GENERAL TERMS OF DELIVERY AND PAYMENT
a) The following General Terms of Delivery and Payment apply to all business relations with our customers (hereinafter referred to as “Buyer“) insofar as the Customer is a business owner (Article14 BGB – German Civil Code),a legal entity under public law or a special fund under public law.
b) Agreements are concluded by us exclusively on the following terms even if we do not expressly refer to them in future once a continual business relation has been established. The VOB (German Standard Building Contract Terms) or deviating terms and conditions of the Buyer apply only subject to our express written approval.
c) The Buyer agrees to the exclusive application of these General Terms of Sale at the latest when he accepts partial delivery even if the application of deviating terms is expressly excluded in the Customer’s general terms of purchase.
d) Legally relevant declarations and notices which have to be given to us after conclusion of the contract (e.g., notices of termination, setting of deadlines, notifications of defect, statements of cancellation or reduction) in order to be valid require the written form.
2. CONCLUSION OF CONTRACT
a) Our offers are without obligation and non-binding. A contract does not become effective unless upon the receipt of our written order confirmation by the Buyer.
b) Earlier information / agreement is not binding unless repeated in the order confirmation. Modifications and amendments require the written form in order to be valid.
c) A contract change requires our approval, which is deemed to have been given when our appropriately revised order confirmation is issued. We can charge a reasonable lump amount for labour and material for the issue of our confirmation.
a) Our prices are ex-works prices and exclude value-added tax at the applicable rate. Cost of packaging, freight, customs and other expenses, if any, will be charged separately. We can adjust prices if major changes of contract items occur in the fifth week after conclusion of the contract or later.
b) The prices relate to the scope of supply and services described in the order confirmation. Extra or special supplies or services will be charged separately.
c) Modifications/additions to the truck, chassis or body required for the installation of our goods are not included in our scope of supply and service and therefore are not part of the prices.
4. TERMS OF PAYMENT
a) Unless agreed otherwise in writing, payments shall be made in cash and without any deduction 10 days after provision of the goods or the information that the goods are ready for dispatch, and receipt of the invoice. Bank transfer fees are to the Buyer’s account. We reserve the right of demanding advance payment for supplies or services.
b) Cheques and bills of exchange will only be accepted by special arrangement and only as conditional payment, bills of exchange only subject to their discountability. The cost of collection, discounting, taxes and fees shall be borne by the Buyer.
c) We can charge interest on delayed payments at the rate of 10 percentage points above the respective base rate from the date of maturity; other claims for damage in connection with the delay are reserved.
d) The Buyer is not entitled to withhold or make deductions from payments because of any counter-claims, including claims from warranty, unless the counter-claims are uncontested or upheld by a court of law.
e) If the Buyer delays payment for more than a week or conditions are known that give rise to justified doubts about the Customer’s creditworthiness, all amounts the Customer is required to make to us become due and payable with immediate effect without regard to any deposited bills of exchange. In any such case we can deliver goods only against advance payment or provision of security or, after a reasonable period of time, refuse the further performance of the contract and claim damages for non-performance and immediate indemnity against any notes payable accepted in the Buyer’s interest. In that case, the Buyer is obliged to pay the amount of all notes payable directly to us. We accept the unconditional obligation of redeeming the liability at maturity.
5. TERMINATION OF CONTRACTS FOR WORK AND LABOUR
a) If a contract concluded between us and the Buyer is a contract for work and labour, the Buyer can terminate the contract after it has become effective (order confirmation received) only for cause.
b) In that case, we can demand the agreed compensation subject to Article 649 sentence 2 BGB (German Civil Code), however, deviating from Article 649 sentence 3 BGB at least in an amount of 10 % of the compensation, for the part of the work that is not provided.
6. OBLIGATIONS OF DELIVERY AND ACCEPTANCE, FORCE MAJEURE, PASSING OF RISK
a) The order confirmation stipulates the delivery dates insofar as a fixed date or a fixed deadline has been expressly promised or agreed therein in writing. However, it shall not begin before all design details have been clarified and the Buyer has complied with all his duties in this connection. The day of delivery is the day of dispatch or installation (if agreed). If the dispatch or the installation is delayed for reasons for which we are not responsible, the day on which we have notified the Buyer that the goods are ready for dispatch or the service is ready to be performed is considered as day of fulfilment. In that case, the Buyer shall bear all additional cost and all expenses accruing to us in connection with the delay, at least, however, 0.3% of the invoice amount for every week, or fraction thereof, of delay. If a reasonable additional period of time set by us has expired without result we can dispose of the goods and deliver other goods to the Buyer within a reasonable period of time. Partial deliveries are permitted. A precondition for the delivery is that our suppliers deliver their goods to us in time and according to specification.
b) If we are prevented to deliver the goods due to Force majeure, the period of delivery extends by the duration of the event of Force majeure. This also applies to cases of industrial conflict, disruptions of operational processes and other disruptions which could not be avoided despite reasonable care such as disruptions of our suppliers’ operations, including carriers, disruptions due to actions by the authorities and disruptions of transport routes as well as difficulties in procuring raw materials and working materials.
