Terms and Conditions of Sale, Delivery, and Payment
All contracts, purchase orders, and offers are based on the following Terms and Conditions of Sale, Delivery, and Payment, which the buyer hereby accepts. The seller does not accept any deviating terms and conditions of the buyers, unless the seller confirms such in writing. Should individual provisions of these Terms and Conditions of Sale, Delivery, and Payment be invalid, this shall not affect the validity of the other provisions. Only the German version of the following Terms and Conditions of Sale, Delivery, and Payment shall be legally valid; the English version is for information only.
All offers concerning prices, quantity, quality, delivery time, etc. are subject to confirmation, unless otherwise expressly agreed in writing. The seller retains the property rights and copyrights to cost estimates, drawings, and other documents. These shall not be made accessible to third parties without the permission of the seller. All offers are subject to availability.
III. Delivery Time, Packaging
As a matter of principle, specified delivery times are subject to confirmation. Delivery times agreed in writing shall begin upon dispatch of the order confirmation, but only after all details have been clarified and not before the buyer has submitted all needed documents, permits, approvals, and not before any agreed down payment has been received. The delivery deadline shall be deemed fulfilled if the goods to be delivered leave the works prior to the expiry of this deadline, or notice is served that the item is ready for dispatch. The delivery deadline shall be duly extended in the event of labour dispute measures, especially strike and lockout, and in the event of unforeseen hindrances beyond the seller's influence, provided that such hindrances provably have a major effect on the completion or delivery of the goods to be delivered. This shall also apply if such circumstances occur at the seller's upstream suppliers. The seller shall not be responsible for the said circumstances, even if these should develop while the seller is already in default. Unless expressly agreed otherwise, all prices are quoted ex warehouse or ex works, exclusive of the necessary packaging. The risk of all shipments shall be transferred to the buyer as soon as they leave the warehouse or works; this shall also apply if goods are made available.
IV. Prices, Payment
All prices are quoted ex works, exclusive of any packaging costs. The prices are subject to statutory VAT. The payment shall be made according to the agreed conditions. Unless a different payment method is agreed with the seller in writing, the payment shall be made as specified in the seller's invoice and, as a matter of principle, by payment or bank transfer to one of the seller's bank accounts within 8 days with 2% cash discount or within 30 days without any deductions. In the event of late payment or deferral, the seller may charge interest amounting to the respective bank rates for overdraft facilities, but at least interest amounting to 5 percentage points over the applicable discount rate of the European Central Bank, plus VAT. This does not affect the seller's right to assert a higher damage due to the delay. Withholding of payments or offsetting of any counterclaims of the buyer that are disputed by the seller is not permitted. Regardless of the term of any bills of exchange that have been received and credited, all claims of the seller shall be due immediately if the payment terms are not complied with or if the seller learns of circumstances that, according to the seller's best commercial judgement, impair the buyer's creditworthiness. Notwithstanding any further statutory rights, the seller shall also be entitled to make any outstanding deliveries conditional upon advance payment or provision of reasonable collateral or to withdraw from the contract after a reasonable grace period or to claim damages due to non-fulfilment.
V. Delivery, Risk Transfer
If necessary, the seller will pack the goods at his own discretion and charge for the packaging at the lowest rate possible. The packaging will be credited with the agreed percentage of the calculated value in the case of prepaid return to the seller's address in a condition ready for use. The risk shall be transferred to the buyer when the goods to be delivered are dispatched, even if partial shipments are made and even if the seller has also assumed other obligations, such as the shipping costs or delivery. If the dispatch is delayed due to circumstances for which the buyer is responsible, the risk shall be transferred to the buyer from the date on which the goods are ready for dispatch. Partial shipments are permissible. Goods ordered on a call basis shall be purchased within 6 months of the date of the purchase order, unless a longer purchase period is expressly agreed.
