1. PREAMBLE
(1) These General Conditions shall apply, save as varied by express agreement accepted in writing by both parties.
(2) Terms and conditions opposing or deviating from our Terms and Conditions shall not apply unless we have expressly approved the application thereof.
2. FORMATION OF CONTRACT
(1) The Contract shall be deemed to have been entered into when, upon receipt of an order, the Vendor has sent an acceptance in writing within the time-limit (if any) fixed by the Purchaser.
(2) If the Vendor, in drawing up his tender, has fixed a time-limit for acceptance, the Contract shall be deemed to have been entered into when the Purchaser has sent an acceptance in writing before the expiration of such time-limit.
3. DRAWINGS AND DESCRIPTIVE DOCUMENTS
(1) The weights, dimensions, capacities, prices, performance ratings and other data included in catalogues, prospectuses, circulars, advertisements, illustrated matter and price lists constitute an approximate guide. These data shall not be binding save to the extent that they are expressly included in the Contract.
(2) Any drawings or technical documents intended for use in the construction of the goods or of part thereof and submitted to the Purchaser prior or subsequent to the formation of the Contract remain the exclusive property of the Vendor. They may not, without the Vendor’s consent, be utilised by the Purchaser or copied, reproduced, transmitted or communicated to a third party.
4. PRICES
(1) Invoices shall be calculated on the basis of the list prices in effect on the date of delivery plus value-added tax. Value-added tax will not be charged only in those cases where the conditions have been met for export shipments to be exempted from such tax. | (2) In the absence of any special agreement, prices shall be deemed to be FCA dispatch place at the delivering plant (Inco-terms® 2010) excluding packaging.
(3) Vendor reserves the right to adjust the prices appropriately in the event of cost reductions or increases incurred after the contract has been entered into, in particular in case of wage cost changes, for instance due to collective bargaining agreements, or changes in the price of materials. Upon request Vendor shall evidence such changes to the Purchaser.
(4) Spare parts and products which have been repaired shall be shipped against a reasonable flat rate charge for shipping and packaging plus the charge for the service rendered by Vendor, except where this is covered by liability for defects.
5. INSPECTION AND TESTS INSPECTION
(1) If expressly agreed in the Contract, the Purchaser shall be entitled to have the quality of the materials used and the goods, both during manufacture and when completed, inspected and checked by his authorised representatives. Such inspection and checking shall be carried out at the place of manufacture during normal working hours after agreement with the Vendor as to date and time. | (2) If as a result of such inspection and checking the Purchaser shall be of the opinion that any materials or parts are defective or not in accordance with the Contract, he shall state in writing his objections and the reason therefor.
(3) If the Contract provides for tests on site, the terms and conditions governing such tests shall be such as may be specially agreed between the parties.
6. PASSING OF RISK
(1) Save as provided in paragraph 7, the time at which the risk shall pass shall be fixed in accordance with the International Rules for the Interpretation of Trade Terms (Incoterms 2010) of the International Chamber of Commerce in force at the date of the formation of the Contract.
(2) Where no indication is given in the Contract of the form of sale, the Products shall be deemed to be sold ·ex works·.
7. DELIVERY
(1) Unless otherwise agreed, the delivery period shall run from the latest of the following dates: – the date of the formation of the Contract as defined in Clause 2; the date on which the Vendor receives notice of the issue of a valid import licence where such is necessary for the execution of the Contract; the date of the receipt by the Vendor of such payment in advance of manufacture as is stipulated in the Contract.
(2) Should delay in delivery be caused by any of the circumstances mentioned in Clause 11 there shall be granted such extension of the delivery period as is reasonable having regard to all the circumstances of the case.
(3) Damage in Transit: Notice of claims arising out of damage in transit must be lodged by Purchaser directly with the carrier within the period specified in the contract of carriage and Vendor shall be provided with a copy thereof.
8. RETENTION OF TITLE
(1) Simple Retention of Title: Title to the goods delivered shall not pass to Purchaser before the purchase price has been paid in full.
