Terms and Conditions

Nothing goes astray

1. General Terms and Conditions

Buyer and seller agree on these general terms and conditions for the present and any subsequent business until they mutually consent to abandon the contract. All subsequent business is equally subject to these terms even if no particular reference to them should then be made.

2. Subject Matter of the Contract

Contents and scope of the contract – taking into account the subsequent provisions – are exclusively governed by the terms of the seller’s acknowledgment of the order provided the buyer does not immediately object. Amendments or modifications made orally or over the phone are not operative unless confirmed by the seller in writing. 

3. Offers

The seller’s offers are without engagement. Any offers and estimates of costs orally made by the seller are not binding. The goods are subject to prior sale until the reservation has been finalized. The final reservation takes place after the seller has received the buyer’s irrevocable deposit or bank guarantee or a letter of credit accepted by the seller. The period of reservation is determined by the delivery date unless otherwise agreed. 

4. Incidental Expenses

The prices quoted by the seller are net prices with packaging, freight, customs duties, statutory value added tax and other incidental expenses to be added. 

5. Buyer and Invoice Addressee

The buyer has to meet his commitments and contingent liabilities even if the invoice has been addressed to a third party at the buyer’s behest. Should there be several buyers, they are joint and several debtors. They shall authorize each other to make or receive declarations. 

6. Delivery

The buyer is understood to know that the seller has to purchase the object of sale himself. If the seller fails to do so for reasons beyond his control, both parties may rescind the contract in writing. No claims can then be lodged by either party. The goods are delivered – even if carried on the seller’s own vehicles – invariably from Tarp or ex place of business or warehouse of the supplier companies respectively and, unless otherwise agreed, for the account and at the risk of the buyer even if delivered freight paid has expressly been agreed. If carriage to a named destination has been agreed, this shall mean carriage to the nearest place accessible with the delivery truck. The buyer shall be in charge of the on-carriage. 

7. Delivery Times

Delivery times are binding only if they have expressly been stipulated in the contract. Any modification of the order after acknowledgement invalidates the stipulated delivery periods and dates unless otherwise agreed. In case of force majeure, which also includes strikes, intervention by the authorities and other events beyond the seller’s control, the seller is entitled to either extend the time for delivery or cancel the contract without any liability to pay compensation. The buyer can claim impairment of performance of an obligation only if the seller fails to honour his obligations even after a four-week extension after written notice. Where the buyer is in default, especially where he is in arrears with his payment, all times for delivery are suspended. 

8. Acceptance of the Goods

The buyer is obliged to take delivery of the goods and to intimate to the seller in writing that he has accepted them. If the buyer does not take delivery of the goods within 2 weeks after the seller has duly put them at his disposal, the seller is entitled to repudiate the contract or to claim damages for non-performance. If the seller claims damages, they shall amount to 15 % of the contract price. The damages shall be rated higher or lower than 15 % if the seller’s substantiated loss is higher or the buyer’s proved claim lower. The deposit shall be retained by the seller until another buyer has been found. 

9. Restriction of Liability

The seller’s liability is expressly limited to damages caused intentionally or by gross negligence. 

10. Part Performance

The buyer is obliged to accept also part deliveries and to pay for them. The buyer can only refuse a part performance if he proves it to be unusable for him. 

11. Payment

On concluding the contract the buyer shall – unless otherwise agreed – pay a deposit amounting to 50 % of the contract price. The remaining payments have to be made proportionate to the part deliveries unless otherwise agreed. If the buyer makes default in payment or if the buyer’s financial situation deteriorates essentially, i.e. if bankruptcy or composition proceedings have been opened or if a petition in bankruptcy has been dismissed for insufficiency of assets or if a request for the statutory declaration on the buyer’s financial situation has been filed, the seller is entitled to immediately claim the total amount accrued from the contract, irrespective of any dates or respites of payment agreed on before. The seller is entitled to claim interest on all the receivables after due date at the rate of 6 % in excess of the prevailing discount rate of the German central bank or at least at 9 %. Should the buyer make default in payment, the seller is entitled to rescind the contract inasmuch as it has not yet been performed by him. He is also entitled to claim overall damages of 20 % of the contract price unless the buyer proves that the seller has incurred lower losses. Further claims by the seller for damages remain unaffected. The buyer is entitled to a set-off only if his claim is uncontested or has become a res judicata. The buyer has no right of retention. 

12. Reservation of Title

The seller retains title to all the goods delivered by him – even if the buyer has already paid for them – until all the seller’s claims based on the present contract or other contractual obligation have been satisfied. Should the buyer pass goods to which the seller retains title on to a third party, the buyer is only permitted to do so with reservation of title in his own favour. The buyer immediately and in advance assigns to the seller all the claims that may arise from his passing the goods to a third party. The seller can enforce his rights under this assignment if the buyer defaults on his obligations to the seller. The seller has to release the goods in which he retains title inasmuch as the reservation of title is no longer a security interest. If the buyer makes default in payment, the seller is entitled to – arbitrarily if need be – repossess the goods in which he retains title. If an execution has been levied against the object of sale, the buyer has to notify the seller immediately. In case the seller brings a third-party action against execution and cannot be satisfied by the execution creditor as to the cost he incurred, the buyer has to indemnify the seller.  

13. Warranty

The seller does not accept any responsibility for defects of secondhand machines. Accessories are included in the delivery only if they are connected to the machine, which has to be confirmed. The goods are sold in the order and condition in which they are at the time of conclusion of the contract. The buyer has the right to inspect and examine the goods prior the conclusion of the contract. If he does not avail himself of this right – partly or not at all and for whatever reason -, he accepts the goods as they are. Subsequent objections as to the quality of the goods are therefore excluded. Specifications as to machines, their performance, details, year of manufacture and dimensions as well as status quo ante are only approximate and not binding. The liability for expressly warranted properties remains unaffected. 

14. Additional Provisions for Assembly Operations

The assembly of the object of sale – if stipulated in the contract – shall be done at the expense of the buyer. The costs involved are also travel expenses for the assembly team (including their equipment) and, if the occasion arises, accommodation and meals. Additional workers, implements and lifting devices as well as other objects necessary for the assembly have to be made available by the buyer at his expense. If the assembly operations last more than one day, a lockable room has to be made available for the seller’s material and equipment. 

15. Safeguarding Clause

The stipulations of the parties to the contract must be made in writing unless authentication of the contract by a notary is stipulated by act of law. This also applies if the requirement of writing has been waived. Should some of the terms and conditions prove to be inoperative and void, all the others shall nevertheless be operative and valid. The parties have to amend and convert an invalid term in such a way that the intended purpose of the business will be served. The same applies if in the execution of the contract a loophole is found in need of completion. It is expressly agreed that the provisions of the German law are applicable to all mutual claims under this contract and in conjunction with it. This equally applies to deliveries abroad. Venue and place of performance shall be – as far as admissible – Flensburg.

Effective August 2009