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Terms of Business
I. General Terms
1. Formation of contract- No contract shall come into existence until the Buyer has completed an order form or until the Buyer's order has been confirmed in writing. Transmission and receipt of verbal or telegraphic orders are at the risk and on the account of the sender.
2. Specifications -All descriptive and technical specifications regarding power, output, operating costs, fuel consumption and velocity, extent and duration of previous operation submitted with a quotation are approximate only.
3. Assignment - The Buyer must not transfer his rights or any part thereof against the Seller to any third party without the Seller's written consent.
4. Place of delivery and performance - The headquarters of the Seller are for both parties the place where the contract is to be fulfilled.
5. Court of jurisdiction - The court of jurisdiction for present and future claims arising from the business relationship between the Seller and full traders which will be settled by collection proceedings are exclusively the courts in Edderitz. The same courts shall have exclusive jurisdiction if the Buyer has moved his domicile or general residence abroad alter conclusion of the contract or if his domicile or general residence is unknown at the time of legal proceedings being instigated.
6. Validity- The validity of the contract shall not be afflicted should individual clauses of the contract be invalid.
II. Prices
The purchase prices are due to Iack of other written documentation identical with the supplier's recommended Iist prices including forwarding costs. New prices shall be valid from date of receipt of notification thereof.
The Buyer agrees to query invoices only in writing and within eight days from receipt.
III. Payment
1. Unless otherwise previously agreed to by the Seller in writing, terms of payment are cash on delivery or on receipt of invoice or within one week from advice of availability of the goods at the latest. Equivalent to cash payment shall be settlement by a bank confirmed cheque.
2. Giro transfer order, cheque and bill of exchange as modes of payment will be accepted only if specifically agreed upon in writing by the Seiler and as a means of performance but not as identical with performance of the payment Obligation. Application of these aforementioned payment modes is subject to charging the Buyer all discount and collection expenses. Negotiation and prolongation are not acceptable as means of performance of the payment obligation.
Unless they are indisputable or on the basis of a legal title, counter-claims of the Buyer to the Seller cannot be offset against the claims of the Seller to the Buyer. The right of retention applies only to the same contract.
3. ln the even to agreement on partial payments, the entire outstanding sum shall be due immediately regardless of the maturity of any bill of exchange,
a) if the Buyer has not been entered into the Register of Companies as a trader and if he is either partially or completely in default by at least two consecutive installments and the amount overdue is minimum one tenth (1/"10) of the purchase amount, or
b) if the Seller who has been I is to be entered into the Register of Companies is in default by 14 days with one instalments or suspends payment or seeks for resolution by an extrajudicial agreement or insolvency or bankruptcy proceedings over his property are being instituted.
4. The Seller shall be entitled to withdraw from the contract or claim compensation for damages due to non-performance e if the Buyer is- in the event of agreement on partial payment by two consecutive instalments - in arrears with payment of the purchase price.in the event of the Seller claiming damage for non-performance by reason of delay of payment, the compensation sum shall cover 20 per cent of the purchase price excluding sales tax. The sum claimed for compensation can differ according to the Seller's proof of a higher damage or as the Buyer provides evidence of a minor damage.
5. lnterest payable on arrears will be charged with an additional 3 per cent in relation to the discount rate of the Deutsche Bundesbank and shall be reduced or increased if the Seller can prove a higher interest rate or the Buyer can supply evidence of a lower interest charge.
IV. Reservation or proprietary
The goods which are to be sold only on the basis of proper business transactions, will remain the sol e and absolute property of the Seller as legal
and equitable owner until payment has been made for all claims existing in the business connection including rediscounting or reversible bills of exchange.
Already now the Buyer assigns to the Seller all claims and additional rights arising from the resale and against the customer or a third party regardless of whether the goods are resold without or alter processing. Upon processing of the goods with goods still in property of another party the Seller acquires a co-title of the processed goods. The share in this joint property shall be calculated from the ratio between the invoice values for the goods furnished by the Seller and the balance of goods.
ln the event other processed good incorporating apart from the reserve cl goods only material which either had been the property of the Buyer or had been furnished with a so-called simple reservation of property, the Buyer shall assign the entire purchase c laim to the Seller. ln the event of reserved transfer of goods by several suppliers, the Seller shall be entitled to a fraction of the claim which is to be calculated from the ratio between the invoice value of the Seller's reserved goods and the balance of processed goods.
The Seller commits himself to release from the securities he is entitled to the amount exceeding more than 25 per cent of the value to be secured provided his claims have not yet been settled.
