1.1 Our terms of delivery and payment apply exclusively to the entire business relationship with our buyers. We do not acknowledge any differing or supplementary conditions of the buyer, unless we have expressly agreed to the validity of these in writing. Our terms of delivery and payment also apply exclusively if we make a delivery without reservation in spite of any contrary, differing or supplementary terms and conditions of the buyer. Even if not expressly agreed, our terms of delivery and payment shall apply to all future business transactions with the buyer.
1.2 These terms and conditions only apply vis-à-vis companies, legal entities under public law, and special assets under public law.
1.3 Our sales representatives and agents do not have any contractual powers; agreements made with them require our written confirmation to become binding.
2. Quotation and conclusion of contract
2.1 Our quotations are always subject to change without notice, unless otherwise expressly stated in the quotation. Failure to respond to offers from the buyer does not constitute acceptance.
2.2 The supply contract only becomes valid once we have given written confirmation of the order. If we do not issue such confirmation, the performance of delivery by us, or the delivery note, shall be deemed to be confirmation of the order. Verbal agreements require our written confirmation.
2.3 Following confirmation of the order, it is not possible for the buyer to withdraw from the supply contract, subject to any differing legal or contractual provisions.
2.4 The dimensions, weights, illustrations, descriptions and other information contained in our catalogs, brochures, price lists or price estimates and other documents are intended for information purposes only and can only become part of the binding content of the contract with our express written approval.
2.5 Declarations with regard to properties and durability are only deemed to be guarantees if they are expressly stated as being such. The same also applies to the assumption of any procurement risk.
2.6 Our written order confirmation is definitive for the nature and scope of performance. We are entitled to partial performance insofar as this is reasonable for the buyer.
3. Delivery times
3.1 Unless otherwise agreed, the delivery time will be set in accordance with the information given by us in the order confirmation. The delivery time commences with dispatch of our order confirmation, however not prior to clarification of all the questions required for execution of the order and not before completion of any necessary advance performance by the buyer or receipt of any down payment to be made by the buyer. If payment in advance has been agreed for deliveries to the buyer, the stated delivery time will only commence following receipt of the advance payment sum. Subsequent changes requested by the buyer will give rise to suspension of the delivery time. The delivery time will re-commence once agreement has been reached on the desired change.
3.2 In the case of delivery "ex works", the delivery time is deemed to have been fulfilled if the object of sale has been set aside and is ready for shipment within the agreed period, and the buyer has been notified of this. In the case of sales shipment, the delivery time is deemed to have been fulfilled if the object of sale has been handed over to the forwarder within the agreed period, or was ready for handover but could not be handed over through no fault of our own.
3.3 In the case of delivery and performance delays arising from force majeur, important company interests and from events the reasons for which are beyond our control, we will be entitled to postpone delivery or performance for the duration of the hindrance with the addition of a reasonable time for preparation. The same will also apply if such events occur at our suppliers or in the course of an already existing delay. If the hindrance persists for longer than 3 months, both the buyer and ourselves are entitled to withdraw from the contract with respect to the part not yet fulfilled. We will inform the buyer as soon as possible of the start and end of the causes of such hindrances.
3.4 Should the buyer be in arrears with payments for previous deliveries from an ongoing business transaction, we will be entitled to refuse all performance owed by us. Any ensuing expense will be borne by the buyer.
3.5 Orders for delivery on call must have been called at the latest 6 months after the first part delivery. Following completion of this period we are entitled to dispatch the goods ordered. If the buyer is in default of acceptance or infringes any other obligations to cooperate, we are entitled to demand compensation for whatever damage we may have suffered. We reserve the right to further claims.
3.6 If the buyer is in default of acceptance or culpably infringes any other obligations to cooperate, we have a right to demand compensation for the damage arising from this, including any additional expense.
