Conditions of Sales and Supply
Based on the general conditions for the supply of plant and machinery for export as recommended by the United Nations Economic Commission for Europe
I. Preamble
These General Conditions shall apply, save as varied by express agreement accepted in writing by all parties.
II. Formation of contract
1. The Contract shall be deemed to have been entered into when, upon receipt of an order, the Vendor has sent an acceptance in writing within the time-limit (if any) fixed by the Purchaser.
2. If the Vendor, in drawing up his tender, has fixed a time-limit for acceptance, the Contract shall be deemed to have been entered into when the Purchaser has sent an acceptance in writing before the expiration of such time-limit, though only provided that this acceptance reaches the Vendor not later than one week after the expiration of the time-limit.
3. If the written acceptance by the Vendor contains additions, restrictions or other alterations compared with the order, these will be assumed to have been accepted by the Purchaser unless they are promptly rejected in writing.
III. Drawings and descriptive documents
1. The illustrations, drawings, weights end performance data given in the documentation accompanying the tender or Contract are only approximate. They shall be binding only if expressly specified as such in the Contract.
2. Drawings end technical documents submitted to the Purchaser before or after the formation of the Contract remain the exclusive property of the Vendor. Without the Vendor´s consent they may not be copied, reproduced, communicated to third parties or made known or utilized.
3. The Vendor shall, if required by the Purchaser, furnish free of charge to the Purchaser at the commencement of the Guarantee Period (cf. Clause 9) instructions and drawings containing sufficient information to enable the Purchaser to carry out the erection, commissioning and operation of the equipment supplied as well as the maintenance of all parts.
IV. Packing
Unless otherwise specified, the prices quoted in binding tenders and in the Contract include the packing necessary to prevent damage to the equipment being supplied under normal transport conditions on its way to the destination stated in the Contract.
V. Passing of risk
1. The time at which the risk shall pass shall be fixed in accordance with the International Rules for the Interpretation of Trade Terms (Incoterms) of the International Chamber of Commerce in force at the date of the formation of the Contract.
2. Where no indication is given in the Contract of the form of sale, the equipment supplied shall be deemed to be sold ""ex works"". If, in the case of a sale ""ex works"", the Vendor takes over the transport at the request of the Purchaser, the risk passes to the Purchaser with the transfer to the first carrier. If transport is delayed due to circumstances for which the Purchaser is responsible, the risk passes to the Purchaser from the day on which the goods become ready for dispatch, though the Vendor is under obligation to provide any insurance requested by the Purchaser at the expense of the latter.
3. In the case of a sale ""ex works"" the Vendor must notify the Purchaser in writing of the date on which the latter must take delivery.
VI. Delivery
1. Unless otherwise agreed, the delivery period shall run from the latest of the following dates:
a) the date of the formation of the Contract as defined in Clause II;
b) the date on which the Vendor receives notice of the issue of the necessary permits;
c) the date of the receipt by the Vendor of the advance payment stipulated in the Contract.
The commencement of the delivery period is furthermore conditional upon agreement being reached on all technical questions. The same applies also if some official permit is needed for fulfilment of the Vendor´s obligations.
2. If the delivery is delayed by industrial disputes, especially by strikes or lock-outs, or by unforeseen circumstances against which the Vendor is powerless, in particular, fire, natural catastrophes, embargo, uprisings, shortage of transport, general shortages of supplies or energy, or by same action or omission of the Purchaser, an extension of the delivery period commensurate to the circumstances shall be granted. This applies also if the cause of the delay should occur after the expiration of the contractual delivery period agreed.
3. The Purchaser is entitled to claim compensation for any damage suffered as a result of a delay for which the Vendor is to blame. This compensation shall amount to 0.5% for every week or part week, though not more than 5% altogether of the value of that part of the entire delivery which cannot be used on time or in accordance with the Contract on account of the delay. All further claims are precluded.
