emcoasis - BEST

TERMS OF TRADING
1. Introduction
These general sales, delivery, and payment terms shall be
exclusively applicable, unless deviating terms have been
expressly agreed in writing. Offers, acceptance of offers,
order confirmations or sales of any goods are subject to these
provisions. Any deviating terms or provisions of the ordering
party are herewith contradicted. These terms and conditions
shall also be the basis for all future transactions. Attention:
pursuant to § 33 Federal Data Protection Law (BDSG)
contractual data referring to persons will be stored.
2. Orders and Offers
All offers and delivery options submitted by the imposer of
these standard terms and conditions shall be subject to
change. Orders shall be deemed accepted in writing 21 days
after submission (also by invoice of delivery note). The scope
of any delivery shall based solely on the written order confirmation.
The ordering party shall bear the risk of order correctness.
If the goods are to be manufactured, processed, or
reworked, the ordering party shall bear the damage incurred
if contractual processing or reworking infringes any patent,
copyright, trademark or any other industrial property right
of any third party because of the
specification provided by the ordering party.
3. Invoicing
With the exception of orders based on agreed special prices,
goods will be invoiced at list prices in force on the day of dispatch
plus statutory value added tax. All prices shall be charged
ex works without packaging. Deviations of plus/minus
10% of the ordered quantities shall be admissible.
4. Delivery of Goods
Deliveries shall take place ex works and costs and invoices
shall be charged to buyer. If goods are held back in stock for
the exclusive availability of the
ordering party, (call-off items), the ordering party shall be in
delay without reminder if it fails to collect them within the
agreed period.
5. Delivery Time
If no calendar date has been agreed in writing by the imposer
of these standard terms and conditions, delivery shall be
subject to change. Lead-time shall start on the day the order
confirmation is dispatched but not before documentation,
approvals, releases and the agreed down-payment have been
received. Delivery shall be complied with as soon as the goods
have left the works or their readiness for shipment has been
announced.
6. Transfer of Risks
The risk of damage or loss of goods shall devolve to the
ordering party as soon as the goods have left the works of the
imposer of these standard terms and
conditions (ex works Incoterms 1990) even if partial deliveries
take place. If the imposer of these standard terms and
conditions has agreed to convey the goods to the ordering
party, the ordering party shall bear the transport risk, even
if deviating Incoterms have been agreed. If the transport is
delayed due circumstances the ordering party is answerable
for, the risk shall devolve to the ordering party on the day the
goods are ready for shipment. Any warehousing of the goods
shall take place at the expense and risk of the ordering party.
Any goods supplied shall be accepted by the ordering party
without prejudice to the ordering partyís rights.
7. Notification of Defects
If an acceptance of goods or an initial reference sampling has
been agreed, notification of defects shall be excluded, as the
ordering party could have detected any defects during careful
inspection in the first place. Even if samples are sent for
selection, the ordering
party shall be obliged to inspect the goods immediately upon
arrival and notify any defects in writing, otherwise liability
for good quality and good title shall be excluded. Complaints
must be submitted in writing and specify in detail any alleged
or material defects, before they are processed any further.
Quality of goods shall be deemed accepted if the imposer of
these standard terms does not receive a written notification
of defects within 7 working days after receipt of the goods.
8. Statutory Warranty / Guarantee
The imposer of these standard terms shall not assume any
responsibility that the goods will be suited for a certain
purpose. If any delivered object is imperfect or if any assured
characteristics are lacking, or if during a warranty period
such object becomes defective due to manufacturing or
material flaws, the imposer of these standard terms shall
be entitled to remedy or return the delivered product to be
exchanged for a new one. If the defect cannot be remedied
or if it would involve too big an expense, the ordering party
shall be free to claim either price reduction or remuneration
(§ 634 section 4, § 472 German Civil Code (BGB). By way of
an exception, the ordering party may claim a price reduction
if remedying of the defect is unacceptable for the ordering
party. The imposer of these standard terms shall be given the
218 | emcoservice
opportunity to inspect any claimed defect. Defective goods
must be returned without delay if so requested. If warranty
obligations are not fulfilled within the contractually agreed
period, the ordering party may set a definite date in writing.
Upon fruitless lapse of such period, the ordering party shall
be entitled to carry out the necessary remedies itself or have
them carried out by a third party. Once the remedy has been
implemented successfully by the ordering party or by a third
party, all claims of the
ordering party shall be satisfied by remunerating the respective
costs incurred.
9. Any Other Claims
If due to a delay caused by the imposer of these standard
terms, the ordering party has incurred losses or damage, it
shall be entitled to claim damages for
delay not exceeding a maximum of 5 percent of the total
value of the goods supplied in any respective individual
transaction, thereby excluding any other damage claims. If
nothing else is specified hereafter, any other and any additional
claims of the ordering party shall be excluded, which
applies in particular to damages due to impossibility of
performance,
intentional or gross violation of contractual accessory obligations,
culpa in contrahendo /error in concluding the contract/,
and illegal activities. Thus, the imposer of these standard
terms shall not be liable for any damage not incurred on the
goods supplied. Above all, the imposer of these standard
terms shall not be liable for any profit or property losses suffered
by the ordering party. The above limitations of liability
shall not apply in cases of willful intention, or gross negligence.
It shall only apply to contractually typical and plausibly
foreseeable damage. In addition, limitation of liability shall
not apply in cases where pursuant to the product liability law,
liability is incurred for personal injuries or damage to property
due to defective goods delivered when objects are used
privately. Nor shall it apply if any assured characteristics are
missing, the purpose of the assurance being to safeguard the
ordering party against damage not incurred on the goods
themselves.