3.7 In the event of delays to dispatch, delivery or collection of the delivery item at the request of the buyer or due to circumstances originating in the area of responsibility of the buyer, the buyer is obliged to reimburse us for the ensuing costs of storage and interest on the capital employed for the delivery item. For storage on our premises, the claim will amount to at least 0.5% of the outstanding invoice amount for every started month, commencing one month after notification of readiness for dispatch. The buyer is however at liberty to prove that the actual damage is less than this in each case. Following the setting and ineffectual completion of a reasonable period, we are however entitled to dispose of the delivery item in some other manner and to make a substitute delivery to the buyer within an appropriately extended period.
3.8 Should we culpably default as a result of the infringement of our substantial contractual obligations (i.e. obligations, the fulfillment of which is essential for proper fulfillment of the contract and in the fulfillment of which the contractual partner regularly places his trust and is entitled to place his trust), compensation for damage will be limited to the foreseeable damage typically occurring. Other than that, the default damages to be paid are limited to 3% of the delivery value for each completed week, however not exceeding a sum amounting to 15% of the delivery value.
4.1 Unless otherwise agreed in writing, deliveries will be made at the prices quoted by us. The prices apply ex works or from the agreed point of shipment, not including packaging, customs duties, insurance, installation and instruction costs, shipping costs and value added tax.
4.2 In the event of a reduction or increase in costs due to the price of material or pay rises or alterations occurring after the conclusion of the contract, we reserve the right to invoice the price definitive at the time of delivery, should delivery take place longer than 4 months after the date of our order confirmation. We will furnish the buyer with proof of the cost changes on request.
4.3 We also reserve the right to re-calculation in a manner that is reasonable for the buyer in the event that the contractual object has been provided with technical improvements since the date of the contract.
4.4 In the case of orders for delivery on call, the prices invoiced with always be those applicable on the day of delivery or on the due date for acceptance.
4.5 In the case of non-agreed quantity reductions, we will be entitled to make supplementary charges or to reduce discounts to cover our costs.
4.6 In the case of "ex works" deliveries, we are entitled to invoice the goods on readiness for delivery. With sales shipments, the right to issue the invoice begins with handover to the forwarder.
5.1 Unless otherwise indicated, our invoices are payable within 30 days as of the invoice date without any deductions. No discount is granted on invoices for development expenditure, tools and equipment. In the case of deliveries to other countries, the purchase price is payable immediately following receipt of the invoice without any deductions. The punctual receipt of funds on our account is definitive to qualify for discount deductions.
5.2 In the event of payment default, interest will be payable at an annual rate of 9 percentage points above the applicable basic rate (§ 247 BGB). We reserve the right to furnish proof of more extensive default damage.
5.3 Following the ineffectual completion of a reasonable additional period, we are entitled to demand advance payment for any outstanding performance, or to make such performance dependent on the provision of security, if the buyer has defaulted on the agreed payment deadlines, or if circumstances exist that, by normal banking standards, give rise to doubts about the solvency of the buyer. We are further entitled to fix a due date for our accounts receivable, regardless of the term of any bills of exchange, and to demand security.
5.4 The buyer is only entitled to exercise rights of set-off and retention if he has undisputed or finally and conclusively established claims. The exercising of rights of retention by the buyer is only possible if his counter-claim is based on the same legal relationship.
5.5 So-called guarantee or warranty retention on the part of the buyer and claimed in advance is not admissible.
5.6 Employees, sales representatives and agents of our company do not have the power to collect, unless we have issued our express written order to do so.
5.7 If payment by installments has been agreed, we are entitled to fix a due date for immediate payment of the entire remaining purchase price if the buyer is in arrears with installments amounting to more than 10% of the total purchase price.
6. Packaging and shipment
6.1 Packaging will be in accordance with standard commercial practice and at our discretion. Use will be made of disposable, non-returnable packaging to be invoiced at the lowest possible price. The use of re-usable packaging systems is subject to agreement between manufacturer and buyer.
6.2 In the case of sales shipments, we will endeavor to make use of the, in our opinion, best possible shipping channel unless a specific manner of shipment has been agreed.
