Terms and conditions of delivery and payment

I.       Scope of validity

(1)    These terms of delivery and payment apply to the exclusion of all others; we do not accept or acknowledge contradictory terms, or purchaser's terms which deviate from these, unless we expressly agree to them in writing. Our conditions of sale also apply if, although we are aware of opposing conditions or a customer's differing conditions, we make the delivery to the customer without reservation.

(2)    All agreements made between us and the customer for the purpose of fulfilling this contract are written down in the contract.

(3)    Our conditions of sale apply only to companies within the meaning of clause 310 Abs.1 BGB. For this reason, the VZBV (= Consumer Dispute Resolution Act – see XV.) does not apply.

 

II.      Conclusion of the contract, offer documentation

(1)    Contracts with the customer only take effect by means of our confirmation in writing or transmitted electronically.

(2)    We reserve all proprietary rights and copyrights to illustrations, drawings, calculations and other documentation. The customer shall obtain our express written agreement before passing these documents to third parties.

(3) The provision of technical information and the submission of offers take place to the best of our knowledge but do not release the user from the obligation to test the suitability of these details in respect of the intended processes and requirements. The customer bears the responsibility with regard to suitability and use for the intended purpose. We reserve the right to optimise products, to change materials and to correct drawings.

 

 

III.     Delivery time / Scope of delivery

(1)    Delivery deadlines or times are only binding when confirmed by us in writing. They refer to the time of dispatch and are kept to when the customer is informed that the goods are ready for dispatch.

(2)    Delivery deadlines only commence when agreement has been reached concerning all details of the order including the technical design of the object of delivery. If, following the confirmation of the order, the purchaser calls for a material alteration, and if we agree to this, then the delivery period only commences with confirmation of the last alteration.

(3)    If the customer is in default in acceptance or culpably violates other obligations of cooperation, we are entitled to demand compensation for any resulting damage including additional expenses incurred (e.g. warehousing costs). Delivery periods are extended by the period of time in which the customer fails to meet his obligations towards us in respect of this contract (e.g. provision of securities or down-payments). This applies correspondingly to the delivery dates. Any further rights or claims are not affected.

(4)    Part-deliveries are permitted to a reasonable extent provided that they do not result in unreasonable additional costs for the customer.

 

IV.     Dispatch / Risk of loss / Place of fulfilment

(1)    Dispatch of the goods takes place from our location at the risk and for the account of the customer. In the absence of any special agreements, we are free in our choice of transport company and the means of transport. Risk is transferred to the purchaser when dispatch takes place from the supplier's location if freight-paid has been agreed.

(2)    If dispatch is delayed for reasons which are the responsibility of the customer, then risk is transferred to the customer at the time the goods are ready for dispatch. The customer shall bear the costs incurred as a result of the delay.

(3)    Packaging will be charged at 2% of the net value of the goods.

(4)    All obligations resulting from the contractual relationship are deemed to be fulfilled at the supplier's registered place of business.

 

V.      Prices

(1)    Calculation of prices is ex supplier's registered place of business, in EURO, plus the currently valid sales tax. The prices are valid for the scope of performance and delivery stated in our confirmations of order. Additional or special performance will be charged for separately.

(2)    Calculation of the additional charge resulting from increases in the costs of materials will be shown separately in accordance with current prices.

(3)    For orders with a net value of less than € 100, we invoice for a surcharge in the amount of € 25.

 

VI.     Terms of payment

(1)    Commencing on the invoice date, all invoices for deliveries are to be paid with 2% discount for payment within 14 days or within 30 days net cash.

(2)    If the period allowed for payment is exceeded, and following the issuing of a reminder insofar as this is necessary, interest on payments in arrears of 8% over the base rate shall be paid in respect of the invoice amount.

(3)    If cheques of drafts are not credited punctually by the drawee, then at this time all other existing claims on our part in respect of the customer become due for payment. All other periods allowed for payment lapse.

(4)    With the exception of undisputed or final and absolute claims, any withholding of payment or the offsetting of payment on the grounds of the customer's existing counterclaims is excluded.

