I. General
1. All deliveries, services, and offers by the supplier take place exclusively on the basis of these sales terms and any separate contractual agreements. We do not acknowledge customer terms conflicting or deviating from these sales terms, unless we have expressly agreed to their validity in writing. Unless otherwise agreed, the supplier's written order confirmation constitutes a contract. Our sales terms are also applicable in the event that we execute delivery to the customer without reservations in the knowledge of customer terms conflicting or deviating from our terms and conditions.
2. The supplier reserves proprietary rights and copyrights to samples, cost proposals, drawings and similar information, whether tangible or intangible, including in electronic form. These may not be disclosed to third parties. The supplier may not disclose information and documents designated as confidential by the customer to third parties without the customer's consent.
II. Quotation
Supplier quotations are always subject to change. Documents included in a quotation, such as figures, drawings, and specifications of weight and mass, should be understood as approximations only, unless they have been expressly designated as binding.
III. Price and payment
1. In the absence of a special agreement to the contrary, prices are valid ex works, including loading at the plant, yet exclusive of packaging and unloading. Prices are subject to VAT at the respective statutory rate.
2. In the absence of a special agreement to the contrary, payment is due within 30 days of the invoice date without any deduction and free of transaction charges to the supplier's designated bank account. Bills of exchange or cheques are only deemed to constitute payment once they are definitively redeemed. Discounts and bank charges are to be borne by the customer.
3. The customer is only entitled to offset against an invoice if his counterclaims have been legally established, or if they are uncontested or have been acknowledged by us. The customer is only entitled to assert right of retention if his counterclaim is based on the same contractual relationship.
IV. Delivery term, delay in delivery
1. The delivery term is specified in the agreements made between the contracting parties. Compliance with the delivery term presupposes that all commercial and technical issues between the contracting parties have been settled, and that the customer has fulfilled all the obligations incumbent on him, such as furnishing required documents, permits and releases, or making an agreed advance payment. If this is not the case, the delivery term is extended accordingly. This does not apply if the supplier is responsible for the delay. The supplier reserves the defence of non-performance of contract.
2. Compliance with the delivery term is subject to correct and punctual delivery to us by our suppliers. The supplier will provide information regarding impending delays as soon as possible.
3. The delivery term is considered to have been fulfilled as long as the delivery item has left the plant or been reported ready for dispatch by the delivery deadline.
4. The delivery term is to be extended appropriately in the event of labour disputes, especially strikes and lockouts, and in the event of unforeseen obstacles or force majeure events outside of the supplier's control, to the extent that such obstacles have a demonstrable impact on completion or delivery of the delivery item. This is also the case when such circumstances impact subcontractors or subsuppliers. Furthermore, the supplier shall not be held liable in the event that such circumstances arise during a pre-existing delay. The supplier will inform the customer as soon as possible of both the beginning and end of such obstacles.
5. The customer is entitled to withdraw from the contract if overall performance becomes impossible prior to transfer of risk. Moreover, the customer is entitled to withdraw from the contract if performance of a given portion of the delivery becomes impossible, and if the customer has a legitimate interest in rejecting partial delivery. If this is not the case, the customer is required to pay the contractual price attributable to the partial delivery. The same applies in the event of inability on the part of the supplier. Moreover, VII.2 shall apply.
6. If the customer incurs damages as a result of a delay attributable to the supplier, he shall be entitled to demand compensation for the delay, subject to the exclusion of further claims. For each full week of delay, such damages correspond to ½%, yet in no event more than 5% of the value of that portion of the overall delivery which cannot be used, or cannot be used in line with the contractual purpose, as a result of the delay.
7. If dispatch is delayed at the customer's request, the customer will be liable for the costs associated with storage at the supplier's plant starting one month after the delivery is reported for dispatch, though not in an amount less than ½% of the invoice amount for each month of storage. Nevertheless, after the setting of a reasonable deadline and the effectless expiration of the same, the supplier is entitled to otherwise dispose of the delivery item, and to supply the customer within a reasonably extended period.
V. Transfer of risk, dispatch and acceptance
1. Risk is transferred to the customer once the delivery item has been handed over to the freight forwarder or carrier, and no later than when the delivery item leaves the plant, including in cases where partial deliveries are made, or where the supplier has undertaken to perform other services, e.g. to assume shipping costs, or delivery and installation.
