General conditions of sale and delivery Horst Sprenger GmbH
1.1 These General Conditions of Sale and Delivery shall apply to all present and future deliveries and Services in connection with contracts of sale, work contracts and contracts for work and materials. Conditions which are purported to be imposed by the Purchaser are hereby rejected in full and have no application to the Company even if not opposed after receipt.
1.2 The Company’s offers are considered to be invitations to treat and shall not bind the Company. Statements of acceptance and all other agreements, including verbal agreements and promised by our representatives, shall only legally binding in so far as they have been made, or confirmed, in writing by a duly authorised representative of the Company.
1.3 Drawings, sketches, weight data, measurements and performance descriptions and other documents relating to the goods supplied shall, in so far as they are not expressly stated to be binding in the Company’s order confirmation, only be adhered to approximately. The Company retains the property and the Copyright in such documents; access to them may not be given to any third party without the Company’s consent.
1.4 Technical data and measurements stated in the Company’s offers and documents comply with the standards governing at the date of such offers and documents. The Company reserves the right to apply any new relevant Standards and to deviate from any standards the extent customary in the trade or as far as allowed by DIN.
1.5 The Purchaser has all responsibility for drawings, Sketches, specimens, models etc. supplied by him. The Purchaser warrants that any detail drawings supplied by it do not infringe any third party Copyright, letters patent or other intellectual or industrial property rights. The Company is under no Obligation to check for any such infringement in its offers or their execution based on drawings sent by the Purchaser, or for any other reason. The Purchaser shall indemnify and defend the Company against all actions, proceedings, costs, Claims and expenses arising from any such infringement. 1.6 Unless otherwise agreed, the latest edition for the time being of lNCOTERMS established by the lnternational Chamber of Commerce shall govern the Interpretation of the delivery conditions (e.g. fob, cif, cuf).
2.1 Unless otherwise agreed, our prices are free ex works and/or customs warehouse. Any additional costs, for example incurred by package, freight, Import duty, Insurance premiums and legal turnover tax (Mehrwertsteuer) shall be borne by the Purchaser. 2.2 Our prices are in Euro (EUR). If payment is agreed to be made in any other currency, the Company shall been titled to reimbursement from the Purchaser of any losses on exchange occurring between conclusion of the contract and receipt of payment.
- Terms of Payment
3.1 Unless otherwise expressly agreed, payment is to be made within 30 days after receipt of the goods without deductions. No deduction shall be made, in particular for legal turnover tax which shall be added proportionately to each payment. Bills for repairs and/or installations are payable on receipt, without any deduction.
3.2 The Company only accepts bills of exchange if they are discountable and tax-paid and provided such acceptance has been specifically agreed. Cheques und bills of exchange (and credit entries in respect of such cheques and bills of exchange) are considered as payment only when the money is at the Company’s disposal, and the payment received shall be the sum remaining after deduction of the prevailing discount rate, duty, bank and collection charges.
3.3 If payment is delayed, the Purchaser shall be liable to pay interest from the due date of payment in accordance with the prevailing rates charged in respect of short-term credits, but at a minimum interest rate of 4 per cent above the German Bundesbank rate for the time being. The right to Claim further damage is reserved.
3.4 In the event of circumstances arising subsequent to entering into the contract which result or may result in an appreciable reduction or deterioration in the Purchaser’s assets, and in so far as such reduction or deterioration may in the Company’s opinion adversely affect the receipt of payment under the contract from the Purchaser, the Company shall been titled to retain its deliveries or services even where it is under an Obligation to perform first unless the Purchaser has already performed his obligations or security is given to the Company. If the Purchaser does not comply with are quest for simultaneous Performance or give security, then the Company may withdraw from the contract without liability to the Purchaser. The Company’s right to enforce reservation of title under condition 6.6 is reserved.
3.5 The Purchaser has no right to retain any payment. A set-off of counterclaims by the Purchaser is only permitted in so far as these are acknowledged in writing by the Company as existing and due or have been duly determined as legally binding.
