GENERAL TERMS & CONDITIONS

pdf AGBs all-tight-GmbH

As of February 2009

 

 

1. General

These conditions exclusively apply to all sales transactions of all-tight GEWINDESICHERN UND DICHTEN GmbH. They apply to all future business relationships even if they have not been expressly agreed on again in later transactions.

Deviating third party conditions are ineffective, unless these have been expressly recognised by us in advance in writing or by telex/fax. The same applies to potential counterconfirmations with reference to the General Terms & Conditions of the business partner; these are hereby expressly disclaimed.

2. Confidentiality, intellectual property

We reserve the property right and copyright on all documents relating to the business relationship given to the purchaser and information, like e.g. calculations, sketches, drawings or sample parts. These documents, information or sample parts cannot be made accessible to third parties unless we give the business partner express permission to do so. If no business relationship comes about or the business relationship ends, the documents and sample parts are to be sent back immediately. This confidentiality and intellectual property protection obligation begins with the first receipt of documents, information or sample parts or knowledge and ends 36 months after the end of the business relationship.

Sales Terms

2. Delivery terms

Our offers are subject to confirmation and are non-binding. The documents relating to the offers like illustrations, drawings, weight or dimension data and/or other technical data, as well as DIN, VDE or other company or industry-wide standards referred to, as well as samples only serve to indicate the object of the contract  and do not constitute a warranty of properties. Unless they have been expressly identified as such by us. The information and illustrations contained in the prospects, catalogues and the internet are standard industry approximate values.

Offers on our part are made on the basis of the applicable state of technology, the pertinent accident prevention regulations and technical safety regulations at the time of their release.

Orders become binding for us only after we have confirmed them in writing. Our written order confirmation is authoritative for the content and scope of the contract. Additional agreements, modifications, supplementations etc. are ineffective, unless they have been confirmed by us in writing. We reserve the right to correct spelling mistakes retroactively.

3. Prices

All prices are quoted ex factory including loading in the factory, however they do not include packaging, transportation insurance and value-added tax. If a delivery and/or service takes place later than 4 months after the contract has been concluded and within this time the wage and/or material costs and/or prices of our suppliers increase before the delivery and/or service is performed, we reserve the right to increase to contract price respectively even if the order has already been confirmed as binding.

4. Delivery, deadlines and dates

The observance of deadlines and dates assumes final clarification of all technical particulars and, if applicable, the prompt procurement of specifications to be communicated from the client or documents, permits, releases etc. and other requirements as well as, if applicable, the receipt of the contractually arranged deposit and our correct and timely delivery on the part of our suppliers. The delivery period is maintained if the object of delivery has left our factory before it has expired or delivery readiness has been communicated.

Confirmed delivery deadlines and dates are considered approximate, insofar as no separate agreements have been made in writing in individual cases. The business partner is only entitled to withdraw from the contract if we are responsible for the non-fulfilment of the delivery date and he has given us a reasonable extension period without success.

If we anticipate that the merchandise cannot be delivered within the delivery deadline, we will inform the business partner immediately thereof in writing, tell him the reasons for the delay and if possible name the expected delivery time.

We are entitled to make partial deliveries and with prior corresponding information also to make early deliveries.

Deliveries and/or services that remain unperformed or are delayed due to circumstances not under our control give us the right to deliver later or to withdraw fully from the contract without giving the purchaser the right to any compensation for damages. Circumstances beyond our control include in particular operational malfunctions, strikes, lockouts or transportation or other concrete unpredictable obstacles, insofar as they arise for us or for our suppliers.

If the delay takes on an unacceptable extent for the purchaser, he is also entitled to withdraw from the contract with no right to claim compensation.

For the delivery of parts a production-related excess or short delivery of up to 10% is considered to be in accordance with the contract. The purchaser pays additional costs that are caused hereby; any reduced costs will be credited to him.

Due to call orders pre-fabricated parts can be pre-fabricated up to a 4-month supply; in the event that these are not accepted they are still to be paid to this extent by the client, independent of the reasons why they are not being retrieved.

Merchandise that is announced as being ready for transport is to be taken over by the business partner without delay. Otherwise we are entitled to send the merchandise according to our choice or to store it at the expense and risk of the business partner.

