The following conditions are part of the contract. Verbal collateral convenants and subsequent changes of the contract are valid only when confirmed by us in writing.
Our terms are exclusively valid; any other terms of the purchaser are hereby expressly rejected.
All our offers are without engagement unless expressly indicated as firm. Orders become binding by our confirmation of order in writing or by execution of delivery.
International trade clauses shall be interpreted in accordance with incoterms effective at the date of confirmation of order unless otherwise prescribed by these conditions of sale.
The prices stipulated in our confirmation of the order shall be applicable. They are based on the assumption of normal and undisturbed transport conditions. Any additional expenses due to unsufficient cargo or disturbances in transport conditions shall be borne by the purchaser. Custom duties, consular fees, freight insurance and oter additional cossts shall be borne by the purchaser in so far as they are included in the agreed price but do increase after the conclusion of the contract or arise thereafter. The same applies to increased costs due to the necesssity of changing the agreed transport route (e.g. rail instead of water route or delivery via another port).
In regard to sales in a foreign currency the purchaser shall bear any risk from the date of the contract, especially the exchange risk.
Packing is made customary in trade and is charged in moderateness. Packing Material is not taken back.
We reserve the right to deliver a quantitiy slightly reduced or increased. A rescission of contract is excluded in case of special makes or in case of consignment orders. Verbal indications on design, dimensions, and the like require our written confirmation in order to become effective. Extra charges originating from indications of wrong measurements or details will be invoiced to the purchaser.
With regard to a fulfilment of a contract we are entitled to carry out partial deliveries. Delivery dates are without obligation as long as we did not expressly define them as obligatory and binding in writing. Events of force majeure shall entitle us to extend the time of delivery or to cancal the contract without to pay indemnification. Events of force majeure are among others mobilization, war disturbances, exchange policy measures, as well as operating troubles of every kind, strikes or lock-outs and governmental measures which hinder the the execution of the order. Circumstances making delivery essentially difficult or impossible are also deemed to constitue force majeure, e. g. fire or delayed, unsufficient or poor supply, shortage of raw materials or auxillary material, lack of transport space, as well as any obstruction of a traffic route. After notification of readiness for dispatch, the goods have to be called for immediately, failing which we are entitled immediately to store the same in our discretion and at the purchasers expense. Delivery be water transport can only be effected when waterways are open and navigation is free from any impediments. The responsibility for any expenses due to additional work or to delay of the ship shall be governed by the incoterms. Should, without our fault, shipment through the scheduled port be impossible, we are free to deliver to another port. The purchaser shall in that case give us or our representatives pertinent amended shipping instructions immediately. If shipping advices, dispatch notes, extracts and similar documents are not mailed immediately after dispatch, we are only responsible for the consequences in case of neglience on our part. In case of damage on transport, the purchaser is obligated – to the best of his ability- to have the competend authorities ascertian the facts immediatley because otherwise claims against carrier and insurer will be voided. The purchaser is obliged to allow partial deliveries in case of Letter of Credit. These terms shall apply to fob sales and, mutatis mutandis, to any other sales; especially fas shipping or cif port of destination.
The seller shall bear all risks imposed upon him by Incoterms under normal f.p.a. conditions. Any further risks shall be borne by the purchaser.
If the buyer is in default of calling for even a partial deleivery we are entitled, after the expiration of a period of grace, to claim damages for default, any decline is not necessary.
The purchaser is obliged to check the goods immediately after receipt concerning condition. Claims for defects must be submitted in writing or by telegram not later than 8 days after receipt of the goods by the purchaser, but they do not entitle the purchaser to hold back payment. Latent defects have to be claimed immediately after discovery. At any rate, we have to be given the opportunity to check the material. Guarantees are limited to the following scope: In case of a defect we may optionally repair the goods or replace them. If such repair or replacement should not be properly performed, the purchaser will be entitled the redhibition or abatement. The recovery of consequential damages on basis of defects is precluded in so far as these do not arise from a missing characteristic of the material which had been expressly guaranteed in writing. Fieldworkers are not entitled to take back the goods.
