Deliveries, services and offers are provided exclusively on the basis of the following general terms and conditions. Any different conditions expressed by the customer, which are not recognized by the supplier are unbinding, even if the supplier has not expressly contradicted them.
1. Proprietary rights and the right to rescind
The delivered goods remain the property of the supplier until all payments from the supply contract. If delivery items from the supplier a) are handled and/or processed or b) are associated or processed with other objects to form a single new object, it is agreed that the customer transfers proportionate co-ownership to the supplier, in the case of a) in proportion of the invoice value of the delivered goods to the invoice value of the finished product and in the case of b) in relation of the invoice value of the delivered goods to the invoice value of the other goods; the customer shall keep safe the property for the supplier. In the case of default of payment, we are entitled to separate installations by the dismantling the delivery items. With separation, the ownership of our delivery items returns to us. The customer is entitled to resell the delivery item in the normal course of business. However, in this case, the customer assigns all claims in the amount of the contract value (plus interest and other receivables), which accrue to him from the resale to the consumer, to the supplier. The assertion of the retention of title and a seizure of the goods delivered by the supplier does not constitute withdrawal from the contract, unless the law on consumer credit applies. If the value of the existing securities exceeds our claims by more than 15%, we shall release them at our discretion and at the request of the customer. If the supplier is unable to fulfil his performance for reasons that are beyond his responsibility, he is entitled to rescind the contract in whole or in part. In this case, there will be no liability for damages. The customer has the right to withdrawal if the supplier allows the appropriate period of grace for the repair / replacement of a defect to pass because of a lack of delivery, caused by the fault of an entity represented by him. The right to withdrawal also applies in cases of impossibility or inability on the part of the supplier to repair or replace, instead of his right to reduction if the reduction amount exceeds 20% of the total order value.
2. Installation and commissioning
The General Terms and Conditions of Assembly apply for each instance of installation and commissioning of the supplier.
3. Other claims to compensation for damages
Clause 7 shall apply accordingly to such claims made by the customer for repairs. Replacement or damages incurred as a result of suggestions or advice provided by the supplier or by breach of contractual obligations. Within the scope of his public liability insurance, the supplier shall be responsible for other claims to damages. Further claims and tort are excluded. This does not apply and is thus compulsory liability in cases of intent or gross negligence of the supplier or of his assistants and vicarious agents.
4. Place of jurisdiction and place of fulfilment
If the customer is a merchant, a legal entity under public law or a public special fund, then the place of jurisdiction is Haan, Germany. The supplier is also entitled to file suit at the customer’s headquarters. The location for all fulfilment of payments to be made by the customer is Haan.
5. Aplicable law
The contract is subject to the substantive law of the Federal Republic of Germany. The application of the Hague uniform sales laws and the UN purchasing law is excluded.
6. Partial invalidity
If any part of these provisions is or becomes invalid, the remaining provisions shall continue to be valid. Customer and supplier will reconcile these invalid provisions with others that have commercial success as similar provisions.
7. Packaging ordinance
If the customer returns the packaging used for the transport of the delivery item to the supplier, in accordance with ordinance, the customer shall bear the costs of return transport and recycling.
8. Supply and service, property rights
Written order confirmation from the supplier shall prevail for all supplies and services. Later additions, ancillary agreements and amendments require explicit written confirmation from the supplier. The supplier reserves the rights to property and copyright of cost estimates, drawings and other documents; this documentation may not be disclosed to third parties. Documents belonging to offers, such as illustrations, drawings, weights and measurements are approximations only, unless they are expressly described as binding. We reserve the right to consider necessary changes and adjustments according to the latest technologies. When ordering delivery items, the design, construction and compositional characteristics prescribed by the customer are the responsibility of the customer, who must ensure that their design, construction and composition are functional and reliable, and do not encroach on the intellectual property of any third party. In this respect, the supplier had no obligation or audit. In the event of a claim, the customer exempts the supplier.
Prices are exclusive of packing works. Prices are exclusive of VAT at the statutory rate. All prices are subject to change. The supplier reserves the right to adjust prices in accordance with changes to delivery cost factors if there is more than a 4 month period between the conclusion of the contract and delivery.
10. Terms of payment
Unless otherwise agreed, invoices are payable within 30 days of the invoice date, free of charge and without deductions to the domicile of the supplier. Exchanges are only accepted by prior agreement and are to be fulfilled at the expense of the customer. Complaints entitle the customer to only withhold payments that are based on the same contractual agreement. The customer may only offset against claims that are undisputed or legally binding.
11. Delivery period
The delivery period begins with the dispatch of the order confirmation, but not before the customer has met and provided all essential information, if required to do so. The delivery deadline is met if the delivery item has left the plant prior to its expiry, or if shipping from the supplier does not occur due to reasons beyond their control, notification will be made of the item’s readiness for shipping. In the case of force majeure the delivery period shall be extended and other suppliers unaffected by the obstacle will be located, providing that they can complete or deliver the object in question. This also applies if such circumstances affect sub-suppliers. Obligation to pay damages due to late delivery is only applicable in cases of intent or gross negligence.
12. Shipping and passing of risk
In the case of delivery without assembly, the risk shall pass with the dispatch of the goods onto the customer. In the case of delays for which the customer is responsible, the risk shall pass onto the customer on the date of dispatch. Shipping is at the expense and risk of the customer. When delivery includes installation and commissioning, the risk passes to the customer with the commissioning, provided that commissioning occurs at the end of the installation, otherwise at the end of the installation.
13. Receipt and fulfilment
The customer must accept all delivered goods, even if they have slight defects, notwithstanding clause 7.
14. Liability for delivery defects
For delivery defects, which include the absence of an expressly warranted characteristic, the supplier is liable to the exclusion of further claims, notwithstanding the provisions of the last paragraph of clause 8, which is as follows: In regards to parts that prove to be useless or impaired, within the warranty period the supplier may, at his discretion, repair them, provide new parts within his delivery limits or pay the appropriate value. The cause/s of any defect must lie before the passing of risk. It includes, in particular, cases of faulty design, poor materials or poor workmanship. Notice of the discovery of such defects is to be given to the supplier in writing and without delay. The warranty is 12 months. It begins with the arrival of the delivery to the customer, or upon delivery with installation and commissioning with commissioning, when it occurs at the end of the installation, otherwise at the end of the installation.
Delayed delivery, installation or commissioning through no fault of the supplier will void the warranty no later than 18 months after the passing of risk. The customer’s right to assert claims for defects shall become statute-barred in all cases 6 months from the timely notice of defects, but not before the expiration of the warranty period. Replaced parts become the property of the supplier. No liability will be assumed for damages that are caused by the following reasons: Unsuitable or improper use or failure to follow the operating instructions, incorrect assembly or commissioning by the customer or third parties, natural or intended wear, Incorrect or negligent treatment, unsuitable operating materials and replacement materials, defective construction work, unsuitable foundations or chemical, electrochemical or electrical influences, unless they are due to the fault of the supplier.
If the removal of the defect or failure requires a disproportionate effort, the customer is entitled to a rebate. Further claims of the customer against the supplier, his assistants and vicarious agents are excluded, especially regarding claims for compensation for damage which did not occur to the delivered item itself. This shall not apply in cases of gross negligence or wilful misconduct of compulsory liability.
FluidSystems GmbH & Co. KG As at 03/2001