- Delivery Period, Weights
4.1 The Purchaser shall not been titled to any objections or to any Price reductions on account of any excess or short weights which are usual in the trade or caused by technical reasons.
4.2 Periods and dates of delivery are approximate only, unless the Company has expressly confirmed them in writing as being binding. Periods of delivery commence upon the date of our confirmation provided that all technical and commercial details have been clarified and all necessary licenses have been granted. Any alterations in deliveries requested by the Purchaser within a delivery period shall extend that delivery period accordingly.
4.3 The Company is entitled to make part deliveries.
4.4 Unforeseeable events entitle the Company to defer delivery for so long as the impediment persists plus an appropriate additional period. Unforeseeable events are such circumstances as the Company could not have avoided by reasonable care in the circumstances of the particular case, such as war, currency and economic or other sovereign measures, civil disturbance, natural events, fire, strikes, lock-outs, non-supply of raw materials arising through no fault of the Company, traffic obstructions, Interruption of operations and any other events of force majeure through which the performance of the contract is endangered, made substantially more difficult or rendered impossible. In such case the Company shall also be entitled to withdraw from the contract without any Obligation to pay damages. The Purchaser may demand a statement from the Company as to whether the Company is withdrawing from the contract or delivering within an appropriate period. If the Company does not give such a Statement, then the Purchaser may withdraw from the contract. The Purchaser shall not refuse part deliveries and part Performance.
4.5 If delivery is delayed for other reasons, then the Purchaser shall grant an appropriate extension of time in writing. If such extension of time expires without the goods being dispatched by the Company, the Purchaser is entitled to cancel those supplies which have not been dispatched or declared ready for dispatch by the Company prior to the expiration of such extension. Only if those deliveries which have already been partially performed are of no practical use to the Purchaser shall he be entitled to withdraw from the whole contract. If the Purchaser suffers damage due to a delay attributable to the Company’s fault, the Company shall make good proven damage but only up to an amount of 1/2 per of the value of the delayed or non-delivered goods or Services for each week of further delay of the delivery and in any event only up to a maximum of 5 percent of such value. Such limitation does not apply in respect of that liability for wilful actions or gross negligence which cannot be excluded. If the extension of time expires without dispatch or declaration or readiness for dispatch by the Company, then the Purchaser shall have the right to cancel the contract.
- Dispatch and Passing of Risk, Acceptance
5.1 Unless otherwise agreed in writing the goods will be delivered unpacked and uncovered. If package is agreed, it will be such as is usual in the trade and at the Purchaser’s expense.
5.2 The goods will be transported at the expense of the Purchaser and at his risk. The risk shall pass to the Purchaser upon transfer of the goods to a forwarder or carrier and in any event not later than on leaving the Company’s warehouse or works, even it free delivery to the place of destination is agreed. In the event that the dispatch is delayed by reason of the Purchaser’s conduct then the risk shall pass to the Purchaser immediately upon notice of readiness for dispatch being given.
5.3 Goods in respect of which notice of readiness of dispatch has been given must be collected without delay. If not, the Company shall be entitled at its Option to dispatch such goods or to store them at the expense and risk of the Purchaser and to invoice them immediately.
5.4 Transport Insurance will only be effected at the written express wish of the Purchaser and at his expense, even where free delivery to the place of destination is agreed.
5.5 If the Purchaser wishes to have inspection certificates for the goods based upon special procedures he shall inform the Company in good time. Additional costs shall be borne by the Purchaser, unless otherwise agreed. If a special acceptance of the goods is agreed or prescribed, this shall take place at the Company’s works. lf the Purchaser does not carry out the acceptance at all, or at the right time ,or he waives the acceptance, then the Company shall be entitled to dispatch the goods without them being accepted or to store them at the Purchaser’s cost and risk. In such cases, the goods shall be considered as delivered in accordance with the contract, unless a defect exists that would not have been noticed if the goods had been properly accepted.
