General delivery and performance conditions ENTEX Rust & Mitschke GmbH (Bochum, April 2011)
- § 1 – Content of the Contract
The following regulations are valid for all our performances and deliveries resulting of agreements of our contracts which will be reached in all individual cases.
- § 2 – Offer
Documents such as illustrations, drawings, indications of weight and meas-urements, which are belonging to the offer, are only approximately definitive, as far as they are not expressly indicated as binding. Estimates, drawings and other documents are subject to the right of ownership and to the copy-right of the supplier; these documents are not permitted to make plans, which are indicated as confidential by the purchaser, available to third persons without his consent.
- § 3 – Delivery Time
- The delivery time is, in general, not binding. It has to be regarded as binding only, if the obligation is expressly stated in the contract.
- The delivery period begins with the dispatch of the confirmation of order, but not before documents, authorizations and releases have been furnished by the customer, not before all other involving dealings of the purchaser, which are necessary and are condition that we will be able to fulfil our ser-vices, executed.
- The delivery period begins each time a new when the purchaser demands alterations or supplements of our services after the confirmation of order has been dispatched. If the requested alterations and supplements can not be executed within the new delivery period, this delivery period is not valid for them. The delivery period is extended appropriately by the period of time concerning measures taken during industrial actions, particularly, strikes and lockouts as well as these obstacles, which are beyond supplier’s control, as far as these obstacles have a considerable influence on the completion or the delivery of the ordered product. This is also valid if the described circum-stances occur in the connection with sub-suppliers. The above mentioned circumstances will also not be represented by us if they occur during a delay, which does already exist. In important cases, the supplier will inform his customer about the beginning and the end of obstacles, as soon as possible.
- The agreed delivery period will be extended – regardless of our rights concerning the delay of the buyer – by the period of time in which the buyer is in delay regarding his obligations of this or another contract, which have been concluded with us.
- If, we, ourselves will be in delay, the purchaser is only allowed to withdraw from the contract if he has granted us a new deadline with the threat of refusal and if this extension has not been met by us.
- Instead of the withdrawal from the contract, the purchaser can claim damages according to the Civil Code, § 326, paragraph 1. The liability for compensation includes, in principle, only the direct damage.
- If the conditions of the contract reveal that the liability for indirect damage has to be urgently necessary in the interest of the buyer, the right to claim damages is restricted on the extent of the damage that can be foreseen by us at the time of the completion of the contract.
- In any case, the extent of the claim is limited on 5 % of the net volume of the delivery.
- Claims of compensation concerning § 286, paragraph 1, Civil Code, are excluded. If they are included, owing to a particular agreement, the buyer has the right to claim damages for delay under exclusion of further compensa-tions, in case that the damage has been caused by an act of culpable negli-gence or intentionally by us. The compensation for delay is about 0,5 % for each week of delay, but not more than 5 % of the value of that part of the whole delivery which cannot be used in time or as stipulated in the contract due to the delay.
- If claims of damages, referring to No. 8 and No. 9 are asserted, they will be restricted to a total of 5 % of the net delivery volume.
- Goods, which have been advised as ready for dispatch to the customer, have to be immediately collected. Otherwise, we are entitled to store the goods at the buyer’s risk and expense and to charge the delivery on his account, at the latest, this will be the case 10 days after the announcement that the delivery has been ready for dispatch. The buyer’s account will be charged with the costs which result from the storage, starting one month after the advice of dispatch, at least, his account will be charged with 0,5 % of the invoice amount per month, if the goods are stored in our work. Nevertheless, we are entitled to use the goods for a different purpose and to deliver them within a period has been fixed without success.
- That fulfilment of the contract duties of the buyer is a condition that the delivery period will be observed.
The buyer is not allowed to reject part of deliveries.
The delivery period has to be regarded as observed if the goods have left the work until the deadline had passed or the dispatch had been advised.
