Allgemeine Verkaufs- und Lieferbedingungen
1. Scope of Application
The present General Conditions of Sales together with the special conditions indicated in the order confirmation by the Seller shall apply to any sales made by the Seller and to any related services, unless other specific conditions have been expressly agreed upon in writing. When placing an order, the Buyer is deemed to have fully accepted these terms and conditions to the exclusion of its own general conditions of purchase. At the latest, taking delivery of the products of the Seller shall be deemed the acceptance of the subject terms and conditions.
2. Formation of the Contract
Offers submitted by the Seller shall remain in force until the date specified for the validity of the conditions contained in the offer. If no such date is specified, the offer shall remain valid one (1) month from the date it has been submitted by the Seller. If the offer has not been agreed upon and no order from the Buyer has been received by the Seller, after this delay, the offer is deemed cancelled. For their validity, any offer made by the Seller and any order placed by the Buyer shall be confirmed in writing. A binding contract (the "Contract") will be deemed entered into only upon the Seller's written acknowledgement of the order ("the Acknowledgement"). Seller’s agents abroad shall have no authority to enter into a contract on behalf of the Seller.
3. Cancellation or modification of the orders
Any request from the Buyer to cancel or modify the order after the Acknowledgement has been dispatched shall be taken into account only if the Seller receives such request in writing: (a) before the products have been dispatched or before the beginning of the manufacturing of the products; (b) before the end of a four-day delay after dispatch of the Acknowledgement. However, in such cases, the Seller might invoice all or part of the cost already incurred.
4. Conditions of performance
The Seller undertakes to perform with due care the subject sales and services as per workmanlike standards. According to common practices, the delivered products might differ in quantity and/or weight from the ordered products. Such difference shall not render the Contract voidable but shall only give rise to a rebate or increase in price in proportion of the said difference.
1) Quantities manufactured
The Buyer shall accept any delivery of products for which the delivered quantity differs from the ordered quantity for more or less ten per cent (10%) or on very small series for one (1) to three (3) pieces.
2) Weights and dimensions
Weights and dimensions stated in the Seller's catalogues and technical documents are always average weights and dimensions. The delivered products may differ from those data according to usual tolerances. Invoices of the Seller are based upon the delivered quantity as weighted on dispatch. The Buyer shall accept the weights if they are within the range of the administrative tolerance regarding measuring devices.
3) Moulds and equipment
Moulds and equipment especially manufactured for the purposes of the order shall be fully invoiced to the Buyer. According to common business practices, the Seller shall keep them in the state they were after first using and for three (3) years.
Packing of the products is invoiced as a supplement to the Buyer. There is no deposit on packing which cannot be returned to the Seller.
5. Impossibility to perform
Any force majeure event or disruption in the manufacturing or operating process having any direct or indirect consequence on deliveries shall excuse the Seller from the performance of its obligations forthwith and without any compensation or damages to the benefit of the Buyer.
1) Unless otherwise agreed in writing, the products sold by the Seller are delivered EXW Seller's site located at D-56564 Neuwied, In der Sohl 122, Germany (Incoterms 2010).
2) In any event, upon delivery, as defined by the applicable Incoterm, the risks are automatically transferred to the Buyer even if the products have not been fully paid. In the event the products are damaged during transportation, the Buyer shall: (a) make written reservations on the transport receipt, (b) confirm the reservations by registered letter with acknowledgement of receipt to the carrier within three days, (c) take all actions against the carrier for any damages.
3) The delivery date is always indicative, and, therefore, shall not be binding on the Seller and shall not allow termination of the Contract or give rise to any deduction or damages in case of delay for any reason whatsoever.
4) The products delivered to the carrier are deemed to be in compliance with the agreed conditions. Without prejudice of the measures to be taken against carrier, the Buyer shall, before accepting the products, ensure that the products are in compliance with the order and shall inform the Seller of any claim in relation thereto within 30 (thirty) days after delivery of the products.
5) The products shall not be returned unless the Seller has given its express approval in the form of a return certificate.
6) Should the Seller consider that the products are not in compliance with the order, the Seller shall, at its own election, either replace the products or reimburse the Buyer to the exclusion of any other compensation or remedy.