Payment is to be made in accordance with the terms of the contract. It is due in the effective currency fixed therein. On overdue payments we shall at least charge interest and commissions in accordance with the German bank rates applicable to short-term credits for the time being. In case of a delayed payment we are entitled to retain any and all performances due to the purchaser irrespective of the legal consideration they are based on. Cheques and discountable bills of exchange will only be accepted by us, subject to collection, if expressly agreed. Bills of exchange and cheques are credited subject to payment, less utilisation costs. Irrespective of the due date of any bills of exchange discounted or credited by us, all our claims will immediately become due if and when the terms of payment are not observed or after the date of the contract circumstances come to our knowledge which, in our opinion, adversely affect the purchasers credit position. In that event, we are further entitled to make outstanding deliveries only against prepayment or security and to cancel the contract after the expiration of an appropriate period of grace, or to claim damages for non-performance. Moreover, we may prohibit any resale and processing of the goods delivered and demand their return or transfer of the indirect procession, all at the purchasers expense. Should difficulties arise for any reason whatsoever in the transfer to Germany of invoice amounts, e.g. due to interruption on the implementation of interstate trade of clearing agreements, any disadvantages resulting therefrom shall be borne by the purchaser.
The purchaser may set off only uncontested and unappealably determined claims against our claims. The purchaser is not entitled to retain performances he has to carry out on account of this contract, because of claims which are not mutualized or which do not belong to this contract, irrespective of whether these are uncontested and unappealably determined.
The delivered goods remain our property until the purchaser will have paid all amounts outstanding at the time of the conclusion of this contract, inclusive of an eventually existing current account balance in our favour. The goods have to be kept seperated from other goods of the receiver, to such extent as possible with regard to the operational facilities available. The purchaser convenants to inform us upon request on the quantity and storage place of the reserved goods still being in his possesion. An acquisition of property by the purchaser with regard to reserved goods in accordance with § 946 BGB on account of treating or finishing of the goods, is precluded. An eventual trestment of finish of the goods is effected on our behalf and for us without obliging us oppsite third parties. Reserved goods may be sold by the purchaser only in the ordinary way of business. He is not entitled to pledge or as sign the reserved goods as security. He has to inform us immediately of eventual pledgings and other seizures of third parties with regard to the reserved goods. The costs of intervention have to be borne by the purchaser. The purchaser convenants to also stipulate with his purchasers a title retention. The outstanding debts accrueing to the purchaser from a sale of the reserved goods are assigned already now to the seller, also in cases where the goods should be sold to several customers. The purchaser himself may collect the assigned debets as long as he will properly and duly meet his obligations to pay on basis of this contract. In case of a collecting of the assigned debts of a factor within the scope of a genuine factor-business the purchaser will assign already now all claims arising from it against the factor to the seller. Upon request the purchaser has to inform us to all debts assigned and he has to give us all information and advice necessary for the vindication of our rights againt the customers of the purchaser and he has to handover to us all substandiating documents. Upon request, the purchaser has to inform the debtor of the assignment. We ourselves remain entitled to instruct the debtors accordingly. The purchaser is obligated to insure the reserved goods against fire and burglary. All claims of the purchaser against the insurance company with regard to the reserved goods are hereby assigned to us. We engage to optionally release the securities handed over to us upon request of the debtor in case the value of the securities should exceed the claims to be sucured by more than 25 % (twentyfife percent).
We are not liable for damages of any kind suffered by the purchaser – also in connection with a defect of the acts of our legal representatives, colleagues or various agents. The rights of the purchaser with regard toredhibition and abatement according to item 12 remain unaffected.
Place of jurisdiction for any and all disputes and differences arising from or in connection with the contract, shall be Brakel. We are, however, also entitled to take legal proceedings against the purchaser at any other legal place or jurisdiction. Only German law is admissible.
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