KF-002 Standard Terms of Sale, Veyhl GmbH, Zwerenberg
§ 1 – General, Scope of Application
- Our standard terms of sale shall apply exclusively to all present and future business with our customer. These standard terms of sale shall also apply for future business, even if only by reference, on being available to the customer by a previously confirmed order. We repudiate any conditions of the customer contrary to or deviating from our standard terms of sale unless we have expressly confirmed their validity in writing. Our standard terms of sale are valid even when we effect delivery without reserve and with knowledge of customer’s conditions contrary to or deviating from our standard terms of sale.
- All agreements which have been made between us and the customer for the purpose of executing this contract shall be made in writing. All side agreements require confirmation in writing for their validity.
- Customer according to these standard terms of sale is every natural or legal person or any legal entity acting in a commercial or professional capacity. Customer in these terms is also a legal entity of public law or a separate estate under public law.
§ 2 Offers
- Where the order of the customer is to be qualified as an offer we may accept this within 4 weeks. Acceptance may be effected in writing or by delivery of the goods to the customer.
- Our offers are subject to change and not binding unless the order confirmation states otherwise.
- We reserve owner’s and originator’s rights to cost estimates, models, prototypes, tools and other items, drafts, models, pictures, drawings, calculations and other data and presentations even where the customer has borne the costs in whole or in part. Where the customer has to bear the cost for such items, these costs will be invoiced with the first delivery. The transfer of data to third parties requires our express written consent.
- Representations in catalogues, drawings and descriptions as well as representations as to delivery, measurements, weight and colour are only approximately relevant unless made as an integral part of a binding offer. Variations in amount, content, weight and colours are permissible within usual business tolerances. Representations as to quantities may vary by up to 5 percent. We may invoice surplus deliveries.
§ 3 – Prices, Terms of Payment
- Unless specified otherwise in the order confirmation, our prices are “ex works”, exclusive of packaging; this will be charged separately.
- We reserve the right to implement price increases when costs increase after the contract has been concluded, particularly as a result of a price rise in materials, bargaining agreements or a rise in energy prices.
- The statutory value added tax is not included in our prices; it will be charged separately in the invoice at the rate legally valid on the day of delivery. The customer shall be obliged to intimate his Value Added Tax Identification Number.
- The deduction of discounts requires special agreement in writing.
- Unless specified otherwise in the order confirmation, payment of the net price is due within thirty days of the invoice date. Should a customer default we may demand default interest at a rate of 8 percent p.a. above the average basic interest rate of the German Federal Bank. We may claim a higher interest rate if we are able to prove higher default damage.
- The customer is entitled to set off claims only when his counterclaims have been legally recognised, have not been contested or have been accepted by us. Moreover, the customer is entitled to apply a right of retention only to the extent that his counterclaim is based on the same contractual relationship and is uncontested.
- Complaints as to the type and amount of the invoice must be made by the customer within seven days after receipt thereof in writing. After expiry of this period the invoice shall be deemed fully accepted.
- The customer may pay by money transfer, cheque or letter of credit. Payments must be effected without any expenses on us. Cheques and letters of credit are only accepted on account of performance, so that the retention of title agreed upon remains valid until final payment. Our agents are not authorised to accept payments.
- Should doubt arise as to the solvency of the customer after conclusion of the contract, we may delay the fulfilment of our duties. Should delivery already be made, we may ask for prepayment or securities. Alongside reserving title to property, we may also cancel the agreement and claim damages.
§ 4 – Time of Delivery
- Due to the characteristics of individual manufacturing, delivery time shall only be deemed approximate. The customer may not derive any rights from a delivery which is up to fourteen days early or late, unless the given date has been otherwise expressly agreed. Delivery time begins on the day the confirmation of order is sent, and is met when the goods have left our works or readiness to dispatch has been intimated.
- Time for delivery starts to run only where complete clarification of all technical questions and full agreement on all conditions of the transaction has been reached. It further requires the customer to have duly fulfilled all his obligations, particularly the submission of all necessary documents and the making of any agreed down payment.
- Where the customer defaults in acceptance or violates other duties to cooperate, we are authorised to claim the damage inflicted on us including any additional expenses. Further remedies remain unaffected.
- We are entitled to deliver once the delivery period agreed upon has begun. The customer must take over the goods within a period of ten days after receipt of our notification of dispatch. Failure to comply with this period by more than three days constitutes a material breech of contract and entitles us, not withstanding other remedies, to store the goods at the customer’s expense and ask for immediate payment. All additional costs incurred by default in acceptance may be invoiced separately.
- In the event of the customer’s default in acceptance, risk of loss and deterioration passes to the customer.
- Where the order is not fulfilled because of reasons falling within the customer’s sphere of responsibility, 25 percent of the contract sum shall be agreed upon as liquidated damages. The customer has a right to prove that we incurred materially lower damage through the non-fulfilment. Damages shall be immediately payable. A claim to further damages is not excluded.