V. Dispatch I Delivery
·1. The Seller is bound to keep to the delivery period agreed upon. ln the event of the delivery period being exceeded by more than two weeks, the: Buyer shall be entitled to extend the Seller' s deadline by two weeks pro· viding a written notification. The Buyer shall be entitled to withdraw by written declaration from the contract, if the Seller has not delivered the goods by the expiry date of this extension.
2. lf the Seller does deliberately or in a grossly negligent way not meet delivery dates as stipulated, he shall be liable for damages arising from non-compliance.
3. Any other damage claim due to non-compliance or delay will not be accepted. The Seller shall not be liable for any failure to supply the goods by due date where such failure arises by reason beyond the control of the Seller.
4. Upon delivery and unopposed receipt the spare part shall be deemed supplied as stipulated in the contract. Unless otherwise agreed in writing delivery shall take place at the Seller's headquarters. ln the event of the Buyer requesting dispatch of the goods, it shall be made at Buyer's risk< and on his account. The Seller shall be entitled to give an extension of 14 days declaring that he will withdraw from the contract after this deadline' or claim compensation by reason of non-compliance if the Buyer is in default with collection of the spare part or advice of shipping instruction:; or payment by more than 14 days from date of notification of availability of the goods. ln the event of the Seller claiming damages, he will, regardless: of his right to assert a greater actual damage, be entitled to 20 per cent of the purchase price without proof of the damage.
5. Return of the goods to the Seller
a) has to be agreed upon previously in writing or
b) must be effected within four weeks from proper delivery. c) The goods must be as new and in condition to be resold.
d) The Buyer agrees to pay the total return charges (minimum 20 per cent of the gross value).
6. ln the event of cancellation or partial cancellation of a firm order the Seller shall be entitled to compensation of 20 per cent of the purchase price agreed without proof of the damage. The Seller has the right also to claim compensation for a greater actual damage. Payment of the amount for compensation has to be made immediately net cash after invoicing.
VI. Warranty
1. Legal warranty is excluded for delivery of used spare part, overhauled engines and overhauled aggregates. However, the Seller is bound to transfer to the Buyer those titles which he is entitled to against the: supplier.
2. ln the event of delivering brand-new goods full of faults, the Seller shall be obliged to take care of repairing them on his own account without possibility of applying the law of conversion or depreciation. The Buyer shall be entitled to claim conversion or depreciation in the event of impossibility, failure or unacceptable delay of the repair or requested supply of a replacement.
3. Further claims for any legal reason, in particular claim for consequential damages are excluded.
4. Vehicles are subject to the warranty terms of the delivering or manufacturing works.
General Conditions of Purchase
1. Order Placing I Terms
All our orders are being placed in written form by mail or telefax and exclusively based on these Conditions of purchase.
The supplier’s terms are expressly declared void and they are as well irrelevant in such case that the supplier refers !o them in further course - especially upon order confirmation - and the customer does not specifically renewed contradict to them. In any case, !these terms are to be regarded as accepted as of the execution of the contract.
The particular terms of our written orders have priority in contrast to these conditions.
2. Terms of Delivery
The delivery dates stipulated in our orders are fixed dates. in the event of non-compliance we are entitled to find replacements or to take remedial actions by ourselves or through a third party at supplier's expense or to withdraw from the contract, regardless of all other claims that continue. The supplier is obliged to inform us of discernible delivery delays immediately. Through this the legal consequences resulting from delays shall not be abolished. Penalties due to delivery delays will be fixed in our discretion and shall not relieve the supplier from his contractual obligations.
3. Deliveries
3.1 Packing each order is to be packed separately in standard inland packing;
expenses arisen of this will not to be refunded
3.2 Marking a) each package is to be marked with our order number
b) each single item is to be marked with the relevant part number given in our orders.
3.3 Delivery Notes each order is to be delivered with a delivery note stating order reference and date of order
3.4 Invoices invoices are to be submitted in duplicate;
each order requires a separate invoice stating our order reference, date of order as well as country of origin of the goods Partial deliveries require our written agreement and they are to be noted in particular on the delivery documents.
In case that goods delivered are not in accordance with the agreements on the basis of our orders and the usual standards and requirements, we are entitled to put the goods at supplier's disposal free of charge and to assert our claims for compensation.
Terms of delivery shall be agreed upon for each order separately.
4. Payment
Unless otherwise specified, payments shall be effected within 14 days less 3% cash discount from receipt of invoice and goods or within 30 days net.
5. Place of Performance I Court of Jurisdiction
Place of Performance for both parties of the contract as well as exclusive Court of Jurisdiction for all direct and indirect litigations resulting from the contractual relationship shall be Edderitz I Germany.
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