Delivery
Reservation of Ownership
Payment
Warranties, Liability
Place of performance; jurisdiction;
other provisions
A.
Delivery
1.
Our offers are without engagement. Delivery performance and invoicing
will be effected subject to the prices and terms prevailing on the date
of dispatch or collection of the goods. Unforeseen changes in the cost
of raw materials, wages and salaries, energy and other costs shall entitle
us to make appropriate price adjustments. At our own discretion, we shall
supply to our immediate customers postage prepaid, free any German LCL
railway station or free any other manner as may be customary. If expedited
delivery is stipulated (e.g. air freight, express delivery) the customer
shall bear the difference between the cost of the cheapest mode of Transport
and the higher costs thus incurred. Carriage shall be borne by the customer.
No refund shall be made if the customer elects to collect the goods himself.
In the absence of any agreement to the contrary, we shall be entitled
to deliver ex works or ex branch office.
2. The goods shall be transported at the customer's risk irrespective
of the place of dispatch. If the goods are ready for dispatch and there
is any delay in dispatch or in taking delivery of the goods for any reason
not attributable to any fault on our part, the risk of loss or damage
shall pass to the customer on receipt of a notice indicating that the
goods are ready for dispatch. Dispatch shall be considered as having been
effected at this point in time.
3. We reserve the right not to accept small orders and to stipulate minimum
quantities or minimum invoice amounts. As a rule, the minimum order amount
is DM 1,000.00 per product category. We reserve the right to supply subject
to certain tolerances customary in the particular trade or technically
inevitable in respect of physical and chemical value including colours
as well as quantities or volumes ordered; depending on the article in
question, such tolerances may be up to 10% and, in the case of metal and
rubber articles, up to 20% in the spring properties according to VDI2005,
to the extent that the customer may reasonably be expected to accept such
tolerances. In the case of call orders, we shall be entitled to obtain
the materials for the entire order as such and to produce the entire quantity
ordered immediately. Accordingly, once the order has been placed no changes
desired by the customer can be taken into account unless this was explicitly
agreed. Part shipments are permissible.
4. To the extent that disposable packaging material is used, consisting
of paper, jute, foil or wood, such packaging shall be supplied free of
charge. Other packaging material, particularly special packaging such
as wooden or steel barrels or iron cores, will be invoiced at cost. In
the case of conveyor belt drums or cores returned freight prepaid, we
shall issue a credit note for four-fifths of the amount invoiced for such
items.
5. A commitment to comply with deadlines agreed for delivery and performance
will be assumed only on condition that there is no disturbance in operations.
In particular, all temporary obstacles to performance attributable to
force majeure shall release us from our obligations to supply for the
duration of the impediment in question. This shall also apply to all other
unforeseeable obstructions to performance for which we are not responsible,
particularly in cases of fire, flooding, strikes and lockouts, shortages
of energy and raw materials or any action taken by public authorities.
Any claims for compensation or damages due to delay, impossibility of
performance or default shall not lie unless we, our legal representatives
or managerial staff are proved to have exercised wilful intent or gross
negligence. No liability shall lie for any damage resulting from ordinary
negligence unless such damage was foreseeable, typical damage due to the
infringement of material contractual obligations. Not withstanding the
above, the customer's legal right to rescind the agreement shall not be
affected provided that the preconditions for such rescission apply. In
the case of orders providing for performance in several part shipments,
any non-performance, defective or delayed performance in the delivery
of one part shipment shall have no bearing on other shipments of the order
in question.
6. On principle, goods cannot be returned once sold. If goods are taken
back nevertheless in exceptional cases, the net price ruling on the day
of repossession of such goods will be credited. If the net price on the
date of delivery is lower than the price on the date of repossession,
the price prevailing on the date of delivery will be credited. Delivery
will be credited. This paragraph No 6 shall not apply in the event of
reserved ownership rights being exercised.