- Acts of God, interventions by the authorities as well as strikes, lock-outs and other unforeseeable events beyond our sphere of responsibility entitle us to an appropriate extension of the delivery time, including preparation time. We are obliged to notify the customer immediately about such obstacles. Should the aforementioned obstacles persist for a period of more than six weeks, we are also entitled to cancel the contract. The same also applies when such circumstances occur at sub-contractors’ works. The customer may, after the lapse of six weeks, demand a declaration on our part whether the contract is to be cancelled or whether delivery will take place within a reasonable period; in the event of a non-declaration the customer may cancel the contract himself. Claims to damages by the customer are excluded.
- Where we are responsible for delay in delivery, the customer has the right to request lump-sum compensation up to a maximum of five percent of the value of undelivered goods. Further claims are excluded, unless the delay was caused by gross negligence or intent. Where we are in delay, the customer must grant us reasonable respite. The customer shall have no right to terminate the contract, unless our default constitutes a material breach of contract.
- Part deliveries are permissible and may be accounted for according to the terms of payment agreed.
- Unless otherwise agreed, we deliver in equal monthly quantities in cases of permanent deliveries. All orders on call must be accepted at the latest within three months after expiry of contract time. Where this period has expired, we are entitled to deliver and invoice the goods or to terminate contract, once the period of respite has expired. Where there is no agreement on contract time, we shall have the same rights after expiry of one year after conclusion of the contract. Where the calls exceed the quantities agreed upon, we are entitled but not obliged to deliver excess quantities.
§ 5 – Passing of Risk, Packing
- Unless otherwise specified in the order confirmation, it is agreed that shipment is “ex works” (EXW).
- Risk of loss and deterioration shall pass onto the customer upon delivery or in the case of delivery to another place than that of performance, upon transfer to a freight forwarding agent.
- At the customer’s request we will take out transport insurance at the customer’s expense. Transport packaging will be charged at 2 % net invoice value. Packaging may be returned, where the customer covers the costs of return and does not dispense with this. Packaging must be returned in a clean and uncontaminated state and be sorted according to type failing which the customer bears the additional costs.
§ 6 – Liability for Defects and Damages
- Where there is a defect in the goods delivered by us for which we are liablel we will provide, at our choice, elimination of defects or a replacement delivery. We shall always have the right to provide elimination of defects or replacement delivery within a reasonable period of time. A time-limit set by the customer must be of to four weeks at the minimum. In the event of elimination of defect we shall bear costs only up to the amount of the purchase price. Where the supplied item has been brought by the customer to another place after delivery, the customer shall bear the additional costs resulting therefrom. The customer shall have no rights where the goods deviate from the state agreed upon only immaterially. Furthermore, no rights exist in the event of immaterial impairment of usage, natural wear and tear and damage resulting from erroneous and negligent treatment by the customer, excessive wear and tear, inappropriate production materials, insufficient workmanship and all other exterior influences not assumed according to the contract. Where the customer or third parties undertake sub-standard repairs or alterations, no rights of the customer accrue against us.
- The customer shall be entitled to withdraw from the contract or to claim reduction of the purchase price if we fail in repair or replacement. The customer shall, however, have no right to withdraw from the contract if there is no material breach of contract, in particular only a minor defect.
- Liability for damages shall be excluded. This exclusion of liability shall not apply in the event of intentional damage, gross negligence or a material breach of contract on our part. This exclusion of liability shall also not apply in the event of loss of life or injury to person or health. Claims in damages are limited in all circumstances to 150 percent of the value of the delivery in question.
- To limit product liability, the customer shall be obliged to intimate all information to us immediately that indicates the existence of product defects (in particular notifications by their customers) and to support us in full without delay in recalls.
- Where we repudiate a claim in damages, the customer must instigate court proceedings within three months after such repudiation; otherwise any possible claim shall be forfeited.
- Warranty rights of the customer are conditional on the customer notifying obvious defects to us from eight days of receipt of the goods; otherwise the claim to warranty shall be forfeited. Furthermore, the customer shall be obliged to inspect the goods immediately after delivery by us. Hidden defects must be reported to us in writing immediately after their discovery otherwise the goods are deemed approved.
- All claims for warranty shall be forfeited where the customer does not allow us or a third party acting on our behalf to inspect the goods on site, or where no samples are provided to us.
- The warranty period is one year after delivery of the goods. This time period is a limitation period.
- There is no warranty for used items.
- Claims in warranty are to the customer only and cannot be assigned to third parties.
§ 7 – Liability
- Liability for damages beyond § 6 shall be excluded irrespective of the legal nature of the claim raised.
- Mandatory provisions of the Law on Product Liability shall remain unaffected.
- Where our liability is excluded or limited in scope, the same shall apply to the personal liability of our employees, workers, collaborators and agents.
§ 8 – Intellectual Property Rights
- We shall assume no liability where the goods infringe third party intellectual property rights. The customer shall be obliged to investigate the intellectual property right situation in the country of destination. Should such rights in the country of destination be known to us, we shall intimate them to the customer upon his written request.
§ 9 – Reservation of Title
- We reserve title to all goods delivered until receipt of full payment of all claims arising out of the business relation with the customer. Should mutual accounts with the customer be kept, the retention of title relates to the recognised balance of accounts. Further reference is made to § 3 (8).
