General Delivery and Sales Conditions of I.S.T. Molchtechnik GmbH
Article 1 General provisions and scope of effectiveness
(1) Our delivery and sale conditions apply exclusively. We do not recognise any terms and conditions of the customer which contradict or differ from our conditions, unless we explicitly agree to the applicability of the differing conditions in writing. Our conditions shall also apply if we carry out the delivery to the customer without any reservations despite being aware of conditions of the customer which are contradictory to or differ from our conditions.
(2) All arrangements that are made between us and the customer for the purpose of performing this contract are set out in this contract in writing.
(3) Our delivery and sale conditions shall only apply to companies, legal persons under public law and special funds governed by public law as defined in Article 310 para. 1. German Civil Code.
Article 2 Offer, offer documents and the conclusion of the contract
(1) If the order constitutes an offer under Article 145 of the German Civil Code, we can accept it within two weeks. The acceptance shall be in writing. Any verbal arrangements shall require explicit written confirmation in order to be effective.
(2) We reserve the right and copyright to any documents, such as calculations, images, drawings, or similar, transferred to the customer in connection with the order. These documents must not be made accessible to third parties unless we give the customer our express written consent.
(3) Our offers are subject to confirmation and as a rule are free of charge. However, if project planning and engineering work are required to submit a requested offer, we shall have the right to charge for those services at our applicable hourly rates.
Article 3 Prices and payment terms
(1) Unless otherwise provided for in the order confirmation, our prices should be understood as being from Hamburg, excluding packaging, freight and export costs and insurance, which will be separately invoiced. If the customer requests separate transit insurance, it will also be separately invoiced. The minimum order value is € 150. For an order amount of less then € 150 we will add a minimum order surcharge of € 150.
(2) Statutory VAT is not included in our prices, but shall be separately specified in our invoices in the statutory amount on the date when the invoice is issued.
(3) The deduction of discounts shall require a special written agreement.
(4) Unless otherwise agreed, the purchase price (net without deductions) shall be payable within 30 days from the moment when the invoice is issued. The provisions of law shall apply in the event of late payment.
(5) We reserve the right to alter prices appropriately due to changing wage, material and running costs for deliveries which take place later than 4 months after the conclusion of the contract, provided that no fixed price has been stipulated.
Article 4 Setting off and rights of retention
The customer shall only have the right to carry out a set-off if its counterclaims have been established with legally binding effect or are undisputed. The customer shall have the right to exercise a right of retention only if its counterclaim stems from the same contractual relationship.
Article 5 Delivery time
(1) The delivery period specified by us shall only begin once all technical questions have been clarified and the customer’s obligations from the contractual relationship have been fulfilled in good time and correctly. We reserve to the right to raise the objection of non-fulfilment of the contract.
(2) If the customer is late in accepting the delivery or culpably breaches other cooperation obligations, we will have the right to demand compensation for the damage we incur as a result, including any additional expenses incurred by us. We reserve the right to assert more far-reaching rights and claims.
(3) If the conditions set out in paragraph 2 are fulfilled, the risk of accidental loss or accidental deterioration of the subject of the delivery shall transfer to the customer at the moment from which it is late in accepting the goods or in making due payments.
(4) We shall be legally liable if the contract is a transaction with a fixed date in accordance with Article 376 German Commercial Code 286 para. 2 no. 4 German Civil Code. The same shall apply if, as a result of a late delivery for which we are responsible, the customer proves that his interest in the further performance of the contract has ceased to exist. We shall also be legally liable if the delay in delivery results from a breach of contract that we are responsible for due to wilful misconduct or gross negligence. In this context, any culpability of our representative and/or vicarious agents should be attributed to us. If the delivery delay results from a breach of contract that we are responsible for due to gross negligence, our liability for compensation shall be limited to the foreseeable typical damage.
(5) We shall also be legally liable for damage resulting from intention or gross negligence, also on the part of our vicarious agents, based on default. However, in such a situation our liability for compensation in the event of simple negligence shall also be limited to the foreseeable typical damage.
(6) We shall only be liable for damages resulting from gross negligence, also on the part of our vicarious agents, based on default, if we breach a key contractual obligation; however, the amount shall be limited to the foreseeable and typical damage when the contract was concluded.
Article 6 Transfer of risk
(1) Unless otherwise agreed in the order confirmation, delivery from Hamburg is agreed.
(2) If the goods are shipped to the customer at its request, the risk of accidental loss or accidental deterioration of the goods shall transfer to the customer when the goods are dispatched, and not later than the moment they leave the plant/warehouse. This applies irrespective of whether the goods are shipped from the place of performance and regardless of who bears the transportation costs.
Article 7 Liability for defects
(1) Claims for defects of the customer are subject to the condition that it has properly fulfilled its inspection and complaint obligations under Article 377 of the German Commercial Code.
(2) If a defect is identified in delivered goods, the customer can choose between supplementary performance in the form of the elimination of the defect or delivery of a new defect-free item or, where an aggregate of things is delivered, a defect-free part. If we eliminate a defect, we shall be obliged to bear all the expenses necessary for its elimination, including transport, travel, labour and material costs, provided that they are not increased as a result of the goods having been taken to a place other than the place of performance.
(3) If the supplementary performance fails, the customer can choose between rescinding the contract or demanding a price reduction.
