Concluding a contract
• Our goods and services are provided exclusively in accordance with the terms and conditions listed below. Buyer’s terms and conditions for procurement are hereby rejected.
• Our offers are not binding. Contracts are signed only after our written confirmation of an order. Our statements must be made in writing. These general terms and conditions of sales are also applicable to future business relations with a buyer.
Payment terms and conditions
• Payment shall be made in full to ensure that the amount is in our disposal when specified. The buyer may set off only undisputable or legally specified requirements; the buyer may refrain from performance of its obligations only if they are based on the same contractual provision.
• If payment is overdue, interests are charged 8 percentage points higher than the basic rate in accordance with § 247 of the Civil Code of Germany (BGB).
• In cases when subsequently occurred circumstances result in significant worsening of condition of buyer’s assets, we may redeem these assets irrespective of a term of a bill accepted.
• If a buyer has an overdue payment, we may prohibit further handling of goods delivered and may take the goods; if necessary, we may enter the buyer’s premises and take the goods. Acceptance of goods back does not mean repudiation of a contract.
• In cases of Clauses 3 and 4 we may withdraw the long-term payment order (IV.7) and require advance payment for unpaid deliveries. The buyer may prevent legal consequences referred to in Clauses 3–5 by provision of a guarantee fee equal to our requirement for endangered payment.
• If the buyer failed to make payment in due date, other debts become payable immediately, irrespective of payment terms and conditions agreed.
• Legal provisions on overdue payments remain in force.
We are entitled to standard guarantees regarding our requirements when they are stipulated or have a specified period.
Reserving the seller’s right of property for goods until they are fully paid
• All goods delivered remain our property (hereinafter referred to as goods with the right of property reserved) until all claims are satisfied including claims regarding the balance sheet such that we are entitled to these claims within the scope of business relations. This is also applicable to future and conditional claims such as those related to bills of exchange.
• Handling and processing of goods with the right of property reserved by the seller shall be carried out in accordance with § 950 of the Civil Code of Germany, without any obligations. Handled and processed goods are considered to be the goods with the right of property reserved by the seller as defined in Clause 1.
• If a buyer handles, combines and mixes the goods with the right of property reserved by the seller and other goods, we are entitled to the joint possession of the new goods in accordance with the ratio of the invoice cost of goods with the right of property reserved by the seller versus the invoice cost of other goods used. If our right of property expires due to the combining, mixing or processing, the buyer shall transfer the rights of property or expected rights for the new goods or processing to us, in accordance with the ratio of the invoice cost of goods with the right of property reserved by the seller versus the invoice cost of other goods used, and shall keep these goods for us, free of charge. Our rights of joint property cover the goods with the right of property reserved by the seller as defined in Clause 1.
• The buyer may resell the goods with the right of property reserved by the seller only within the scope of the normal activity, according to its normal terms and conditions, while the buyer doesn’t violate obligations, if the buyer reserves for itself the right of property, and the claims for resale of goods are transferred to us in accordance with Clauses 5 and 6. The buyer is not entitled to dispose of goods with the right of property reserved by the seller in any other way. Making use of goods with the right of property reserved by the seller to perform contracts for the delivery shall also be considered as resale.
• Buyer’s claims related to the resale of goods with the right of property reserved by the seller shall be assigned to us. They are used as the collateral within the same scope as the goods with the right of property reserved by the seller as defined in Clause 1.
• If the goods with the right of property reserved by the seller are resold by the buyer in combination with other goods, claims resulting from resale shall be transferred to us in accordance with the ratio of the invoice cost of these goods versus the invoice cost of other goods. If the goods resold are in our joint possession, in accordance with Clause 3, the part of the claim corresponding to our joint possession shall be transferred to us.
• The buyer may recover the claims resulting from resale unless we withdraw the powers to charge off money in cases referred to in the provision II.5. Upon our request, the buyer must immediately inform its clients that the liabilities are assigned to us, unless we do this; also, the buyer must submit information and documents to us that are necessary to obtain the liabilities.
• The buyer is not authorized anyway to transfer claims to third persons; this is also applied to all types of factoring operations such that the buyer is not authorized to carry out in accordance with our expressed banking instruction.
• The buyer must immediately inform us if the goods are seized or otherwise damaged by third parties.
• If the cost of existing assets submitted as the guarantee collateral exceeds the secured claims more than by 20% during a long period, we must, upon the buyer’s request, return the pledged collateral at our discretion.
Place of performance and court location
The place of performance of our delivery obligation is the location of the destination warehouse or the warehouse used as the source for our delivery; for buyer’s payment obligation, the place of performance is the location of the invoicing company. For both parties, the place of jurisdiction is Wiesbaden. We are also entitled to sue the buyer at its place of jurisdiction.
• Delivery time periods and dates
• Delivery dates and shipment deadlines promised by us are always approximate unless the fixed time period or fixed date were expressly promised or agreed.
• Confirmed delivery time periods are met due to the delivery in proper time, i.e. handing over from the warehouse to a forwarder, carrier or other third party placing an order for transportation. They are also assumed to be met after notification about the preparedness for shipment, if the goods, not through our fault, cannot be shipped or installed in due time. We assume no obligations regarding transportation in due time.
• If we have not yet reached an agreement with a client regarding all terms and details of the order, or if a client has not yet submitted necessary domestic and / or foreign certificates or documents and drawings necessary to execute an order, confirmation of the delivery date shall be postponed until the necessary conditions are provided. The same provision is applicable in case of buyer’s failure to perform its contractual obligations or in case of further amendments to the contract made by the buyer and affecting the time of delivery.
