Terms of sale,- delivery,- and payment
- For the execution of orders, the following business conditions with reservation of special agreements are valid, which in any case have priority to otherwise specified business conditions of the purchaser even if we do not expressly contradict them.
- Our offers shall not be binding until we have confirmed the incoming orders in writing. Verbal agreements reached and any assurances given within the framework of the contractual negotiations shall require our written confirmation in order to be effective.
- Our prices are calculated in the agreed currency ex works exclusive of valueadded tax, which is additionally charged at the rate valid on the day of delivery. Our prices are based on the respective wages- and material costs being valid at the date of conclusion of the contract. In the commercial business activities in accordance with § 24 of the “AGB”-law, we reserve the right also within 4 months after having concluded the contract, to revise our prices being dependent on costs as far as we have not given any fix price guarantee.
- The time of delivery is stated without engagement unless we do not expressly promise in writing the time of delivery as obligatory. The time of delivery has been observed if, up to its expiration, the purchased goods have left our works resp. our delivery stock, or in case of agreed picking up, the purchaser has been informed that the goods are ready for dispatch.
- The delivery period begins when, according to paragraph 5, we have received the purchaser’s down payment of the purchase price, falling due at receipt of the order confirmation, however after conclusion of the contract at the earliest. Even an obligatory delivery period will be extended by an adequate period of time if documents to be delivered by the purchaser are not available on time, if necessary clarifications are delayed through no fault of ours, or if permissions of third parties cannot be obtained on time.
- Circumstances beyond our control, raw material shortage, transport failure, breakdown, strike and other circumstances for which we are not to blame, disengage ourselves from the observance of any delivery period and authorize ourselves to retire the contract as far as the observance of the obligation of delivery is too much for to be expected to accept. If we do not retire the contract, even a promised delivery period will be extend- ed adequately.
- We are not liable for any losses which the purchaser has to suffer due to a delay in delivery or due to a delivery refusal. We, however, will inform the purchaser of such occurrence of circumstances mentioned above, and, as the case may be, of the expected duration of the delay in delivery as soon as possible.
- For losses, the purchaser has to suffer due to an unjustified delay in delivery which we however have not caused carelessly or deliberately, the purchaser can claim an indem- nity of default under exclusion of all further claims which, for every week of delay amounts to 1% but totally to 10% at most of the value of the very part of the total ship- ment, which, in consequence to the delay or according to the contract cannot be put to the use on time. Furthermore we are liable only for losses which can be foreseen.
- We are entitled to make part deliveries in the appropriate scope.
- Payments are to be effected net cash as follows: For plants, devices and machines:
1⁄3 immediately upon receipt of the order confirmation.
1⁄3 immediately upon receipt of our advice that the goods are ready for dispatch.
1⁄3 within 30 days from the date of our advice that the goods are ready for dispatch.
For full payment immediately upon receipt of the order confirmation we grant a discount of 3% . For other products or devices 1⁄1 net within 30 days from the date of invoice. Partial shipments have to be paid according to the scope of the individual shipments. Cheques and bills of exchange shall be deemed as payment only when they have been hon- oured. Expenses and discounts are for the purchaser's account. Should the purchaser default payment, all our accounts receivable from the purchaser fall due immediately. If the purchaser defaults payment, we will be entitled to charge interest payable on arrears to the amount of 3% above the respective discount rate of the bank “Deutsche Bundesbank”. We are free to show evidence of a higher loss of arrears, the purchaser is free to show evidence of a considerably lower loss of arrears. Our agents on principle are not authorized to accept payments.
- Against our demands for payment, the purchaser is allowed to set-off only with undisputed or legally stated claims. The purchaser is allowed to practise liens by reason of asserted claims on warranty only at an adequate extent depending on the kind and importance of the imperfection.
- If, as per information of a bank or an inquiry office, the purchaser goes through events which give rise to the fear that the orderly settlement of the contract in judicious appreciation is no more ensured, or if such circumstances preceding the end of the contract become known to us later, we are authorized to cancel the contract under exclusion of all claims for damages of the purchaser, if the purchaser does not provide enough security within a prescribed period to his own choice, or if he does not pay the balance. During this period our obligation of delivery will be suspended.
- Paragraph a) is valid correspondingly for the credit standing of a guarantor or of the acceptor. In case of payment of the balance we return the bill of exchange.
