Sales, delivery, performance
and terms of payment – Germany
1 General, scope of application
(1) Our present Terms and Conditions of Sale, Delivery, Performance and Payment (hereinafter: “Terms and Conditions of Sale”) shall apply exclusively. We do not recognise any conflicting or deviating terms and conditions of the customer unless we have expressly agreed to their validity in writing.
(2) Our Terms and Conditions of Sale shall also apply if we carry out the delivery to the customer without reservation in the knowledge that the customer’s terms and conditions conflict with or deviate from our Terms and Conditions of Sale.
(3) They shall also apply to all future transactions with our customers.
(4) They shall only apply to legal entities under public law, special funds under public law and entrepreneurs within the meaning of Section 310 (1) of the German Civil Code. 1 BGB.
2. obligations of the customer.
(1) Our goods and services are typically provided on the basis of information provided to us by the customer about the systems that come into contact with our goods and all related equipment and processes (hereinafter: “systems”). We will not control these systems or their operation at the customer’s site. In particular, the proper installation of the goods purchased from us by the customer is the exclusive responsibility of the customer, unless otherwise expressly agreed.
(2) We reserve the right to use the most compact feasible design consistent with sound engineering practices. We also reserve the right to make changes to details of the design, construction and layout of the goods unless these would be precluded by restrictions notified to us by the customer at the time of placing the order (e.g. by the actual space available and the quality specifications for product to be processed / water quality / substances etc.). If we are not informed of such restrictions when the order is placed, we shall not be liable if and to the extent that our goods and services are not compatible on site or are not suitable for the intended purpose due to such restrictions which have not been communicated to us and of which we have not otherwise become aware.
(3) In order for our services to apply and for the goods delivered by us to be processed and used as intended, it is essential that the customer fulfils his obligations as described in more detail below (hereinafter: “Obligations”):
(a) The Customer shall provide us with full and accurate information relevant to the scope of work to be performed by us, such as information on the conditions at the Customer’s site, on systems, on related equipment and processes, on the product to be processed, on the quality of water / waste water and other substances to be treated or measured with the Goods, including any hidden, non-obvious or changing conditions which may affect the efficiency of the Goods,
(b) Customer’s systems must operate or be operated within control parameters or, where such parameters do not exist, remain within normal operating conditions,
(c) Systems shall be in good working order and properly operated, maintained and repaired as necessary.
(4) To the extent that the customer fails to properly comply with the foregoing obligations, our goods may not operate properly and as intended or may cause damage to the customer’s systems or even injury to persons. To the extent that such damage or injury results from the customer’s failure to comply with its obligations, we shall be indemnified to that extent against any liability for defects, targets, cost savings or other obligations we may have incurred. In particular, we shall not be liable for any loss, damage or injury suffered by the customer as a result or for which the customer is held liable by third parties as a result.
3 Delivery, delivery dates and delay in delivery.
(1) The risk of loss of or damage to the goods shall pass to the customer upon handover to the carrier.
(2) The delivery dates stated by us are non-binding unless they have been separately and expressly agreed as binding.
(3) We shall be liable in accordance with the statutory provisions for damages due to delay in delivery insofar as the delay in delivery is due to an intentional or grossly negligent breach of contract for which we are responsible. We shall not be liable for ordinary negligence unless the delay in delivery for which we are responsible is due to the culpable breach of a material contractual obligation. In this case, however, our liability for damages shall be limited to the foreseeable, typically occurring damage.
4 Offer, terms of payment, due date, prices and exclusion of set-off.
(1) We shall be bound by our offers for a period of two weeks, unless otherwise agreed or included in our offer letter.
(2) If at any time we have reasonable doubts about the customer’s ability to pay, we may refuse deliveries unless sufficient security is provided by the customer.
(3) Unless otherwise agreed, payments shall be due within 30 (thirty) days from the date of invoice without deduction.
(4) The statutory value added tax (hereinafter: “VAT”) is not included in our prices. It will be shown separately in the invoice at the statutory rate on the day of invoicing.
(5) All other taxes, duties and contributions payable on the purchase price shall be borne by the customer, i.e. paid by him or, if these taxes, duties and contributions have been paid by us, reimbursed to us by him.
(6) All prices are “EXW shipping point”, i.e. “Ex Works”.
(7) Our prices shall be deemed to be fixed prices provided that acceptance of the ordered goods takes place within two weeks of notification of readiness for dispatch. If the shipment is delayed at the request of the buyer or if a delay occurs for which nrw-Anlagentechnik is not responsible, the buyer will be charged 0.01% of the invoice amount for each month.
(8) If our customer defaults on payment, we shall be entitled to demand interest at an annual rate of 8 percentage points above the base rate. We reserve the right to prove higher damages.
(9) The customer is only entitled to set-off and to assert rights of retention if his counterclaims have been legally established or are undisputed.
5. payments for over-consumption, lost and damaged goods.
(1) If payment for goods is based on factors other than the actual quantity of goods delivered (e.g., payment of a fixed amount or payment based on consumption or production), the customer agrees to pay for all goods that are
(a) consumed as a result of the Customer’s failure to comply with the obligations set out in Clause 2; or,
(b) are lost or damaged after the risk has passed to the customer.