• In case of force majeure or other unforeseeable or extraordinary circumstances or circumstances arising with no guilt, e.g. material problems during procurements, failures to deliver, improper deliveries or deliveries not in due time by suppliers (Ex Works) irrespective of hedging procedures carried out, failures in operation of telecommunications and IT faults, fire, strike, lockout, lack of vehicles, traffic jams, intervention of authorities, equipment failures, bans on export or import, power supply problems, mobilization, warfare, blockade etc., even if these circumstances affect the suppliers, and all these circumstances prevent us from performance of our obligations in due time, the delivery time period shall be extended within tolerable limits.
• If, due to the circumstances stipulated in Clause 3.4, our delivery becomes impossible or inadmissible, we may repudiate the contract. If the delay of delivery is longer than two months, the customer may repudiate the contract.
• If, in accordance with Clause 3.4, the date of delivery is postponed, or, in accordance with Clause 3.5, we are exempted from obligations regarding the delivery, the customer may not claim for compensation of damages. We may cite the aforementioned circumstances only if we immediately inform the customer when these circumstances arise and when they are terminated.
• If, due to unforeseeable circumstances stipulated in Clause 3.4, economic meaning or content of contractual services are changed, or if these circumstances affect our activities significantly, the contract may be amended appropriately. Provisions of § 313 of the Civil Code of Germany remain in force.
• In case of our failure to perform obligations, the customer may set a reasonable grace period. Upon the end of this grace period, the customer may reject contractual services that were not yet provided. If the customer has reasonable interest to reject partial deliveries, it may repudiate the contract as a whole.
• All other customer’s claims related to violations of obligations, such as claims for compensation of damages, shall be excluded unless the damage was inflicted as a result of intentional activities or gross negligence.
Measure, weight, quality
Deviations in terms of size, weight and quality are tolerable in accordance with DIN or existing practice. Our calibrated weighting scale is used to measure weight, and it is a decisive factor for invoicing. If item-by-item weighting is not usually used, the total weight is applied in each case. Differences from the calculated individual weight are distributed between them proportionally.
• Delivery, packing and assignment of risks
If the delivery or transportation is delayed due to the reason within the scope of buyer’s responsibility, we may keep the goods, at our discretion, at the buyer’s expenses and risk; also, we may take any measures we consider reasonable for preservation of goods and issue an invoice for goods as delivered. The same provisions shall be applied if, upon the notification informing that the goods are ready for shipment, these goods were not received within four days. Legal provisions regarding failures to perform acceptance obligations shall remain in force.
• According to the customs of trade, we deliver the goods packed and rust-protected; it is the buyer who bears expenses; protective components and accessories used for transportation shall not be taken back.
• In case of damage of goods during transportation, the buyer must immediately take measures to arrange drafting of a report by competent authorities for investigation of circumstances.
• Risk is assigned to the buyer when the goods are handed over to a forwarder or carrier but not earlier than at the time when goods leave a warehouse.
Liability for defects
• Immediately after the delivery of goods, the buyer must inspect the goods for defects, deviations in terms of quantity or improper delivery. Immediately after detection of any abnormalities, the buyer must immediately inform us in writing that the delivery is improper, fully or partially. The period for notification regarding defects detected within the scope of thorough inspection necessary for the specific type of goods shall be at most 14 days after the reception of goods. Other defects shall be reported immediately after detection.
• If a defect is found in goods being within the scope of our responsibility, we may, at our discretion, fix the defect or deliver the replacement goods.
• If a defect cannot be fixed, the buyer may, at its own discretion, repudiate the contract or claim a reduction of price (or appropriate reduction of a purchase price). The right to withdraw does not exist if defects are insignificant. If the right to repudiate was exercised after the failure to fix a defect, claims for compensation of damages resulting from a defect shall not be accepted.
• Liability shall not cover defects resulting from improper or unskilled operation, improper assembling or incorrect commissioning carried out by the buyer or by third persons invited by the buyer, natural wear and tear, improper or negligent handling.
• The limitation period for submission of claims resulting from defects shall not exceed twelve months from the time of risk assignment.
• If the goods delivered have no quality as guaranteed, we shall be liable for damages in accordance with the legislation. This provision, however, shall not be applied if the purpose of the guarantee was limited exclusively to the major contractual delivery but not the risk of indirect damages resulting from defects. This provision does not affect the provisions of Section X.
• Buyer’s rights to repudiate a contract due to violations of obligations within our scope of responsibility remain in force.
General limitation of liability
• We shall not accept claims for compensation of damages resulting from insignificant negligent violation of major contractual obligations by us or our deputies. In case of insignificant violation of major contractual obligations as a result of carelessness, our liability shall be limited by foreseeable damages usually taking place in such cases.
• Claims submitted in accordance with the Law on responsibility for products as well as claims resulting from harm for life, body or health shall remain in force.
• Proof of export
If a buyer being beyond the territory of the Federal Republic of Germany (an external buyer) or its agent takes the goods and transport or sends these goods to an external region, the buyer must submit proofs of export to us, for taxation purposes. If such a proof is not submitted, the buyer must pay the sales tax rate, applied for deliveries within the Federal Republic of Germany, in accordance with the amount of the invoice.
The legislation of the Federal Republic of Germany shall be applied, except for the UN Convention on Contracts for the International Sale of Goods.
If some provisions of a contract with the buyer, including these general terms and conditions of sales, are or will become invalid, fully or partially, it shall not affect the validity of other provisions. Settlement that is fully or partially ineffective shall be replaced by the settlement with its economic successiveness as close as possible to that of the ineffective settlement.
VP Trading GmbH