6.3 The costs of packaging and carriage from the factory to the place of delivery will be borne by the buyer.
7. Scope of delivery, transportation and passing of risk
7.1 Unless any other agreements have been made, it is agreed that deliveries will be "ex works". The risk of deterioration or destruction will accordingly pass to the buyer on notification of readiness for shipment and setting aside of the object of sale. This also applies if we have assumed responsibility for additional services such as loading, transportation or unloading. If performance is delayed due to circumstances for which the buyer is responsible, we are entitled to store the goods at our own discretion, at the expense and risk of the buyer, and to invoice the goods as having been delivered ex works.
7.2 If sales shipment has been agreed, the risk of deterioration or destruction will pass to the buyer at the latest on dispatch of the delivery item, or on handover to the forwarder ex works or from the point of shipment. If dispatch is delayed on account of the buyer's actions, the risk will pass to the buyer on notification of readiness for shipment. Section 7.1 paragraph 4 applies accordingly.
7.3 At the request of the buyer, we will insure the consignment concerned in the name and for the account of the buyer against theft, breakage and transportation, fire and water damage. A corresponding power of attorney is deemed to have been issued in the above context on expression of the request.
7.4 Slightly short or excess deliveries on account of production-related reasons (-/+ 1 for deliveries up to 20 items and -/+ 5% of the delivery quantity for deliveries of more than 20 items) constitute proper fulfillment. The quantity actually delivered will however always be invoiced.
7.5 The risk of accidental loss or accidental deterioration of the object of sale will also pass to the buyer as soon as the buyer is in default of acceptance or is responsible for debtor's delay.
8. Retention of title
8.1 The goods delivered will remain our property until all our claims from the business transaction have been satisfied. This also applies to issuing of acceptance of the statement of account.
8.2 The buyer is entitled to re-sell the goods delivered in the ordinary course of business, provided that he is not in default. However, the buyer already assigns to us at this point all his claims to the value of the applicable final invoice amount (including the legally applicable value added tax) with regard to accounts receivable from his purchasers or third parties arising from re-sale, regardless of whether the delivery item has been resold without or after further processing. Until revoked, the buyer is entitled to collect accounts receivable. This does not affect our authorization to collect receivables ourselves. We do however undertake not to collect the receivables for as long as the buyer honors his payment obligations from the proceeds received, is not in default of payment and, in particular, no application has been made to open composition or insolvency proceedings with respect to the assets of the buyer and there has been no cessation of payments on the part of the buyer. Should this however be the case, we are entitled to demand that the buyer gives notification of the accounts receivable assigned and of the debtors concerned, provides all the necessary information for collection, hands over the corresponding documents, and notifies the debtors (third parties) of the assignment.
8.3 Working, processing or re-forming of the delivery item by the buyer is always done on behalf of us as manufacturer, without any obligation for us. If the delivery item is processed together with other items not belonging to us, we will acquire co-ownership rights to the new item on the basis of the proportion of the value of the delivery item (final invoice amount including value added tax) to that of the other processed items at the time of processing. Other than that, the rulings for items delivered subject to reservation shall apply to the item created by processing.
8.4 If the corresponding delivery item is inseparably intermixed with other items not belonging to us, we will acquire co-ownership rights to the new item on the basis of the proportion of the value of the delivery item (final invoice amount including value added tax) to that of the other intermixed items at the time of intermixing. If intermixing takes place in such a manner that the item of the buyer is to be viewed as the main item, it is agreed that the buyer will transfer a share of the co-ownership. Other than that, the provisions for items delivered subject to retention of title will apply.
8.5 Insofar as we had co-ownership rights to the goods sold subject to reservation in accordance with the above provisions, the buyer will assign his claim vis-à-vis the purchaser to us proportionately to the co-ownership share. The buyer will also assign to us any claims vis-à-vis a third party with respect to security arising from the combination of the goods subject to reservation with real estate. We already accept such assignments at this point.
8.6 The buyer is not entitled to any other rights to dispose of the goods subject to reservation and of any claims in lieu of these. In the event of seizure or confiscation of the goods subject to reservation or of claims in lieu of these, the buyer must indicate our entitlement and inform us without delay, to enable us to safeguard our rights vis-à-vis third parties. Insofar as the third party is not in a position to reimburse us for the judicial or extrajudicial costs of prosecution, the buyer will be liable for the loss incurred by us.