7. Price and payment conditions
1) Unless agreed otherwise by the Seller in writing, the payments shall be made within 30 days from date of invoice without any discount.
2) Any sum not paid at the due date indicated on the invoice shall give rise by right and without prior notice to payment of a late payment penalty being calculated on the amount of the sums outstanding at a rate of 5 (five) percentage points above basis rate of EURIBOR for 12 months. Such penalty shall start to run from due date until the amount due has been paid in full.
3) Failure to make any payment at due date renders all other outstanding payments by right and immediately payable together with any other sums that might be due for any other reason whatsoever.
4) In the event of late payment, the Seller may suspend all current orders without prejudice to any other remedy at law.
5) In case of dispute involving deliveries, the Buyer may not rely on such dispute as a pretext to suspend payments.
6) In case of any disagreement regarding an invoice, the Buyer shall notify it to the Seller within 8 (eight) days as of the reception of the invoice by the Buyer.
7) In case the Seller grants to the Buyer special payment terms, the Seller is entitled to cancel such special terms at any time and apply standard payment terms or request a bank guarantee covering permanently and fully the amount of the outstanding debt.
8) In the event of non-payment, the Seller may cancel by right the sale 48 (forty eight) hours after notice to pay has remained without effect, and it may then apply to the court for a summary order to return the Products, without prejudice to any other compensation or damages. Such cancellation shall cover not only the order in question but also all previous unpaid orders whether or not delivered or in course of delivery and regardless of whether or not payment is in arrears.
9) In case the Buyer’s financial ability to promptly pay the purchase price for Products is impaired or in doubt, the Seller may decline to make deliveries or deliver subject to an advanced payment.
10) In case of sales based on EXW Incoterms, if the Buyer does not take delivery of the Products on the agreed date, the Seller will be entitled to invoice the Products immediately at the terms and conditions agreed. The Products will be stocked or dispatched to the Buyer at Buyer’s risk and expenses.
The products shall remain the property of the Seller until full payment has been received by the Seller. If the products are sold by the Buyer prior to full payment, the debt in relation thereto shall be immediately assigned to the Seller. If products which are not fully paid for, are transformed or included in a work, title shall pass on the transformed product or work or on the relevant part of the price thereof.
9. Guarantee - Liability
1) Guarantee in relation to products
The guarantee is limited to the reimbursement or replacement of the products which, by mutually accepted evidence, do not conform to the technical specifications mentioned in the Seller’s catalogue or technical documentation, to the exclusion of any other remedy or compensation.
The guarantee applies only if the products are used and stored in accordance with their intended purpose and their technical documentation.
The buyer must ensure the suitability of the products with the use he intends to make of the products. Any claim in relation to the products shall be made immediately and confirmed by registered letter with acknowledgement of receipt within thirty (30) days of the delivery date. The same limitation of guarantee shall apply to latent defect. The products sold by the Seller but manufactured by third parties shall be covered only by the guarantee of the third party manufacturer.
2) Guarantee in relation to services
The Seller shall not be held liable for any oral advice or opinion given gratuitously to the Buyer. If the Buyer requires so in writing, the Seller might provide, incidentally, advices, preconisations, studies, conceptions and more generally any type of services in connection with the delivered products. Such services shall be invoiced by the Seller. The services or advice shall be without any guarantee as to the results since the Buyer is a professional and is free to use or to reject such services or advice. Further, the Seller shall only be liable with regards to the elements which have been communicated in writing by the Buyer for the performance of the services or advice.
3) Third parties’ intellectual rights
When orders are fulfilled in compliance with the Buyer’s indications, plans and models and such indications, plans and models are based on a third party’s protected industrial property, the Buyer shall obtain all necessary authorisations from this third party and hold the Seller harmless in relation thereto.
10. Governing law - disputes
The General Conditions of Sales are governed by German law. All the disputes that may arise in connection with or in relation to the General Conditions of Sales or the Contract between Seller and Buyer shall be settled amicably between the parties. Failing an amicable settlement, all disputes shall be subject to the jurisdiction of the Courts of Neuwied, Germany.
Calderys Deutschland GmbH, Neuwied
Status: December 2014