 

VII.    Reservation of title

(1)    The goods delivered (goods subject to reservation of title) remain our property until all claims to which we are now or in future entitled have been met, including all claims relating to the current account balance. If the customer fails to comply with his contractual obligations, in particular with regard to default in payment, we are entitled to withdraw from the contract and to demand the return of the delivered goods; the customer is obliged to hand over the goods.

(2)    The customer is entitled to make use of the delivered goods in the normal course of business and to sell them on as long as he is not in default of payment. However, he must not pledge the goods or assign them by way of security. As of now, the customer assigns to us all claims for payment to their full extent against his customer which result from a resale of the goods which are subject to retention of title and those claims on the part of the customer in respect of the goods which are subject to retention of title and to which he is entitled as a result of any other legal claim against his customer or third parties. We accept the assignment. After the assignment, the customer is authorised to collect the claim for his invoice in his own name. We receive the right to collect the claim ourselves as soon as the customer fails to meet his obligations to pay in a proper manner and is in default of payment.

(3)    The finishing and processing of the delivered goods are always in our name and for our order. If processing takes part with goods which do not belong to us, we acquire ownership of the new goods in the ratio of the value of the goods supplied by us to the other processed goods. The same applies if the delivered goods are mixed with or affixed to other goods which do not belong to us.

(4)    If the delivered goods become part of or combined with a piece of land or a moveable object to such an extent that our ownership of the delivered goods ceases to exist, the customer assigns to us the security claim in the amount of the ratio of the delivered goods to the remaining partial/combined goods at the time of the joining/mixing which accrue to him on the basis of the joining/mixing against the third party.

(5)    In the event of seizures of the goods which are subject to retention of title by third parties or other interventions by third parties, the customer must draw attention to our property and must inform us immediately and in writing so that we can assert our ownership rights.

(6)    We undertake to release, at the customer's request, the securities to which we are entitled provided that their value exceeds by more than 10% the claims to be secured. However, we are permitted to choose the securities to be released.

 

VIII.   Nature and condition of the goods / Procurement risk / Guarantees

(1)    Changes to the supplied goods, in particular in respect of material and design, are specifically permitted in the context of technical progress.

(2)    The agreed nature and condition of the goods are only as per the product description in the confirmation of order, the system descriptions or our product information. We are only liable in respect of the suitability of the goods for specific purposes of use if this suitability has been expressly agreed.

(3)    We do not assume any procurement risk and we assume no warranties of any kind unless a specific written agreement regarding these has been concluded with the customer.

(4)    Components, construction elements and modules which are procured in accordance with customer's specification or are provided by the customer must comply with the applicable international, European and national statutory provisions including in particular in respect of environmental protection, substance bans and restrictions. Testing the selection of these components is the customer's responsibility.

 

IX.     Liability for defects

(1)    The customer is obliged to examine the goods immediately after delivery and to inform us immediately and in writing of existing defects. Defects about which a late complaint is made are excluded from liability for defects. Notifications of defects which are asserted to field workers, transport companies or other third parties are not deemed to be correct notifications.

(2)    In the event that the goods must be returned to us because of a defect, this can only take place with our prior agreement. We do not need to accept consignments which are returned to us without our prior agreement. In this case, the customer is responsible for the costs of returning the consignment.

(3)    If the complaint is justified, at our discretion we will improve the goods free of charge or make a new delivery of non-defective goods.

(4)    The customer will give us two opportunities to effect performance within a reasonable period of time.

(5)    Claims by the customer on the grounds of costs necessary to effect subsequent performance, in particular costs relating to transport, travel, work and materials, are excluded insofar as the costs increase because the object of the delivery was subsequently transferred to a place other than the customer's establishment unless such transfer is consistent with the goods' intended use.

(6)    We are not responsible for installation and removal costs relating to subsequent performance in respect of the defective product.