8.7 The buyer will keep safe the property subject to reservation in the context of the above provisions, or any objects in lieu of this, free of charge for us.
8.8 At the request of the buyer, we will release the delivery item to the extent to which we no longer have a security interest in it. The security interest ceases to be applicable if the realizable value of the delivery item surpasses the cover limit of 110% of the secured claim not just for a temporary period. The cover limit is assumed to have been reached if the officially estimated value of the delivery item corresponds to 150% of the secured claims at the time of the request for release. The buyer is at liberty to furnish proof of a different realizable value of the delivery item.
8.9 If the buyer is in contravention of the contract, in particular in the case of payment default and in the case of our claims being jeopardized by the deterioration of the creditworthiness of the buyer, we will be entitled to take back the goods subject to reservation after the ineffectual completion of an additional period set by us, even if we have not withdrawn from the contract. We are then also entitled to sell the goods subject to reservation by private contract, or to have them sold by auction. The realization proceeds are to be set off against the liabilities of the buyer, with the deduction of reasonable realization costs. The buyer will be liable for any remaining claim for deficiency.
8.10 The buyer is obliged to treat the delivery item with care and to maintain it in perfect condition for as long as ownership has not passed to him. The buyer shall continue to sufficiently insure the products supplied to him against loss or damage due to theft, fire, water or the like at his own expense and for our benefit, and shall furnish proof of such insurance to us on request. Insofar as maintenance and inspection work is required, the buyer must perform this in good time at his own expense.
8.11 We are authorized to assign pecuniary claims against the buyer.
8.12 If, according to the law of the place at which the delivery item is located, retention of title or assignment is not effective, a corresponding security is deemed to have been agreed. The buyer is obliged to take all measures required to establish and preserve such rights.
9. Warranty, obligations of the buyer on notification of defects by his purchasers, reimbursement of expenses, liability
9.1 Warranty claims by the buyer are subject to the proviso that he has properly fulfilled his legal duties to examine and give notice of defects. This also applies if the buyer re-sells the delivery item. In the event of obvious defects or incompleteness of the item, we are to be informed of the complaints in writing within 2 weeks of the arrival of the item at the destination, giving an exact indication of the fault and the invoice number. If we so request, documentary material, samples, packing slips and/or the defective item are to be returned to us. Claims from the buyer relating to defects or incompleteness of performance are not admissible if the buyer fails to fulfill this obligation. Notification of hidden material defects must be given immediately following their discovery. Following completion of acceptance as agreed, the notification of defects that could have been found during the acceptance procedure, is inadmissible.
9.2 We will only accept liability for a specific application or specific suitability if this has been expressly agreed in writing. Other than that, the risk of suitability and usage will be borne exclusively by the buyer. The buyer is obliged to ensure compliance with the general technical conditions specified in the documentation and/or in the supplementary documents. Any other usage is prohibited. The buyer must impose this, and any other usage restrictions stipulated by the seller, on his purchasers as well.
9.3 Warranty claims for used delivery items are inadmissible as a matter of principle and in their entirety, unless liability for defects has been expressly agreed in writing.
9.4 There is no defect in the delivery item if the products supplied by us are used at the buyer's works in a functional connection with product components that already exist or have been acquired from a third party, insofar as the problem was not caused by the components supplied by us or by their lack of compatibility. If compatibility with third-party products has been expressly assured by us in writing, this only relates to the current product version applicable at the time of giving assurance, but not to older or future product versions. There is also no defect in the delivery item if and to the extent that a problem arises from the fact that the buyer has not ensured compliance with the general technical conditions specified in the documentation and/or in the supplementary documents. Insofar as we are called in to rectify a problem in such cases, the buyer must bear the costs arising on the basis of our rates applicable at the time. In such cases, the buyer must also indemnify us against third-party claims for damages. The onus is always on the buyer to prove that damage has not resulted from the products supplied by us being used in a manner contrary to the terms of the contract.
