General Sales and Delivery Terms of ATHOS Elektrosysteme GmbH
§ 1 Standard Terms & Conditions, Conclusion of Contract
(1) The following terms shall apply exclusively with regard to all contracts we conclude. Purchasing conditions to the contrary shall have no legal standing, even where we do not expressly make exception to them. On making the order and/or accepting the consignment the Customer accepts our Terms and Conditions.
(2) The order becomes binding for us with issue of our written confirmation. All agreements - including those concluded with our representatives - and all changes, amendments or other subsidiary agreements take effect only with our written confirmation.
§ 2 Offer, Quotation, Prices, Right to Change Prices
(1) Our offers and quotations as well as the price lists and other information contained in our catalogues, prices and delivery options are non-binding and subject to change without notice.
(2) Our prices are in Euro ex works plus VAT at the prevailing rate exclusive of packaging, freight, customs duty and insurance which shall be invoiced separately where necessary.
(3) With regard to all orders - including orders on call and repeat order agreements - for which delivery is made later than four months after the order has been made either as per contract or at the wish of the Customer, we are entitled to pass on material and wage increases which may occur between the time of the order and the delivery to the Customer to balance out such price increases.
§ 3 Dispatch, Packaging, Costs, Passing On of Risk
(1) Dispatch shall always be at the Customer's expense and risk, even where delivery post paid, C.I.F, F.O.B. or other arrangements have been made. We shall not be liable - even in the event of F.O.B. deliveries - for damage or loss during transport. Unless otherwise agreed, we shall designate the type of packaging and mode of transportation.
(2) Where dispatch is delayed as a result of circumstances beyond our control, the risk shall be transferred to the Customer from the date, of which the Customer has been notified, when we are ready to ship.
(3) For F.O.B. consignments the Customer shall ensure in a timely manner that a precise shipping authorisation is available and that adequate space is available at the quay and shall also ensure that on arrival at the port of shipment the goods can be transported onward immediately. Where the Customer fails to meet these conditions, he shall be obliged to pay for the goods before they are brought on board and they shall then be stored at his expense and risk.
§ 4 Payment Terms and Consequences of Non-Observance, Offsetting and Right of Retention
(1) Our invoices are payable free of postal charges and other expenses within thirty days after receipt of our invoice or an equivalent request for payment but at latest thirty days after falling due and receipt of the goods. After this time we shall calculate annual interest at a rate of 8 percentage points (5 percentage points for private Customers) above the Central Bank base rate
(2) In the event of payment by bill of exchange or cheque, payment shall be deemed to have been made after these have been credited. Bank discounts and expenses shall be borne by the Customer.
(3) We accept bills of exchange and cheques only on actual receipt of payment; bills of exchange are accepted only by special agreement. Irrespective of the validity of bills of exchange received and any deferral granted, our claims shall be payable immediately where the Customer fails to meet the payment terms or where circumstances become known which call his creditworthiness into question. In such a case, we are further entitled to make deliveries only against pre-payment or with a security deposit or to withdraw from the agreement after a suitable period and/or demand compensation.
(4) We are entitled to offset payments of the Customer irrespective of his assertion of open, older demands.
(5) The Customer may offset our demands only with undisputed or legally established counter-claims. There shall be no right to retention of goods unless the counter-claim is undisputed, established under law or pending a decision.
§ 5 Delivery Deadlines and Liability Provision
(1) The delivery period begins as soon as all details of implementation are established, both sides are agreed on the terms of the transaction and the Customer has made any part-payment agreed. The delivery deadline shall be deemed to have been observed if by then the consignment has left the works or the Customer has been advised of our readiness to ship.
(2) Where our delivery does not meet the deadline and is also not made within a further deadline set by the Customer on grounds for which we are responsible, the Customer shall be entitled to cancel the order.
(3) With regard to claims for delayed delivery or non-delivery the following shall apply: where for reasons of negligence our delivery is delayed, the Customer shall be entitled to compensation based on the loss he has suffered due to this delay but limited to 0.5% for each full week for which delivery is delayed and at most 5% of the invoice value of the delayed order. Where the Customer may demand compensation instead of performance, we shall be liable in the event of sale to a private Customer (Art. 13 German Civil Code) for any violation of the main obligations of the contract including negligence to pay compensation but any claims shall be limited to compensation for the loss foreseeable at the time the contract was concluded. In the event of sale to a commercial Customer the same shall apply with the condition that claims shall be limited to 50% of the order's value.