- § 4 – General Impairments of Services
As far as this contract does not stipulate any regulations concerning impair-ments of services elsewhere, the following has to be observed:
- If the customer demands claims of damages, we have to grant these claims only if the damage has been caused intentionally or by an act of culpable negligence. The reliability concerning indirect damage is urgently necessary in the interest of the purchaser, the right to claim damages is restricted on the extent of the damage, which can be foreseen by us at the time of the completion of the contract.
In any case, the extent of all claims of compensation should not exceed 5 % of the net delivery volume.
- If impossibility occurs during the delay of acceptance or through the buyer’s fault, he has the duty to return the service.
- Claims of the customer resulting of an unjustified demand, or of culpa in contrahendo, or of other obstacles influencing our service, as well as of unlegal action, are excluded, as far as this contract or legal regulations do not lay down anything else.
If such claims are asserted, and, as far as we are in a position to make replacements, § 10 will be accordingly valid. By the way, the restrictions of § 3, No. 5 to No. 8 including, as well as the restrictions of § 4, No. 1 have accordingly to be regarded as valid.
- As far as it will be legally authorized, the liability concerning third persons, who are engaged in fulfilling the order, is excluded – also if it is due an act of culpable negligence. Nevertheless, if we will accept liability in an individual case, the restrictions of No. 3 will become effective accordingly.
- § 5 – Extent of the Delivery
Regarding the extent of the delivery, our written confirmation of order has to be definitive, in case of our offer with a time limit and acceptance of the offer within the period stipulated, provided the confirmation of order will be re-ceived in time. Sub-agreements and alterations are subject to our written confirmation.
- § 6 – Price and Payment/ Settlement
- Without a particular agreement, our prices are quoted ex works, including loading in our plant, but excluding package.
If not elsewhere in the contract stated, the payment has to be arranged by cash and strictly net in the following procedure:
1 /3 on receipt of confirmation order,
1 /3 as soon as the purchaser has been advised that the main parts of his order will be ready for dispatch,
the last third within 30 days.
- As far as there exist no different agreement, invoices have to be paid immediately by cash on receipt without reduction. Drafts and checks can only be used if it has been expressly stipulated in the contract. Settlements by a draft or a check can only be accepted if they really will be cashed in. If pay-ments are not settled in time, we will charge the buyer’s account with inter-ests in the amount of 3 % exceeding the discount rate of the respective regional bank.
- Non-compliance of the conditions of payment or of other duties or circum-stances, which will become known to us after completion of the contract, can reduce the buyer’s credit standing. As a consequence of this, the purchaser has to settle all our outstanding accounts, also those, which are relating to other contracts. In this case we would be entitled to execute outstanding deliveries only against payment in advance.
- The purchaser is not permitted to hold up payments or to charge claims which have been assessed as not legally valid.
- If, during the period of the execution of the order, prices will generally be raised in the frame of legal requirements, or if standard wages or an increase of prices of material will change our calculation basis, the altered prices concerning the outstanding delivery will be effective, as far as this will be legally permitted.
- § 7 – Transition of Risk and Acceptance
- The risk will be transferred to the buyer at the latest at the time of dispatch of parts ordered, also if the latters will be transported by us, or, if we make part deliveries, or, if we effect other services, e. g. the expenses concerning dispatch and installation.
If requested by the customer, we will take out an insurance at his expense against theft, break, transport, fire and water damage, as well as against other risks which can be insured.
- If the dispatch is delayed because of circumstances caused by the cus-tomer, the risk will be transferred to him from the moment where the goods will be ready for dispatch; however, we are obliged to take out the insurances the buyer requests and to charge it on his account.
- Goods delivered have to be accepted by the customer, also if they have irrelevant defects, regardless of the rights stated in § 10.
- § 8 – Deviation from the Services mentioned in the Contract
Deviations from measurement, weight and quality, alterations referring to construction and form of the construction pattern, as far as the ordered object and its appearance will not substantially be changed are allowed. Details of services, weights and other characteristics are approximately valid.