(2) Expanded Retention of Title: In case Purchaser has paid the purchase price for the goods delivered but not yet completely fulfilled other debts arising out of his business relationship with Vendor, Vendor retains, in addition, title to the goods delivered until all such outstanding debts have been completely paid.
(3) Retention of Title with processing clause: In the event Purchaser processes the goods delivered by Vendor, Vendor shall be considered manufacturer and shall directly acquire sole title to the newly produced goods. If the processing involves other materials, Vendor shall directly acquire joint title to the newly produced goods in the proportion of the invoice value of the goods delivered by Vendor to the invoice value of the other materials.
(4) Retention of Title with combination and blending clause: If the goods delivered by Vendor are combined or blended with material owned by Purchaser, which has to be considered the main material, it is deemed to be agreed that Purchaser transfers to Vendor the joint title to such main material in the proportion of the invoice value of the goods delivered by Vendor to the invoice value (or, if the invoice value can not be determined to the market value) of the main material. Purchaser holds in custody for Vendor any sole or joint ownership originating therefrom at no expense for Vendor.
(5) Extended Retention of Title with blanket assignment: Purchaser shall have in the ordinary course of business free disposal of the goods owned by Vendor, provided that Purchaser meets its obligations under the business relationship with Vendor in due time. Purchaser already assigns to Vendor all claims in connection with the sale of goods to which Vendor reserves the right of retention of title when concluding the sales agreement with Vendor; should Vendor have acquired joint title in case of processing, combination or blending, such assignment to Vendor takes place in the proportion of the value of the goods delivered by Vendor with retention of title to the value of the goods of third parties with retention of title. Purchaser already assigns to Vendor any future confirmed balance claims under current account agreements in the amount of the outstanding claims of Vendor when concluding the sales agreement with Vendor.
(6) Right of Access/Disclosure: At the request of Vendor, Purchaser shall provide all necessary information on the inventory of goods owned by Vendor and on the claims assigned to Vendor. Furthermore, at the request of Vendor, Purchaser shall identify on the packaging Vendor’s title to the goods and shall notify its customers of the assignment of the claims to Vendor.
(7) Late Payment: In the event of late payment by Purchaser, Vendor is entitled, without rescinding the sales agreement and without granting a period of grace, to demand the temporary surrender of the goods owned by Vendor at Purchaser’s expense.
(8) Partial Waiver clause: Should the value of the securities exceed Vendor’s claims by more than 15%, Vendor waives securities to this extent.
9. PAYMENT
(1) Payment shall be made in the manner and at the time or times agreed by the parties.
(2) Delay in Payment: Failure to pay the purchase price by the due date constitutes a fundamental breach of contractual obligations.
(3) In the event of a default in payment by Purchaser, Vendor is entitled to charge interest on the amount outstanding at the rate of 9 percentage points above the base interest rate announced by the German Federal Bank at the time payment is due if the amount is invoiced in euros, or, if invoiced in any other currency, at the rate of 9 percentage points above the discount rate of the main banking institution of the country of the invoiced currency at the time the payment is due.
(4) If the Purchaser delays in making any payment, the Vendor may postpone the fulfilment of his own obligations until such payment is made.
(5) If there are reasonable doubts as to Purchaser’s ability to pay, especially if Purchaser is in default of payment, Vendor may, subject to further claims, revoke agreed credit periods and make further deliveries dependent on the provision of sufficient security.
10. PURCHASER’S RIGHTS REGARDING DEFECTIVE GOODS
(1) Vendor must be notified of any defects that can be discovered during routine inspection within two weeks of receipt of the goods; other defects must be notified within two weeks after they are discovered. Notification must be in writing and must precisely describe the nature and extent of the defects.
