GENERAL TERMS AND CONDITIONS OF SALE
Version for Importers
for products and services manufactured by PREBENA, which are sold and marketed by the company or distributed against payment.
1 I. General provisions
1. The conditions below apply to all orders. The mutual written or electronic declarations shall prevail for the scope of delivery or services
(hereinafter: „deliveries “).
The general terms and conditions of the customer shall apply only insofar as the supplier or service provider (hereinafter: „supplier “) has expressly agreed to these in writing. Verbal agreements prior to or at the time of concluding the contract shall require written confirmation by the supplier to become effective.
2. Offers are without engagement; quotations are tendered without commitment. The supplier retains all copyrights and rights of legal protection of registered designs in its quotations, drawings and other documentation (hereinafter: „documents “). Documents may not be copied or made accessible to third parties without the prior permission of the supplier and upon written request must be returned to the supplier immediately and in full if the order is not placed with the supplier. The above sentences 1 and 2 correspondingly apply to documentation pertaining to the customer, which may however be made accessible to such third parties to which the supplier has transferred deliveries upon consent.
3. The customer shall have the non-exclusive right to use any standard software with the agreed performance characteristic in unmodified form and on the agreed equipment. The customer has the right to make two back-up copies without express permission.
4. Partial deliveries and corresponding billing is permissible insofar as this is reasonable to the customer.
2 II. Prices and payment
1. Prices apply ex works Schotten (Germany) and exclusive of packaging costs and the applicable legal turnover tax. Invoices shall be calculated on the basis of the price list valid at the time of delivery; all deliveries shall be subject to VAT unless exempt from tax. This applies in particular to export deliveries or deliveries to NATO.
2. Where the supplier is to assemble and commission an installation and in the absence of any other agreement, all necessary incidental charges such as travel expenses, costs for the transport of tools and personal luggage as well as accommodation allowances shall be borne by the customer in addition to any agreed reimbursement.
3. Payment is to be made free domicile of the supplier.
3 III. Retention of ownership
1. We retain the title in the goods supplied until all claims from the business relations with the ordering party are satisfied.
2. The extended reservation of proprietary rights is also deemed to have been agreed. If the ordering party sells the goods on, he shall assign his claims against the buyer irrevocably to us until the claims arising from the conditional goods are settled.
3. The ordering party performs any processing of the conditional goods always on behalf of the supplier. If the conditional goods are processed or inseparably mixed with other items not belonging to the supplier, the supplier will acquire co-ownership in the new object in proportion to the invoice value of the conditional goods to the other processed or mixed items at the time of processing or mixing. If the supplier’s goods are combined or inseparably mixed into a unified object with other movable objects and the other object is considered to be the chief object, it shall be deemed to have been agreed that the ordering party assigns to the supplier proportional co-ownership to the extent that the chief object belongs to him.
4. The ordering party keeps the property or joint property on behalf of the supplier. The same shall apply to the generated from processing or joining or mixing as applies to the conditional goods.
5. In case of a delay in payment or in the event of a substantial deterioration of the financial situation of the buyer, we are entitled to demand the surrender of the goods supplied by us under retention of title at the ordering party’s expense even without exercising the right to rescind the contract or setting a final deadline.
6. We may sell these goods by bargaining, provided that the proceeds from the sale less a deduction for the costs incurred by the surrender and disposal are credited to the buyer.
7. If excessive collateral of at least 20 per cent in our favour arises as a result of the aforementioned stipulations, we are prepared to release the securities exceeding this minimum sum at customer’s demand.
4 IV. Delivery period and delay
1. The agreed delivery periods refer to the despatch of goods ex works or from the shipping point. The agreed delivery periods are binding only if all the documentation, necessary releases and authorisation have been received from the customer, in particular of plans and agreed terms of payment or prepayment as well as any other obligations by the customer. If these preconditions are not met on time, the time limits for the supplier shall be extended appropriately; this does not apply if the supplier is responsible for the above-mentioned delays.