- The delivery will be effected ex stock or ex works for the purchaser's account and risk, even if C/P resp. FOB or CIF delivery was agreed. If payment of the freight has been agreed, the freight charges have to be presented discount free by the purchaser. If the delivery or for- warding is delayed due to the purchaser's fault, we can charge storage costs amounting to half a percent of the amount of invoice for every commenced month. The same is valid for an agreed delay in delivery after expiration of a month on and after the advice that goods are ready for dispatch. Packing will be charged additionally and cannot be taken back. Safety devices are included in the shipment in so far as they are expressly agreed.
- The risk of accidental deterioration and of the accidental sinking of the goods is passed to the purchaser with the advice that the goods are ready for dispatch, even in case of partial shipments, with the dispatch of the goods, if picking up of the goods was agreed or if the date of dispatch is postponed for reasons the purchaser has to plead.
- If we have the right to claim for damages against the purchaser as a consequence of complete or partial default of the contract, this will amount to 25% of the purchase price of the non-delivered goods. We are free to show evidence of a higher loss whereby the purchaser is free to show evidence of a considerably lower loss.
- Our claim for compensation of the depreciation of the goods in case of our justified retirement from the contract amounts to 3% of the respective purchase-price per commenced month on and after the date of the advice that the goods are ready for dispatch. We are free to show evidence of a higher depreciation whereby the purchaser is free to show evidence of a considerably lower depreciation.
- We reserve title to the goods delivered pending the performance of all claims resulting from the respective contract of sale and to all other debts which originated from the business relations with the purchaser. This is valid also when the purchaser effects pay- ments on debts especially stated by him. In case of a current invoice (current account) the reserved title to the goods serves for securance of the balance debts of the vendor. By means of balancing of an account resp. by means of acknowledgement of a balance the above mentioned rights are not touched.
- The processing or modification of the goods standing under reservation of title is carried out for us as manufacturers in accordance with § 950 of the BGB without the fact that we would assume an obligation resulting from this agreement.
- If the goods standing under reservation of title (goods subject to reservation) are combined with other goods, which are not owned by us by means of working up or modification to a new, uniform thing and if thus our title to the goods subject to reser- vation expires (§ 947 BGB), we have the right to joint property of the new thing in proportion of the invoice value of our precessed goods subject to reservation to the sum of the invoice values of all other goods which have been used for the manufacture of the new thing. The things which have come of the processing or combination are goods subjects to reservation in the sense of these business conditions.
- As far the purchaser sells the goods subject to reservation in the ordinary business activities or if he processes or handles them, we agree to these dispositions under the following presuppositions: In accordance with paragraph 5, the purchaser is not allowed to be in arrears with the payment of the purchase-price at the point of time of the dispositions. In case of further reselling, the goods subject to reservation are denominated as “Brennenstuhl Product” in contractual documents and invoices. The purchaser cedes the debts to which he is entitled, due to the further reselling in addition to all secondary rights according to the regulations of the following paragraph. The effectiveness of the debts of assignment in the relation between purchaser and third parties, is not allowed to be made dependent on the agreement of the third party. The debt is not allowed to be assigned to other parties. The purchaser is not authorized to make other dispositions.
- The purchaser's debts resulting from the reselling of the goods subject to reservation, beneath all secondary rights are now already assigned to us by the purchaser to the full extent, independent on the number of the receivers (third parties). If the goods subject to reservation are sold together with other goods which we do not own, only the debt amounting to the amount of invoice agreed between us and the purchaser is assigned. If the goods subject to reservation after connection or processing with other goods which we do not own, are sold, the assignment will be effected only to the amount of our part of joint property of the sold goods. If the goods subject to reservation are used by the purchaser for the execution of a work- or work delivery contract, the debt resulting from this contract according to the above mentioned regulations will be assigned to us in ad- vance. The purchaser is authorized to collect the assigned debts as long as he fulfils to us his contractual obligations. The collected sums are to be submitted to us at once as far as our debts are falling due.
- The purchaser is not allowed to effect pledge or assignment by bill of sale as security for a debt concerning the goods subject to reservation. The purchaser immediately must inform us by registered letter of every third party's grip to the goods subject to reserva- tion or to the assigned accounts receivable, furthermore he must give us all necessary information as to the assertion of our rights as well as to hand over to us the documents, being necessary for this. Judicial expenses and expenses out of law have to be paid by the purchaser; upon de- mand, he has to advance these expenses. As far as the purchaser bears these expenses, we will assign to him the claims for the reimbursement of expenses for which we have the right against third parties.