5. Warranty and liability

The clearance of all merchandise to be shipped is at the expense and risk of the client, even if freight paid delivery has been agreed on. The risk of accidental loss as well as transport risk is transferred to the client when the merchandise is handed over to the party responsible for haulage, at the latest however when it leaves our factory.

If products are fabricated according to construction documents obtained from the client, then the client is responsible for the correctness of the documents; we are only liable for the manufacuturing. If we are held liable by third parties due to damages the cause of which does not lie in our manufacturing then the client is obliged to release us from such claims.

Each merchandise shipment is to be inspected upon arrival to make sure it is free of defects and complete. If a damaged or incomplete delivery is made then an inventory control report is to be made immediately after receival in which all defects are recorded. it is to be sent to us immediately in writing or by telex/fax. If acceptance of goods or of initial sample inspection has been agreed on then the complaint of faults is excluded, which the business partner could have noticed during a careful acceptance or initial sampling inspection.

In the event of justified notification of defects, with the exception of missing properties that were guaranteed, we reserve the right to improve the defective delivery and/or service within a reasonable period. At our own discretion we can carry out a replacement delivery free of dismantling and assembly costs. For improvement and/or replacement delivery we are liable in the same way as for the original delivery and/or service. Liability for the assurance of own valuable property is only accepted if we have expressly clarified this in writing.

Liability is excluded for material defects that arise due to unsuitable or improper use, incorrect installation or commissioning by the business partner or a third party, usual wearout, incorrect or negligent treatment, as well as for the results of improper modifications or start-up work carried out by the business partner or third party without our consent. The same applies for defects that insignifcantly decrease the value or capability of the goods.

Claims arising from material defects become time-barred after 12 months. This does not apply if the law mandatorily prescribes longer periods, especially for defects of buildings and merchandise that has been used in buildings according to its standard manner of use and has caused the defectiveness thereof.

Unless specified otherwise below, other and claims of a wider scope against us on the part of the business partner are excluded. This applies in particular to damage compensation claims for delay, impossibilty of service, culpable infringement of auxiliary contractual duties, fault upon conclusion of the contract and tort claims. For this reason we are not liable for damages that do not occur on the delivered goods themselves. Especially not for loss of profit or other financial losses of the business partner.

The above liability limitations do not apply in the even of intent, gross negligence of our legal representative or senior employees as well as in the event of culpable breach of major contractual obligations. In the event of culpable breach of major contractual obligations we are only liable for reasonable, foreseeable typical contract damages, except for in the event of intent or gross negligence on the part of our legal representative or senior employees.

The liability limitation does not apply in cases where, according to product liability laws, there is liability in the event of defects to the delivered goods for personal or material damage to privately used objects. It also does not apply in the event of injury to life, limb or health and in the event of missing guaranteed properties, if the purpose of the guarantee is to safeguard the business partner against damages that have not occurred on the delivered goods themselves.

Insofar as our liability is excluded or limited, this also applies to the personal liability of our employees and legal representatives as well as their agents. The legal burden of proof regulations remain unaffected hereby.

6. Payment

All invoices are due immediately payable to us in the net amount without discounts. Bills of exchange and cheques are deemed as a payment only after they have been encashed. Payments by way of bills of exchange must be arranged in advance in writing; discounts – and other exchange or cheque costs are at the expense of the purchaser. In the event of late payment, even if deferment of payment has been agreed on, we have the right, subject to the assertion of additional damage claims, to levy standard bank interest, however at least 8% above the respective base rate of the Deutschen Bundesbank. This is to be done by deferment from the original due date and in the event of delay from the date when the delay occurred.

An offset against our claim is only permitted with legally determined claims or those recognised by us.

If we have delivered indisputably defective merchandise our business partner is still obliged to pay for the faultless portion, unless he has no interest in the partial delivery.

In the event of payment delay, after sending notification in writing to the business partner, we can halt the fulfilment of our duties until payment has been received.

