Standard Terms and Conditions of EFCO Maschinenbau GmbH,PO Box 10 05 27, D – 52305 Düren, German - Conditions of Sale
Article 1 - Scope of Application
(1) These Conditions of Sale shall apply exclusively and to companies
for the purposes of s. 310 (1) BGB [Bürgerliches Gesetzbuch; German
Civil Code] only. Any contradictory terms or terms diverging from these
Conditions of Sale of the Customer shall only be deemed accepted by us,
if we have expressly approved their applicability in writing.
(2) These Conditions of Sale shall also apply to all future transactions
with the Customer, provided that they are legal transactions that are
related in nature.
Article 2 - Offer and Conclusion of a Contract
If an order is deemed an offer for the purposes of s. 145 BGB, we may accept same within two weeks.
Article 3 - Submitted Documentation
We shall retain all ownership rights and copyrights in any
documentation, such as calculations, drawings etc., that are submitted
to the Customer in connection with the order. Such documentation must
not be made accessible to third parties, unless we grant to the Customer
in writing express approval for such disclosure. If we do not accept
the Customer's order within the period set out in Article 2, these
documents must be immediately returned to us.
Article 4 - Prices and Payment
(1) Unless agreed otherwise in writing, our prices will be ex works
excluding packaging and plus Value Added Tax at the applicable amount.
Packaging costs will be billed separately.
(2) Payment of the purchase price must be made only into the bank
account stated overleaf. Discounts may only be applied if specifically
agreed in writing.
(3) Unless agreed otherwise, the purchase price must be paid within 10
days after delivery. A default interest of 8 percentage points above the
respective base rate p. a. shall apply. We reserve the right to make
further claims for any damage caused due to the default.
(4) We reserve the right to apply reasonable price amendments due to
changes in staff, material and distribution costs for deliveries that
take place 3 months or later after conclusion of the contract.
(5) Our purchase price entitlements shall be subject to a limitation period of five years.
Article 5 - Set-off and Right of Retention
The Customer shall only be entitled to set-off any due payments, if such
counter-claims were determined in a legally binding manner and are not
disputed. The Customer shall only be entitled to exercise any rights of
retention, if such counter-claims arise under the same contractual
relationship.
Article 6 - Delivery Time
(1) The commencement of the delivery time period stated by us is subject
to the clarification of all technical issues, as well as timely and
proper compliance with its obligation on behalf of the Customer. The
defence of non-compliance with contractual obligations remains reserved.
(2) If the Customer should be in default of acceptance or if the
Customer culpably breaches any other duties to cooperate, we shall be
entitled to claim for the damage thus caused to us, including any
additional expenditure. We reserve the right to make further claims.
Provided that the foregoing requirements are met, the risk of accidental
perishing or accidental perishing or of an accidental deterioration of
the purchased goods shall pass to the Customer at the time of default in
acceptance or the debtor's delay.
Article 7 - Passing of Risk during Shipping
If the goods are shipped to the Customer on request of the Customer, the
risk of accidental perishing or accidental deterioration of the goods
shall pass to the Customer at the time of shipment of the goods to the
Customer and on the shipment leaving the works/warehouse at the latest.
The foregoing shall apply irrespective of whether shipping takes place
from the place of performance or of which party pays the shipping costs.
Article 8 - Retention of Title
(1) We shall retain title to the delivered goods until all claims under
the delivery contract have been fully settled. This shall also apply to
any future deliveries, even if we do not always make express reference
to this provision. We shall be entitled to take back the purchased goods
if the Customer should be in breach of contract.
(2) As long as title has not passed to the Customer, the Customer shall
take good care of the goods. The Customer is in particular under the
obligation, to adequately insure the goods at the Customer's expense
against theft, fire and water damage at the value as new. If it should
be necessary to carry out maintenance and service works, the Customer
shall do this in good time and at its own expense. As long as title has
not yet passed, the Customer must immediately notify us in writing, if
the delivered goods should be seized or subjected to any other
interferences from third parties. If such a third party should be unable
to reimburse to us any court and out-of-court costs of a lawsuit in
accordance with s. 771 ZPO (Zivilprozessordnung; German Code of Civil
Procedure), the Customer shall be liable for our losses.
(3) The Customer is authorized to resell the goods to which title has
been reserved in the course of ordinary business. The Customer hereby
assigns to us any entitlements of the Customer arising from a resale of
the goods to which title has been reserved to the amount of the final
commercial invoice amount that has been agreed with us (including value
added tax). Such assignment shall apply irrespective of whether the
goods were resold without or after any processing. Notwithstanding such
assignment, the Customer shall continue to be authorised to collect any
such claims. This shall, however, not affect our authority to collect
any claims ourselves. We shall, however, not collect any claims as long
as the Customer uses any collected funds to comply with its payment
obligations, is not in default and in particular did not make an
application for the commencement of insolvency proceedings and provided
that there is no suspension of payments.
