General terms and conditions of delivery and service
1. Area of application
1.1. These General Terms and Conditions of Delivery and Service of VTE-Filter GmbH apply to all of our business relations with our Customers (in the following referred to “Customer”). In the event of a conflict the German version of the General Terms and Conditions of Delivery and Service prevails.
1.2. Unless otherwise agreed these General Terms and Conditions of Delivery and Service apply in the addition valid at the time of the Customer’s order, respectively in the most recent addition provided as frame work agreement also for similar future contracts without there being a notification requirement on our part on the individual case.
1.3. Our General Terms and Conditions of Delivery and Service apply exclusively. The Customer’s different, conflicting or supplementary terms and conditions only become part of the contract inasmuch as we expressly agreed to their application. This requirement for agreement applies in any event, in particular when we performed a delivery and/or service without reservation in awareness of the terms and conditions.
2. Conclusion of the contract
2.1 Our offers are subject to change without notice and are non-binding. The Customer’s order is deemed to be a binding contractual offer. Unless otherwise contained in the order we are entitled to accept the Customer’s contractual offer within two weeks upon its receipt by us.
2.2 Acceptance may be declared by us either in writing, e.g. by way of an order confirmation or by delivery of the goods respectively provision of the services.
2.3 In respect of any technical documentation, for example drafts, plans, calculations or sketches made available to the Customer, we retain property and intellectual property rights in respect of these documents. Availability to third parties are subject to our prior written consent.
3. Prices; Payments
3.1 Unless otherwise agreed the current prices apply as applicable at the time of the conclusion of the Contract.
3.2 Unless otherwise agreed our prices are net “ex works” without statutory VAT and exclusive of packaging which will be invoiced separately. Any customs duties, charges, taxes or other public duties are for the Customer’s account.
3.3 Any discount is subject to a separate written agreement.
3.4 The contract price becomes due and payable within fourteen days upon invoicing and delivery respectively acceptance of the delivered goods respectively the services. However, we are entitled, also during ongoing business relations, at any time to perform a delivery or service in part or in whole only against advance payment if we declare a respective reservation latest with the order confirmation.
3.5 The Customer is entitled to set-off retention rights only inasmuch as its claim has been confirmed as final and enforceable or undisputed. Furthermore, it is only entitled to exercise retention rights if its counter claim is based on the same contractual relation.
4. Delivery and service dates; Delivery and service time limits
4.1 Delivery and service time limits respectively delivery and service dates are agreed individually respectively are indicated by us when accepting the Customer’s order.
4.2 The compliance with delivery and service dates respectively delivery and service time limits is subject to the Customer’s timely and proper performance of its obligations.
4.3 Delivery and service time limits are extended respectively delivery and service dates are postponed by the duration of an obstruction due to Force Majeure or other unforeseeable events for which we are not responsible such as, for example, strikes, business interruptions, natural disasters and difficulties in the procurement of raw materials. We are obligated to notify the Customer immediately in writing about any such event occurring; at the same time we are under an obligation to notify the Customer about the foreseeable duration of such event. If such event prevails longer than three months both Parties are entitled to rescind the contract in which case any performances made are to be restored immediately.
4.4 An event within the meaning of the aforementioned para 4.3 is the delayed supply by our suppliers if we agreed on a congruent cover transaction. This only applies in the event that we are not responsible for the non-delivery and we do not bear the supply risk. The Customer will be notified about the non-availability of the delivery immediately.
5.1 Deliveries are “ex warehouse” which is also the place of performance of the delivery and, if the sale and purchase law applies, the supplementary performance, as the case may be. The goods are sent to a different place of destination if the Customer so requests. Unless otherwise agreed we are entitled to decide on the means of shipment (in particular transport companies, shipment itinerary, packaging).
5.2 The risk of an accidental loss and the accidental deterioration of the delivery items is transferred to the Customer at the time of delivery at the latest. In the case of a sale involving the carriage of goods [“Versendungskauf”] the risk of an accidental loss respectively an accidental remuneration of the delivery item respectively the risk of delay is already passed on to the Customer at the time of handing over to the freight forwarder, the carrier or any other person designated to perform the shipment. Inasmuch as an acceptance has been agreed or is provided for by statute it determines the passing of risks.
6. Co-operative acts
6.1 If the client fails to perform required co-operative acts we are entitled to claim for additional costs thereby incurred . Further rights and claims are reserved.
7.1 The acceptance of the delivery item or service only accurse if agreed or prescribed by statute. An agreed acceptance is subject to the statutory provisions of contracts for work done [“Werkvertragsrecht”] subject to the following derogations.
7.2 If acceptance has been agreed or is prescribed by statute the Customer is under an obligation to formally accept the delivery item or service within fourteen days counting from delivery or completion or to reject acceptance.
7.3 If the Customer rejects acceptance it must notify us of the reasons in writing.
7.4 If the conditions for an acceptance are fulfilled and the acceptance does not occur within the time limit stated in para 7.2 for reasons for which we are not responsible acceptance is deemed as having been declared.
7.5 Acceptance is also deemed as having been declared upon the Customer having used the item of delivery or service for more than two weeks without any deficiency complaints. This does not apply if and inasmuch usage by the Customer without any complaints was inevitable on the grounds of special circumstances.