(4) We shall be legally liable if the customer asserts claims for compensation which relate to wilful misconduct or gross negligence, including wilful misconduct or gross negligence of our representatives or vicarious agents. If we are not accused of any intentional breach of contract, the liability for compensation shall be limited to the foreseeable typical damage.
(5) We shall be legally liable if we culpably breach a key contractual obligation. However, in this case too our liability for compensation shall be limited to the foreseeable typical damage.
(6) Claims for defects shall become statute-barred 12 months after complete delivery of the goods delivered by us to the customer. Where used goods or sample goods are delivered, the warranty is excluded. This does not apply if the law, i.e. Article 438 (1)(2) of the German Civil Code (Buildings and items for buildings), Article 479 (1) of the German Civil Code (Right of recourse) and Article 643a (1) of the German Civil Code (Construction defects), prescribes longer mandatory time limitation periods.
Article 8 Limitation of liability
If article 7 is not already applicable, we exclude our liability for slight negligence, for whatever reason, insofar as these are not key contractual obligations, do not concern damage due to injury to life, body or health, or due to warranties, or are based on claims due to product liability law. The same shall apply to breaches of duty of our vicarious agents.
Article 9 Retention of ownership
(1) We shall retain the ownership title to the goods delivered by us until we have received all payments resulting from the business relationship. If the customer breaches the contract, particularly if it delays in making payment, we will have the right to take back the purchased goods. If we take back the goods it will constitute rescission of the contract. After we have taken back the delivered goods, we will have the right to utilise them. The proceeds of such utilisation shall be credited to the customer’s liabilities, less reasonable utilisation costs.
(2) Where there is a current account relationship between us and the customer, we shall retain the ownership title to the goods or aggregated items delivered by us until we have received all payments resulting from the business relationship. The retention of ownership relates to the acknowledged balance.
In this case too the provisions of paragraph 1 above shall apply if the customer breaches the contract, particularly if it delays in making payment.
(3) The customer shall handle the goods with due care. In particular, it shall insure them, at its own expense, (for the replacement value) against losses in the event of fire or water damage or theft. If maintenance or inspection work is necessary, the customer must carry it out at its own expense and in good time.
(4) In the event of seizure or other third-party interventions, the customer must immediately notify us in writing and provide us with all the necessary documents, so that we can take legal action in accordance with Article 771 of the German Code of Civil Procedure (ZPO). If the third party is unable to reimburse us for the court and out-of-court costs of a third-party action against enforcement under Article 771 of the German Code of Civil Procedure, the customer shall be liable for the loss we thus incur.
(5) The customer shall have the right to resell the goods in the course of normal business. However, it hereby assigns to us all receivables, in the total invoice amount (including statutory VAT) of our claim, from its customers or third parties that accrue to it from the resale. This applies irrespective of whether the goods have been resold without or following processing. The customer shall continue to be entitled to collect this claim after it has been assigned. Our right to collect the claim ourselves shall remain unaffected thereby. However, we undertake not to collect the claim provided that the customer performs his payment obligation from the collected proceeds, does not default in payment, payments have not stopped, and no petition for the institution of insolvency or composition proceedings has been filed. However, in such cases, we may demand that the customer states which claims have been assigned and their debtors, provides all the information necessary for the collection, hands over the appurtenant documents and notifies his debtors or other third parties of the assignment.
If there is a current account relationship, the future claim assigned to us by the customer refers to the acknowledged balance, and in the case of insolvency to the then existing causal balance.
(6) Any processing or transformation of the goods by the customer shall always be carried out on our behalf. If the goods are processed or connected with other items that do not belong to us, we shall acquire the co-ownership title to the new goods according to the ratio of the value of our goods (final invoice value incl. VAT) to the other processed items at the time of the processing. Furthermore, the same shall apply to the goods arising as a result of processing as the goods delivered under reserve.
(7) If the goods are inseparably mixed with other goods that do not belong to us, we shall acquire a co-ownership title to the new goods according to the ratio of the value of our goods (final invoice value incl. VAT) to the other mixed items at the time of the mixing. It is agreed that if such mixing occurs in such a manner that the customer’s goods must be deemed the so-called main goods, the customer shall transfer a co-ownership title to us on a pro rata basis. The customer shall hold the resultant (sole or partial) property for us.
(8) To secure our claims against him, the customer also assigns to us the claims against third parties resulting from any union of the goods with real property.
(9) We undertake to release the securities to which we are entitled at the customer’s request to the extent that the possible value of our securities exceeds the claims to be secured by more than 20%. The selection of the securities to be released shall be incumbent on us.
Article 10 Product use and maintenance
The goods delivered by us are to be assembled, operated and maintained by specially qualified and suitable staff. The customer must ensure the implementation of appropriate training measures and compliance with the instructions contained in the operating instructions, worksheets and maintenance instructions.
Article 11 Place of jurisdiction and place of performance
(1) If the customer is a trader, our registered office shall be the place of jurisdiction. However, we shall also have the right to take legal action against the customer in his general or specific place of jurisdiction.
(2) The Law of the Federal Republic of Germany shall apply. Application of the UN CISG shall be excluded.
(3) Unless stated otherwise in the order confirmation, our registered office is the place of performance.
Hamburg, December 2012