4. If the Purchaser was entitled to claim the maximum compensation for delay specified in paragraph 3 of this Clause in respect of apart of the delivery (or if he would have been so entitled if he had claimed compensation in accordance with this provision), he may give the Vendor a final deadline in writing for the performance of this delivery. This deadline must make reasonable allowance for the delay already incurred. If the Vendor fails to do everything within his responsibility to fulfil his delivery obligation by this deadline, the Purchaser may withdraw tram the Contract in respect of the relevant part of the delivery by giving simple notice in writing, after which he may claim compensation tram the Vendor for damage suffered due to the non-fulfilment. The parties to the Contract shall endeavour to reach an amicable settlement. Depending on the particular circumstances the compensation shall range between 5 and 15% of the contractual value of the non-delivered part, though in no case compensation will be granted in excess of the proven detriment.
5. If the Purchaser fails to accept delivery on the contractually agreed date, beginning one month after notification of readiness to deliver he will be charged with the costs incurred by storage in the Vendor´s works, though at least 0.5% of the invoice amount for each month. After setting a reasonable deadline to no avail, however, the Vendor is entitled to dispose of the goods in question elsewhere and to supply the Purchaser with a commensurately longer delivery period, or he may withdraw tram the Contract in respect of the non-accepted part of the delivery and claim compensation tram the Purchaser for damages incurred through the non-fulfilment. Such compensation shall be limited to 15% of the value of the part of the delivery not accepted.
VII. Payment
1. Payment shall be rendered in the full amount without any deduction of any kind, in accordance with the agreed payment terms.
2. If delivery has been made before payment of all sums payable under the Contract, the equipment delivered shall remain the property of the Vendor until such payment is effected, to the extent permitted by the laws in force at the piece where the equipment is located. If the laws do not permit such retention of title but grant the Vendor other rights in respect of the delivery, the Vendor may avail himself of all such rights. The Purchaser shall render the Vendor every assistance in taking any measures to protect the latter´s right of property or such other rights to the delivery. Costs incurred by this shall be borne by the Purchaser.
3. Withholding payments or deducting from these, any claims of the Purchaser that are disputed by the Vendor are not permissible.
4. If the Purchaser is in arrears with his payments, the Vendor may postpone the fulfilment of his own obligations until such payments are rendered, unless the arrears of payment are due to an action or omission by the Vendor.
5. In all other cases, after giving due notice in writing, the Vendor may demand from the Purchaser interest for arrears of payment amounting to 2% above the current discount rate of the Deutsche Bundesbank. If the Purchaser does not pay the outstanding sum within 2 months, the Vendor may withdraw from the Contract by giving simple notice in writing, and in addition he may demand compensation for the detriment suffered amounting to a maximum of 15% of the contractual value of the part of the delivery concerned.
6. The Purchaser is entitled to withhold payment if owing to some circumstance that has arisen since the formation of the Contract he has reason to fear that the Vendor will not perform his side of the Contract punctually and in full.
VIII. Guarantee
1. Subject to the provisions set out below, the Vendor undertakes to remedy any defects which impair the serviceability and which are due to faulty design, materials or workmanship. Safely devices against dangers when using the equipment delivered are supplied at the expense of the Purchaser to the extent agreed. Their absence beyond this supply obligation does not constitute a fault.
2. This obligation exists only in respect of defects appearing during a period of 15 months from the passing of risk but not more than 12 months after commissioning in the case of single-shift working, or 9 months after the passing of risk but not more than 6 months after commissioning in the case of multi-shift working.
3. Spare parts or repaired parts delivered under the provisions of this Clause are covered by the same guarantee conditions as the original equipment, except that the guarantee period is 3 months. For the other parts of the delivery the guarantee period is extended only by the time during which the equipment was out of action owing to a defect falling within this Clause.
4. The Purchaser may advance claims under this Clause only if he reports the defects identified to the Vendor without delay and in writing. He must give the Vendor every opportunity to inspect the defects and put them right.
5. Upon receiving this notification the Vendor shall rectify the defect as speedily as possible. Of the costs arising directly from the repair or supply of spare parts, the Vendor shall bear the costs of replacement equipment including transport and the commensurate costs for dismantling and fitting, provided the complaint proves to be justified. Otherwise the costs shall be borne by the Purchaser. Defective parts shall be sent back to the Vendor.
6. If any modifications or repairs are carried out inexpertly by the Purchaser or third parties without prior approval by the Vendor, no liability will be accepted for any consequences of these.
