I.  General clauses

1. These terms apply only to companies as defined under § 310 BGB (German Civil Code).

2. Quotations, order confirmations, deliveries and services of the seller are based exclusively on these business terms.

3. These also apply to all future business relations even if no more explicitly agreed.

4. Any counter-confirmations by the buyer with reference to his business or purchasing terms are herewith explicitly objected to. 

5. Deviations from these business terms are effective only if confirmed by the seller in writing.

II. Quotation and contract execution

1. All quotations by the seller are free. Order numbers or article numbers relate to the latest version of the documentation of the seller such as catalogues or leaflets which also give more detailed technical information. These documents are for information only unless explicitly defined as binding. We assume no warranty for conformity for instance with the piece weights as listed in the catalogue.

2. Declarations of acceptance and all orders require the written or electronic confirmation from the seller (including EDI, remote data transmission and computer-readable data media) to come into legal effect. The same applies to amendments, modifications or ancillary agreements. An invoice is considered an order confirmation.

3. Drawings, illustrations, dimensions, weights and other performance data are binding only if explicitly agreed in writing. All drawings and documents have to be returned upon request of the seller or without having to be requested if no order is placed.

4. If after contract execution it shows that the claim of the seller for the counter-service is endangered by lack of capability of the buyer to perform, in particular due to the buyer exceeding his credit limits or due to open overdue invoices, the seller shall be entitled to refuse fulfilment of the contract until the buyer delivers his counter-service or provides security for it. The seller shall be entitled to rescind from the contract if he had reminded the buyer with a reasonable notice to deliver the counter-service and this notice has expired fruitlessly. 

III. Prices and payment terms

1. The prices stated by the seller in his quotations are free. Unless otherwise defined in the order confirmation all prices are ex works/warehouse of the seller excluding packaging, postage, freight, other shipment expenses, insurances and duties which will be charged separately. The packaging shall be charged at cost price. The prices of the seller do not include the statutory VAT rates. Statutory VAT rates shall be charged separately.

2. All invoices of the seller are payable in Euros 30 days after date of invoice net without any deductions or within 14 days after date of invoice with 2 % cash discount at the bank account of the seller. Deduction of cash discount is not permissible if purchasing price receivables from older, due invoices are not yet settled. Any cash discounts have to be drawn from the gross invoiced amount.

3. The seller is entitled regardless of different terms of the buyer to set-off buyer’s payments against older debts first. If costs and interest already occurred, the seller is entitled to set-off the payment first against the costs, then against interests, and finally against the main service.

4. A payment shall be considered settled at the date when the seller may dispose over the amount. 

5. If the buyer is in default with his payment obligations, or the seller gets informed of other circumstances that give reason to doubt the creditworthiness of the buyer, the seller is entitled to make the entire residual debt due and payable or to request other forms of security. 

IV. Setting-off, Right of withholding, Impermissibility of assignments

1. The buyer is entitled to set-off and withhold only against receivables which are undisputed or have been decreed as legally effective. Reductions due to complaints for defect are subject to the same limitations.

2. The seller declares his consent to setting-off of his receivables and payables with those of the seller and the sellers‘ affiliates. Receivables and payables of the buyers‘ affiliates may be set-off in the same way.

3. It is not permissible to assign the buyers‘ rights under the agreement. 

V.  Delivery and service time

1. Delivery dates and delivery times mentioned by the seller are not binding unless otherwise explicitly agreed in writing. Call-for-orders and general orders are subject to individual agreements on delivery times.

2. Delivery times shall commence on the date of receipt of the order from the buyer. Conformity with the delivery obligations of the seller is subject to lawful and correct fulfilment of the obligation of the purchaser, in particular all documents, parts, information and permits to be provided by the buyer have to be delivered, and any agreed down payments have to be settled. 

3. Date of delivery is considered the day at which the buyer was notified of the readiness of the goods for pick-up. If shipment is owed, the date of delivery shall be considered the date at which the goods are handed over to the transport person.   

4. Reasonable split deliveries and spilt services are permissible in reasonable extent. Unavoidable discrepancies in quantities of up to +/- 5-10 % are not considered under-delivery. 

5. Default of delivery and service due to force majeure is not responsibility of the seller. Force majeure and labour fights exempt the contract partners for the duration of the disturbance and in the extent of their effect of their service obligations. The contract partners are obliged in reasonable limits to give the necessary information immediately, and to adjust their obligations to the changed condition in best faith and belief.