8. Deficiency claims
8.1 Deficiency claims by the Customer require that the Customer complied with the statutory inspection/and complaints deadlines pursuant to sec. 377 HGB [German Commercial Code]. If during inspection or later a deficiency becomes apparent we are to be notified hereof in writing immediately.
8.2 In the event of a deficiency of the delivery item or service the Customer must initially grant us the opportunity to remedy the deficiency within a reasonable deadline set by the Customer at our option by way of rectification, replacement or re-manufacturing. In each case we are entitled to at least to attempts at supplementary performance.
8.3 If the supplementary performance failed or if a reasonable deadline set by the client for supplementary performance has lapsed without success or is redundant pursuant to statutory provisions the Customer is entitled to rescind the contract or to reduce the contract price. If the deficiency is insignificant, however, no rescission right applies.
8.4 Claims by the Customer for damages respectively reimbursement of failed disbursements because of a deficient delivery of service are subject to the following limitation rules and only in accordance with para. 9 below and are otherwise excluded.
8.5 In divergence from section sec. 438 subs. 1 No. 3 BGB (German Civil Code) and sec. 634 a subs. 1 BGB the limitation period for claims for deficiency by the Customer in relation to the cases referred to therein is one (1) year counting from delivery or, if acceptance has been agreed or is provided for by statue, from acceptance. Statutory special regulations for claims for the surrender of property by third parties (sec. 438 subs. 1 No. 1 BGB), bad faith and supplier’s recourse claims in the event of final delivery to a consumer (sec. 479 BGB) remain unaffected.
8.6. The afore mentioned clauses about the commencement and the duration of time limits apply equally to all of the Customer’s contractual as well as non-contractual claims for damages based on the deficiency of a delivery or service unless the application of the regular statute of limitation (sec. 195,199 BGB) result in a shorter period of limitation in the individual case.
8.7 Inasmuch as the terms in the afore mentioned paras 8.5 and 8.6 differ from the statutory limitation periods this does not apply to claims for damages by the Customer for which we are liable without limitation in accordance with para 9.2.
9.1 Claims for damages and compensation against us regardless on which legal grounds only exist pursuant to the following terms of this para 9 and are otherwise excluded.
9.2 We are liable under the statutory provisions for culpably caused injury to life, limb and health including simple negligence as well as otherwise for intent and gross negligence. We are further liable pursuant to statutory provisions if we concealed the deficiency in bad faith or issued a guaranty. The same applies to the Customer’s claims under the product Liability Act [“Produkthaftungsgesetz”].
9.3 In case of simple negligence our liability for losses is excluded unless we acted in breach of a material contractual obligation. In this case our liability is limited to those losses which are foreseeable as typical losses under the contract. Material contractual obligations are those whose performance enables the proper performance of the contract in the first place, such performance being regularly relied upon by the contracting Party who is entitled to such reliance.
9.4 The aforementioned exclusions and limitations of liability apply equally for the benefit of our organs, statutory representatives, employees and other agents.
10. Retention of title
10.1 We retain title to the goods delivered by us (in the following “retention goods”) until the receipt of all payments for the entire business relation with the Customer.
10.2 In case of breach of contract by the Customer, in particular delay in payment, we are entitled to recover the retention goods. Our demand for the surrender of the retention goods always includes a rescission of contract. After taking possession of the retention goods we are entitled to the utilization thereof and to set-off the proceeds against the Customer’s debts less the reasonable costs of utilization.
10.3 The Customer is entitled to sell retention goods in the ordinary course of business and herewith assigns to us all claims accruing from the on-sale against purchases or third parties in the amount of the final invoice (including VAT), regardless of whether the goods were sold before or after reprocessing of the goods. The Customer remains entitled to collect these claims also after the assignment. Our right to collect the claims ourselves remains unaffected thereby. We are, however, obligated not to collect the claims for as long as the Customer fulfills its payment obligations to us, does not delay payments and no application for composition or insolvency proceedings has been lodged. Otherwise we may demand that the Customer discloses to us the assigned claims and their debtors as well as all necessary information for the collection of the debt and all pertaining documents and notifies the debtors of the assignment.
10.4 The Customer shall keep the retention goods always fully insured against the usual risks and shall provide proof thereof upon demand. The Customer herewith assigns to us its possible claims against the insurer.
10.5 If the value of the securities provided to us exceeds the totality of our demands against the Customer by more than 10% we shall upon the Customer’s demand release or retransfer the respective securities; the choice of such securities being ours.
10.6 It the aforementioned property clauses are invalid under the laws of the countries where the delivered goods are situated it is considered as agreed that at least the property in the goods remains vested in us until full payment of the purchase price for the respective delivery. If this, too, should not be allowed but if the laws of the country where the delivered goods are located does allow us to reserve other security rights in respect of the goods we are entitled to exercise these rights. The Customer shall assist in implementing the requisite measures to execute the security.
11.1 These Delivery and Service Conditions and all legal relations between us and the Customer are subject to the laws of the Federal Republic of Germany. The United Nations Convention on the Contracts for the International Sale of Goods is excluded.
11.2 Exclusive place of jurisdiction for all disputes directly or indirectly arising out of the contractual relation is the municipal court or the regional appeal court competent for [the city of] Norderstedt. We are, however, also entitled to commence proceedings at the Customer’s general place of jurisdiction.