- In the moment of the fulfilment in accordance with § 11.a), the property of the goods subject to reservation is readily transferred to the purchaser. The assigned accounts receivable belong to him.
- If the value of the accounts receivable which have been assigned to us by the purchaser for security does not only temporary exceed our accounts receivable against the purchaser totally by more than 20%, we will release securities to the appropriate amount as per our own choice upon the purchaser's demand.
- If we demand back the goods subject to reservation since the purchaser defaults payment, since settlement proceedings or bankruptcy are proposed concerning the property of the purchaser or since our settlement further is endangered, the purchaser has to send back the goods free of costs and carriage paid, and he has to make replace- ment for the inferiority of the goods in accordance with paragraph 10. b). Our rights out of §§ 326, 436 ff. BGB and § 46 KO remain untouched. The purchaser abandons his rights out of §§ 50, 36 paragr. 2 as above.
- We guarantee a non-defectiveness of our goods for 6 months, in case of day- and night operation in the trade office of a merchant, we guarantee a non-defectiveness of our goods for 3 months. The warranty begins with the delivery of the goods, as far as we also have taken over their installation, with its termination however warranty begins when the purchaser starts to use these goods.
- For trade business with merchants, the prescriptions of §§ 377 and 378 HGB are applied additionally.
- As per our own choice, the warranty is limited to improvement or replacement. Only if an improvement finally fails or from the start is impossible and even a replacement is not possible within an adequate period of time, or if it is refused by us, the purchaser can insist on cancellation of the contract or on diminuation of the purchase price. Parts resp. goods already replaced are transferred to our property as far as the purchaser already is the owner of these very goods.
- Our warranty expires when the purchaser does not give us the necessary period of time and opportunity to execute a trial of improvement which is not hopeless. It expires also when the purchaser finally refuses the performance of the contractual obligation being incumbent on him. As long as the purchaser does not observe his obligations of payment we are exempt from our obligations of warranty, provided that the purchaser retains only a part of the purchase price, being adequate as to the kind and importance of the imperfection. The execution of improvements does not induce new guarantee periods.
- Our obligation does not correspond to imperfections due to material wear, the purchas- er’s faulty, negligent handling being not corresponding to the operation instruction, due to excessive strain. faulty installation works carried out by the purchaser or by third parties instructed by him, due to the usage of unsuited working media, due to transport damages or acts of God. It expires as soon as the purchaser by himself or third parties reconstruct or in any way modify the goods without our agreement.
- Deviations of the goods from the indications given in the documents enclosed to our offer (especially figures, drawings, data as to dimensions and weights, output data resulting from tests, resp. demonstrations with an article of the same type) do not substantuate any claims to warranty as far as such indications have not been stipulated as obligatory in writing. In this case, they are – as far as not expressly marked different- ly – to be considered as approximate and in no case promised qualities.
- Contractual entitlements extending beyond the warranty entitlements specified in Figure 12, particularly damages claims relating to losses and consequential damages caused by defects and to the violation of our pre-contractual and contractual obligations shall be excluded unless the damage relates at least to gross negligence on our part or on the part of our agents. Damages claims based on grounds of tort shall likewise be excluded to the same extent unless they relate to injury to life and limb or damage to an item other than that supplied by us, provided this other item has been used mainly for private purposes by the claimant.
- Estimated costs, drawings and other documents remain our property, are subject to our copyright and are not allowed to be made available to third parties. The documents appertaining to an offer, upon request have to be returned immediately if the order has not been placed with us.
- Place of fulfilment for payments is Tübingen, for shipments our place of dispatch.
- Erfüllungsort für Zahlungen ist Tübingen, für Lieferungen unser Versandort.
- The legal venue for business disputes shall be Tübingen.
- The application of German Right is agreed.
- The invalidity of one or more of the above mentioned settlements do not touch the obligation of the remaining regulations. The legal regulation with the proviso of another agreement replaces the uneffective settlements.
Hugo Brennenstuhl GmbH & Co Kommanditgesellschaft · 72074 Tübingen 0415457/306