2. If shipment is delayed due to circumstances for which the customer is responsible, risk is transferred to the customer beginning on the date the delivery is reported ready for dispatch; however, the supplier is required to arrange any insurance policies requested by the customer, at the customer's expense.
3. The route and means of delivery are left to the supplier's discretion, unless otherwise agreed. The shipping cost is borne by the customer. The goods may be insured at the customer's request and expense.
4. Delivered goods are to be accepted by the customer without prejudice to the rights set forth in sections VII and VIII, including in the event that the products exhibit minor defects.
5. Partial deliveries are permissible insofar as they are reasonably acceptable for the customer.
VI. Extended retention of title
1. The supplier retains title to the delivery item until all payments under the delivery contract have been received.
2. In the event of breach of contract by the customer, particularly in the event of delayed payment, the supplier is entitled to reclaim the delivery item following a written warning; the customer is then required to surrender the object. The supplier may only demand return of the delivery item on the basis of retention of title once he has withdrawn from the contract.
3. The customer may neither to pledge the delivery item, nor assign it as collateral. In the event of seizure, confiscation or other disposals by third parties, the customer is required to inform the supplier as soon as possible, so that the supplier can file suit in accordance with Section 771 of the Code of Civil Procedure. If third parties are not in a position to reimburse legal and extra-judicial costs to the supplier in accordance with Section 771 of the Code of Civil Procedure, the customer shall be required to provide compensation for these costs.
4. A request to open insolvency proceedings entitles the supplier to withdraw from the contract and demand immediate return of the delivery item.
5. Any processing or transformation of the delivery item by the customer is always undertaken for the benefit of the supplier. If the delivery item is processed using other objects not belonging to the supplier, the supplier shall acquire joint ownership in the new item in the ratio of the final invoiced amount (including VAT) for the goods subject to retention of title to the other processed items at the time of processing. Moreover, the item resulting from such processing is subject to the same provisions as the goods subject to retention of title.
6. The customer is authorised to resell the delivery item in the ordinary course of business; however, as of now the customer cedes to the supplier all receivables in the amount of the final invoiced sum (including VAT) as accrue to him in respect of his buyers or third parties as a result of the resale, irrespective of whether the delivery item was resold without or after further processing. The customer is also entitled to collect this receivable after it has been assigned to a third party. The authorisation to collect this receivable ourselves remains unaffected by this provision; nevertheless, the supplier undertakes not to collect receivables as long as the buyer properly meets its payment obligations and is not in arrears. In this case, the supplier may request that the customer notify the supplier of any assigned receivables and their debtors, provide all information required for collection, disclose all associated documents, and inform the debtors (third parties) of the assignment accordingly.
7. If the delivery item is inseparably commingled with other objects not belonging to the supplier, the supplier shall acquire joint ownership in the new item in the ratio of the value of the invoice (including VAT) for the delivery item to the acquisition cost of the other commingled objects at the time of commingling. In the event of commingling occurring in such a way that the customer's item is to be considered the primary item, it is hereby agreed that the customer shall transfer joint ownership proportionally to the supplier. The customer shall preserve sole ownership or joint ownership on behalf of the supplier.
8. The aforesaid assignment to secure the receivables of the supplier also include such receivables as the customer may acquire in respect of a third party in consequence of the joining of the supplier's goods which are subject to retention of title with a plot of land. The assignment provision shall also apply to processed, converted or commingled goods which are subject to retention of title.
9. At the customer's request, the supplier is obliged to release the securities to which he is entitled to the extent they are no longer required to secure the receivables, in particular in the event that they exceed the value of the unpaid receivables to be secured by more than 10%.
VII. Claims based on defects
The supplier provides a warranty for delivery defects as follows, while excluding any further claims and without prejudice to Section VIII:
1. Claims for defects by the customer presuppose that the customer has properly complied with his statutory obligations of inspection and complaint in accordance with Section 377 of the German Commercial Code. Failing this, the assertion of claims for supplementary performance is excluded. In the event of a defect in the delivery item, the supplier is entitled, at its discretion, to provide supplementary performance in the form of defect rectification or the delivery of a defect-free item. Replaced components become the property of the supplier. With respect to third-party products of a material nature, the supplier cedes to the customer any liability claims to which it is entitled in respect of the supplier of the third-party product due to defects. Secondary liability for such defects by the supplier in respect of the customer remains unaffected thereby.