- § 9 – Right of Ownership
- The right of ownership of the delivery object is subject to the receipt of all payments due to the contract.
- Furthermore, all our payments which have to be settled in connection with the delivery object in future (e. g. repairs replacements, etc.) are subject to its settlement.
- Besides, the goods will remain our property until all our outstanding de-mands, resulting of previous contracts with the purchaser, will be settled.
- The purchaser is only allowed to make use of the goods in the frame of business properly conducted. In case of a disposal on the part of the buyer, concerning the goods subject to the right of ownership, he has to assign to us the claims arising from the disposal, in order to make the settlement of our payments sure.
- We are entitled to take out an insurance at the buyer’s expense against theft, break, fire, water and other damage, as far as the buyer himself haws not done this provable.
- The purchaser is not allowed, either to pawn the delivery object or to transfer the ownership as security on a dept. With regard to pawning, as well as confiscation, or other orders effected by third hand, the customer has the duty to inform us about these proceedings immediately.
- If the buyer does not act according to the contract, particularly concerning the delay of payment, he is obliged to return to us the goods after we have sent him a reminder. If, in this connection, we will take the goods back, it does not mean our withdrawal from the contract, as long as there will be no contractual and legal conditions, and, as we have not expressly announced our withdrawal. The returning of the goods is merely to secure our claim against the customer. We will keep the goods for the buyer. Our claim for payment will remain. After the payments have completely been effected, the goods will be returned by us to the buyer. The return and storing of the delivery object is carried out at the customer’s expense. If the goods are stored in our work, we will charge his account with, at least, 50 % of the invoice amount per month.
- The enforcement of the right of ownership, as well as the pawning of the delivery object by the supplier, are not to be seen as withdrawal from the contract, as far as the law of instalment will not be taken into consideration.
- § 10 – Liability for Delivery Faults
We will be liable for deliver faults including the loss of qualities, which have expressly been assured, with exception of following further claims:
- According to our estimation, all those parts have to be repaired or delivered free of charge from a new, which cannot be used or will substantially turn out as spoiled in its usefulness within 6 months (if it is a multi-shift-plant, it will be within 3 months) since putting into operation, at the latest, however, 9 months after we have sent an advice of dispatch to the buyer; regarding machines at the most about 1000 running hours due to a circumstance which will happen before the transition of the risk – especially because of a faulty construction, inferior building material or faulty quality. The recognition of such defects has to be announced to us immediately in writing.
- The buyer has to inform us about visible defects within 2 weeks after receipt of the goods at the place of destination. If this information is not furnished within the stated period, we will consider the goods to be delivered as free of faults. In this case, claims regarding faults of the delivery are impossible. If the dispatch, the installation or the putting into operation is affected by our own fault, the liability will be expired at the latest 12 months after the risk has been transferred.
- Concerning products delivered by another supplier, our liability is restricted to the assignment of the claims of liability, which we have against the sup-plier.
- The right of the customer to claim faults will be in lapse, as far as the contract does not include different regulations; in all cases, it will be from the moment the letter of complaint is sent punctually, that means 6 months after refusal of the rebuke by us, at the earliest however , with the expiry of the guarantee period.
- We will not grant guarantee concerning damage caused by the following circumstances:
Unsuitable or improper usage, faulty assembly or putting into operation by the buyer or another person, general wear and tear, faulty or careless handling, unsuitable means of production, material of replacement, faulty construction work, unsuitable building ground, chemical and electro-chemical or electric influence, as far as these faults are not caused by us.
- In order to enable us to execute all repairs and substitute deliveries, which will be necessary according to our own estimation, the customer has to spend the required time and to give the opportunity after he has notified us about it; otherwise, we will be released from the liability. Merely in urgent cases, e. g. jeopardizing of the works security, and, in order to provide expressively high defects, about which we have to be informed at once, or, if we are in delay regarding the removal of the defect, the customer is entitled to eliminate it himself or by a third party and to claim compensation for the necessary expenses.