10. Force Majeure
The imposer of these standard terms shall be released from
its contractual delivery obligations for a respective period if
it is prevented or delayed in delivering the goods by normal
means of delivery through any unpredictable serious circumstances
beyond its control including but not limited to strikes,
lockouts, unrest, measures imposed by public authorities,
shortage or unavailability of raw materials from normal source
of supply. This provision shall also apply if the imposer of
these standard terms is in delay. The imposer shall be obliged
to inform the ordering party forthwith and attempt in good
faith as far as possible to cope with its obligations under the
changed circumstances.
11. Terms of Payment
All invoices shall be payable within 30 days after the invoice
date without any deductions. The imposer of these terms
shall grant a discount of 3% within 7 days after the invoice
date unless the ordering party is
in delay of payment of previous invoice amounts.
Interest customary in banking will be charged on overdue
payments. Drafts will only be accepted without guarantee
for protest and on condition that this form of payment has
been agreed in writing. Counterclaims which have not been
acknowledged cannot be set off nor can a retaining lien be
asserted because of these claims.
12. Delay in Payment and Worsening of Solvency of the
Ordering Party
If the ordering party is in delay of pay ment of previous
invoices covering completed shipments, the imposer of these
standard terms shall be entitled to postpone dispatch of new
orders until any invoices due have
been paid, or until a down-payment of the purchase price has
been received, or to withdraw from contract. The same shall
apply if after conclusion of a contract a marked worsening
of the financial situation of the ordering party has become
evident. All agreed payment conditions must be kept, even if
warranty claims have been raised. If to avoid bankruptcy,
insolvency proceedings are initiated in court or out of court
against the ordering party, (§ 284, German Civil Code (BGB),
any granted price reductions or freight payments shall cease.
The same legal consequences shall be enforced on day 31
after the invoice due date.
13. Reservation of Ownership
Any merchandise delivered under the business relationship
with the ordering party shall remain the property of the
imposer of these standard terms until full payment of all outstanding
amounts has taken place. If the ordering party is in
breach of contract with regard to delayed payments, the delivered
objects may be taken back, the ordering party shall be
obliged to hand them back. Any return of a delivered object is
not tantamount to termination of contract, unless specifically
pronounced in writing. Any seizure of goods always entails
termination of contract. If any distress or execution shall be
levied by third parties, the ordering party shall be obliged to
report it without delay in writing, in order to bring a third
party action against execution. Should such third party not be
able to pay the court and outside court costs of such a third
party action against execution, the ordering party shall be
liable for the deficiency. The ordering party shall be permitted
to resell the delivered object in the course of ordinary business
methods. By exercising this right, the ordering party assigns to
us its entire account including value added tax, which he gains
when reselling the goods to third parties, independent of the
fact whether the goods have been resold before or
after processing. The ordering party shall be entitled to collect
any amounts due even after assignment. The imposer of these
terms shall however retain the right to collect money itself,
however, the imposer warrants not to collect any assigned
claims if the ordering party fulfils its contractual obligations
of payment, and is not in delay. The imposer of these terms
shall be entitled to expect that the ordering party reports the
assigned claim and the debtors name, and all
necessary particulars and hands out the necessary
documentation and notifies the debtors about the
assignment. Any change or transformation of the goods by
the ordering party will always take place for the imposer. If
the goods are mingled with other objects, the imposer shall
become the co-owner of the newly created product at the
ratio of the value of the retention of title goods to the other
included objects at the time of processing for the new object
created this way. For the newly created object, the same provision
shall apply as for the retention of title goods.
If the goods are mingled inseparably with the other objects,
the co-ownership of the imposer in the newly created product
shall be determined at the ratio of the value of the retention
of title goods to the other included objects at the time of the
processing for the new object created this way. If the mingling
takes place in a way that the ordering partys part can be
regarded as the major part, it shall be agreed that the ordering
party assigns co-ownership to the imposer of these terms
on a pro rata basis. The ordering party shall hold in custody
the sole ownership or the co-ownership. The ordering party
shall assign the claim as security which will accrue against
any third party when the product is combined with a piece of
landed property.
14. Export Clause (Resale)
Products supplied may be exported into countries only for
which prior written consent has been granted. Except if a
prior approval has been obtained, the ordering party may not
sell the products to clients of whom it is known that they will
export them. This
interdiction shall apply only in as far as it is covered by the
Small Cases Notification of the EU Commission. For deliveries
to foreign countries, the ordering party shall bear all risks
incurred when foreign laws and regulations apply.
15. Place of Performance,
Legal Venue and Applicable Law
Place of performance for all obligations under the contract
relationship shall be the business seat of the imposer of these
terms and conditions. For legal controversies, also in bill of
exchange cases or cheque proceedings, legal venue shall be
the business seat of the imposer, if it is a trader, a legal entity
under public law, or a public law special fund. The imposer
shall be entitled to sue also at a court with jurisdiction at the
seat of the ordering party, or at any other court competent
according to national or international law. This contract shall
be governed and construed according to German law. Validity
of the UNCITRAL sale of goods law agreement (United Nations
Contracts on International Trade Law Convention) shall be
excluded.
16. Invalidity of Individual Clauses
If individual provisions of these standard sales, delivery, and
payment terms shall be invalid or become ineffective, the
validity of the remaining provisions shall not be affected in
any respects.
01.10.001.24 - english