(4) In the event of force majeure or circumstances which are beyond our control (e.g. disruption of operations, strikes) and which prevent us from meeting the order deadline, we shall be entitled to correspondingly postpone the performance of the contracted obligations or, where the circumstances make it impossible to perform, to withdraw in full or in part from the contract. The same shall apply in the event that for reasons beyond our control, our suppliers fail to supply us or supply us only in part with the materials required for the order and ordered from them. A prerequisite for withdrawal from the contract shall be that we have informed the Customer without delay of this unavailability and have also without delay made any refunds to the Customer for our inability to perform. No claims of any kind shall be entertained.
(5) Partial delivery shall be permissible.
§ 6 Notification of Defects, Claims for Defects, Liability Provision
(1) In the event of a reciprocal commercial transaction, the Customer is required in accordance with Art. 377 German Commercial Code to routinely examine the delivered goods immediately on receipt and, where defects are observed, to advise us of same in writing without delay. Defects which are not visible at the time of this examination must be notified to us in writing by the Customer immediately upon discovery.
(2) In the event of justified notification of defects we shall be obliged to repair the delivered goods free of charge or, at our discretion, replace them. Where goods are sold to a private Customer, either directly or via a sub-contractor in the delivery chain, the Consumer shall be entitled to choose. Where repair or replacement fail despite two attempts or where we refuse without justification to repair or replace or where we unacceptably delay repair or replacement, the Customer is entitled to reduce payment or, where a building service is not the object of the complaint, may choose that the contract be cancelled.
(3) The provision at VII. below (Other Liability) shall apply with reservations with regard to claims: in the event of sale to a private Customer, either directly or via a sub-contractor in the delivery chain, we shall be liable for compensation rather than performance where the main terms of the contract are violated and in the event of negligence, whereby any claims for compensation shall be limited to the loss foreseeable at the time the contract was concluded provided that we have not fraudulently concealed the defects or given any guarantee with regard to the quality of the goods. In the event of sale to a commercial Customer the same shall apply with the condition that claims shall be limited to 50% of the value of the defective goods, whereby in this instance paragraph 1 above shall apply if a private Customer in the delivery chain buys the goods and has claims arising out of breach of duty.
(4) Claims for defects shall not be entertained where such defects are caused by a failure to observe operating, servicing or installation requirements, inappropriate or improper use, incorrect or negligent treatment by the Customer, natural wear and tear or changes to the delivered item made by the Customer or a third party.
§ 7 Other Liability (Limitation and Exclusion)
(1) Apart from the above mentioned provisions governing delay and defect claims, we shall accept no liability except where a loss is caused by a grossly negligent breach of duty on our part, or the deliberate or grossly negligent breach of duty of our legal representatives or servants or the loss arises out of fatal injury, physical injury or injury to health caused by a negligent breach of duty on our part or a deliberate or negligent breach of duty on the part of our legal representatives or our servants or are losses such as are usually and typically insurable under a liability insurance policy on acceptable terms to be taken out by us. This shall apply in particular with regard to compensation claims arising out of fault prior to or after conclusion of the contract, violation of secondary obligations and claims arising out of unlawful actions.
(2) Claims arising out of the Products Liability Act or a guarantee remain unaffected.
§ 8 Statute of Limitation
(1) Claims for defects shall become time-barred one year after transfer of the goods to the Customer.
(2) Claims shall expire prior to this legal statute of limitation in the following instances:
- in the event of deliberate, fraudulent or grossly negligent breach of duty by us, our legal representatives or our servants;
- in the event of injury to life and limb or to health caused by our negligent breach of duty or a deliberate or negligent breach of duty on the part of our legal representatives or servants;
- for claims arising out of a guarantee of the quality of the goods;
- in the event of direct sale to a private Customer;
- in so far as we are obliged to reimburse costs which the Customer is required to bear vis-Ã -vis a private Customer or a sub-contractor in the delivery chain because of sale of a new item for the purpose of supplementary performance (Art. 478, Para. 2 German Civil Code);
- where an item delivered by us has been used in a construction in keeping with its normal purpose of use and as a result such construction has been found to be faulty and Part B of the German Construction Contract Procedures did not form the entire basis of the contract.
(3) Where we are liable because the loss is one against which we may usually and typically insure ourselves via a liability insurance policy on acceptable terms to be taken out by us, the statute of limitation shall be 1 year.
§ 9 Trademark Rights, Tools, Models and Drawings
(1) Where goods supplied are based on drawings or other information provided by the Customer, he shall be responsible for their correctness and shall ensure that the trademark rights of third parties are not infringed; he shall indemnify us against any claims by owners of trademark rights.
(2) We may issue an invoice for the full or partial value of tools, dies, models and installations which are required for the ordered goods. These remain our property even where they have been produced on the instructions of the Customer and/or the Customer has paid for them in full or in part. Where they have been produced in accordance with special instructions from the Customer they shall be used exclusively for deliveries to the Customer, provided that he meets his purchasing and payment obligations and the business relationship is maintained.