9.5 The buyer bears sole responsibility in particular for normal wear and tear of the delivery item, incorrect or negligent handling, alterations, installation or operation, as well as incorrect advice or instruction by the buyer or third parties, excessive loading, unsuitable equipment, an unsuitable installation location, in particular the installation surface, lack of stability or unsuitable safeguarding of the power supply, chemical, electrochemical or electrical influences, the influence of the weather and other natural influences.
9.6 In the case of discovery of a defect in consumables, the materials must be separated without delay in the state in which the defect was discovered, and kept available for checking by us. Otherwise they are deemed to be approved in the state delivered without any further liability on our part.
9.7 Should an item exhibit defects, we have the option of remedying the situation by either rectifying the defects or providing a faultless substitute. Only if this has repeatedly proven to be unsuccessful or is unreasonable, and the defects concerned are not just of a trivial nature, is the buyer entitled to cancellation or reduction of the purchase price in accordance with the legal stipulations. The statutory periods of limitation in the event of recourse are not affected in the case of the application of German law within the meaning of §§ 478, 479 BGB. The buyer is only entitled to claims for damages in accordance with Section 9.12. With regard to any substitute performance and remedial work, a warranty period of 3 months as of delivery or performance shall apply, this will however run at least until the end of the warranty period for our original performance (c.f. Sections 9.14, 9.15).
9.8 The buyer must, by agreement with us, allow the necessary time and opportunity for the performance of all remedial work and substitute deliveries. Otherwise, we will be exempted from liability for the consequences arising. If the buyer wishes the express deployment of a technician or the performance of work outside normal working hours, which would be associated with additional costs for us, the buyer must bear the extra expense accruing (e.g. overtime bonuses, longer journeys etc.).
9.9 Parts replaced in the course of remedial action will become our property. We only accept liability for replacement parts on the basis of the existing terms of delivery and sale, in particular Section 9.7 of these
9.10 The buyer must inform us without delay about any notification of defects from his purchaser in relation to our performance. Should the buyer fail to comply with this obligation, he will have no warranty claims against us. The buyer must additionally secure proof in a suitable form and give us the opportunity to check this at our request.
9.11 Advertising claims made by the buyer to his purchasers or in his advertising material that are not authorized by us do not constitute grounds for warranty claims against us.
9.12 We accept liability for damages in cases of the express assumption of a guarantee or a procurement risk, as well as in the case of the willful or grossly negligent violation of duties and obligations. In the case of gross negligence, liability for damages will be limited to the foreseeable damage typically occurring. Liability on account of culpable fatal injury, physical injury or harm to health, and compulsory liability in accordance with the product liability act, are not affected. We only accept liability for damage to property and pecuniary loss caused by slight negligence in the case of infringement of substantial contractual obligations (i.e. obligations, the proper fulfillment of which is essential for the fulfillment of the contract and in the fulfillment of which the contractual partner regularly places his trust and is entitled to place his trust), however limited to the foreseeable, contractually typical damage at the time of concluding the contract.
9.13 If the buyer is entitled to compensation for damage in place of performance or to withdraw from the contract, he must, at our request, declare within a reasonable period whether and how he intends to make use of these rights. If he does not make any declaration within this period or if he insists on performance, he is only entitled to exercise these rights following the ineffectual completion of a further reasonable additional period.
9.14 Warranty claims become statute-barred within 12 months after passage of the risk. The equivalent also applies to flaws in title. The statutory periods of limitation apply in the case of the willful or grossly negligent violation of duties and obligations, the absence of guaranteed properties, the assumption of procurement risks and injuries to people. In the case of application of German law, this does not apply to warranty claims within the meaning of § 438 para. 1 no. 2 lit. b BGB.
9.15 A time limit of 6 months applies to all claims not subject to the statute of limitations for material defects. It commences with notification of the damage and of the person responsible for the damage. This does not apply to claims for damages arising from willful or grossly negligent action on our part.
