Conditions of Sale of Goods and Services
1. BASIS FOR SALE
1.1 All goods sold by us are sold subject to these conditions and which shall be the sole terms and conditions of any sale.
1.2 No Contract shall be made until we have issued a written acceptance of the Buyers order.
1.3 No amendment variation or addition to the Contract shall be binding unless accepted in writing by us.
1.4 Our employees or agents are not authorised to make any representations concerning the Goods unless confirmed by us in writing.
2. ORDERS AND SPECIFICATIONS
2.1 We reserves the right to make any changes in the specification of the Goods, at any time without notice which are required to conform with any applicable safety or other statutory requirements or, where the Goods have to be supplied to our specification, which do not materially affect the quality of performance.
2.2 No order which has been accepted by us may be cancelled by the Buyer except with the agreement in writing of us and on terms that the Buyer shall indemnify us in full against all loss including the cost of all labour and materials used, damages, charges and expenses incurred by us asa result of cancellation.
2.3 Orders are accepted by us subject to the availability of Goods for delivery.
2.4 All drawings, photographs, illustrations, performance data, dimensions, weights, and other technical information and particulars of the Goods are given by us in the belief that they are as accurate as reasonably possible but are not to be treated as binding or forming part ofthe Contract.
3.1 Unless otherwise agreed in writing by us, the price of the Goods shall be our quoted price or, where no price has been quoted, the price listed in the published price list current at the dateof delivery.
3.2 We reserve the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to us which is due to any change(s) of delivery date, quantity or specification of the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer, or failure of the Buyer to give us adequate information or instructions.3.3 Unless otherwise agreed in writing, all prices are given by us on an ex works basis and where we agree to deliver the Goods otherwise than at our premises, the Buyer shall be liable to pay all charges for the transport, packaging and insurance.
3.4 Unless otherwise agreed in writing, we shall package the Goods, as we in its discretion considers appropriate in the light of the nature of the Goods and the method of transportation. Any special packaging will be at the Buyer’s expense.
3.5 The price shall be exclusive of applicable Value Added Tax and all other taxes and duties in respect of the Goods, all of which shall be payable by the Buyer
4.1 Unless otherwise agreed in writing and subject to satisfactory credit references, payment by the Buyer shall be made within 30 days of the date of the invoice.
4.2 The time of payment shall be of the essence of the Contract.
4.3 If payment is not made when due, we may, without prejudice to any other rights, charge interest at an annual rate of 3% above the current base rate of Barclays Bank to be calculated on a day to day basis on the balance outstanding from its due date until payment is made in full.
4.4 The Buyer shall not purport to sell off or withhold any payments claimed or due to us under this Contract or any other contract.
5.1 Any dates stated for despatch or delivery of the Goods are given in good faith but are approximate only and we accept no liability for loss or damage, either direct, indirect or consequential, resulting from such delay or failure to deliver the Goods for any reason whatsoever.
5.2 Any delay in delivering the Goods shall not give rise to a right by the buyer to treat the contract as repudiated or to reject the Goods.
5.3 If the Buyer refuses or fails to take delivery of the Goods at the time agreed between the Buyer and us then delivery of the Goods shall be effected forthwith at the risk of the Buyer. The Buyer shallin addition pay all costs and expenses of such storage and any additional costs of carriage incurred. At a minimum 0,5% p.a. of the price of the stored goods (pro rata for the time of storage).
5.4 Where we agree to deliver the Goods at a place other than our premise the Buyer shall notify us in writing within 5 days of any shortages or any damage in transit. We will not consider any claims made by the Buyer in respect of shortages or damage in transit unless this condition is observed.
6. DAMAGED GOODS
6.1 If we are satisfied that any damage to the Goods occurred prior to delivery, we shall at our option:
6.1.1 Repair or replace any Goods or part of the Goods so damaged, or
6.1.2 Allow to the Buyer credit in respect thereof in such amount as may be fixed by us in our discretion.
6.1.3 Our liability shall be limited to repairing, replacing or allowing credit as in clauses 6.1.1 and 6.1.2 above.
7. RISK AND TITLE
7.1 The risk of loss and damage to the Goods shall pass to the Buyer immediately upon delivery.
7.2 Until we have been paid in full for the Goods supplied to the Buyer:
7.2.1 Notwithstanding delivery and the passing of risk, we shall retain legal and beneficial title to the Goods supplied which the Buyer shall hold as bailee and fiduciary for us.
7.2.2 The Buyer shall store and maintain records of the Goods in such a way that they are clearly identifiable as our property.
7.2.3 The Buyer shall keep the Goods separate from those of the Buyer and third parties and shall keep the Goods stored, protected and insured.
7.2.4The Buyer may resell the goods to a third party, although as between the Buyer and us the Buyer will act as our agent when sub selling.
7.2.5 We shall be entitled to trace the proceeds of any sale of Goods owned by us and any insurance proceeds received in respect of the Goods owned by us. Such proceeds shall be held by the Buyer on trust for us.
7.2.6 We shall have the right, without prejudice to any other remedies, to enter, without prior notice, any premises, and to repossess and dispose of any Goods owned by it.