7. The filling of insolvency proceedings or an arrangement with creditors,
the swearing of an affidavit of disclosure in terms of 807 of the German
Civil Procedure Code, any difficulties in payment or any news of a substantial
deterioration in the Customer's financial situation shall entitle us to
discontinue deliveries immediately and to refuse performance under current
agreements should the Customer fail to provide reasonable collateral security
if requested to do so by us.
8. We reserve the right of ownership and copyright in respect of any quotations,
designs, drawings and other records, which may be made accessible to third
parties only without prior consent. Diagrams and other records pertaining
to offers are to be returned on our request and must be returned in any
event if no order is placed with us. If we supply objects produced according
to drawings, models, samples or other records received from the Customer,
the latter shall assume a guarantee that no industrial property rights
of any third parties are infringed. In the event of any third parties
refusing to co-operate with us on the grounds of such industrial property
rights, particularly in connection with the production and supply of such
objects, we shall be entitled to discontinue any further activity and
claim damages without being obliged to analyse the legal situation. In
addition, the Customer undertakes to hold us harmless without delay of
any claims by third parties in this regard.
9. All objects and materials to be provided by the Customer for the purpose
of executing the order shall be supplied on a timely basis by the customer
free ex factory indicated by us, in good condition and in the quality
and quantity agreed; in the absence of such agreement, the Customer shall
supply a reasonably higher volume to take into account any possible rejects.
If the Customer fails to do so, we shall be entitled to invoice any costs
incurred in the process and either not to commence with or to discontinue
production work at our own discretion. We reserve the right to charge
the costs of experimental parts and the tools required for their manufacture
(moulds and dies, punches and mouthpieces etc.). The tools necessary for
serial production will be invoiced on a pro-rata basis. All tools shall
remain our property in any event.
1
a) We reserve the right of ownership in respect of all goods supplied
by us until all debts receivable, including any contingent and subsidiary
claims which we and the companies associated with ourselves (15 of the
German Companies Act) may have on the Customer on the basis of business
relations prevailing from time to time have been paid and the bills of
exchange and cheques made out to this end have been honoured. This shall
also apply to any claims which may originate in the future.
b) For purposes of exercising our reserved ownership rights, we shall
be entitled to call for the immediate release of the goods subject to
such reservation of ownership, to the exclusion of any rights of lien
or retention, unless there are conclusively adjudicated or undisputed
counterclaims.
c) Notwithstanding the Customer's obligation to pay, we shall be entitled:
aa) to liquidate the goods repossessed by free sale at the best price
possible and to issue a credit note for the proceeds thereof, or bb) to
issue a credit note for the goods repossessed at the contractually agreed
price, less cash and other discounts and depreciation. In all cases, we
shall also be entitled to deduct our costs of repossessing the goods from
the sum credited.
d) The Customer shall notify us without delay of any impending attachment
of the goods or any other impairment of our rights of ownership by third
parties and shall confirm such rights of ownership both to third parties
and to us in writing. The Customer is prohibited from pledging or assigning
the goods subject to reservation of ownership (the "reserved goods") as
collateral security.
e) The Customer shall take out adequate insurance for the reserved goods,
especially against fire and theft. Any claims on the insurers as a result
of any loss or damage of the reserved goods are hereby already assigned
to us to the extent of the value of such reserved goods. The Customer
shall notify the insurers of such assignment of claims.
f) Any acquisition of ownership of the reserved goods by the Customer
in terms of 950 of the German Civil Code in the event of any blending
of processing of the reserved goods to constitute a completely new object
or unit is hereby excluded. Any blending or processing shall be effected
by the Customer on our behalf, without any liabilities arising on our
part in the process. The goods blended or processed shall be treated as
reserved goods for purpose of these General Business Conditions.
In the event of any adjunction, intermixture or merger with goods not
constituting our property (947, 948 of the German Civil Code), we shall
be entitled to co-ownership of the new object or overall volume produced
in the ratio of the value of our reserved goods to the value of such other
goods at the time of adjunction, intermixture or merger. In case the Customer
acquires sole ownership of the new object, the contracting parties are
in agreement that the Customer shall grant us co-ownership of the new
object or overall volume in the ratio of the value of the reserved goods
processed, blended, mixed or merged to the total value of the new object
or overall volume produced. The new object originating in the process
shall be treated as reserved goods for purpose of these General Business
Conditions. The Customer shall keep such new object in custody on our
behalf, exercising the degree of care customary for a merchant or trader
in the conduct of his business; in addition, the Customer undertakes to
provide us with the particulars necessary for the exercise of our rights
and to grant us access to his records to this extent.