9.16 If the buyer submits the delivery item to us for defect rectification, and we establish that the notification of defects is unjustified and no warranty claims exist, we will request the buyer to collect the delivery item within a period of 4 weeks following receipt of notification, or to provide us with a written declaration to the effect that the item should be returned or repaired. In doing so we will inform the buyer that, in the absence of his written declaration within this period, we are entitled to scrap the item at his expense. In the event of unjustified notification of defects, the buyer will bear the costs of shipment and repair of the delivery item.
9.17 More extensive liability for damages than that set out in the above paragraphs of Section 9 is inadmissible, irrespective of the legal nature of the claim being made. This applies in particular to claims for damages arising from culpability on conclusion of the contract, on account of other violations of duties and obligations, or due to tortious claims for compensation for property damage (with application of German law within the meaning of § 823 BGB). This limitation also applies if the buyer demands expenses without substitution in place of performance instead of a claim for damages. More extensive liability on account of fraudulent concealment of a defect is not affected by this.
9.18 The above provisions also apply to violation of product monitoring obligations. The normal service life of the products supplied by us is defined by the information given in the documentation and/or in the supplementary documents.
9.19 In terms of merit and amount, the above limitations of liability also apply to the benefit of our legal representatives, employees, workers, sales representatives and other vicarious agents.
10. Use of software
Insofar as software is included in the scope of delivery, the buyer is granted a non-exclusive right to use the software supplied, including the documentation for this. It is provided for use on the intended delivery item. Use of the software on more than one system is prohibited. The buyer is only permitted to reproduce, revise or translate the software, or to convert it from the object code to the source code, to the legally admissible extent (§§ 69a ff UrhG, German copyright act). The buyer undertakes to neither remove, nor alter without our prior express consent, any manufacturer's details, in particular copyright notices. We, or the software supplier, retain all other rights to the software and the documentation, including any copies. The issuing of sub-licenses is not permissible. Transfer is permissible by way of exception if the buyer furnishes proof of a justified interest in transmission to a third party with termination of own use, in particular in the case of sale of the equipment as a whole.
We reserve property rights and proprietary rights to illustrations, drawings, diagrams, calculations and other documents submitted to the buyer as part of a quotation and in the course of completion of the contract. This also applies to documents designated "personal" and/or "confidential". Without our prior written consent, such documents are not to be used and reproduced, or their content made accessible to third parties, above and beyond the extent required for fulfillment of the contract. They must be surrendered immediately on request.
12. Cancellation of contract
12.1 In the event of revocation of the contract (e.g. due to the withdrawal of one of the parties to the contract), the buyer is obliged to surrender the delivery item to us in advance. We are entitled to have the delivery item collected from the premises of the buyer.
12.2 Furthermore, we can demand reasonable compensation from the buyer for the deterioration or destruction of the delivery item, or if surrender of the delivery item is impossible for some past or present reason for which the buyer bears the risk or the responsibility. The amount of the reasonable compensation is calculated from the difference between the total price according to the order and the present value attained as sales revenue, or, if selling is not possible, as estimated by a sworn expert.
The assignment of rights and/or the transfer of obligations of the buyer from this contract is/are not permissible without our prior written consent.
14. Export and control regulations
14.1 The delivery items and any replacement parts may be subject to the export control regulations of the Federal Republic of Germany or other countries. In the event of subsequent export of the delivery item to another country, the buyer is responsible for compliance with the legal provisions in that country.
14.2 If, on exporting a delivery item, the buyer does not furnish the necessary proof of exemption from value added tax, he is obliged to pay value added tax at the domestically applicable rate.
15. Choice of law, place of performance and legal venue
15.1 Insofar as the buyer is a trader as defined by law, and in the case of legal entities under public law and special assets under public law, it is agreed that our registered headquarters will be the legal venue. We are however also entitled to take legal proceedings against the buyer at a court at his place of residence.
15.2 The law of the Federal Republic of Germany shall apply; the UN Sale of Goods Act is therefore not applicable.
15.3 Unless otherwise stated in the order confirmation, our registered headquarters will be the place of performance.
15.4 Should individual provisions be or become invalid or contain any omissions, this does not affect the other provisions.
ebm-papst Mulfingen or
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ebm-papst Landshut respectively