7. The guarantee obligation of the Vendor extends only to defects occurring under the operating conditions specified in the Contract and in proper usage. It does not cover defects whose cause appears only after the passing of risk. In particular it does not cover defects caused by poor maintenance, bad sitting by the Purchaser, alterations without the written approval of the Vendor, badly executed repairs by the Purchaser or normal wear and tear.
8. For major items of other manufacture the liability of the Vendor is confined to the surrender of his liability claims against the supplier of such equipment.
9. From the date of the passing of risk the Vendor assumes no liability beyond that specified in this Clause, not even for defects with causes prior to the passing of risk. It is expressly agreed that the Vendor shall render the Purchaser no compensation in respect of injury to persons caused by damage to goods which are not part of the Contract, nor for logs of earnings, unless it is quite clear from the particular circumstances that there has been gross negligence on the part of the Vendor.
10. Gross negligence does not comprise any and every lack of proper care and skill, but rather the disregarding by the Vendor of serious consequences of an act or omission, which we ought to have foreseen normally as a conscientious Contractor, or if he deliberately disregards the consequences of his conduct.
11. All guarantee claims by the Purchaser shall lapse 6 months after lodging them unless they are recognized by the Vendor or the Purchaser has initiated legal proceedings before then.
IX. Limitation of damages
1. Where either party is liable to the other for damages, these shall not exceed the amount which the party in default could reasonable have foreseen when entering into the Contract. The party claiming breach of contract shall do everything to minimize the detriment, otherwise the party that has committed the breach may claim reduction of the damages on the strength of this omission.
X. Validity of the Contract
1. Termination of the Contract, tram whatever cause arising, shall be without prejudice to the rights of the parties accrued under the Contract up to the time of termination.
2. The Contract and these Conditions of Supply remain binding even if individual points are invalid.
XI. Arbitration and law applicable
1. Any disputes arising from this Contract shall be finally settled, in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, by one or more arbitrators designated in conformity with these rules.
2. The Contract shall be subject to the laws of the Federal Republic of Germany.
3. The friendly arbitrators will give their ruling at their discretion only if the parties expressly agree to this.
Based on the general conditions for the supply of plant and machinery for export as recommended by the United Nations Economic Commission for Europe
I. Preamble
These General Conditions shall apply, save as varied by express agreement accepted in writing by all parties.
II. Formation of contract
1. The Contract shall be deemed to have been entered into when, upon receipt of an order, the Vendor has sent an acceptance in writing within the time-limit (if any) fixed by the Purchaser.
2. If the Vendor, in drawing up his tender, has fixed a time-limit for acceptance, the Contract shall be deemed to have been entered into when the Purchaser has sent an acceptance in writing before the expiration of such time-limit, though only provided that this acceptance reaches the Vendor not later than one week after the expiration of the time-limit.
3. If the written acceptance by the Vendor contains additions, restrictions or other alterations compared with the order, these will be assumed to have been accepted by the Purchaser unless they are promptly rejected in writing.
III. Drawings and descriptive documents
1. The illustrations, drawings, weights end performance data given in the documentation accompanying the tender or Contract are only approximate. They shall be binding only if expressly specified as such in the Contract.
2. Drawings end technical documents submitted to the Purchaser before or after the formation of the Contract remain the exclusive property of the Vendor. Without the Vendor´s consent they may not be copied, reproduced, communicated to third parties or made known or utilized.
3. The Vendor shall, if required by the Purchaser, furnish free of charge to the Purchaser at the commencement of the Guarantee Period (cf. Clause 9) instructions and drawings containing sufficient information to enable the Purchaser to carry out the erection, commissioning and operation of the equipment supplied as well as the maintenance of all parts.
IV. Packing
Unless otherwise specified, the prices quoted in binding tenders and in the Contract include the packing necessary to prevent damage to the equipment being supplied under normal transport conditions on its way to the destination stated in the Contract.
V. Passing of risk
1. The time at which the risk shall pass shall be fixed in accordance with the International Rules for the Interpretation of Trade Terms (Incoterms) of the International Chamber of Commerce in force at the date of the formation of the Contract.
