Gesellschaft für Trocknungs und Umwelttechnik mbH
Postfach 6, 47811 Krefeld
Parkstraße 10, 47829 Krefeld
Standard terms of delivery
1. General Provisions
1.1. These terms of delivery shall be applicable to all our supplies unless expressly amended or excluded with our written consent. These terms shall be deemed accepted, at the latest, with the receipt of our delivery item. Any purchaser's conditions will not bind us even if we do not oppose them again.
1.2. Our offers shall be without engagement. Any arrangements shall not become binding until confirmed by us in writing. Oral side agreements, modifications and/or amendments shall require our written confirmation to take effect.
1.3. The documents forming part of the offer such as figures, drawings, weights and dimensions shall only be more or less binding unless expressly qualified as final ones.
1.4. Documents of supplier, such as illustrations, drawings, indications on weights, dimensions and performance data are to be deemed non-binding unless expressly stated as binding. We reserve the right of ownership and copyright in all estimates of costs, drawings and other documents; such information shall not be divulged to third parties and shall be returned to us upon its request.
2. Prices, payment and offsetting
2.1. Unless otherwise agreed, the prices shall be understood for delivery ex store or works including loading, but excluding packing. The applicable legal amount of value-added tax shall be added to the prices.
2.2. Unless otherwise agreed, payment shall be due immediately and shall be effected without any deduction.
2.3. Any retention of payments and offsetting of possible purchaser's counterclaims will only be permitted if these are uncontested or legally enforceable.
2.4. In the event of delay of payment interest of at least 4 percent per year above the applicable discount rate of the German Federal Bank or 4 percent over and above the basic interest rate fixed by the Inland Trade Bills Transference act which replaces the discount rate shall be charged.
2.5. Circumstances brought to our knowledge after signature of the contract and which might affect purchaser's credit standing so that endangering of our claims for payment may be feared, shall entitle us to perform outstanding supplies only against advance payment or securities usually provided by banks or to withdraw from the contract after a reasonable grace period and claim damages for non-fulfilment. Furthermore, we shall be entitled to prohibit resale of the goods delivered with the reservation of ownership (section 5 of these terms).
2.6. In case of export business, all taxes, custom duties, and other fees charged to us, our personnel or to our sub-supplier or subsupplier's personnel in connection with the conclusion or the fulfilment of the contract from outside of Germany are not included in the price. Purchaser shall pay them directly or reimburse us for our expenses, if we had to pay them in advance.
3. Delivery period
3.1. Delivery periods and dates shall only be regarded as approximate ones unless they have expressly been confirmed as binding periods and dates. The delivery period shall begin with the dispatch of the confirmation of order, however, not before obtaining the documents, approvals, release to be provided by purchaser nor before receipt of the stipulated down-payment. The delivery period shall be considered observed when the delivery item has left the works or its readiness for shipment has been advised by the end of said period.
3.2. Partial deliveries shall be allowed.
3.3. The delivery period will be duly extended in the event of actions under labor disputes, mainly strike and lockout, as well as on occurrence of unforeseen obstacles beyond our intention provided that it can be proven that such obstacles will notably affect the completion or delivery of the delivery item. This shall be applicable irrespective of said circumstances occurring at our shops, those of our sub-contractors or any of their sub-suppliers. Such circumstances shall not be our responsibility not even if they appear while a delay has already been suffered. We will inform purchaser, as soon as possible, of the start and end of such obstacles.
3.4. If purchaser suffers a loss as a result of a delay caused by our fault, he shall be entitled to claim compensation for default while further claims will be excluded. It will amount to half a percent for every full week of delay, however, without exceeding a total of 5 percent of the value of that part of the whole delivery which due to the delay cannot be used in good time nor as provided contractually.