§ 10 Retention of Title
a) We reserve the right to retain title of the deliverable items ("reserved goods") until all of our claims against the Customer arising out of the business relationship and including any future claims out of contemporaneous or later contracts have been settled. In the event of an ongoing invoice, the reserved goods and all rights thereto shall be deemed security for the entire balance claimed plus interest and costs. The Customer shall inform us without delay of any distraint proceedings or other actions by third parties.
b) The Customer is entitled to process the goods as part of routine business and re-sell them. This authorisation is withdrawn where the Customer is in arrears, ceases payment or where bankruptcy or insolvency proceedings are initiated against him. On re-sale of the reserved goods he is required to observe retention of title and to ensure that claims arising out of the re-sale in accordance with e) and f) below are transferred to us. Re-sale shall also include the use of reserved goods to fulfil works and works delivery contracts. He is not entitled to dispose of the reserved goods in any other way, particularly pawning or as security. He is not permitted to cede claims out of the re-sale of our reserved goods, unless such ceding is part of genuine factoring which has been notified to us and where the revenue out of such factoring exceeds the value of our secured claims. On issue of the credit note for the factoring return, our claim immediately falls due.
c) In accordance with Art. 950 German Civil Code, the Customer, shall not acquire title to the new item through processing of the reserved goods. Processing or restructuring is undertaken for us without binding us in any way. Processed goods are deemed to be reserved goods.
d) In the event that the reserved goods are processed, linked or mixed with other goods we are entitled to co-ownership of the new goods in proportion of the invoice value of the new goods to the invoice value of the other goods used. Where our title is extinguished through linking, mixing or processing, the Customer herewith transfers to us any proprietorial or expectant rights to which he may be entitled in the new stock or goods to the amount of the invoice value of the reserved goods or in the case of processing, the proportion of the invoice value of the reserved goods in relation to the invoice value of the other goods used and shall store these for us free of charge. Our co-ownership rights are deemed to be reserved goods.
e) The Customer's claims out of the re-sale of the reserved goods are herewith ceded to us. They shall serve as security to the same extent as the reserved goods.
f) Where the reserved goods are re-sold by the Customer together with other goods, his claim out of the re-sale is ceded to us to in the amount of the invoice value of the reserved goods in relation to the invoice value of the other goods. In the event of the re-sale of goods in which we have co-ownership rights as outlined at d) above, a part of the claim corresponding to our co-ownership share shall be ceded to us.
g) At our request the Customer is obliged to provide us with a complete list of his claims with the names and addresses of buyers, to advise his buyers of his assignment and to give us all necessary information in order to enforce the assigned claims. The Customer authorises us to inform buyers of the assignment and to enforce the claims ourselves as soon as he falls into arrears with a payment or his financial circumstances worsen. We may demand an examination of the assigned claims by our agent based on the Customer's accounts. The Customer shall supply us with a list of any existing reserved goods.
h) Where the value of existing securities exceeds the secured claims by a total of over 20%, we are obliged at the Customer's request to release securities selected at our discretion.
i) With regard to bills of exchange, cheques, etc., payment shall be deemed to have been made only after encashment by the Customer. Payment by cheque is valid only after the actual payment has been received. Payments made with a bill of exchange issued by us are deemed to have been made only when the cheque or bill of exchange has been debited from our account. Irrespective of any further security rights we may have, the securities granted to us remain in our possession until this time.
j) On the basis of retention of title, we may require that the deliverables be returned if we withdraw from the contract. We are entitled to withdraw irrespective of further requirements as specified in Art. 323 German Civil Code, and most particularly without notice, from the time at which the Customer falls into arrears either wholly or in part. The same shall apply where the Customer discontinues payment or if bankruptcy or insolvency proceedings are initiated against him. All costs incurred for the retrieval of the deliverables shall be borne by the Customer. We are entitled to dispose over the recovered deliverables at our discretion.
§ 11 Place of Performance, Place of Jurisdiction, Applicable Laws
(1) The place of performance is the place at which our company's head office is located.
(2) The place of jurisdiction with regard to contracts with merchants and legal entities shall be the court responsible for our company's head office.
(3) German law shall apply to all deliveries and services with the exception of the UN convention regulating sales.
§ 12 Severability Clause
Where provisions in these Terms and Conditions and/or other agreements are or become invalid, this shall not affect the remaining provisions of this contract. The Contracting Parties are obliged to replace the invalid provision with a provision whose commercial intent resembles as closely as possible that of the provision which it is replacing.