The customer shall have a right of rescission only if the agreed delivery time is exceed by more than ten weeks. Before that, the right of rescission exists only if the seller has notified the buyer in writing that he cannot or can no more deliver. The above limitation does not apply to fix business transactions. As far as production of the goods is no longer reasonable due to force majeure or labour fight, the seller is discharged of his obligation to deliver, and entitled to rescind from the contract. 

6. If the seller is in default with delivery under a delivery date agreed in writing, the buyer may rescind from the contract if he reminded the seller with a reasonable notice of at least 14 days, unless notice is exceptionally redundant. If the buyer not already declares in the reminder notice whether he insists on fulfilment or wants to assert his right of rescission, and such a declaration is not received by the seller within another period of 7 days, the seller shall be entitled to rescind from the contract. The right of the buyer to claim indemnification of damage is ruled by the conditions in Section IX.

VI. Passage of risk

1. The risk passes to the buyer as soon as the goods have left the works of the seller, an external warehouse, or in case of direct delivery of sub-supplied goods, the warehouse of the sub-supplier. If the shipment or pick-up is delayed or made impossible without fault of the seller, the risk passes to the buyer with notification of the buyer of the readiness for pick-up. 

2. Delivered goods have to be taken in by the buyer even if they have unessential defects without prejudice to the rights under section VIII.

VII. Reservation of property title

1. The delivered goods remain property of the seller until the buyer has settled all liabilities from the existing business relationship.

2. Processing and conversion always take place for the seller as the manufacturer but without obligation to the seller. If the co-property of the seller expires through mixing with other goods, the parties herewith already agree that the co-property of the buyer in the harmonized object passes to the seller proportionally in the amount of the invoiced value.

3. The buyer covenants to protect the property/co-property of the seller with the caution and care of a proper businessman against perishing, reduction or loss, and also against his own customers. 

4. The buyer is entitled to process and sell the reserved goods in the normal course of business. Pledging or mortgaging as security is not permissible. The buyer herewith already assigns the receivables created by resales or other legal cause on the reserved goods to the seller in full extent and with all ancillary rights.

5. If third parties lay their hands on the reserved goods, the buyer shall point out the property rights of the seller, and notify the seller immediately. Costs and damages go on account of the buyer. 

6. In case of payment default of the buyer, the seller is entitled to rescind from the contract and to request the reserved goods from third parties. This shall not prejudice the right of the seller to claim indemnification of damage. The same applies in case of other conduct of the buyer in breach of the contract.

7. The seller agrees to release the securities to which he is entitled upon request of the buyer in so far as the realizable value of the securities exceeds the receivables to be secured by more than 20%. Selection of the securities to be release is in the seller’s discretion. 

VIII. Claims for defects

1. The exclusion of deviations as customary in the industry requires explicit written agreement. The same applies for guarantees. The seller’s information on the object of delivery and service in his catalogues, leaflets and price lists serves only as descriptions, labelling or standards unless otherwise defined in the order confirmation. Minor inessential deviations from the catalogues or goods delivered earlier are not considered a defect.

2. The buyer is responsible to check whether the goods ordered from the seller are suitable for his intended purpose of use. Unsuitable goods are a defect only if the seller had confirmed the suitability in writing.  

3. Wear and tear of expendable parts through normal use is not a defect. 

4. If instructions of the seller for installation, assembly, distribution or maintenance are not complied with, products are modified, parts replaced, or expendable parts are used which are not conform to the original specifications, the buyer may assert defect claims only if he delivers evidence that the defect was not thereby caused but had been existent already at passage of risk. 

The seller is liable for that the products are free of defects of fabrication and material, and otherwise have the characteristics specified in the order confirmation.

Claims of the buyer for defects are conditional on that the buyer correctly fulfilled the obligations of inspection and complaint he owes under § 377 HBG (German Trade Code).

5. If the goods were not yet delivered to an end user, reasoned and correctly complained defects obliged the seller in his discretion to eliminate the defects by remedy, or to redeliver the object of delivery wholly or partly. If redeliveries or remedies fail, the buyer may claim reduction of the price only, or in his discretion rescind from the contract. The right to rescind and claim of damage indemnification instead of the performance are given only if the defect is not unessential. The right of the customer to assert damage is defined in section IX.