3.5. One month after our notification to purchaser that the goods are ready for shipment, we shall become entitled to recover from purchaser all costs and expenses incident to the storage of the goods, in case dispatch is delayed for reasons not attributable to us. If the goods are stored on our premises, such recovery shall not be less than ½ % of the purchase price for each month. We at our option are entitled to dispose of the goods and supply purchaser with other goods within a reasonable time thereafter, provided shipment cannot be effected within an appropriate time.
3.6. Delivery dates can only be adhered to if purchaser timely fulfils his contractual obligations and renders all co-operation necessary under the contract.
4. Transfer of Risk and Acceptance of Goods
4.1. If not expressly agreed upon otherwise, the risk of loss and of damage as to all or any portion of the goods shall pass to purchaser upon their loading, regardless of any of our additional obligations relating to the goods sold, including but not limited to transport, arrangement, transport fees and installation.
4.2. If shipping is delayed for reasons which are purchaser's responsibility, the risk shall pass to purchaser as of the date of readiness for dispatch; we will, however, be obliged to cause, at purchaser's request and expense, the insurances requested by him.
4.3. All goods delivered shall be taken by purchaser, also in case of defects, subject to purchaser's rights pursuant to Clause 6 herein below.
5. Retention of Title
5.1. The goods delivered shall remain our property until receipt of all payments due under the based contract. Purchaser's practices in breach of the contract, especially default in payment, shall entitle us to take back the delivery item. Unless instalment law is applicable, withdrawal and attachment of the item by us shall mean withdrawal from the contract only if expressly declared by us in writing.
5.2. If in connection with the payment of the purchase price we endorse a promissory note or bill of exchange, we will retain title until such time as the purchaser, as drawer, has paid the note in full.
5.3. Without our consent purchaser may neither pledge the delivery item nor assign it by way of security. In the event of attachments other interventions by third parties, purchaser shall inform us without delay in writing.
5.4. We are entitled to insure the goods at purchaser's expense against loss by theft, breakage, damage by fire, water and/or other hazards, unless purchaser provides evidence that such insurance already exists.
6. Liability for Defects
SUBJECT TO CLAUSE 8.2, WE ARE LIABLE, AS FOLLOWS, FOR DEFECTS IN DELIVERED GOODS AND FOR BREACH OF ANY GUARANTEES OR WARRANTIES THAT MAY HAVE BEEN MADE, TO THE EXCLUSION OF ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, OR ANY OTHER CLAIMS OR RIGHTS.
6.1. Regarding deficiencies of the delivery, including the absence of expressly warranted characteristics, we shall be liable, with the exclusion of further claims, notwithstanding section 8.2 of these terms, in such a way that we will repair or replace at our discretion, all parts which prove useless or considerably impaired in their usefulness, within 6 months of commissioning, in case of spare parts, within 6 months of passage of risk, due to circumstances which, according to the evidence furnished, occurred before the passage of risk, especially faulty design, selection of incorrect material or deficient execution. Purchaser shall give prompt written notice to us of the defects found, specifying in detail the causes and effects thereof. Replaced parts shall become our property if we request so prior to or within a reasonable period after disassembly. The above warranty shall at the latest expire 12 months after readiness for shipment of those goods sold under this contract. However, if delivery, installation and putting into operation are delayed by our fault, this period will be extended accordingly.
6.2. Purchaser's right to assert claims due to deficiencies shall be statute-barred in all cases within 6 months of the time of due notification, at the earliest, however, at the end of the warranty period.
6.3. The guarantee period for the replacement part and repair shall be 3 months; it shall, however, run at least until the end of the original warranty period for the delivery item. The liability period for deficiencies of the delivery item shall be extended by the duration of the interruption of operation caused by the repair work.
6.4. Should purchaser or third parties proceed to modifications or repair work without our consent, the liability for the resulting consequences shall be cancelled.
6.5. We assume no liability for defects relating to events not due to a fault on the part of us, including but not limited to unsuitable storage or use, improper operation or maintenance, faulty assembly and setting into operation by purchaser or third parties, ordinary wear and tear, unsuitable raw material or other supplies, services and contributions of purchaser.