(4) Any processing or transformation of the goods by the Customer shall
always take place in the name of and on behalf of us. In this case, the
Customer's contingent right in the goods shall continue in respect of
the transformed goods. If the goods should be processed together with
other objects, which do not belong to us, we shall acquire an ownership
interest in the new object that shall be proportional to the objective
value of our goods in relation to the other processed objects at the
time of processing. The same shall apply in case of merging. If the
merging takes place in such a way, that the Customer's matter must be
considered the main part, it shall hereby be deemed agreed, that the
Customer shall transfer to us proportional ownership and that the sole
property or joined property thus created shall be held in custody by the
Customer on our behalf. To secure our claims against the Customer, the
Customer hereby also assigns those entitlements to us, that arise to him
against a third party from the union of the goods to which title is
reserved with a real estate property; we accept such assignment already
at this time.
(5) We hereby undertake to release the securities, that we are entitled
to, on request of the Customer, insofar as the value of same exceeds the
entitlements that are to be secured by more than 20 %.
Article 9 - Warranty and Notification of Defects
(1) Any warranty entitlements on behalf of the Customer require that the
Customer has properly complied with its inspection and notification of
defects obligation under ss. 377 HGB (Handelsgesetzbuch; German
Commercial Code). If there should be any complaints despite the greatest
care, that has been taken, obvious defects must be notified in
accordance with s. 377 HGB immediately and within 14 days after receipt
of the goods at the latest, concealed defects immediately on discovery.
Otherwise the goods shall be deemed approved.
(2) The limitation period for any entitlements arising from defects
shall be 12 months after delivery of the goods delivered by us to the
Customer. The foregoing provisions shall not apply if the statutory
provisions of s. 438 (1) No. 2 BGB (Buildings and Objects for
Buildings), s. 479 (1) BGB (Right of Recourse) and s. 634 a (1) BGB
(Construction Defects) prescribe longer mandatory periods. Our approval
must be obtained before the return of any goods.
(3) If, despite of all expended care, the delivered goods should have
any defects, that were already present at the time of passing of risk,
we shall have the choice of either making good such defects or
delivering substitute goods, provided, however, that such defects were
notified to us in a timely manner. We must always be afforded the
opportunity to have defective goods repaired or replaced within a
reasonable period of time.
(4) If such repair or replacement should fail, the Customer may -
without prejudice to any claims for damages - withdraw from the contract
or reduce payment. The Customer shall not be entitled to claim any
compensation for wasted effort.
(5) Entitlements arising from defects do not exist in case of negligible
deviations from the agreed quality, in case of negligible impairment in
respect of usability, in case of natural wear and tear and in case of
damage caused after the passing of risk as a consequence of incorrect or
negligent handling, excessive loads, unsuitable resources, defective
construction work, unsuitable building ground or because of particular
external influences which are not presumed under this contract. There
shall neither be any entitlements arising from defects and their
consequences caused by improper repairs or modifications made by the
Customer or third parties.
(6) Any claims by the customer in respect of expenditure necessary for
the purpose of repair or replacement, in particular transportation,
travel, work and material costs shall be excluded, if such expenditure
is increased because the goods delivered by us were subsequently
introduced to a location other than the Customer's establishment, unless
such introduction corresponds to the intended use of the goods.
(7) Any rights of recourse of the Customer against us shall only exist
insofar, as the Customer did not enter into any agreements with its
customers that would go beyond the legally required warranties.
Subsection 6 shall apply to the rights of recourse of the Customer
against the Supplier accordingly.
(8) Any further or other claims for defects, than those provided for
under this Article 9, of the Customer against us and our agents shall be
excluded.
(9) In case of fraudulent concealment of a defect or in case of an
assumption of a guarantee of quality of the goods at the time of passing
of the risk for the purposes of s. 444 BGB (representation of the
vendor that the vendor shall, in case of its absence, be liable for all
consequences irrespective of fault), the rights of the Customer shall be
exclusively determined by the respective statutory provisions.
Article 10 - Miscellaneous
(1) This agreement and the whole legal relationship between the parties
shall be governed by the laws of the Federal Republic of Germany under
exclusion of the United Nations Convention on Contracts for the
International Sale of Goods (CISG).
(2) Place of performance and exclusive jurisdiction for all disputes arising under this contract shall be Düren, Germany.
(3) Any changes and amendments to this contract must be made in writing.
This also applies to any changes to this written form requirement.
There are no oral ancillary agreements.
(4) If individual provisions of this contract should be or should become
ineffective or if they should contain a gap, the remaining provisions
shall not be affected by this. The parties undertake to replace an
ineffective provision with such a legally admissible regulation that is
closest to the economic purpose of the ineffective provision or with one
that fills the gap.
Valid as of: March 2009
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