(2) If the goods are defective and Purchaser has duly notified Vendor in accordance with item 10.1, Purchaser has its statutory rights, provided that: a) Vendor has the right to choose whether to remedy the defect or supply Purchaser with non-defective replacement goods. b) Vendor may make two attempts according to lit. a) above. Should these fail or cause unreasonable inconvenience to Purchaser, Purchaser may either withdraw from the contract or demand a reduction in the purchase price. c) With regard to claims for compensation and reimbursement of expenses on a defect, Clause 12. applies.
(3) Purchaser’s claims for defective goods are subject to a period of limitation of one year from receipt of the goods.
11. EVENTS OUTSIDE OF OUR CONTROL – FORCE MAJEURE EVENTS
(1) Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event (save for the Purchaser’s obligation to pay for the Goods).
(2) A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes, failure of energy sources or transport network, acts of God, war, terrorism, civil commotion, malicious damage, breakdown of plant or machinery, fires, floods, storms, earthquakes, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
(3) If the Force Majeure Event prevails for a continuous period of more than 28 days, Vendor may terminate the Contract by giving 20 Business Days‘ written notice to the Purchaser. On the expiry of this notice period, the Contract will terminate.
12. LIMITATION OF LIABILITY
(1) Nothing in these Terms shall limit or exclude Vendor´s liability for:
(1.1) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
(1.2) fraud or fraudulent misrepresentation; or
(1.3) defective products under the Consumer Protection Law; or
(1.4) any matter in respect of which it would be unlawful for Vender to exclude or restrict liability.
(2) Nothing in these Terms shall affect the statutory rights of the Purchaser where the Goods are sold to a Purchaser acting as a consumer.
(3) Subject to clause 12.1, Vendor shall not be liable to the Purchaser for any:
(3.1) loss of profit (whether direct or indirect) whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract; or
(3.2) indirect or consequential loss whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract; or
(3.3) ex gratia or other compensatory payments made to a third party by the Purchaser or on the Purchaser’s behalf, arising under or in connection with the Contract.
(4) Subject to clauses 12.1 and 12.3, Vendor’s total liability to the Purchaser in respect of all other losses (including indemnified losses) arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the price paid for the Goods.
(5) Where either party is liable in damages to the other, these shall not exceed the damage which the party in default could reasonably have foreseen at the time of the formation of the Contract.
(6) The party who sets up a breach of the Contract shall be under a duty to take all necessary measures to mitigate the loss which has occurred provided that he can do so without unreasonable inconvenience or cost. Should he fail to do so, the party guilty of the breach may claim a reduction in the damages.
13. RIGHTS AT TERMINATION
(1) Termination of die Contract, from whatever cause arising, shall be without prejudice to the rights of the parties accrued under the Contract up to the time of termination.
14. ARBITRATION AND LAW APPLICABLE
(1) Any dispute arising out of or in connection with the Contract shall be finally settled, in accordance with the Rules of Conciliation and Arbitration of the Swiss/German Chamber of Commerce /Alternative: International Chamber of Commerce, by one or more arbitrators designated in conformity with those Rules.
(2) Unless otherwise agreed, the Contract shall be governed by the law of the Vendor’s country, excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
15. MISCELLANEOUS
(1) Assignment: Vendor may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
The Purchaser may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Vendor.
(2) Notices: (2.1) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, and shall be delivered personally, sent by pre-paid post, or recorded delivery addressed to: – For Vendor: c/o PRIME Trading and Industrial Services GmbH Neuer Wall 38, 20354 Hamburg; Germany and – For the Purchaser: at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as the Purchaser has specified to Vendor in writing in accordance with this clause or facsimile or electronic mail transmission confirmed by registered post or recorded delivery within 24 hours of transmission.
(3) Severance: (3.1) If any court finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected. (3.2) If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.| (4) Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
(5) A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
(6) A person who is not a party to the Contract shall not have any rights under or in connection with it.
(7) Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party
(8) Purchaser may only set off claims from Vendor against an undisputed or adjudicated counterclaim.
(9) Compliance with legal requirements: Unless specifically agreed otherwise, Buyer is responsible for compliance with all laws and regulations regarding import, transport, storage and use of the goods.