7.3 If the Buyer enters into, or does anything to enter into, an agreement with its creditors, liquidation, receivership, administrative receivership or administration, it must give immediate written notice to us and surrender possession of the Goods to us.
7.4 Nothing in this clause shall prevent us from suing for the price when due.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of us, but if the Buyer does so all monies owing by the Buyer to us shall without prejudice to any other right or remedy of us forthwith become due and payable.
8. WARRANTIES AND LIABILITY
8.1 We warrant that, the Goods will correspond with their specification at the time of delivery and will be free from defects in material or workmanship under normal use and service for 2 years fromthe date of commissioning, or 2 years from despatch, whichever is the sooner, and we will at our option refund the purchase price or repair or replace any Goods which it determines to containdefective materials or workmanship provided:
8.1.1 The defect was notified to us within a reasonable time after discovery of the defect or failure;
8.1.2 The defects are not caused by fair wear and tear, neglect, misuse or improper adjustment;
8.1.3 The Buyer has used the Goods strictly in accordance with any instructions or recommendations of us or any tolerances, capacity limits or other specifications of the goods laid down by us whether orally or in writing;
8.1.4 Any defect in the Goods does not arise from any drawing, design or specification applied by the Buyer;
8.1.5 The total price for the Goods has been paid by the due date for payment; and
8.1.6 The Buyer has allowed us reasonable opportunity to inspect the Goods and such inspection confirms that the Goods are defective.
8.1.7 The Goods are returned, transportation paid to us or our Agents.
8.1.8 The service engineer’s travelling and reasonable out of pocket expenses (accommodation, meals etc.) are reimbursed at cost.8.1.9 We will not be obliged however, to repair or replace equipment which has been repaired by others, abused, improperly installed or otherwise misused or damaged in any way and will not beresponsible for any dismantling, re-assembly or re-installation charges.
8.2 In no circumstances shall our liability to the Buyer for any breach of this clause exceed the price paid for the Goods with respect to which the claim is made.
8.3 Except as expressly provided for in these conditions, all warranties and conditions express, implied, statutory or otherwise as to quality to fitness of any of the Goods for any particular purposes or of any other kind except as to title are hereby excluded.
8.4 Except in respect of death or personal injury caused by our negligence. We shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequentialcompensation whatsoever (and whether caused by the negligence of us, our employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these conditions.
8.5 We shall not be liable to the Buyer or be deemed to be in breach of the Contractby reason of any delay in performing, or any failure to perform, any ofour obligations in relation to the Goods, if the delay or failure was due to any cause beyond our reasonable control, including any strikes, lock-outsor other industrial action or tradedisputes (whether involving employees of us or of the third party).
9.1 The Buyer shall indemnify us from and against all costs, claims, damages, expenses and losses (including loss of profits) whether direct, indirect, special consequential or otherwise arising outof or in any way connected with the use by us of the Buyer’s specifications or any failure of the Buyer to comply with its obligations under the Contract in all respects or any improper use of theGoods by the Buyer.
10.1 All technical data, drawings, reports, documents and information whatsoever which we submit to the Buyer in connection with the Contract (and the copyright therein), shall remain the property of us and must not be copied or shown to any third party without our express consent being obtained in advance an in any event upon the conditions of a similar condition being imposed upon any thirdparty
11. PATENT RIGHTS
11.1 So far as we are aware, the Goods do not infringe any existing patent or designs or any other industrial or intellectual property rights but no warranty express or implied is given in respect of suchinfringement. However, in the event of any claim being made or action being brought against the Buyer in respect of any infringement of patents or designs of other industrial or intellectual property rights by the use of sale of the Goods the Buyer shall notify us immediately and we may at our own expense conduct through its own lawyers and experts all negotiations in settlement of the same or any litigation that may arise there from.
12.1 We shall, without prejudice to any other right or remedy available to us, and by giving notice in writing to the Buyer, be entitled to suspend or cancel any uncompleted part of the Contract or any other Contract with the Buyer or stop any Goods in transit or require any payment in advance or satisfactory security for further deliveries under the Contract in the event that:
12.1.1 The Buyer defaults in any payment or is otherwise in breach of its obligations to us under the Contract or under any other contract with us; or
12.1.2 The Buyer makes a voluntary arrangement with its creditors or becomes subject to an administration order of (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; or
12.1.3 An encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Buyer; or
12.1.4 The Buyer ceases, or threatens to cease, to carry on business; or
12.1.5 We have reasonable cause to believe that any of these events is likely to occur and notifies the Buyer accordingly.
13.1 The Buyer shall not assign or transfer or purport to assign or transfer the Contract or the benefit of it to any other person without written consent of us.
14.1 We shall be entitled to arrange for its obligations under these conditions to be performed by a representative.
15.1 The failure of us to insist upon strict performance of any of the terms and conditions of the Contract shall not be construed as a waiver of any such terms or conditions and shall in no way affectour right to enforce such provision later.
16.1 If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these conditions and the remainder of the provisions in question shall not be affected thereby.
17. GOVERNING LAW
17.1 The construction, validity and performance of the Contract shall be governed by German law and the parties shall accept the jurisdiction of the German court (Nuremberg/Furth Germany).