “free paying place of the supplier” within 30 days after receipt of the invoice.
2. Payments should only take place through bank transfer; cash and payment by check will not be seen as fulfilling the duty of payment.
3. It can be agreed upon between the contractual partners, that the buyer can open a documentary letter of credit at his bank (or [another] bank acceptable for the supplier.) In this case, it is determined that the opening of the letter of credit will be made in accordance with the Unified Guidelines and Application of Documented Letters of Credits (ERA), Revision 2007, ICC-Publication Nr. 600 (ERA 600/UCP 600).
4. The punctuality of the buying price payment is a fundamental contractual obligation. In the case of the non-scheduled payments is authorized by supplier from the date due onwards, interest rates from 8% per year over the basic rate of interest of the European Central Bank are desired.
5. If the buyer does not make a payment within four weeks of the due date, the supplier has the right to inform the buyer of the cancellation of the contract and to demand recovery of damages.
6. Further rights and claims of the supplier remain reserved.
§ 5 Delivery of Goods
1. The delivery takes place from the factory of the supplier in Schönstedt (EXW Incoterms 2000). Partial deliveries are acceptable and can be charged separately in the invoice.
2. The stated period of delivery and unloading times are always non-binding if it is not explicitly written that something else is stipulated.
3. The compliance to the delivery requirements from the supplier is agreed upon in advance and the technical questions and punctual and proper compliance of the buyer’s secondary obligation is set in advance.
4. The supplier’s delivery requirement is always set at the provision of the punctual and proper continuance of the supplier’s own delivery. Delivery barriers because of violence or because of occasions unforeseen and not the fault of the supplier, such as damages to the business, strikes, lock-outs, administrative orders, late discontinuation of export and import possibilities, as well as the supplier’s own delivery provision, according to paragraph 4, the supplier delivers their influence on the requirements for the duration and bredth of their responsibility, to adhere to the delivery and unloading times. They authorize the supplier to cancel the contract in accordance with number 11, paragraph 2 of these conditions, without the buyer being rightfully entitled to compensation for damages or other claims.
5. After a delay in delivery of over two weeks, the buyer will claim damages for each following late week, of 0.5% to, at most, 5% of the worth of the pieces being delivered, through which the delay has caused damages.
6. As long as the highest amount of the damages according to paragraph 5 is met, the buyer is allowed to set a measured period of grace under the threat of the failure to deliver. The cancellation of the contract concerning the late pieces and the partial compliance of the contract is reasonable and is explained if the supplier does not fulfill his duties beforehand.
7. Further claims against the supplier because of late delivery are not given. Number 8, Paragraph 5 of these requirements takes affect for compensation claims for deferred delivery or non-delivery and is adequate. The supplier, however, adheres to this in each case for resolution.
8. The supplier retains the right to lengthen the named delivery time because he finds fault in the fulfillment of the contract, if special occasions justify the cause of serious doubt in the creditworthiness of the buyer are give or apprehend that the buyer will not fulfill a substantial contractual requirement.
§ 6 Acceptance
1. The supplier has to pick up the delivery within ten days of the announcement of delivery. He or she is responsible for the costs of storage, insurance, protection, etc. when it is picked up late. The supplier has the right to set a written measured deadline for the acceptance of the delivery, in the case that the pieces are not picked up. The right of the supplier to demand the sales price remains the same.
2. After the deadline, the supplier has the right to cancel the contract through a written explanation or partial cancellation and to demand the general damages of the minimum amount of the pieces’ worth that were not picked up.
§ 7 Claim of Ownership
1. The shipped goods including accessories and any other delivered items remain the property of the supplier until paid for in full.
2. The buyer supports the supplier in any legally permitted process necessary to protect the property of the supplier in the applicable country. All costs incurred through this will be paid by the buyer.
3. The buyer will inform the seller immediately if his property is at any risk. This especially includes claims of third partied or government authorities. The buyer will insure the goods on his own expense against theft, fire- and water damages as well as any other risks until the invoice has been paid in full. He or she will provide proof of this to the supplier upon demand.
4. After an appropriate amount of time has expired for the buyer to pay the invoice or fulfill any other substantial contractual duties, the supplier has the right to step back from the contract and to demand back any goods shipped, including all accessories.
§ 8 Responsibility of the Supplier for the Contractual Consistency of the Goods
1. Inspection and Complaint Duty
The buyer has to inspect the goods immediately after reception. He loses all rights to pronounce the contract void if he fails to inform the supplier about any issues in writing, all detail, and immediately after becoming aware of them, or after he should have become aware of them. The buyer has to ensure the collection of all evidence after contacting the supplier .
2. Handling, Storage and Maintenance
The duty and proof of careful handling, appropriate storage and maintenance of the equipment delivered, lies with the buyer.