2. Where no indication is given in the Contract of the form of sale, the equipment supplied shall be deemed to be sold ""ex works"". If, in the case of a sale ""ex works"", the Vendor takes over the transport at the request of the Purchaser, the risk passes to the Purchaser with the transfer to the first carrier. If transport is delayed due to circumstances for which the Purchaser is responsible, the risk passes to the Purchaser from the day on which the goods become ready for dispatch, though the Vendor is under obligation to provide any insurance requested by the Purchaser at the expense of the latter.
3. In the case of a sale ""ex works"" the Vendor must notify the Purchaser in writing of the date on which the latter must take delivery.
VI. Delivery
1. Unless otherwise agreed, the delivery period shall run from the latest of the following dates:
a) the date of the formation of the Contract as defined in Clause II;
b) the date on which the Vendor receives notice of the issue of the necessary permits;
c) the date of the receipt by the Vendor of the advance payment stipulated in the Contract.
The commencement of the delivery period is furthermore conditional upon agreement being reached on all technical questions. The same applies also if some official permit is needed for fulfilment of the Vendor´s obligations.
2. If the delivery is delayed by industrial disputes, especially by strikes or lock-outs, or by unforeseen circumstances against which the Vendor is powerless, in particular, fire, natural catastrophes, embargo, uprisings, shortage of transport, general shortages of supplies or energy, or by same action or omission of the Purchaser, an extension of the delivery period commensurate to the circumstances shall be granted. This applies also if the cause of the delay should occur after the expiration of the contractual delivery period agreed.
3. The Purchaser is entitled to claim compensation for any damage suffered as a result of a delay for which the Vendor is to blame. This compensation shall amount to 0.5% for every week or part week, though not more than 5% altogether of the value of that part of the entire delivery which cannot be used on time or in accordance with the Contract on account of the delay. All further claims are precluded.
4. If the Purchaser was entitled to claim the maximum compensation for delay specified in paragraph 3 of this Clause in respect of apart of the delivery (or if he would have been so entitled if he had claimed compensation in accordance with this provision), he may give the Vendor a final deadline in writing for the performance of this delivery. This deadline must make reasonable allowance for the delay already incurred. If the Vendor fails to do everything within his responsibility to fulfil his delivery obligation by this deadline, the Purchaser may withdraw tram the Contract in respect of the relevant part of the delivery by giving simple notice in writing, after which he may claim compensation tram the Vendor for damage suffered due to the non-fulfilment. The parties to the Contract shall endeavour to reach an amicable settlement. Depending on the particular circumstances the compensation shall range between 5 and 15% of the contractual value of the non-delivered part, though in no case compensation will be granted in excess of the proven detriment.
5. If the Purchaser fails to accept delivery on the contractually agreed date, beginning one month after notification of readiness to deliver he will be charged with the costs incurred by storage in the Vendor´s works, though at least 0.5% of the invoice amount for each month. After setting a reasonable deadline to no avail, however, the Vendor is entitled to dispose of the goods in question elsewhere and to supply the Purchaser with a commensurately longer delivery period, or he may withdraw tram the Contract in respect of the non-accepted part of the delivery and claim compensation tram the Purchaser for damages incurred through the non-fulfilment. Such compensation shall be limited to 15% of the value of the part of the delivery not accepted.
VII. Payment
1. Payment shall be rendered in the full amount without any deduction of any kind, in accordance with the agreed payment terms.
2. If delivery has been made before payment of all sums payable under the Contract, the equipment delivered shall remain the property of the Vendor until such payment is effected, to the extent permitted by the laws in force at the piece where the equipment is located. If the laws do not permit such retention of title but grant the Vendor other rights in respect of the delivery, the Vendor may avail himself of all such rights. The Purchaser shall render the Vendor every assistance in taking any measures to protect the latter´s right of property or such other rights to the delivery. Costs incurred by this shall be borne by the Purchaser.
3. Withholding payments or deducting from these, any claims of the Purchaser that are disputed by the Vendor are not permissible.
4. If the Purchaser is in arrears with his payments, the Vendor may postpone the fulfilment of his own obligations until such payments are rendered, unless the arrears of payment are due to an action or omission by the Vendor.