2a) The Customer's claims arising from the resale of the reserved goods
are hereby already assigned to us along with all subsidiary rights, irrespective
of whether the reserved goods are sold before or after processing, blending,
adjunction or merger and whether to one or several customers. If the debt
receivable from the third-party debtor was included in a current account,
the assignment agreed shall also be extended to include all claims arising
from such current-account relationships. The debts receivable assigned
shall serve as collateral security in respect of all our rights and claims
according to B.1a) above.
b) In the event that the reserved goods are sold by the Producer together
following adjunction, merger, processing or blending, the assignment of
the purchase-price related debt receivable as per B.
2a) shall be considered as having been agreed at the price contractually
stipulated for the reserved goods. Furthermore, it is agreed that in addition
to the resale price indicated above a debt receivable amounting to 10%
of our selling price shall likewise be assigned, which will be set off
on receipt of the funds with the interest and costs incurred; any surplus
or residue left over shall be credited to the Customer. If the Customer
renders a service in conjunction with the sale of the reserved goods and
fails to specify or distinguish in the invoice made out to his customer
between the reserved goods and its service rendered; i.e. if the Customer
charges an overall price, the latter shall be assigned to us to the extent
of our selling price.
c) If the reserved goods are used by the Customer in performance under
a contract for service or for work, labour and materials, the debt receivable
arising from such contract for service or for work, labour and materials
shall be assigned to us in advance to the same extent as provided in B.2a)
and b) above.
d) The Customer shall be authorised and entitled to resell the reserved
goods or dispose of the latter in any other manner on condition that ownership
of the debts receivable referred to under B.2a) to c) shall be transferred
to us and that our product name shall appear in the Customer's invoice
copies, consignment notes and all other records. The Customer shall not
be entitled to dispose of the reserved goods in any other manner.
e) Despite the assignment made, the Customer shall be authorised to collect
out debts receivable once resold to other customers. Our authority to
collect shall remain unaffected by our authorisation of the Customer to
effect such collections. However, we shall not collect the debts receivable
ourselves as long as the Customer duly meets his payment commitments.
On receipt of our first request in writing, the Customer shall notify
us on the debtors in connection with the debts receivable assigned and
advise the said debtors of such assignment. We and our authorised officers
shall be entitled to have access to the Customer's premises in order to
inspect the records required for purposes of determining and asserting
our rights relating to the debts receivable assigned to us and to remove
such records for brief periods or to copy them.
f) We shall be entitled to revoke the Customer's authority to resell the
reserved goods and collect the debts receivable assigned to us with immediate
effect if the Customer defaults in his payment to us or experiences difficulties
in payment as a result of a substantial deterioration of his financial
situation. If insolvency proceedings are instituted against the Customer
or an Arrangement is made with creditors or an affidavit of disclosure
is sworn in terms of 807 of the German Civil Procedure Code, or if there
is any change in proprietors in the Customer's business in connection
with payment difficulties, the Customer's authority to resell the reserved
goods and collect the debts receivable assigned to us shall be extinguished
automatically. If we revoke the Customer's authority to resell the reserved
goods or if such authority has been extinguished of its own accord, the
Customer shall be obliged to return the reserved goods to us immediately
and to enable us or one of our authorised officers to obtain immediate
possession thereof. In this connection, our authorised officers and we
ourselves shall be entitled to have access to the customer's business
premises; in addition, the Customer shall be obliged to allow us to inspect
his business records unless he provides us with comprehensive information
without delay. All costs incurred due to the repossession of the reserved
goods shall be borne by the Customer.