If, after the contract has been concluded, it becomes apparent that our payment claims are at risk due to the business partner’s lack of solvency, we can refuse to perform the service and give the business partner a reasonable period wherein to pay for the delivery concurrently or provide securities. The business partner’s refusal or the unsuccessful expiry of the prescribed period entitles us to withdraw from the contract and demand damage compensation.

7. Retention of title

Until full payment of all debts arising from the business relationship, irrespective of their legal justification, has been made, the delivered goods remain our property. Until then the purchaser cannot pawn them or use them as securities. If they have been pawned or seized or disposed of in another manner by third parties, he must notify us thereof immediately. The business partner already transfers to us all claims and rights arising from the sale or rental of the goods to which we have title of.

In the event of combining, confusing, mixing and/or processing or fabricating our delivery with another delivery, our share of joint ownership corresponds to the amount of the ratio of our delivery to the other deliveries. We reserve the right to insure the object of delivery at the expense of the purchaser against theft, breakage, fire water and other damages insofar as the purchaser has not proven to have concluded such insurance himself.

In the event of culpable behaviour contrary to the contract especially in the event of late payment, we have the right to reclamation after sending a warning; in this case the purchaser is obliged to return and release the retained goods and expressly and irrevocably acknowledges our right to take back the retained goods and to access his rooms, facilities and work stations etc. for this purpose. There is no withdrawal in the event of a reclaim unless we expressly state otherwise in writing. A transfer of claims that the business partner has against us from the business relationship is excluded.

Purchase terms

8. Orders

Only written, signed order on our part are deemed binding for us. Contract modifications must be made in writing in order to be legally effective. Drawings, models, matrices, templates or samples that we make available to the supplier remain our property. The supplier is forbidden from providing third parties access to the objects made available to him or to make any other business available and not to deliver the goods ordered either in raw condition or as a half or finished product to third parties, unless we have given prior express written permission. The same applies for parts that the supplier has developed according to our specifications or with our cooperation.

9. Delivery

Expressly arranged delivery dates are binding. Punctuality of deliveries is regarded as receival at the shipping address given by us. If it becomes clear that a delivery or service can only made late, the supplier is obliged to immediately inform us thereof in writing and to await our further instructions. If it is certain that a delivery or service cannot be made on time, we are entitled to withdraw from the contract without giving rise to any claims on the part of the supplier. In the event of a withdrawal we are entitled, conditional to any further rights, to make claims for any arising damages. Unless otherwise agreed, the shipping and packaging costs, tolls, charges, taxes and other fees are at the expense of the supplier. For pricing ex factory or ex stock from the supplier shipment should be made at the respective lowest cost insofar as we have not prescribed a specific mode of transportation. Additional costs due to neglected shipping or packaging regulations or required express transport in order to maintain a delivery date are at the expense of the supplier. For a price arrangement: Free recipients can give the purchaser instructions about the mode of transportation, transport company and the forwarding agent. If additional costs arise for the supplier hereby, the purchaser will reimburse them provided the supplier has pointed out the difference in the differential amount and the purchaser still insists on his instructions being carried out. Each delivery is to be accompanied by a packing slip or delivery note listing the content, order number and other order identification. If the required shipping papers have not been made available on time on the part of the supplier, then goods will be stored at the expense and risk of the supplier until the shipping papers or complete listing of goods has been received. The risk for all deliveries is transferred to the purchaser upon receival at the prescribed shipping address.

10. Explanation for demand call-up

Deliveries on demand can only be made after quality confirmation of the samples. The actual call-up replaces all preceding call-ups on the same part number. He is obliged to punctually deliver the quantities that are displayed under the delivery months, within the framework and according to the concluded contract conditions. The dates entered are receival dates. Required quantities whose delivery dates display “in arrears“ are to be delivered without delay.

 

11. Place of performance, place of jurisdiction and validity

The place of performance for all deliveries and payments is Bad Soden-Salmünster. The place of jurisdiction towards registered traders within the commercial law definition for all claims arising from the business relationship is Gelnhausen. German law applies to the contractual relationship. The application of uniform laws via the International Sale of Movable Goods is excluded. If an abovementioned provision is or becomes legally invalid, the legal invalidity of the remaining provisions and/or the contract shall remain unaffected.