6. If the goods were already delivered to an end user, the customer is generally only entitled to assert the defect claims towards the seller that his own customer asserted to the buyer. This does not apply if the goods were taken back under a pro bono regulation not agreed with the seller. Furthermore the customer is not entitled towards the seller to rescind if he had to take back the goods because he failed to fulfil his remedy obligation correctly, in particular if by fault he let a remedy period expire fruitlessly. The seller is obliged to refund expenses according to § 439 section 2 BGB only in as far as the customer had notified the seller immediately in writing of the remedy request of his own customer, reported the intended kind of remedy and the estimated related costs, and the seller did not immediately object to that notification. The buyer is obliged to follow proposals from the seller for more economic remedy. 

7. If the seller breaches performance-related obligations according to § 241 section 2 BGB, the customer is entitled to a right of rescission and claim for damage indemnification instead of the service beyond the statutory regulations only if he had reminded the seller in advance in writing, and the breach of duty was not refrained regardless of the reminder. 

8. In case of elimination of defect, the seller is obliged to pay all expenses required for elimination of defect, in particular transport, travel, work and material costs, if and in as far as not due to transport of the purchased object to a place other than the place of performance. 

9. Claims for defects shall be time-limited within 12 months since arrival of the goods at the buyer. This does not apply if the breach of duty was caused by intend or negligence. Otherwise § 444 and § 479 BGB shall not be affected.

IX. Damage indemnification, Limitation of liability

1. Claims for damage indemnification are excluded. In particular the seller shall not be liable for damages incurred at the delivery object of for consequential damages of any kind. In particular the seller is not liable for lost profit or other property damage of the buyer. The above limitation of liability does not apply in as far as the seller or his agents are in fault by intent or gross negligence. 

2. If the seller breached a duty essential to performance of the contract by negligence, his liability is limited in the sum to the damages that are typical for comparable deals of this kind which were predictable at contract execution or at least when the duty was breached. 

3. § 444 BGB, claims for damage indemnification due to hurt of life, body and health as well as claims under the product liability law are not affected.

X. Right of use and utilisation, Protective rights

1. As far as the seller due to an order from the buyer produces goods upon the buyer’s instructions and guidelines and delivers them to the buyer the buyer shall be liable to the seller for that the ordered deliveries and services are free of protective rights from third parties. He indemnifies the seller from all related claims and warrants compensation of occurred damage.  

2. In as far as the seller provides the buyer with tools, designs, proposals for installation or other drawings and documents together with the goods the seller reserves the property and all protective and utilization rights on them. The buyer is entitled to use according to the purchasing contract only. In particular he is not entitled to reproduce such objects or to make them accessible to third parties.

XI. Secrecy

     Unless otherwise explicitly agreed in writing the information included in the context of orders is not considered confidential. 

XII. Data protection

     The seller is entitled to record and process all data on the buyer received in context of the contract performance under compliance with the regulations of the Bundesdatenschutzgesetz (German law on data privacy) for his own purpose.  

XIII. Severability

    If any clause of these business terms is or becomes invalid this shall not affect the validity of all other clauses or stipulations. 

XIV. Place of jurisdiction – Place of performance

     Place of jurisdiction is Memmingen. However, the seller is also entitled to sue the buyer at his place of business residence. Unless otherwise defined in the order confirmation the place of performance shall be the place of business of the seller. 

XV. Governing law

     The business terms and the entire legal regulations between the buyer and the seller are governed by the law of the Federal Republic of Germany. The Treaty of the United Nations of April 11, 1980 on international purchases of goods (‚CISG‘) does not apply.  

XVI. Manufacturer’s Declaration

We hereby declare that the hydraulic and pneumatic components supplied by us comply with the requirements of EC Directives, as well as with national and international standarts and safty regulations specific to the products.

The products are thus authorised for use in machines or machine parts which form 1995, will require a declaration of confirmity in accordance with EC Directive on Machinery 89/392 EEC – as modified by EC Directives 91/386 EEC, 93/44 EEC and 98/37 EEC, Appendix II B – including the CE symbol

Any proportional valves with built – in electronics and electronic circult boards will be marked with the CE symbol on 1st January 1996 in conformity with the directives on electro-magnetic compatibility 

In accordance with Apendix II B of the EC Directive on Machinery, we are obliged to point out that machinery fitted with our products may not machine be put into service until has been established that the machine complies with the appropriate directives. 

For general information, we should point out that the hydraulic components distributed by us do not require any EC declaration of conformity and that marking with the CE symbol is not authorised. 

 

 

 

 

 

Version: January 2002                      VLZ02.