- Reservation of Title
6.1 All goods supplied remain the Company’s property until settlement of all our Claims, whatever their legal basis, even if payments have been made in respect of specially designated Claims. Where there is a current account with the Purchaser, any property to which the Company has reserved title shall be security for the balance outstanding on account. Where the Company assumes a contingent liability for the Purchaser, e.g. in connection with a bill of exchange the reservation of title shall remain in existence until such obligation is terminated. Processing or manufacturing of the goods to which the Company retains title may be carried out by the Company as manufactures as provided in para. 950 BGB (German Code of Civil Law), without any Obligation on it. The manufactured goods shall be considered as the goods to which the Company has retained title according to condition 6.1 above. The Purchaser shall be at the risk in such goods and all expenses but he shall hold these goods in a fiduciary capacity on the Company’s behalf.
6.2 If goods to which the Company retains title are processed by the Purchaser or combined by him with other goods which are not the Company’s property, then the Company shall be entitled to a share in the ownership of the new product in the Proportion which the invoiced value of the goods to which the Company has retained title bears to the total invoiced value of all other goods used. Such shares of ownership shall be considered as goods according to condition 6.1 above.
6.3 The Purchaser is permitted to process or sell goods to which the Company retains title but only in the course of normal business transactions and on his normal terms, unless he is late in payment and provided that his Claims arising from re-sale are assigned to the Company in accordance with conditions 7.1 and 7.2 below. This permission, which is revocable at any time, ends in the case of Suspension of payments, bankruptcy petition, Petition of settlement by court procedure, appointment of a receiver/administrator or liquidator.
6.4 The Purchaser is not entitled to dispose in any other manner of goods to which the Company retains title, in particular, by way of pledge or transfer by way of security of third parties.
6.5 The Purchaser shall insure the goods mentioned in conditions 6.1, 6.2 and 6.3 against fire, theft and damage by water and keep them discernable and separate from other goods. It is hereby agreed that the Purchaser’s resulting Claims against Insurance companies or other persons being liable to pay damages are now assigned to the Company to the extent of its Claims.
6.6 If the Purchaser delays due payment then the Company may revoke the permission to process, manufacture and sell its goods and may demand the return of the goods or the indirect possession thereof at the Purchaser’s expense, and may revoke the Purchaser’s right to collect the money granted in condition 7.2 above. In such cases, the Company shall also be entitled, after giving notice, to enter the Purchaser’s works/warehouse and to take back its goods and to use the proceeds of a free sale of the goods (less the costs of such a sale) to reduce the Company’s Claims against the Purchaser. Such Steps are to be considered as a withdrawal from the contract only if the Company declares this expressly in writing.
6.7 The Purchaser shall immediately inform the Company if third parties are attempting to enforce rights to the goods to which the Company has retained title, particularly in cases of distraint.
6.8 The Company may release securities on the Purchaser’s request if the value of the given securities exceed the amount of 20 per cent of the Company’s Claims.
6.9 The Purchaser shall give the Company every assistance in taking any measures required to protect the Company’s reservation of title according to the laws where the goods are located, in particular if registration in a special register, confirmation by a Notary Public, express confirmation of the Purchaser in writing, etc. are required. If the reservation of title or the assignment is null and void according to the law of the country where the goods are located, the equivalent security constituted by the reservation of title or assignment in that particular country shall be deemed to have been agreed. The Purchaser shall take all necessary measures to substantiate or maintain such rights.
- Assignment of Claims on Resale
7.1 It is hereby agreed that the Purchaser’s Claims, including ancillary rights, arising from re-sale of goods to which the Company has reserved title are hereby assigned to the Company. The assigned Claims shall secure the Company’s Claims in the same way as the goods to which the Company retains title. Where the Company’s goods are re-sold together with other goods which are not the property of the Company, the assignment shall be deemed to operate only to the extent of the proportional re-sale price of the re-sold goods. In the case of a re-sale of goods in which ownership is shared according to condition 6.2 above, the assignment shall be deemed to operate only to the extent of the Company’s share in the ownership of such goods, thus in the Proportion which the invoiced value of the goods to which the Company retains title bears to the invoiced value of the re-sold goods.