2. The delivery delay increases proportionately without giving the customer the right to any claims for damages if the supplier does not adhere to the agreed time limit in the event of difficulties attributable to vis major. This includes actions as part of mobilisation, war, riots or similar events and instances which are not within the control of the supplier and may jeopardise the successful processing of the order – in particular delivery delays on the part of the subcontractor of the supplier, transport or equipment failure, industrial disputes, etc.
3. If despatch or delivery is delayed at the request of the customer by more than one month after notification of readiness of shipment, the customer may be charged storage costs for each month started at a rate 0.5 % of the price of the object of delivery or a maximum of 5 %. The contractual parties are not under obligation to provide proof of higher or lower storage costs.
5 V. Export
1. The goods supplied by the supplier must not be exported to any other countries in their delivered state without the prior written permission of the supplier other than those specified in the order. This does not apply for re-exports within the territory of the European Common Market.
2. In the event of contravention, the supplier has the right to claim for damages and to withdraw from current and future orders.
3. The customer undertakes to observe the provisions of the foreign trade law, the COCOM regulations and the US Export Administration Regulations in respect of the export of any products and services obtained from us.
6 VI. Despatch/ Passage of risk/ Customer complaints/ Acceptance
1. All deliveries shall be effected ex works/shipment location of the supplier at the risk of the customer from a location to be determined by us to the known or specified shipment address. At the written request and at the expense of the customer, arrangements shall be made by the supplier to insure consignments to the desired extent against transport risks.
2. Insofar as the supplier is obligated through the packaging decree to take back the packaging used for the transport, the customer shall bear the costs for the return transport of the packaging used and the specified recycling costs thereof or – insofar as this is possible and deemed expedient by the supplier – any reasonable costs arising additionally for the re-use of the said packaging.
3. The risk shall pass to the customer – also in the case of carriage-free delivery – as follows:
a) In the case of deliveries without installation or assembly, with due provision ex ramp at the place of despatch for acceptance by the transport person.
b) In the case of deliveries subject to installation or assembly on the day of acceptance or commissioning at the customer’s plant or, insofar as agreed, after problem-free trial operation.
4. If shipment, delivery, the start, the implementation of installation or assembly, the acceptance or commissioning in-house or the trial operation has been delayed by the customer for justifiable reasons or if the customer defaults in acceptance for other reasons, the customer shall assume the risk from the start of delay.
5. The supplier must be notified immediately in writing of any complaints due to incomplete or incorrect delivery or as a result of any recognisable defects. Defects, which are not obvious, are to be notified in writing within seven days after receipt of goods. Postage within that period is sufficient. Carton stick-on labels, delivery note/invoice numbers or inspection tickets enclosed with the consignment are to be quoted in the complaint. Any warranty claims become null and void if the complaint is not notified in due time.
6. Deliveries must be accepted by the customer even in the case of immaterial defects.
1. Payments are to be made in accordance with the terms of payment specified by us. The supplier has the right but is not obligated to, offset payments to the oldest due debt. Remittances, cheques and drafts – insofar as payment has been previously approved in writing by the supplier - are not deemed to be paid under the terms of the contract until honoured i.e. non-forfeitable credited to the account of the supplier.
2. The invoice amount is payable within 30 days’ net cash unless otherwise agreed in writing beforehand.
3. Assembly and repair costs and product information costs are net payable immediately.
4. If the target date lapses, the supplier has the right to claim penalty interest on arrears of 7% above the respective principal refinancing rate set by the European Central Bank.
5. In the event of a subsequent serious deterioration in the financial affairs of the customer which puts at risk the supplier’s right to claim payment, the supplier shall have the right to claim immediate payment of all debts due from the business relationship; this also applies in the case of the referral or acceptance of drafts or cheques. Subject to the same conditions or if the customer has a poor payment record from previous transactions, the supplier has the right to demand payment in advance or a good-faith deposit in respect of any current or future transactions. The statutory provisions regarding default in payment remain unaffected by this.
6. The customer is authorised solely to offset claims, which have been legally determined or are undisputed.
7. Invoices are issued in Euro or US§. The Euro-amount shall also be the prevailing amount if foreign currency amounts are specified in invoices in addition to the Euro amount. Incoming amounts in foreign currency are offset against the Euro proceeds obtained from the amount denominated in foreign currency and credited.