3a) The reservation of ownership in accordance with the provisions above
shall remain effective even if individual debts receivable are included
in a current account and such an account is balanced and the balance acknowledged.
b) The reservation of ownership in accordance with the provision above
shall be extinguished once all debts receivable under B.1a) above have
been satisfied. As a result, ownership of the reserved goods shall pass
to the Customer, and the latter shall be entitled to the debts receivable
assigned.
4. If the realisable value of all items of collateral pledged in our favour
exceeds our debts receivable on total by more than 20% at the Customer's
request we shall be obliged to release items of collateral of our choice
to that extent.
1.
Unless otherwise specified in our offers, our invoices shall be due and
payable immediately net and free of any postage or other charges. Each
dunning letter to the Customer apart from the reminder establishing actual
delay-shall be subject to a charge of DM 5.00.
2. Cash discounts will be granted only if all payment obligations due
from previous shipments have been met and the invoice amount has been
paid in cash or credited to our account by the due dates previously indicated.
Accordingly, no cash discount can be granted for payment by bill of exchange,
and in the case of cashless payments, particularly by cheque, in each
case the time at which the funds are credited shall be decisive. No discount
can be granted for payment or credit notes under a reserve clause or subject
to a condition or any other restriction. The risk of payments in transit
shall be borne by the Customer.
3. Bills of exchange and cheques shall be credited only subject to correct
receipt of the full invoice amount. We reserve the right to take or refuse
acceptances from third parties or own acceptances. All costs and discount
charges shall be assumed by the Customer. We do not accept any guarantee
for presentation and protest. Any protest of the Customer's own bills
or any failure to obtain immediate cover in respect of any third-party
bills protested shall entitle us to return all other bills still current.
At the same time, all our debts receivable shall be due and payable with
immediate effect. Post-dated cheques are not accepted.
4. The date of receipt of payment shall be the day on which we are in
possession of the funds or such funds have been credited to our bank account.
The risk of payments in transit shall be borne by the Customer. If the
terms for payment stipulated by Phoenix are exceeded, we shall be entitled
to charge interest amounting to the prevailing Bundesbank rate for the
discounting of bills plus 4% p.a. for the duration of such payment from
being exceeded, without any further request for payment being necessary.
Our right to bring further actions for damages shall not be curtailed
in the process.
5. We reserve the right to suspend any credit granted at any time, even
if such credit falls within the scope of these General Business Conditions
as regards the extension of deferred payment terms. We shall also be entitled
to call for adequate collateral security at our own discretion to be provided
at any time for any existing debt receivable. If such a request is not
complied with, if the Customer fails to meet his payment obligations or
if the circumstances become known to us which, according to the standards
of diligence employed in a commercial enterprise, cast doubts on the Customer's
credit standing, all our debts receivable shall fall due and payable immediately,
even if we have taken bills of exchange in payment.
6. No interest shall be payable by us on advance or progress payments.
7. The Customer shall be entitled to set-off of retention of payment only
if his counter-claim is undisputed or has been conclusively adjudicated
in a court of law. No deductions shall be acknowledged unless explicitly
agreed; any warranty claims shall remain unaffected.
8. Payments in discharge of debt can be made only to the account specified
by us in our invoice as well as to those of our company's employees whom
we have authorised to effect collections.
1.
We shall assume liability for our goods supplied subject to the following
provisions only:
a) In the event of insignificant defects, we shall elect whether to remedy
such defects be repairing or by replacing the goods supplied. Any right
to rescind the contract or any warranty claim to reduce the purchase price
shall apply only if, at our discretion, subsequent repair work or replacement
of the goods cannot be made or of a reasonable period allowed for repair
work is allowed to elapse through no fault of our own. In case of failure,
non-compliance with a reasonable period, impossibility or unacceptability
on our part of subsequent repair work or replacement, or if qualities
or properties warranted are found to be lacking, the Customer may elect
whether to demand a reduction of the purchase price or rescission of the
contract. The Customer shall be entitled to claim damages based on a lack
of any qualities or properties warranted only if the quality or property
warranted was to protect the Customer precisely from the damage which
occurred. Any rights beyond those described above - in particular, claims
for damages or compensation of any kind - shall be precluded unless wilful
intent or gross negligence is established on our part or on the part of
our legal representatives or managerial staff. Liability shall be precluded
for any damage attributable to ordinary negligence unless the damage in
question happened to be a foreseeable or typical instance of damage resulting
from the infringement of material contractual duties.
