Appendix
6.5 General terms and conditions
Conditions of sale, delivery and payment
Terms of Sale, Delivery and Payment
These General Standard Terms and Conditions only apply in relation to business enterprises
as defined in Section § 14 BGB (German Civil Code).
1. Terms of Delivery and their Validity
All our quotations and agreements are based entirely on Terms of Sale, Delivery
and Payment set forth below; any deviating terms stipulated by the ordering party
are deemed not to be binding unless expressly recognized by us in writing. Our
Terms are deemed to have been recognized by the ordering party on placement of
the order or, at the latest, when taking receipt of our goods without challenging
the same.
2. Quotation and Confirmation of Order
2.1 Unless stipulated otherwise in writing, all our quotations are subject to change
without notice.
2.2 All agreements are deemed to be unbinding until receipt of our written Confirmation
of Order. The same applies to amendments, modifications and subsidiary agreements,
in particular verbal agreements and warranties
2.3 Our confirmations of order must be checked by the ordering party for accuracy
immediately on receipt. Claims in respect of inconsistencies or discrepancies, if any,
must be lodged immediately.
2.4 The ordering party incurs liability for the accuracy of its ordering data or ordering
records sent to us.
2.5 All samples are supplied against payment.
3. Delivery Deadlines
3.1 Delivery deadlines, which may be agreed upon as binding or unbinding, must be
stipulated in writing.
3.2 Confirmed delivery deadlines are deemed to have been complied with when outward
bound dispatch is effected within the agreed time limit – i.e. departure ex
works. If the products cannot be dispatched or installed in due time through no
fault of our own, such deadlines are deemed to have been complied with as soon
as it has been reported that the goods are ready for dispatch. We accept no liability
for transportation to schedule.
3.3 In the event of our not yet having come to an agreement with the ordering party
on all terms and details of the contract, or in the event of the ordering party not yet
having procured required official certificates from home and/or foreign
authorities, the confirmed delivery deadlines will be extended by the period up to
compliance with such preconditions. The said deadlines are thus deferred accordingly.
The same applies to subsequent changes made by the ordering party to the
contract where such changes affect the delivery deadlines or in the event of the
ordering party failing to submit its records and/or drawings in due time necessary
for executing the order.
3.4 The delivery deadline will be deferred to an extent appropriate to the given
circumstances in the event of our obligations to effect due performance being
hindered by force majeure and other unforeseeable, exceptional circumstances or
circumstances arising through no fault of our own, e.g. difficulties encountered
in procuring materials, failure to receive our own supplies despite conclusion
of covering transactions, interruption of operations, telecommunications and
computer failures, fire, strike, lockout, shortage of transport, traffic or road
blocks, official intervention, failure or outage of machinery, export and/or import
embargoes, difficulties in obtaining supplies of energy, mobilization, war, blockade,
etc., even if such circumstances affect our own ancillary suppliers.
3.5 In the event of the circumstances mentioned under 3.4 rendering delivery on our
part impossible or unconscionable, we shall be entitled to withdraw from the
contract. If the delay in delivery exceeds a duration two months, the ordering party
shall be entitled to withdraw from the contract.
3.6 The ordering party shall not be entitled to derive any claims for compensation from
deferral of the delivery deadline due to any of the circumstances specified in 3.4
or in the event of our becoming exempt from our obligation to effect delivery in
pursuance of 3.5. We can refer to the said circumstances only if we effect immediate
notification to the ordering party of the beginning and end of such hindrances.
3.7 If the commercial value or content of the contractual services undergoes change
as a result of the unforeseen circumstances specified in 3.4 or if the said circumstances
have a substantial impact on our operations, the contract may be adapted
in appropriate accordance with the same. The provisions of Section § 313 BGB
remain unaffected thereby.
3.8 In the event of our becoming involved in delay, the ordering party may stipulate a
reasonable period of grace. After expiration of such period of grace, the ordering
party may rescind the contract in respect of that part of the contractual services
not yet performed. If the ordering party has a legitimate interest in the rejection of
partial deliveries, it may effect withdrawal in respect of the entire contract.