6.6. Purchaser shall allow for both sufficient time and opportunity necessary for repairs and replacements that we, at our reasonable discretion, deem necessary; otherwise we will be relieved from our obligations and liability under this clause. Purchaser may remedy the defect by himself or through a third party and charge us with the necessary costs of such remedial work provided that we are in delay to remedy the defects, or the defect endangers purchaser's industrial safety, or will cause excessive damages to the purchaser, further provided that purchaser shall inform us promptly about such events.
6.7. In case of a justified claim, we shall bear the costs for replacement parts, including transport and, if it can be reasonably expected, the costs for service personnel that might be necessary. All other costs and charges shall be borne by purchaser. Purchaser shall use his best efforts to assist us in remedying the defect.
6.8. The remedies set out herein above shall exclude any other claims and rights of purchaser, including without limitation for injury, damage or loss other than direct damage to the goods delivered by us. The preceding exclusion shall, however, not be available to us if and to the extent that our officers or executives have committed a breach of contract, either intentionally or by gross negligence. Nor shall such exclusion be available to us for damages resulting from a breach of an explicit guarantee agreed between the parties which is intended to protect purchaser against such damages. All foregoing exclusions shall not apply to claims for injury or death or damage to privately used property based on any statutory product liability law.
7. Liability for accessory obligations
In the event that, due to our fault, the delivered item cannot be utilized by purchaser in conformity with the contract as a result of the omission or faultiness of proposals and advice made and given before or after the conclusion of contract as well as other contractual accessory obligation – especially operating and maintenance instructions for the delivery item – the provisions of sections 6. and 8. of these terms of delivery shall apply accordingly, with the exclusion of further claims of purchaser.
8. Purchaser's Right to terminate the Contract and other Liabilities of the Supplier
8.1. Purchaser is entitled to terminate the contract if prior to the passing of risk the total performance by us is definitely rendered impossible. In the event performance is rendered partially impossible, purchaser shall also be entitled to terminate the whole contract if his demand to reject the unperformed balance is justified. Otherwise, he may claim a proportional price reduction. All the foregoing shall apply accordingly in case performance should be impaired through our incapacity to perform.
8.2. If the impossibility occurs after purchaser delays acceptance of the goods, or is the fault of the purchaser, purchaser's obligations remain binding and unimpaired.
8.3. In case purchaser is entitled to claim the maximum compensation for delay under clause 3.4 above, purchaser shall have the right to terminate the contract, provided purchaser grants us a reasonable extension of time for delivery and advises us explicitly in writing that he will terminate the contract at the end of such extension provided we are responsible for not performing such delivery within this period.
8.4. Purchaser shall be entitled to terminate the contract also if repair or replacements repeatedly are not made within one or more grace periods conceded to us with express threat of termination, or if a successful remedy becomes definitely impossible, due to our negligence. The termination operates with respect to the defective part only, unless acceptance of the balance of the goods cannot reasonably be expected.
8.5. Excluded are all other rights and claims of the purchaser, in particular those concerning cancellation, termination, or price reduction, as well as compensation for damages of any sort, in partial damages other than to the delivered goods themselves. The preceding exclusion shall not be available to us if and to the extent that our officers or executives have committed a breach of contract either intentionally or by gross negligence. Nor shall such exclusion be available to us for damages resulting from a breach of an explicit guarantee agreed between the parties which is intended to protect purchaser against such damages. All foregoing exclusions shall not apply to claims for injury or death or damages to privately used property based on any statutory product liability law.
9. Jurisdiction and choice of law
9.1. For any disputes arising from this contractual relationship, the registered office of supplier shall be the sole place of jurisdiction provided purchaser is a fully qualified merchant, a legal person under public law or public special assets or hat its registered office outside Germany. We shall, however, be entitled to bring action at purchaser's principal place of business.
9.2. Besides the contractual provisions, the law of Swiss shall be applied exclusively. Application of the UNCITRAL Convention dated 11.04.1980 shall be excluded.