Terms of Sale and Delivery
- Acknowledgment of Sale and Delivery Terms
The delivery shall be carried out only by virtue of the terms and conditions specified hereinafter, which shall be regarded as recognized upon acceptance of our order confirmation. The terms and conditions hereof shall oblige the supplier and the buyer to respect them.
Unless our written acceptance, any kind of regulations pre-printed on inquiries, on orders or confirmations which differ from our said terms shall be null and void. Our silence shall not be considered as acceptance of it. The supplier as well as the buyer shall waive from any objection due to any verbal collateral agreement. In case of alteration of any single part of the terms set hereof, the rest of it shall still remain valid.
Our quotations shall always be without engagement, unless any contrary declaration stated therein. Orders shall be regarded as accepted upon our written confirmation. This shall also apply for sales sealed by a representative.
Supplementations, alterations or verbal collateral agreements shall require our written confirmation in order to become effective
Illustrations, drawings, sizes, weights and colours which are indicated in catalogues, price lists and other printed matter shall be approximate values in line with the industry standard. Furthermore we shall preserve the right to make any necessary technical or urgent design change
Orders concerning special production; information on execution; sizes etc. require the written acceptance without exception.
Unless otherwise agreed, the prices shall be ex works Solingen. The value added tax shall not be included, neither packing, freight, insurance and postal costs. For orders where no prices have been stipulated, the current and fair market price shall be applied. The price shall only be valid for the place of use mentioned in the quotation.
In case of fundamental changes on the cost factors, which influence the production of the order (e.g. wages, raw materials, energy), the price may be fairly adjusted according to the increase of said cost factors.
The goods to be delivered shall be packed at our discretion in a commercial way and at the buyer’s expenses.
The packing material shall be charged as cheap as possible and shall not be taken back.
- Delivery and Transport
At our choice the delivery shall be effected by train, postal service, forwarding agent or own truck
If by wish of the buyer the goods are going to be delivered to him, the risk of accidental destruction or accidental deterioration of the goods shall pass over to the responsibility of the buyer right after handing over the goods to the forwarding agent or, at the latest, when they leave our warehouse; the buyer shall pay the transport fee. The buyer shall not be allowed to reject partial deliveries.
If the buyer is responsible for any delivery delay, the risk of responsibility shall go over to him at the moment of receiving the shipping notification.
- Time of delivery, Force Majeure, Strike
The time of delivery shall be understood as only approximately agreed. The storage time limit shall start at the day the order confirmation is sent out, however, not before having provided all necessary documents to carry out the order; and it shall be regarded as complied with, if the goods leave the warehouse/factory before the end of the delivery date or upon notification of the possibility to carry out the delivery. It shall be reserved the right to have a correct and on time self-supply. In the event that the supplier shall be unable to fulfil his obligations due to unforeseen occurrences, which he also could not avoid in spite of all due diligent and reasonable care of the case – e.g. stoppage, delay of the supply of essential raw and building materials – the term of delivery shall be prolonged for a reasonable term, unless the delivery or performance shall result to be impossible to carry out at all. If it shall be impossible to carry out the agreed delivery or performance in view of above mentioned circumstances, the supplier shall not be bound any longer to his delivery obligation. The same shall apply in case of strike or lockout. If in such cases the time of delivery shall be prolonged or if the supplier shall not be bound to his delivery obligation any longer, the buyer shall have no right to any claim for damages in this regard. If the buyer shall encounter the same mentioned problems described above, the same legal consequences shall be applied with regard to his purchase commitment.
Goods ordered on call shall be taken off within 12 months after receipt of the order confirmation.
- Claim, Warranty, Liability
a.) Liability claim for material defects
The recognition of a claim for material defects shall be subject to a proper and careful incoming goods inspection by the buyer.
A liability due to material defects shall generally be rejected in case of wear and tear or if defects are caused by incorrect handling, overload, improper use, exposure to heat or coldness, omission of necessary lubrication, chemical, electrochemical or electrical factors.
The warranty shall expire as soon as the goods are exposed to any subsequent operation or alteration.
The right to claim for defects shall lapse not later than one month after our rejection of the claim.
If the delivered goods are defective or if the guaranteed quality is not provided, the supplier shall have the faculty to deliver a replacement or to rework the goods without any further warranty claim by the buyer.
Defective goods shall not be processed. The detection of such defects shall be communicated to the supplier immediately in written form – in case of visible defects within 10 days after receipt, in case of unknowable defects immediately after detection.
The buyer shall take care to keep the damage as small as possible.
If the supplier shall let elapse the reasonable respite given to him – 6 weeks – without accomplishing a replacement or repairing the defect, the buyer shall have the right of withdrawal.
We shall be liable for replacement deliveries and rework operations in the same extent as we shall be for the original delivery item. The period of warranty with regard to replacements shall start anew.