b) Any information which we provide on the particular merchandise supplied
or service rendered, or the purpose of use thereof (e.g. weights and measures,
hardness, service values) are merely descriptions and/or designations
and do not constitute qualities or properties warranted, such information
is only to be considered as approximate; tolerances customary in the trade
are reserved in the absence of any agreement to the contrary. Qualities
and properties warranted must be explicitly designated individually as
such in writing. Divergences from the quality of samples or goods from
previous shipments shall be avoided to the extent technically possible.
We reserve the right to effect changes within a range the Customer may
reasonably be expected to tolerate, particularly if such changes are in
the interest of technological progress, provided there is no material
change in the article supplied. Only substantial divergences will give
rise to a warranty claim in terms of D.1a).
c) Defects for which we cannot assume any liability are, in particular,
natural wear and tear or any damage caused by improper use, above all
in storage or if the defect arises owing to the article being put to some
special use to which we have explicitly consented in writing.
d) Goods supplied or services rendered by us shall in each case be subject
to the statutory duties to examine such goods or services and give notice
of defects if applicable as well as to the statutory periods of limitation.
If requested by us, the Customer shall return the goods giving rise to
complaint to us, freight prepaid; if the complaint relating to the defect
is justified, we shall assume the costs of returning the goods based on
the cheapest mode of Transport available.
e) No warranty obligations shall apply to products which, as per agreement,
are not sold by us as new.
2.
In accordance with a time honoured practice in our trade claims for damages
brought by the Customer against us, our legal representatives, employees
and staff for whatever reason or legal ground, e.g. for eulpa in contrahendo,
breach of contract, tort, settlement by contribution(s) to ajoint debtor
(in return for payment of a common debt) shall be excluded in any event
unless the damage in question happens to be a foreseeable, typical case
of damage resulting from the infringement of material contractual duties
or if the damage is attributable to an intentional or grossly negligent
breach of duty on our part or on the part of our managerial staff.
3. This rule relating to liability shall also apply to advisory services
provided by us verbally and in writing and based on experiments or any
other form; in particular, the Customer shall not be exempted from establishing
the suitability for the intended applications himself.
4. Any claims according to the Product Liability Act shall remain unaffected
by this exemption from liability.
E. Place of performance; jurisdiction; other provisions
1.
The place of performance and jurisdiction for all claims arising from
business relations, in particular from our goods supplied, is Hamburg-Harburg,
even if sales or deliveries are effected by a branch office. This legal
venue, which above all also applies to summary proceedings for recovering
debts or liquidated demands, shall also be competent to adjudicate all
disputed and the origin and validity of contractual relations. Notwithstanding
the above, we shall also be entitled to sue the Customer in any court
of law competent for the Customer's domicile.
2. The sole jurisdiction shall be the laws of the Federal Republic of
Germany. The use of the uniform UN law of purchase and sale (Convention
on Contracts for the International sale of Goods) is hereby excluded.
3. Our General Business Conditions, on which all agreements and offers
are based, shall be considered to have been acknowledged once an order
is placed or delivery is taken of the goods. The said General Business
Conditions are subject to change without notice. Any conditions to the
contrary shall be invalid even in the absence of explicit objection on
our part; such conditions shall apply only if specifically acknowledged
by us in writing. The invalidity of individuality clauses hereof shall
not affect the validity of the remainder of these General Business Conditions.
4. Any arrangements made by Telephone or verbally require to be confirmed
in writing in order to be legally effective.
5. These contractual terms and conditions shall apply only vis-à-vis merchants
or traders as contemplated by 24 of the (German) Unfair Contract Terms
Act. Prepared June, 1993