The goods shall remain property of the seller until all claims from the business relationship, including ancillary claims, damage compensation claims, and cheques and bills of exchange to be redeemed, have been fully paid. The lien shall persist even if individual claims of the seller are included in a current account and the balance is drawn and recognised. If the buyer processes goods subject to lien into new movable goods, the processing shall take place on behalf of the seller, without imposing any obligations on the seller. The new goods shall be property of the seller. In the event of processing, blending, or mixing with goods that do not belong to the seller, the seller shall become co-owner of the new goods in the ratio of the invoice value of his goods subject to lien to the total value. The buyer may only resell, process, or install the goods subject to lien under consideration of the following provisions and under the condition that the claims are actually transferred to the seller. The authorisation of the buyer to sell, process, or install goods subject to lien in the course of his normal business shall end upon revocation by the buyer due to significant deterioration of the buyer's financial situation, at the latest when the buyer discontinues his payments or if insolvency proceedings are requested or instituted over the buyer's assets. The buyer hereby assigns the claim along with all ancillary rights from the resale of the goods subject to lien, including any balance claims, to the seller. If the goods are processed, blended, or mixed and the seller gains co-ownership to these goods in the amount of his invoice value, he shall be entitled to the purchase price claim in the proportion of the value of his rights to the goods. If the buyer installs goods subject to lien on a site/in a building, he hereby proactively assigns the resulting claim to compensation or from the resale of the site/building in the amount of the invoice value of the goods subject to lien along with all ancillary rights, including the right to establishment of a collateral mortgage with priority over the others. If the buyer sells the claim within the scope of genuine factoring, the seller's claim shall be due immediately, and the buyer shall assign the substitute claim against the factor to the seller and forward the proceeds from the sale to the seller without delay. The seller hereby accepts this assignment. The buyer may collect the assigned claims as long as he complies with his payment obligations. The authorisation to collect the claims shall expire upon revocation, at the latest when the buyer is in arrears or if the buyer's financial situation deteriorates substantially. In this case, the buyer hereby authorises the seller to inform the customers of the assignment and to collect the claims directly. Upon request, the buyer shall provide the seller with a detailed list of his claims, specifying the names and addresses of the customers, the amounts of the individual claims, the invoice dates, etc. and to give the seller all information necessary for asserting the assigned claims and to permit the audit of this information. Should the value of the collateral for the seller exceed all his claims by more than 20%, the seller shall, at the request of the buyer or a third party impaired by the excess collateralisation of the seller, release collateral of his choice to the respective extent. The goods subject to lien and the assigned claims may not be pledged or assigned as collateral. The seller shall be notified immediately of any pledges, specifying the pledgee. If the seller takes back the delivered goods due to the lien, this shall only constitute a withdrawal from the contract if the seller expressly declares this. The seller may satisfy his claims by freely selling the goods subject to lien that he has taken back. The buyer shall keep the goods subject to lien free of charge on behalf of the seller. The buyer shall insure them against common hazards such as fire, theft, and water in the usual scope. The buyer hereby assigns his compensation claims resulting from damage of the aforementioned type against insurance companies or other parties that may be under the obligation to pay compensation to the seller in the amount of the invoice value of the goods. The seller hereby accepts the assignment. All claims as well as the rights from the lien in all special forms outlined in these Terms and Conditions shall persist until the seller is fully indemnified against all contingent liabilities that the seller may have assumed for the benefit of the buyer.
The elimination of defects shall take place in the form of free rectification or replacement, as the seller may choose. In the case of replacement, the buyer shall return the defective goods. If the defect cannot be eliminated within a reasonable period or if the rectification or replacement must be considered as failed for other reasons, the buyer may, at his own discretion, demand reduction of the remuneration or withdraw from the contract. The rectification may only be considered as failed if the desired effect is not achieved although the seller has been given adequate opportunity to perform the rectification or replacement, if the rectification or replacement is refused by the seller or is delayed by an unacceptable amount of time, if there are justified doubts concerning the prospects for success, or if rectification is unacceptable for other reasons. The buyer shall inspect the delivered goods for obvious defects that an average buyer would readily notice. Obvious defects also include major, easily visible damage of the delivered goods. Moreover, this includes cases in which the wrong goods or a deficient quantity are delivered. Such obvious defects shall be reported to the seller in writing within four weeks of the delivery. Defects that only become obvious later on shall be reported to the seller within four weeks of their discovery by the buyer. In the event of violation of the inspection and reporting obligation, the goods will be deemed approved despite the respective defect. The liability for defects shall apply for a term of 12 months. The seller does not accept any liability for slightly negligent breaches, provided that no material contractual obligations (cardinal obligations), damage from injury to life, body, or health, warranties, or claims under the German Product Liability Act (ProdHaftG) are concerned. The same applies to breaches by agents of the seller. Material obligations (cardinal obligations) are all obligations whose fulfilment is essential to the due performance of the contract and on whose fulfilment the contract partner may always rely. In particular, these are obligations that are of great significance to the achievement of the objective of the contract. Moreover, this includes ancillary obligations whose culpable breach could endanger the achievement of the objective of the contract.
VIII. Withdrawal of the Buyer
The buyer shall have a right of withdrawal if the seller culpably allows a reasonable grace period granted to him for the rectification or replacement due to a defect for which the seller is responsible in the context of the delivery terms and conditions to pass without success. The buyer shall also have a right of withdrawal if rectification or replacement is impossible or the seller is unable to perform such. If the seller is in arrears with his performance and the buyer grants him a reasonable grace period, expressly declaring that he will not accept the performance after the expiry of this period, and this grace period is not complied with, the buyer shall be entitled to withdraw. To the extent permitted by law, all other claims of the buyer, especially to revocation, cancellation, or reduction or to compensation for any and all damage, including damage that did not occur in the actual goods, are excluded.
IX. Withdrawal of the Seller
In the event of unforeseen events in the context of the delivery terms and conditions, to the extent that these significantly change the economic meaning or the content of the performance or have a material impact on the seller's operations, or should the performance retroactively turn out to be impossible, the contract shall be duly amended. If this is economically unacceptable, the seller may withdraw entirely or partly from the contract. The buyer shall not be entitled to any damage compensation claims due to such withdrawal. If the seller wants to make use of his right of withdrawal, he shall inform the buyer of this without delay after learning of the significance of the event, even if an extension of the delivery deadline was agreed initially.
X. Place of Performance, Jurisdiction
The place of performance for the delivery and payment is Hohenoelsen, Germany. The court responsible for the seller shall have jurisdiction over all disputes that may arise from the contract relationship if the buyer is a registered merchant, a legal entity under public law, or a fund under public law. However, the seller may also file charges at the location of the buyer's headquarters.
XI. Applicable Law
German law shall apply. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
Knoch Infrarot-Technik GmbH | Revision: July 2013
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