(2) The customer shall provide us with all information necessary to determine the amounts payable to us and shall give us the opportunity to verify such information.
6. consignment goods.
(1) In the event of delivery of goods on consignment, the customer shall be liable for loss of or damage to our consignment goods in its custody, unless the loss or damage is due to circumstances which could not have been prevented by the due care of a prudent businessman.
(2) We shall be entitled to enter the customer’s premises at any reasonable time and after prior notice (subject to a reasonable notice period) in order to inspect goods of this type and the associated records.
(3) The customer agrees to return goods of this type to us upon request in accordance with our shipping instructions.
(4) The customer is obliged to inspect the consignment goods for completeness and freedom from defects upon delivery and to notify us immediately of any defects and/or damage. It must also be marked as our property.
7 Liability for defects and warranty period.
(1) Claims for defects on the part of the customer presuppose that the customer has properly fulfilled his obligations to inspect the goods and give notice of defects in accordance with § 377 of the German Commercial Code (HGB). The wear and tear of wearing parts does not constitute a defect. The buyer has to check himself whether the goods ordered from the seller are suitable for the purpose intended by him. Unsuitable goods shall only constitute a defect if the Seller has confirmed the suitability to the Buyer in writing. If the Seller’s assembly, installation, operating or maintenance instructions are not followed, if modifications are made to the products, if parts are replaced or if consumables are used which do not comply with the original specifications, claims for defects shall only exist if the Buyer can prove that the defect was not caused by this but already existed at the time of the transfer of risk.
(2) As soon as there is a defect in the object of sale, we shall be entitled, at our discretion, to rectify the defect in the form of a removal of the defect on condition that the goods are returned to us free of charge, that we carry out on site all rectifications which we deem necessary within a reasonable period of time or that we deliver a new object free of defects. If the rectification of defects fails after three attempts, the customer shall be entitled, at his discretion, to demand withdrawal from the contract or a reduction in the purchase price. The seller may refuse to remedy defects as long as the buyer does not fulfil his obligations. Any liability for repair work carried out by the buyer or third parties without the seller’s consent is excluded.
(3) Unless otherwise expressly agreed, the warranty period for claims for defects in the purchase of newly manufactured goods shall be 12 months from the transfer of risk. Any further liability is limited to the conditions and scope of our liability insurance. Liability for other damages and costs, in particular consequential damages and follow-up costs, is excluded. Natural wear and tear, inadequate maintenance, improper operation, media-related corrosion and force majeure release us from the warranty obligation.
8. regulatory compliance; permits.
(1) The Customer shall be responsible for compliance with all laws and regulations applicable to the storage, use, transportation, installation, maintenance, disposal, registration and marking of all Goods from and after receipt thereof by the Customer. This also applies to the proper control and disposal of all waste and residues (including containers) resulting from the use of the goods by the customer.
(2) The customer agrees to ensure that all goods and services supplied to the customer for export are only exported in compliance with the applicable export control laws and regulations.
(3) Permits and licenses of a permanent nature and those required for the operation of facilities or equipment or for the use of the goods shall be obtained from the customer exclusively at the customer’s expense.
10. force majeure.
(1) Neither party shall be liable to the other (and no breach of contract shall be assumed to have occurred) if events of force majeure make it impossible or commercially unreasonable for either party to perform any of the provisions of this Agreement, provided, however, that force majeure shall not apply to the Customer’s obligation to pay for goods and services in a timely manner.
(2) In particular, all cases of operational disruptions due to force majeure, strikes, lockouts or similar events or causes outside our sphere of influence shall release us from our obligation to fulfil the contract for the duration and to the extent of such hindrances. This also applies if these circumstances lie with a manufacturing company and delay our self-delivery. In the event of an event of force majeure preventing compliance with a delivery date, planned delivery dates shall be postponed by the period of time during which the force majeure or its effects on our operating procedures last.
11. confidentiality and intellectual property.
(1) Both parties undertake to treat as strictly confidential all documents, materials, ideas, data, drawings, information and know-how communicated and made available to them by the respective other party, insofar as this information has either been expressly designated as confidential or insofar as the confidentiality requirement results from the other circumstances.
(2) The customer undertakes not to subject our goods to chemical tests, analyses or any kind of “reverse engineering” without our prior written consent.
(3) We reserve our property rights and copyrights to all illustrations, drawings, calculations and other documents which we make available to the customer, subject to the possibility of granting the customer the right to use these drawings and data for his own use without additional costs.
(4) The Customer confirms that it is engaged in the business of selling the Goods subject to this Contract and warrants that it will not apply for any patents in the Goods or in any process or method of using the Goods without our express written consent. He further warrants that patents of this nature will not in any event be asserted against us or our customers on the basis of the purchase and use of these goods.
