General terms and conditions
These Standard Terms and Conditions for the Sale of Export Goods shall exclusively apply, save as varied by express agreement accepted in writing by both parties. They shall also apply in cases there is no confirmation of an order by the seller. The offer, order acknowledgment , order acceptance of sale of any products, covered herein is conditioned upon the terms contained in this instrument. Any conditional or different terms proposed by the buyer are objected to and will not be binding upon the seller unless assented in writing by the seller. These conditions shall govern any future individual contract of sale between the seller and the buyer to the exclusion of any other terms and conditions subject to which any such quotation ist accepted or purported to be accepted, or any such order is made or purported to be made, by the buyer. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by the seller shall be subject to correction without any liability on the part of the seller. Provisions similar to the term "as usual" only refer to workmanship of goods, not to prices and other conditions.The provisions of these Terms and Conditions extend to standard contract conditions which are used in a contract with a merchant in the course of business only.
Orders and specifications
No order submitted by the buyer shall be deemed to be accepted by the seller unless and until confirmed in writing by the seller or the seller's representative.
All fixed times for delivery are not binding. If a fixed time for delivery is provided for in the contract, and the seller fails to deliver within such time, the buyer is only entitled to cancel his order after having extended the original term for at least the duration of four weeks. The extention of time is only valid if the buyer hereof has given written notice to the seller. Claims for damages against the seller are excluded for default, impossibility of performance, breach of contract, negligence in the course of contracting and tortious act, as far as the damage has not been caused by acting with intent or with gross negligence. Unforeseen events like e.g. force majeure, hostilities, strike, lack of primary products, operating trouble entitle the seller to protract the delivery date reasonably. Where appropriate, the seller ist entitled to repudiation of contract, respectively of parts of the contract.
Transport ist made on account of the buyer and at the buyer's risk. Transport insurance is paid by the buyer.
Price of goods
The price of the goods shall be the seller's quoted price or, where no price has been quoted, the price listed in the seller's published price list current at the date of acceptance of the order. Where the Goods are supplied for export from Germany, the seller's published export price list shall apply. Orders of value less than 25,00 EUR produce an extra charge of 2,50 EUR, except spare parts. For incorrect orders we charge a retraction fee of 10 % of the value of goods, minimum 1,50 EUR. The seller reserves the right, by giving notice to the buyer at any time before delivery, to increase the price of the goods to reflect increase in the cost to the seller which is due to any factor beyond the control of the seller (such as foreign exchance fluctuation, currency regulation, alteration of duties, significant increase in the costs of materials or other costs of manufacture) or any change in delivery dates. Except as otherwise stated under the terms of any quotation or in any price list of the seller, and unless otherwise agreed in writing between the buyer and the seller, all prices are given by the seller on an ex works basis, and where the seller agrees to deliver the Goods otherwise than at the seller's premises, the buyer shall be liable to pay the seller's charges for transport, packaging and insurance. The price is exclusive of any applicable value added tax, which the buyer shall be additionally liable to pay to the seller.
Freight DAF, FCA or FOB (according to INCOTERMS 2000). Seaworthy packing according to present prices.
Terms of payment
Delivery of goods is made against payment in advance, if no different written agreement is made. Payment shall be effected by interbank payment transaction only; no cheque or bill of exchange will be considered as fulfilment of the payment obligation.The seller is entitled to impose the buyer's obligation to deliver a letter of credit issued by his bank (or any bank acceptable to the seller). In this individual case it is assumed that any letter of credit will be issued in accordance with the Uniform Customs and Practice for Documentary Credits, 1993 Revision, ICC Publication No. 500. If the buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the seller, the seller shall at his discretion be entitled to: - cancel the contract or suspend any further deliveries to the purchaser; or - charge the buyer interest on the amount unpaid, at the rate of 5 per cent per annum above Base Interest Rate from then being valid for Germany, until payment in full is made. The buyer shall be entitled to prove that the delay of payment caused no or little damage only.
Transfer of Risks
Risk of damage to or loss of the goods shall pass to the buyer as follows: - in the case of goods to be delivered otherwise than at the seller's premises, at the time of delivery or, if the buyer wrongfully fails to take delivery of the goods, the time when the seller has tendered delivery of the goods; - in the case of goods to be delivered at the seller's premises ("ex works", Incoterms 2000) at that time when the seller notifies the buyer that the goods are available for collection.
Retention of title
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these conditions, the property in the Goods shall not pass to the buyer until the seller has received payment in full of the price of the Goods and all other Goods agreed to be sold by the seller to the buyer for which payment is then due. The seller shall have absolute authority to retake, sell or otherwise deal with or dispose of all or any part of the goods in which title remains vested in the seller. Until such time as the property in the Goods passes to the buyer, the buyer shall hold the Goods as the seller's fiduciary agent, and shall keep the Goods properly stored, protected and insured. Until that time the buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the seller for the proceeds of sale or otherwise of the Goods includings insurance proceeds, and shall keep all such proceeds of sale or otherwise of the Goods including insurance proceeds, and shall keep all such proceeds separate from any moneys or properties of the buyer and third parties. If the Goods are processed or reshaped by the buyer and if processing is done with Goods that seller has no property in, seller shall become co-owner of the Goods. The same shall apply if seller's Goods are completely reshaped and mixed with other goods. If third parties take up steps to pledge to otherwise dispose of the goods, the buyer shall immediately notify the seller in order to enable the seller to seek a court injunction in accordance with § 771 of the German Code of Civil Procedure. If the buyer fails to do so in due time he will be held liable for any damages caused. The seller shall on demand of the buyer release any part of the collateral if the value of the collateral held in favour of the seller exceeds the value of the claims being secured. It is to the seller's decision to release those parts of the collateral suitable for him.
Warranties and exlusion clauses
The buyer shall examine the Goods as required by German law (§§ 377, 378 of the German Commercial Code) and in doing so check every delivery in any respect. The seller warrants that all items delivered under this agreement will be free from defects in material and workmanship and conform to applicable specifications. The seller shall not be liable for the Goods being fit for a particular purpose unless otherwise agreed upon, to which the buyer intends to put them. The above warranty is given by the seller subject to the following conditions: - the seller shall not be liable in respect of any defect in the goods arising from any design or specification supplied by the buyer; - the seller shall not be liable under the above warranty if the total price for the goods has not been paid by the due date for payment; - the above warranty does not extend to parts, materials or equipment manufactured by or on behalf of the buyer unless such warranty is given by the manufacturer to the seller. This warranty does not cover defects in or damage to the products which are due to improper installation or maintenance, misuse, neglect or any cause other than ordinary commercial application. Any claim by the buyer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification shall be notified to the seller within six months from the date of delivery. Where any valid claim in respect of any Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the seller in accordance with these Conditions, the seller shall be entitled at the seller's sole discretion to either replace the Goods free of charge or repair the goods. If the seller has undertaken two efforts to remedy the defects without success the buyer shall be entitled at the buyer's sole discretion to claim for a reduction of price or the cancellation of the contract. The seller's liability for any damages caused by the sold goods is excluded, except for damages caused by the seller's intent or gross negligence.
Place of performance
Place of performance for the parties hereto is Pfalzgrafenweiler, Germany.
Choice of law; place of jurisdiction
The contract under these Terms and Conditions shall be governed in accordance with German law. The parties hereto agree to submit to the jurisdiction of the courts having jurisdiction for the seller.
These Terms and Conditions superseed and invalidate all other commitment and warranties relating to the subject matter hereof. Should any provision hereof be void or unenforcable this shall not affect the other provisions of these Terms and Conditions which are capable of severance which shall continue unaffected.