7.2 Until such authority is revoked by the Company, the Purchaser is entitled to collect the debts arising from re-sale so assigned to the Company. The Purchaser is not entitled to assign Claims arising from re-sale including factoring, without the Company’s written consent to any third party. On the Company’s request, the Purchaser shall inform the debtors of such Claims of the assignment and give to the Company a specification of all Claims assigned to it, names and addresses of debtors, amount of each Claim and invoice dates etc. The Purchaser is also obliged to give the Company all further Information necessary for collecting the debts.
- Notification of Defects and Warranty
8.1 The Purchaser shall check the goods immediately upon receipt with due and reason able care; complaints in respect of recognisable defects must be given to the Company immediately, and in any event not later than 2 weeks after receipt by telex, facsimile or by telegram, complaints in respect of non-evident defects must be notified to the Company within 2 weeks of Identification.
8.2 In case of production or delivery based on construction and/or drawings supplied by the Purchaser, the Company shall not be liable for any inappropriateness for the intended purpose of application and our statutory warranty obligation is limited to work carried out according to the above mentioned constructions/drawings. The Company shall also not be liable for defects due to materials or tools supplied by the Purchaser.
8.3 If a complaint is justified and submitted within the time specified in condition 8.1above, the Company shall comply with its statutory warranty by taking back the defective goods and replacing them with non-defective goods; the Company is also entitled, instead of replacement and in its absolute discretion (but without limitation of the Purchaser’s rights), to repair the goods supplied or to refund to the Purchaser an amount equal to the amount by which the value of the goods has been reduced.
8.4 If the Company does not fulfil its Obligation to replace or repair the goods, or it does not fulfil such Obligation in accordance with the contract, the Purchaser may demand a price reduction or, in his absolute discretion, withdraw from the contract.
8.5 Our warranty obligations are extinguished if the Purchaser does not give the Company the opportunity to check a complaint.
8.6 All further warranty Claims are excluded. The same shall apply as to Claims for damages, including damages which are caused to other objects. In the absence of any specifically warranted properties Claims for damages can only been forced if it was intended that the warranty given to the Purchaser should cover precisely the kind of damage that occurred.
8.7 Warranty Claims are time-barred at the latest 6 months after delivery.
- General Limitation of Liability
9.1 In so far as there is no agreement to the contrary in the above General Conditions of Sale and Delivery, the Company shall only be liable for Claims to compensation arising from the infringement of contractual or non-contractual obligations in the event of wilful intern or gross negligence. However, the Company shall only be liable by way of vicarious liability for acts committed by its agents acting in a non-executive capacity with wilful intent or gross negligence and only in so far as they have infringed an essential Obligation contained in these contractual provisions.
9.2 The above Provision shall not apply to Claims for personal in Jury or damage to privately used objects under Product Liability Law.
9.3 All Claims against the Company are time-barred after the expiry of one year, unless a shorter period is prescribed by law or is agreed to in these General Conditions of Sale and Delivery.
- Place of Performance and Jurisdiction, Law Applicable
10.1 The place of performance for the Company’s deliveries is its works, if delivery ex-works is agreed, in all other cases the place of performance is the Company’s warehouse.
10.2 The place of Jurisdiction is Moers and this shall apply also with regard to actions concerning bills of exchange or cheques. The Company shall also been titled, however, to bring actions against the Purchaser at his local place of Jurisdiction.
10.3 It is hereby agreed that the domestic law governing legal relationships between residents of the Federal Republic of Germany shall apply to all legal relationships between the Purchaser and the Company.
- Data of the Purchaser
The Company will register personal data of the Purchaser by electronical data processing.
Should any provision of this Agreement in whole or in part be or become invalid, impracticable or unenforceable, the validity of the other provisions shall not be affected thereby. In such a case, the invalid, impracticable or unenforceable provision shall be deemed to be replaced by a provision which, to the extent admissible according to the applicable laws, comes closest to the purpose of the invalid, impracticable or unenforceable provision. The same shall apply with respect to any omissions contained in this Agreement.
Limitation of Liability:
Consequential damages to the machine, or for equipment of third parties, or any financial losses (for example loss of production) are not warranted by Horst Sprenger GmbH Spezialwerkzeuge.