(5) The customer shall be fully liable for any infringement of third party patent rights resulting from goods delivered to him by us if the design or any other feature of such products, including modifications to goods and services, has been specified to us by the customer or has been carried out independently by the customer or the customer’s representative(s) or employee(s). The customer shall protect and indemnify us in every respect in the event of claims of this kind.
(6) Any software, including related documentation, that we might provide to the customer in connection with this agreement shall remain our property. We agree to grant Customer a non-transferable, limited and non-exclusive license to this Software for the term of this Agreement. Customer agrees not to copy, sublicense, translate, retransmit or decode the Software. The license ends at the latest with the end of the business relationship. The software and all associated documentation must be returned to us by that time at the latest.
(7) The Customer shall protect and indemnify us in respect of all claims and liability asserted against us in connection with any infringement of third party rights arising from any design, specification or requirement given to us by the Customer or the Customer’s agent(s) or employee(s).
12. limitation of liability.
(1) Claims for damages by the customer, on whatever legal grounds, are excluded.
(2) This exclusion of liability shall not apply insofar as the customer asserts claims for damages based on intent or gross negligence or claims for damages asserted on account of injury to life, limb or health or under the Product Liability Act or on account of the breach of a material contractual obligation (cardinal obligation).
(3) In the event of a breach of an essential contractual obligation and in cases of gross negligence, our liability for damages shall be limited to the foreseeable, typically occurring damage.
13. retention of title.
(1) We retain ownership of the purchased item until receipt of all payments arising from the business relationship with the customer.
(2) In the event of conduct on the part of the customer in breach of contract, in particular in the event of default in payment, we shall be entitled to take back the object of sale. The taking back of the object of sale by us shall constitute a withdrawal from the contract. After taking back the object of sale, we shall be entitled to realise it; the proceeds of realisation shall be set off against the customer’s liabilities – less reasonable realisation costs.
(3) The customer is obliged to treat the purchased goods with care; in particular, he is obliged to insure them at his own expense against fire and water damage and against theft at their replacement value. If maintenance and inspection work is required, the customer must carry this out in good time at his own expense.
(4) In the event of seizures or other interventions by third parties, the customer must inform us immediately in writing so that we can take legal action in accordance with § 771 of the German Code of Civil Procedure (ZPO). Insofar as the third party is not in a position to reimburse us for the court and out-of-court costs of an action in accordance with § 771 ZPO, the customer shall be liable for the loss incurred by us.
(5) The customer shall be entitled to resell the object of sale in the ordinary course of business; however, he hereby assigns to us all claims in the amount of the final invoice amount (including VAT) of our claim accruing to him from the resale against his customers or third parties, irrespective of whether the object of sale has been resold without or after processing. The customer remains authorised to collect this claim even after the assignment. Our authority to collect the claim ourselves remains unaffected by this. However, we undertake not to collect the claim as long as the customer meets his payment obligations from the proceeds collected, is not in default of payment and, in particular, no application has been made for the institution of composition or insolvency proceedings or payments have been suspended. If this is the case, however, we may demand that the customer informs us of the assigned claims and their debtors, provides all information necessary for collection, hands over the relevant documents and informs the debtors (third parties) of the assignment.
(6) The processing or transformation of the object of sale by the customer shall always be carried out for us. If the object of sale is processed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other processed objects at the time of processing. In all other respects, the same shall apply to the item created by processing as to the purchased item delivered subject to reservation of title.
(7) If the object of sale is inseparably mixed with other objects not belonging to us, we shall acquire co-ownership of the new object in the ratio of the value of the object of sale (final invoice amount, including VAT) to the other mixed objects at the time of mixing. If the mixing takes place in such a way that the customer’s item is to be regarded as the main item, it shall be deemed to be agreed that the customer transfers co-ownership to us on a pro rata basis. The customer shall hold the sole ownership or co-ownership thus created in safe custody for us.
(8) The customer also assigns to us the claims to secure our claims against him which arise against a third party through the connection of the object of sale with a property.
(9) We undertake to release the securities to which we are entitled at the customer’s request insofar as the realisable value of our securities exceeds the claims to be secured by more than 10 %; the choice of the securities to be released shall be ours.
Fourteenth contradiction, Salvatore.
(1) In the event of any conflict between these Terms and Conditions of Delivery and any proposal or quotation submitted by us, the terms and conditions set out in the proposal or quotation shall prevail.
(2) If one or more of the provisions of these Terms and Conditions of Delivery should be or become invalid, this shall not affect the remaining provisions of these Terms and Conditions of Delivery. Rather, the parties undertake to replace the invalid provision with the valid provision which, from an economic point of view, achieves the purpose pursued by the invalid provision to the greatest extent possible.
15 Jurisdiction, applicable law, place of performance.
(1) In the event of disputes, the parties shall first attempt to settle them out of court and shall hold discussions at management level to this end. The right of each party to appeal directly to the court in Mönchengladbach remains unaffected.
(2) Unless otherwise stated in the order confirmation, our place of business shall be the place of performance.
(3) The parties submit exclusively to the jurisdiction of the German courts.
(4) The law of Germany shall apply; the validity of the UN Convention on Contracts for the International Sale of Goods is excluded.