2. Assuming normal single-shift operation, the customer's right to assert claims for defects shall in all cases lapse twelve months after transfer of risk.
3. No warranty is given for damages arising as a result of the following: inappropriate or unintended use, incorrect installation or commissioning by the customer or a third party, normal wear and tear, incorrect or negligent treatment, inappropriate operating media, replacement materials, defective structural work, unsuitable foundations, and chemical, electrochemical or electrical impacts, to the extent these are not attributable to a fault by the supplier.
4. In order to perform any subsequent improvements or replacement deliveries considered necessary by the supplier, the customer is required, subject to prior agreement, to afford the supplier the time and the opportunity to do so; failing this, the supplier shall be released from liability for any consequences stemming therefrom. Only in urgent cases involving jeopardy to operational security or in order to avert excessive damages, in which case the supplier is to be informed immediately, or where the supplier is delayed in rectifying the defect, is the customer entitled to rectify the defect himself or to commission its remedy by a third party and to request compensation for the necessary expenses from the supplier.
5. In the event of defect rectification, we are obligated to bear all expenditures required for this purpose, especially transport, travel, labour and material costs, to the extent that these expenses do not increase as a result of the item being transported to a location other than the place of performance. In the event that the delivery item is returned, the choice of shipping route falls to the seller.
6. The warranty period for single-shift, normal operation is one year; yet on delivery of a replacement part it shall run at least until the expiration of the original warranty period for the delivery item. The defect liability period for the delivery item is then extended by the duration of the operational interruption caused by the repair work.
7. If the customer or third party performs improper repairs, the supplier shall not be liable for any consequences resulting therefrom. The same shall apply in the event of changes made to the delivery item without the prior approval of the supplier.
8. According to statutory provisions, the customer is entitled to withdraw from the contract or to reduce contractual compensation accordingly in the event that the supplier (while taking into account statutory exceptions) fails twice to comply with a reasonably set deadline for repair or replacement delivery due to a material defect.
VIII. Liability
1. If, through a fault of the supplier, it is not possible for the customer to use the delivery item in accordance with its contractual purpose as a result of omitted or faulty performance of such recommendations and advice as were made or given prior or subsequent to the conclusion of the contract, or as a result of the breach of other secondary contractual obligations (in particular instructions regarding the operation and maintenance of the delivery item), the provisions set forth in Sections VII and VIII.2 shall apply accordingly, and to the exclusion of any further claims by the customer.
2. For damages not occurring in the delivery item itself, for any cause whatsoever, the supplier may only be held liable
a. in case of intent,
b. in case of gross negligence,
c. in case of culpable injury to life, limb or health
d. in the case of defects that have been fraudulently concealed or the absence of which was guaranteed,
e. in the case of violations of the provisions of the Product Liability Act.
In the event of culpable violation of material contractual duties, the supplier's liability is limited to typical contractual and reasonably foreseeable damages. Further claims are excluded.
IX. Limitation
All customer claims, resting on any legal grounds whatsoever, are barred after twelve months. Statutory time limits apply to damage compensation claims under Section VIII. 2.a-e.
X. Use of software
To the extent that software is included in the scope of delivery, the customer is granted a non-exclusive right to use the delivered software, including its documentation. Software is provided for use on the intended delivery item. Use of the software on more than one system is prohibited. The customer may only copy, adapt, translate or convert the software from object code to source code within the legally permissible scope (sections 69 a et seqq., Copyright Act). The customer undertakes not to remove or modify manufacturer information, especially copyright notices, without the supplier's prior and express written consent. All other rights to the software and documentation, including copies thereof, remain with the supplier or with the software supplier. The granting of sublicenses is not permitted.
XI. Applicable law, jurisdiction
1. All legal relationships between the supplier and the customer are subject exclusively to the law of the Federal Republic of Germany.
2. If the customer is a merchant, a legal person under public law, or a special fund under public law, the legal venue is the court competent at the domicile of the supplier. However, the supplier is entitled to take legal action at the head office of the customer.
PRAUTEC GmbH, Hagenburger Str. 54, 31515 Wunstorf, Germany