We shall not be liable for defects arising from mistakes on documents provided by the buyer (drawings, samples and so on). If only a part of the goods is defective, the buyer shall not be entitled to claim the whole delivery. The return of goods shall be carried out subject to our approval, and upon request of the supplier, the buyer shall arrange it the cheapest possible way.
b.) Other claims for damages
Excluded shall be other claims for damages due to the impossibility of performance, default, positive breach of receivables, culpa in contrahendo and liability in tort, unless they shall be based on deliberate intention or gross negligence by us or by our chief executives.
Rights deriving from the product liability law shall be left unconsidered.
- Terms of Payment
Pricing term and charging shall be set in Euro. Any changes of the EUR exchange rate after the conclusion of the agreement (date of the order confirmation), shall affect the buyer only.
The invoices shall be payable from the invoice date as follows:
within 14 days less 2% discount
within 30 days net without discount
Bill of exchanges shall not be accepted. In the event of delayed payment, it shall be allowed to charge default interests of 3% above the federal bank default, unless the supplier shall prove to pay even higher debit interests. To unknown buyers the goods shall be delivered only against cash on delivery or by payment remittance of the invoice amount in advance.
We shall rely on the credit-worthiness of the buyer upon acceptance of the order. If there shall arise any legitimate reason to doubt that the buyer shall be able to fulfil the payment properly (e.g. insolvency proceedings or imminent bankruptcy etc.), we shall be entitled to hold deliveries and to withdraw from the contract. Claims for damages herefrom shall not be applicable.
The above shall not release the buyer from his obligations concerning already fulfilled parts of the agreement.
The withholding of payments or the buyer’s offsetting of any counterclaims shall only be permissible if the buyer’s counter claims shall be legally binding or undisputed by us.
- Reservation of Title
The delivered goods shall remain property of the supplier until the fully payment of all receivables deriving from the business relationship between the supplier and the buyer and upon the encashment of given cheques in this regard.
The reservation of title shall remain unaffected from payments of single receivables of a current account and also from the strike of a balance and its acceptance.
In the course of business the buyer shall have the right to resell the goods that are subject to reservation of title; however, he shall not be allowed to pledging or chattel mortgage.
The buyer shall assign to the supplier at present date already the buyer’s receivable from the re-sale of the goods that are subject to reservation of title. The supplier shall accept said assignment.
The buyer shall be entitled to collect said receivables as long as he complies with his obligations towards the supplier. Upon request of the supplier, the buyer shall be committed to name the garnishee and to notify the latter about the act of assignment.
A further processing of the goods that are subject to reservation of title shall made by the buyer in favour of the supplier, without any obligations for the latter. If the delivered goods are processed or connected with other goods, the property right of the supplier shall not expire, but he shall become co-owner of the new goods in proportion to the invoice value of his goods which are subject to reservation of title and the other processed goods.
If the goods that are subject to reservation title shall be resold after processing or connecting with other goods, the above mentioned assignment in advance shall be valid only for the invoice value of the goods that are subject to reservation title.
The buyer shall inform the supplier immediately – by handing over all necessary documents to intervene in the matter – about compulsory enforcements from third parties with reference to the goods which are subject to reservation of title or concerning the assignment of receivables in advance.
The supplier undertakes to release assurances to which he is entitled according to the aforesaid provisions upon request and choice of the buyer in case that the value of the receivables to be assured shall be exceeded by 20%.
- Tooling Costs
Tooling costs shall be charged separately from the value of goods.
a.) By compensating part of the tooling costs, the buyer shall not acquire any right on the tooling: it shall rather remain in the property of the supplier. The supplier undertakes to keep the tooling in a safe place for 1 year after the last delivery. If the buyer informs the supplier before end of said term that further orders will be placed within the following year, the term of said period of safekeeping shall be extended for another year. After this period and if no further orders are placed, the supplier shall be free to dispose about the tooling.
b.) Tooling costs for orders which shall not be carried out: In the event of cancellation of orders that are still in the development phase (due to difficulties of moulding or shaping) or in the start-up period, we shall preserve the right to charge incurred expenses.
aa.) Thereby, before samples’ approval the incurred expenses for the first tool kit shall be charged,
bb.) in case of cancellation after samples’ approval, expenses for the whole mass production moulds, special attachments and gauges shall be charged according to the amount of the intended monthly requirements.
The charged machined moulds shall be kept in a safe place for a period of 4 weeks in order to allow an inspection and shall be scrapped at the end of said period.
Sequence of operation drawings and construction drawings which are ready shall not be subject to be showed so as to keep applied methods confidential.
- Place of Fulfilment and Court of Jurisdiction
The place of fulfilment shall be the place of our company headquarters. In the event of disputes with buyers who are registered traders, or a juristic person of public law or a legal entity under public law, the court of jurisdiction shall be the competent court based in the place of our company headquarters.
We shall preserve the right to file a suit at the court of the buyer’s place of residence or company headquarters.
German law shall prevail (BGB – German Civil Code – and HGB (German Commercial Code). No uniform law on the sale of goods shall be valid.
Date: 10/06, AHT Beschläge _ Solingen