- The customer shall be obliged to treat the goods under retention of title carefully; in particular, he shall be obliged to adequately insure theses goods at original value against fire, water, and theft at his own expense. As far as maintenance and inspection work is necessary, the customer must have this work carried out at his own expense.
- In the case of attachment or other intervention, the customer must inform us immediately in writing, so that we are able to safeguard our rights. In so far as the third party is not in the position to reimburse us for costs arising for such legal action in or out of court, the customer is liable for any losses we bear as a result.
- The customer is entitled to resell the goods subject to retention of title in ordinary course of business, unless he is in default; however, the customer hereby assigns to us with immediate effect all claims up to the amount of the final invoice sum (including VAT) falling due to him against his purchaser or a third party from the resale, irrespective of whether the goods under retention of title that are resold have or have not been processed. The customer remains entitled to recover the claims arising from such sales, whether or not assigned. This does not affect our right to collect the debt. We undertake, however, not to collect the claims ourselves, on condition that the customer fulfils his duty of payment out of the proceeds of the sales, does not fall into delay in payment and in particular, that no bankruptcy or insolvency proceedings have been initiated, or payment terminated. In the latter case, we can demand that the customer informs us about the claims assigned and names of debtors, provides us with all information needed to enforce such claims, makes all necessary documents available to us and intimates the assignment to his debtors.
- The customer is not entitled to otherwise dispose of the goods subject to retention of title. This applies particularly to transfer by way of security, to pledging of goods, as well as to the conditional assignment of claims of the customer arising from resale of the goods subject to retention of title.
- Any processing or modification of the goods under retention of title by the customer is always carried out on our behalf. Should the goods under retention of title be processed with other items not belonging to us, we acquire joint ownership in the new item in proportion to the value of the goods subject to retention of title to that of the other mixed items at the time of processing. The same applies to the item that results from processing as to the goods supplied subject to retention of title.
- Should the goods subject to retention of title be inseparably mixed with other goods not belonging to us, we acquire joint ownership in the new item in proportion to the value of the goods under retention of title to the other mixed items at the time of confusion. Should the intermixture of goods be effected in such a way that the item of the customer is regarded as the main item, then it is agreed that the customer transfers joint ownership in proportion to us. The customer holds the resulting right to sole ownership or joint ownership on our behalf.
- The customer assigns to us his claims against third parties in security for our claims against him that arise from the confusion of the goods subject to retention of title with property in land.
- We are obliged to release securities in our favour at the request of the customer where the value of our securities exceeds 20% of the debts to be covered by said securities; the choice of securities to be released is incumbent on us.
- In the event of the customer breaching his contractual duties, particularly by defaulting, or in the event of a material deterioration of his financial status, we shall be entitled to retrieve the goods or demand assignment of the customer’s claim for possession against third parties. The customer hereby consents that persons employed by us in the retrieval of the goods may enter the premises and buildings where the goods are kept. Retrieval or seizure of the goods by us shall not constitute a rescission of the contract.
- Where the customer defaults, he shall be obliged at our request to provide within three days an itemisation of remaining goods under retention of title and a list of his customers plus invoice copies specifying which claims against his customers remain open.
- Should the title retention clause in international transactions not hold good under the prevailing legal rules, it shall be deemed replaced with retroactive effect by a legally permissible security which most closely fulfils the economic purpose of the original retention clause agreed upon. The customer shall furthermore be obliged to make all necessary arrangements for the creation of such securities and at our request to prove the same to us. Non-compliance with such duty shall constitute a material breach of duty on the customer’s part.
- Retention of title shall have no effect on the passing of risk.
§ 10 – Place of Performance
- Unless otherwise agreed upon, place of performance for all duties arising out of the contract, in particular for duties of payment, shall be the seller’s place of business.
§ 11 – Jurisdiction
- For all disputes arising out of the conclusion, interpretation, fulfilment and termination of the contract, the courts at the seat of Veyhl GmbH shall have jurisdiction.
- We shall, however, have the right to instigate legal proceedings at the customer’s place of business.
§ 12 – Choice of Law Clause
- The relationship between us and our customer is governed by the United Nations Convention on the Sale of Goods of 11.04.1980 (CISG). Matters not covered by this Convention or not to be decided according to its principles are governed by the Law of the Federal Republic of Germany.
§ 13 – Miscellaneous
- The customer consents to his data being stored within the framework of the business relationship. The customer is aware and further consents to legally relevant representations being stored in digital as opposed to paper form.
- Storage is effected conform to applicable data protection laws.
- Changes in ownership, company formats and other relevant business data and changes in address must be communicated to us without delay.
- Where one or several conditions of these standard terms or another stipulation within the framework of other agreements between us and the customer are or become invalid, the validity of the remaining clauses or agreements shall not be impaired. The parties shall, in such a case, be obliged to replace the invalid provision by a valid provision, that fulfils the economic purpose of the invalid provision most closely.
D-75389 Neuweiler, January 2006