188.8.131.52 VIII. Liability for material defects
The supplier shall assume full liability for any damage or loss arising from personal injury such as the loss of lives, physical injuries or damage to health which may have arisen from the supplier’s intentional or negligent failure to comply with its duties or an intentional or negligent failure of a representative by operation of law or vicarious agent of the supplier to comply with its duties as well as for any damage or loss caused by a grossly negligent failure of the supplier to comply with its duties or an intentional or grossly negligent failure of a representative by operation of law or vicarious agent of the supplier to comply with its duties.
If any defects in material and/or manufacturing defects were to be detected, the supplier shall assume liability pursuant to the country-specific statutory provisions for material defects as well as expressly warranted characteristics and faultlessness of products supplied in accordance with the respective state of the art technology. Any modifications in design or construction generally carried out by us prior to delivery of an order shall not give rise to a complaint. The supplier recommends keeping the operator’s manual, the notes on safety, the list of spare parts and the receipt in a safe place.
The supplier shall assume liability as follows for any shortfall in expressly warranted characteristics:
1. The period of liability for the supplier’s products and merchandise shall, in general, be twelve months and shall come into effect at the date of delivery to the user and at the latest twelve months after despatch of the goods to the customer. Within the EU, in contrast, the supplier shall assume a 12-month liability for material defects vis-à-vis industrial or commercial customers and a 24-month liability for material defects vis-à-vis customers who exclusively use the products for private purposes.
2. Any undertaking by the supplier to the user extending the period of liability for material defects remains unaffected by the provisions of paragraph 1.
3. Within the framework of the provisions stated below, the supplier shall assume a 12-month liability from the date of purchase for material defects in PREBENA -branded products and merchandise sold within the EU both vis-à-vis private and commercial/industrial users. Otherwise, the supplier shall, however, assume liability for the aforementioned PREBENA -branded products and merchandise in conformity with the national regulations concerned over a period of at least twelve months.
4. Any claims arising from liability for material defects shall become statute-barred upon expiry of the periods mentioned in paragraph 1 after notification of complaints; the supplier must promptly upon discovery be notified in writing of any defects discovered.
5. Liability for material defects shall comprise gratuitous rectification of any defects which might be discovered within the period of liability for material defects and the supply shall at its discretion have the option to either have the rejected products repaired or replaced. Any parts, which may be replaced, shall become the supplier’s property.
6. One condition for the recognition of a liability claim based on a material defect shall be that the machine was purchased within the EU and that the claim for liability for material defects is still valid. The user must submit evidence of purchase in the form of an original machine-printed receipt indicating the address of the buyer and the seller, the date of purchase and the exact model name of the product. The rejected product shall be sent to the supplier or the nearest official service centre of the supplier for repairs. It shall neither be opened nor disassembled. If the complaint proves to be justified, the supplier shall bear the costs of the most reasonable method of despatch to and from the customer’s premises. Otherwise, Clause V applies.
7. The customer shall allow enough time for the rectification of defects and shall give the supplier sufficient opportunity to rectify defects. If this is denied, the warranty no longer applies. The manufacturer’s original spare parts must be used in any case.
8. The customer does not have the right to cancellation or a reduction in purchase price unless the supplier is unable to remedy the defect or deliver a substitute, or unless the subsequent improvement or delivery of a substitute are deemed to have been unsuccessful.
9. The warranty does not extend to natural wear or damage which may have occurred after the passage of risk resulting from inappropriate use, improper handling and/or non-professional use or careless handling, excessive or inappropriate use of equipment. In particular, the supplier is not liable for any changes to the condition of products or the operating mode of products, due to inappropriate storage or climatic conditions or any other external impact. Moreover, complaints are only permissible if the equipment was duly serviced and cleaned at regular intervals.
10. The warranty is also null and void if the customer or a third party have carried out improper modifications or repair work or installed components obtained from third parties and the supplier shall not assume liability for any consequences thereof.
11. The period of warranty is not renewed if defects are rectified or if substitute deliveries are effected or substitute services are rendered.
12. Any other warranty claims which may be asserted by the customer against the supplier and its vicarious agents shall be excluded.