(7)    Recourse claims against us by the customer in accordance with clause 478 BGB (Recourse of the entrepreneur) exist only insofar as his customer is a consumer and the customer has not entered into any agreements with his customer which exceed the statutory claims in respect of defects.

(8)    Liability for all damage is excluded unless specified in the above provisions, including insofar as the damage has not occurred to the object of delivery itself. This excludes damage which has occurred due to intent or gross negligence on the part of our owners, executive staff or vicarious agents or resulting from culpable infringement of a cardinal obligation. However, in the latter case, liability is only accepted for typical, foreseeable damage. Cardinal obligations are deemed to be obligations whose fulfilment enables the proper fulfilment of the contract in the first place and in whose compliance the customer may trust on a regular basis.

(9)    Furthermore, the exclusion of liability shall not apply in cases in which, given defects in the object of delivery, liability exists in respect of harm to life, body or health or by material damage caused by privately used objects.

(10)  The warranty period is twelve (12) months after delivery of the goods to the customer's premises. If it is a matter of compensation for injury to body or health, or if the harm was caused by us deliberately or by gross negligence, the statutory limitation period applies.

 

X.      Overall liability / Product liability

(1)    Regardless of the nature of the asserted claim, any further liability other than that provided for in para. IX. is excluded. In particular, this applies to claims for damage resulting from culpa in contrahendo at the time of conclusion of the contract, on the grounds of other breaches of obligation or of tortious claims for material damage in accordance with clause 823 BGB.

(2)    The limitation in accordance with para. (1) also applies insofar as the customer, in place of a claim for damages instead of performance, calls for compensation for useless expenditure.

(3)    Insofar as we are liable to pay compensation for a defect according to the provisions of the Product Liability Act (ProdHaftG), the extent of liability is exclusively subject to the regulations of this act. Any further liability requires specific written agreement.

 

XI.     Withdrawal

(1)    If the delivery or performance subsequently becomes impossible for reasons for which we are responsible, the customer is entitled to withdraw from the contract. In the event of partial impossibility, he is entitled to withdraw in respect of the part of the contractual performances whose fulfilment has become impossible. If partial fulfilment of the agreement is of no further interest for the customer, he can withdraw from the contract completely. In such cases, the customer is only entitled to compensation as per the pre-conditions stated in paras IX. and X.

(2)    If we are not responsible for the impossibility of fulfilling the contract, then insofar as is economically feasible, the contract will be amended by mutual agreement, otherwise both parties can withdraw from the contract partially or completely.

 

XII.    Data protection

(1)    In fulfilling the agreement we also process our customers' personal data and that of their employees (e.g. contact data, other personal data for the fulfilment of the agreement). These data are assigned to the customer's legal entity and only processed by us or companies in the Phoenix Mecano group and possibly their agents. All our employees and agents are committed in writing to data confidentiality in accordance with para. 5 of the Bundesdatenschutzgesetz (Federal Data Protection Act) (BDSG) and process these data in accordance with the BDSG.

(2)    The customer also undertakes to treat personal data which he receives from us in accordance with the provisions of the BDSG.

 

XIII.   Place of jurisdiction / Applicable law

(1)    Insofar as the customer is a business person, the exclusive place of jurisdiction is the registered office of our company; however, we are entitled to assert our claims at any other permissible place of jurisdiction.

(2)    German law (BGB/HGB) is exclusively applicable. The provisions of the Vienna UN Convention dated April 11, 1980 relating to contracts for the International Sale of Goods (UN Sales Convention) are excluded.

 

XIV.  Partial invalidity

If individual clauses in these General Terms of Sale are or become legally invalid, this shall not affect the effectiveness of the remaining provisions; the same applies to the filling of gaps in these General Terms of Sale.

 

XV.   Arbitration procedure


We are not obliged to participate in arbitration procedures before a consumer arbitration board and are also not prepared to do this. Consequently we do not participate in dispute settlement procedures before a consumer arbitration board.

XVI.  

The English-language version of these general conditions of sale is provided for reference purposes only. The German-language version has sole legal validity.

 

02/2017