3.9 All other claims of the ordering party beyond that referencing to breach of obligation,
i.e. claims for compensation, are ruled out, unless damages have been caused
due to malice aforethought or gross negligence. In cases of gross negligence our
liability is limited to direct losses foreseeable and typical for this type of contract
unless there is a legally designated unavoidable liability.
4. Delivery, Dispatch, Passing of Risk, Re-warehousing
4.1 We reserve the sole right to determine the method of dispatch according to our
choice. Dispatch is effected ex works.
4.2 Partial deliveries are admissible provided that this is reasonable to the ordering
party.
4.3 Risk attaching to loss of the goods passes to the ordering party as soon as the consignment
has been surrendered to the haulage contractor or forwarder, i.e. at the
latest as soon as the goods leave the works. If the goods are ready for dispatch and
surrender to the haulage contractor or forwarder is delayed through no fault of our
own, the passing of risk is deemed to apply on receipt by the ordering party of notification
advising that the goods are ready for dispatch. Loss of the goods is deemed
to be equivalent to their confiscation.
4.4 If, at the ordering party’s request, dispatch or delivery is deferred by more than 2
weeks after notification has been given advising that the goods are ready for dispatch,
warehousing charges may be invoiced to the ordering party amounting to
0.5% of the price of the items of the consignment for each month of deferral already
commenced, however totalling 5% at the most. The contracting parties are at
liberty to furnish proof of higher or lower warehousing costs having arisen.
The same applies in the event of goods having to be taken back due to reasons for
whic h the ordering party is responsible.
5. Prices and Packaging
5.1 Invoicing is effected as a gross amount in Euros. Ex works excluding packaging,
which is charged separately and is non- returnable.
5.2 On all home and/or export consignments subject to the payment of turnover tax,
the prices are to be interpreted in each case as plus Value Added Tax at the relevant
valid rate.
6. Payment
6.1 Our invoices are payable in Euros within 14 days subject to 2% cash discount or
within 30 days after date of invoice strictly net without deductions of any kind.
Where the purchaser has not paid he will go into default on the 31st day after
invoicing, with any further statement by us.
6.2 All payments must be made to KFV Karl Fliether GmbH & Co. KG in cash or to any of
the company’s accounts. Unless expressly authorized to do so in writing, our staff
are not entitled to collect cash.
6.3 We only take bills of exchange or accepted bills if this has been expressly agreed
upon in advance and provided that the three-month maturity is not exceeded,
however subject in all cases to the proviso that these documents can be presented
by us to our bankers. In all other respects, cheques and rediscountable bills of
exchange are only accepted as conditional payment. We accept no responsibility
for due and proper presentation, noting or protesting. All costs and discounting
charges in respect of bills of exchange, notes and letters of credit are to the debit of
the ordering party and are due and payable immediately.
6.4 In the event of delays in payment occurring, we are entitled to charge interest
amounting to 8 per cent above the basic rate of interest as defined in Section § 247
BGB (German Civil Code). Rights are reserved to assert further damages in respect
of such delays. The ordering party is at liberty to furnish proof of defaulting
damages being lower
6.5 In the event of any bill of exchange or cheque being protested, dwindling assets
of the ordering party, or in the event of alienation of the ordering party’s assets or
business, all its existing liabilities towards us shall become due and payable
immediately.
6.6 The ordering party is only entitled to offset our own claims against uncontested or
non-appealable claims. If the ordering party is a merchant as defined in Section
§ 1 HGB (German Commercial Code), the same applies to the assertion of rights of
retention resulting from a mutual commercial transaction.
6.7 If, following conclusion of any contract, circumstances become known that are
likely to have any lasting adverse effect on the credit standing of the ordering
party, we shall be entitled to make deliveries conditional upon prepayment of
the purchase price or to withdraw from the contract in the event of the ordering
party refusing to agree to such conditions. Circumstances having an adverse effect
on the ordering party’s credit standing are deemed to prevail in particular if the
ordering party suspends payments, if insolvency proceedings are petitioned
involving its assets or in the event of other circumstances materializing, e.g.
enforcement measures, noting or protesting of bills and the like, resulting in the
ordering party no longer being in a position to meet its obligations.
7. Reservation of Ownership, Security Assignment
7.1 We reserve all rights of ownership attaching to the supplied merchandise up to
Last update: 11.01.2013 143