8 IX. Industrial property rights and copyrights
1. Insofar as a third party makes a justified claim against the customer due to an infringement of an industrial property right or copyright (hereinafter: protected rights) as a result of products supplied by the supplier and used as per agreement, the supplier shall at his cost either secure a right of use for the product, modify the product in such a way that it does not violate the protected right or replace the product.
2. The above-mentioned obligations of the supplier apply only if the customer has informed the supplier immediately in writing of the claims (allegedly) made by a third party, does not recognise an infringement and all insulating measures and settlement negotiations (in court and out-of-court) remain. However, the above-mentioned obligations end 5 years after delivery to the customer.
3. Claims by the customer are precluded insofar as the customer has to substantiate a protected right infringement. Claims by the customer are further precluded insofar as the protected right infringement has been caused by special specifications by the customer, by an application not foreseeable by the supplier or caused as a result of the customer modifying the product or the product being used together with products supplied by a third party.
4. Any other claims against the supplier are precluded; however, article XI (liability) remains unaffected as is the right of the customer to claim rescission of contract.
9 X. Impossibility, adjustment of contract
1. The customer has the right to claim compensation in damages, if it becomes impossible for the supplier to provide the incumbent delivery for reasons to be justified by the supplier. However, the claim for damages by the customer is limited to 10% of the value of the part of the total delivery, which cannot be used for relevant operation due to the impossibility. This limitation of liability does not apply in cases of intent, gross negligence or where liability is a mandatory provision for the impossibility of performance; this does not entail a change of the burden of proof to the disadvantage of the customer. The right of the customer to withdraw from the contract remains unaffected.
2. In the event of unforeseen events in the sense of clause IV No. 2, insofar as these change the economic significance or the substance of the service or affect the business of the supplier, the contract shall be adapted accordingly in good faith. The supplier has the right to withdraw from the contract insofar as this is not economically justifiable. If the supplier wishes to make use of this right to withdraw, he has a duty to inform the customer immediately and even in cases where an extension of the delivery date has been agreed with the customer.
10 XI. Liability
The customer does not have the right to claim compensation in cases of positive breach of contract, violation of obligations during contractual negotiations or unlawful action. This does not apply to cases of gross negligence or intentional action, or absence of guaranteed features of the product liability law, at the loss of lives, physical injuries or damage to health or violation stipulates liability or breach of essential contractual obligations. The claim for damages for breach of essential contractual obligations is limited to reasonably foreseeable damage of contractual nature, except in cases of intent or gross negligence. The above provisions do not entail a change of the burden of proof to the disadvantage of the customer.
10.1.1 XII. Place of jurisdiction
1. The sole place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the main headquarters or the principal place of business of the supplier to be decided at the discretion of the supplier, if the customer is an accredited merchant and does not have a general domestic place of jurisdiction, or if the customer transfers his residence or usual residence to another country at the time of concluding the contract or his usual residence at the time of bringing action.
2. The law of the Federal Republic of Germany shall apply for the contractual relationship. The use of legal norms of the German collision law, insofar as this refers to a foreign system of law, as well as The Hague Standard Purchasing Laws, the UN purchasing law or any other conventions regarding the law relating to the sale of merchandise, is excluded.
3. The contract and in particular the terms and conditions of sale is binding in all its remaining sections even if individual points become legally null and void. This shall not apply if adherence to the contract and terms and conditions of sale constitute undue hardship for one of the parties. if individual regulations of these terms of delivery become null and void due to statutory provisions, then such effective terms agreed in lieu of these shall apply which most closely relate to the sense and purpose of the null and void provision. Insofar as this is necessary, the customer undertakes to take all necessary measures to achieve this objective.
4. The above provisions also apply in the case of export business, if the provisions of the importing countries conflict with these terms and conditions of sale.
PREBENA Wilfried Bornemann GmbH & Co. KG
Seestrasse 20 – 26
63679 Schotten / Germany
Tel. +49 (0) 6044 – 96 01 – 100
Fax. +49 (0) 6044 – 96 01 – 820
E-mail: info(at)prebena.de; www.prebena.de