- Concerning the costs resulting from the repair or substitute delivery, we will bear the costs – as far as the complaint is justified – of the substitute part including the dispatch, as well as the adequate costs for the removal and installation, furthermore, if the compensation for cost can be demanded according to the situation of the individual case, we will bear the costs of the furnishing of engineers and temporary workers. Apart from that, the customer will bear the costs.
- The guarantee period for substitute parts and repairs is about 3 months, but it will exist at least until the original guarantee period for the delivery part has expired. The period regarding the liability of defects will be extended by the time of the work interruption caused by the repairs.
- The liability for consequences resulting of alterations or repairs, improperly arranged by the buyer or a third person without our previous approval, will be revoked.
- If repairs or the substitute delivery turn out to be a failure, the customer can demand the cancellation of the contract. Moreover, is entitled to cancel his order if we let pass the extended period fruitless by our own fault, which has been appropriately fixed regarding the repair or substitute delivery with reference to a fault accepted by us in the sense of the delivery condition.
- Further claims or the customer, especially a claim for damages, which do nor affect the delivery object itself, are excluded, as far as this is legally authorized.
- In general, this is also for claims owing to the lack of qualities which have been expressly assured. As an exception, claims of damages can only be granted, if the contract parties have required liability exceeding the above mentioned liability extent and they have agreed it in writing. If a claim for damages is granted due to the lack of an assured quality – as this claim will exist just after the failure of repair – our liability will be restricted to the dam-age extent, which could be foreseen by us at the time of completion of the contract.
- § 11 – Exceptions for Liability/ Unexpectable Events
- As far as legally allowed, all other farreaching claims of the customer will be excluded, which will go beyond the claims for cancellation, termination or diminishing, as well as for damages of any kind, especially for such damage, which do not affect the delivery object itself.
- In case of unforeseeable events or obstacles in accordance with § 3, No. 3 of delivery conditions, as far as they will considerably change the economic meaning or the content of the service, or, as far as they will substantially have an effect on the business of the supplier, and in case of a non-fulfilment of the execution, which will be later realized, the contract will be appropriately adapted. So far as this will be economically untentable, the supplier has the right to withdraw entirely or partly from the contract.
Claims for damages of the purchaser due to such a withdrawal do not exist. If we make use of the right of withdrawal, we will inform our customer immedi-ately about it after we have realized the consequences of the events, espe-cially then, if we have first made an agreement with the customer about an extension of the delivery period.
- § 12 – Alterations and Supplement / Place for Fulfilment / Court of Jurisdiction / General Sales Conditions of the Customer
- Alterations and supplements of this contract have to be drawn up in writing.
- The place of fulfilment for all duties regarding this contract is Bochum, as far as nothing else has been expressly and in written agreed.
- With regard to all disputes emerging of the contract conditions, legal proceedings have to be instituted at the court, which is responsible for the head office of for our subsidiary – if the delivery will be effected by the latter – in this case the customer represents a person with qualifications in business or commerce, or if he is a corporate body of public law. We are also entitled to institute proceedings at the buyer’s head office.
- General Sales Conditions of the buyer are not binding for us, also we have not expressly made an objection.
- If one or more regulations of this contract become inoperative or invalid, the validity of the contract itself will not be concerned by it.
The contract parties are obliged to replace the inoperative or invalid regula-tions by such which will come economically and juridically very close to the ideas of the parties at the time of the completion of the contract.
Conditions for the Delivery of Machinery inside Germany (Frankfurt, 2007)
General conditions for the supply and erection of mechanical, electrical and electronic products (Brussels, September 2001)
Terms and Conditions
Our general delivery and performance conditions
As per ENTEX general delivery and performance conditions. In case of contradictory regulations the VDMA (for Germany) / ORGALIME (all countries except Germany) conditions will prevail the ENTEX conditions.
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Bochum, July 01, 2016