5. In all other cases, after giving due notice in writing, the Vendor may demand from the Purchaser interest for arrears of payment amounting to 2% above the current discount rate of the Deutsche Bundesbank. If the Purchaser does not pay the outstanding sum within 2 months, the Vendor may withdraw from the Contract by giving simple notice in writing, and in addition he may demand compensation for the detriment suffered amounting to a maximum of 15% of the contractual value of the part of the delivery concerned.
6. The Purchaser is entitled to withhold payment if owing to some circumstance that has arisen since the formation of the Contract he has reason to fear that the Vendor will not perform his side of the Contract punctually and in full.
VIII. Guarantee
1. Subject to the provisions set out below, the Vendor undertakes to remedy any defects which impair the serviceability and which are due to faulty design, materials or workmanship. Safely devices against dangers when using the equipment delivered are supplied at the expense of the Purchaser to the extent agreed. Their absence beyond this supply obligation does not constitute a fault.
2. This obligation exists only in respect of defects appearing during a period of 15 months from the passing of risk but not more than 12 months after commissioning in the case of single-shift working, or 9 months after the passing of risk but not more than 6 months after commissioning in the case of multi-shift working.
3. Spare parts or repaired parts delivered under the provisions of this Clause are covered by the same guarantee conditions as the original equipment, except that the guarantee period is 3 months. For the other parts of the delivery the guarantee period is extended only by the time during which the equipment was out of action owing to a defect falling within this Clause.
4. The Purchaser may advance claims under this Clause only if he reports the defects identified to the Vendor without delay and in writing. He must give the Vendor every opportunity to inspect the defects and put them right.
5. Upon receiving this notification the Vendor shall rectify the defect as speedily as possible. Of the costs arising directly from the repair or supply of spare parts, the Vendor shall bear the costs of replacement equipment including transport and the commensurate costs for dismantling and fitting, provided the complaint proves to be justified. Otherwise the costs shall be borne by the Purchaser. Defective parts shall be sent back to the Vendor.
6. If any modifications or repairs are carried out inexpertly by the Purchaser or third parties without prior approval by the Vendor, no liability will be accepted for any consequences of these.
7. The guarantee obligation of the Vendor extends only to defects occurring under the operating conditions specified in the Contract and in proper usage. It does not cover defects whose cause appears only after the passing of risk. In particular it does not cover defects caused by poor maintenance, bad sitting by the Purchaser, alterations without the written approval of the Vendor, badly executed repairs by the Purchaser or normal wear and tear.
8. For major items of other manufacture the liability of the Vendor is confined to the surrender of his liability claims against the supplier of such equipment.
9. From the date of the passing of risk the Vendor assumes no liability beyond that specified in this Clause, not even for defects with causes prior to the passing of risk. It is expressly agreed that the Vendor shall render the Purchaser no compensation in respect of injury to persons caused by damage to goods which are not part of the Contract, nor for logs of earnings, unless it is quite clear from the particular circumstances that there has been gross negligence on the part of the Vendor.
10. Gross negligence does not comprise any and every lack of proper care and skill, but rather the disregarding by the Vendor of serious consequences of an act or omission, which we ought to have foreseen normally as a conscientious Contractor, or if he deliberately disregards the consequences of his conduct.
11. All guarantee claims by the Purchaser shall lapse 6 months after lodging them unless they are recognized by the Vendor or the Purchaser has initiated legal proceedings before then.
IX. Limitation of damages
1. Where either party is liable to the other for damages, these shall not exceed the amount which the party in default could reasonable have foreseen when entering into the Contract. The party claiming breach of contract shall do everything to minimize the detriment, otherwise the party that has committed the breach may claim reduction of the damages on the strength of this omission.
X. Validity of the Contract
1. Termination of the Contract, tram whatever cause arising, shall be without prejudice to the rights of the parties accrued under the Contract up to the time of termination.
2. The Contract and these Conditions of Supply remain binding even if individual points are invalid.
XI. Arbitration and law applicable
1. Any disputes arising from this Contract shall be finally settled, in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce, by one or more arbitrators designated in conformity with these rules.
2. The Contract shall be subject to the laws of the Federal Republic of Germany.
3. The friendly arbitrators will give their ruling at their discretion only if the parties expressly agree to this.