3. Corrections, Replacements
If the goods are not in accordance with the contract, the buyer has the right to choose either, even for grave defects, to rectify the situation through correction or replacement of the equipment within an appropriate time limit after being informed about the defect by the buyer. The buyer is required to participate in the correction process in exchange for coverage of costs incurred and according to the supplier’s instructions.
4. Reduction, Cancellation
If the supplier does not correct a breach of contract (or legal fault) according to paragraph 3, the buyer can reduce the purchase price in an appropriate way. In case of a substantial breach of contract, the buyer can demand the cancellation of the contract after the deadline has run out without successful correction of the situation. This cancellation applies only to the parts of the contract that are in violation of the agreement and is void if the supplier rectifies the situation before the deadline has expired.
5. Exclusion of further damages
Unless specified in section 5, paragraph 3 to 7 and section 8, paragraph 1 to 4, the buyer is not responsible for breaches of contract and damages – regardless of the legal reason. This is true for all damages caused by defects, including production failure, loss of revenue or any other indirect damages (damages not caused on the equipment delivered). In case of a breach of substantial contractual duties, the supplier can be held liable for no more than 15% of the purchase price. However, he remains liable for culpable negligence, for special warranties, deception, irresponsible damage to life, body or health or if required by law for personal damages or damages to private property.
§ 9 Supplier’s Responsibility for Secondary Obligation, Legal Product Liability
1. For the fulfillment of contractual or pre-contractual secondary obligations, the supplier is only responsible for conforming clauses in number 5 paragraph 7, number 8 paragraph 5 and number 10 of these conditions.
2. As long as the supplier finds that he or she is wholly or partially unable to fulfill his or her delivery of his or her secondary obligations to the buyer, the buyer is allowed a written cancellation because of the unfulfilled part of the contract. Unless the acceptance of partial fulfillment is impossible. Number 5 paragraphs 3-7, number 8 paragraph 5 and number ten of these conditions are used for this administration.
3. The buyer is required to warn the supplier about possible dangers that can be averted from the use of the delivered goods.
4. Should any claims be brought forth against the supplier based on the contractual delivery and foreign laws governing product liability, the supplier will satisfy all valid claims up to 1.500.000 Euro per claim, to a maximum of 3.000.000 Euro per year, with the buyer covering the exceeding amounts. The buyer has to insure himself at his own expense and be able to prove this upon request.
§ 10 Other Responsibilities of the Supplier
1. Unless explicitly included in the contract or these terms, all other contractual or legal claims against the supplier, especially the rights to cancellation of the contract, reduction or replacement in case of any kind of damages, even if not caused on the delivered item itself, are impossible. Section 8, paragraph 5 of these terms is valid accordingly.
§ 11 Force majeure
1. The parties of this contract are not to be held responsible to fulfill their contractual duties if the reason for this lies beyond their control or is due to any of the following reasons: Fire, natural disasters, war, confiscation, export bans, embargo or other government measures, general shortage of natural resources, limitations of power usage, labor disputes or breach of contract from a supplier. The exact reason and its end are to be relayed to the other party immediately.
2. Each party has the right to cancel the contract through written cancellation, if the fulfillment is delayed for more than six months, according to the proceeding paragraph 1.
§ 12 Limitations
1. Any claims of the buyer due to breach of contract lapse after 12 months starting with transfer of responsibility (section 5 of these terms). The legal limitations due to intentional or deceiving behavior and legal product liability laws remain untouched.
§ 13 Accordance with Laws
1. The observance of all relevant foreign trade directives and other laws of his own country and any countries deliveries are to be made to, are the sole responsibility of the buyer. The buyer has to inform the supplier in writing upon signing the contract of any special circumstances arising from this.
§ 14 Other Regulations
1. If single sections of these terms are declared void, this does not influence the remaining sections. Such sections will be replaced by such valid regulations as are applicable to fulfill the economic reasoning of the nullified section as closely as possible.
2. Rights and duties of the parties from this contract are non transferable, except for purchase price demands of the supplier.
3. Credit- and withholding rights of the buyer are impossible unless legally fixed or undisputed by the supplier.
4. The buyer may only use trademarks, copyrights and other such symbols from the buyer only with written consent and permission and only in the interest of the supplier for marketing purposes or register them as trademarks for himself.
§ 15 Place of Fulfillment, Court of Arbitration, Applicable Jurisdiction
1. Place of fulfillment for contractual duties, unless otherwise specified, is the plant of the supplier.
2. All disputes resulting from this contract are to be final and bindingly resolved before the courts in Germany responsible for the location of the main office of the buyer. This agreement is subject to the convention of the United Nations on international sale contracts (CISG) of 04/11/1980. The material laws valid at the location of the supplier are also to be applied.
AGB-Abroad (Date: 28/09/2007)