c) The risk of accidental loss and accidental deterioration passes to the Buyer when the goods are leaving the place of dispatch. If the dispatch is delayed without our fault, the risk passes to the Buyer on the day on which the goods are ready for dispatch. The risk of returned goods and their packaging is on the Buyer until received by us.
a) Illustrations, drawings, information on weights and measures, technical specifications and data as well as information on consumption and capacity are non-binding unless we expressly state that they are binding. They do not constitute an agreement on quality; neither do they constitute a guarantee of the quality of our products. Deviations that can be tolerated for the intended use and technical changes are permitted.
b) The Buyer is obliged to inspect the goods without delay after receipt, provision or the information that the goods are ready for operation. Defects, if any, shall be notified in writing not later than 14 days thereafter. The Buyer keeps within the deadline if the information is sent within the above period. Irrespective of the above obligation of inspection and information, the Buyer is obliged to inform us of obvious defects (including wrong delivery of wrong goods or short delivery) in writing within 14 days of receipt, provision or the information that the goods are ready for operation, it again being understood that the Buyer keeps within the deadline if the information is sent within the said period. If the Buyer fails to inspect the goods and / or to inform us of defects as required, we are not responsible for the defect notified.
c) The Buyer shall allow us the time and occasion for subsequent performance, especially to hand over the defective goods to us for inspection. Where substitute delivery is made, the Buyer is required to return the defective goods to us as required by law. Substitute delivery includes neither the removal of the defective goods nor their reinstallation unless the original installation was our duty. No modifications or changes shall be made to the complained goods without our consent. Otherwise and to the extent to which the repair of the defect is made impossible or rendered unreasonably difficult, the Buyer is not responsible for warranty or the provision of compensation.
d) A precondition for any warranty is that the maintenance intervals prescribed by us are observed and the maintenance is performed by the service partners named by us; no warranty is granted for damage after unauthorised intervention/repair by a third party, repair of second-hand machines or devices or machines and devices after the end of the warranty period as well as for makeshift or goodwill repairs or for damage due to natural wear and tear, wrong or negligent operation or maintenance, excess use, unsuitable working materials, defects of installation or start-up or external influences for which we are not responsible. Also excluded from warranty are refrigerants and lubricants, V-belts, electrical contacts and plug connectors, glass, paint, surface finish as well as low-value items or fragile objects, unless these goods were defective already at the time of the passing of risk.
e) In case of justified complaints, we will repair the defect or replace the defective goods free against return of the defective goods at our option, during normal working hours in our factory or in the workshop of the nearest service partner. We can make payment of the due purchase price by the Buyer a condition for the subsequent performance owed. The Buyer can retain a part of the purchase price appropriate in relation with the defect. Vehicles delivered to us for the purpose of installation or repair of a refrigeration device must be roadworthy. We can test drive the vehicle and have it inspected by specialist repairers and we can employ external contractors for carrying out work on the vehicle. If we wrongly refuse to repair defects or make replacement delivery or if we delay it, the Buyer can set us a reasonable deadline and demand withdrawal from the contract or reduction of the purchase price if that period lapses without a result. A defective partial delivery is no reason for the Buyer to infer any rights for the remaining partial deliveries.
f) We are liable for the absence of any assured properties of the goods only to the extent of sub-clauses a) to c) above, but only if the properties have expressly been assured as such in writing. We are liable for damages only to the extent to which the purpose of the assurance was to provide security to the Buyer for the damage incurred and to the extent to which the assurance was not in agreement with the state of science and technology at the time at which the goods were delivered.
g) Warranty claims are limited for 12 months after delivery or performance/installation or – if acceptance is involved – from the date of acceptance.
h) Attendance to the facts of a notification of defect does not constitute a waiver of the statute of limitation.
a) We are not liable for damage caused by any of the following reasons: unsuitable or improper use; wrong installation by the Buyer or a third party unless the fault is contained in the installation instructions; changes to the delivered goods by the Buyer or a third party; installation of parts other than original parts; natural wear and tear, wrong or negligent treatment; unsuitable working materials, replacement materials; chemical, electrochemical or electrical influences unless due to us.
b) We are liable for damages or compensation of expenses as required by the statutory provisions for the injury of life, body or health and for damage under the provisions of the German product liability act.
c) Unless something else results from a guarantee for the quality of the goods granted by us, we are liable for any other damage exclusively as stipulated below:
(1) To the extent prescribed by law we are liable for damage due to fraudulent behaviour or intent or gross negligence on the part of our legal representatives or managerial personnel.
(2) Limited to the amount of damage foreseeable and typical of the contract, we are liable for damage which is caused by slightly negligent violation of a cardinal duty (first alternative) and damage caused by our simple vicarious agents by gross negligence or intent without involving the violation of a cardinal duty (second alternative). A cardinal duty within the meaning of this clause is any duty the fulfilment of which is vital to the proper performance of the contract and on which the Buyer can, and does, normally rely. Under the second alternative, we are not responsible for damage not done to the delivered goods directly such as, in particular, lost profit, indirect or consequential damage (e.g., damage due to perished goods, vehicle downtime cost) or third-party claims.
d) Apart from the above, any liability is excluded by us.
e) If, in manufacturing the goods, we have acted on instructions, designs or drawings of the Buyer, the latter shall be obliged to waive any of his own claims and indemnify us against all claims for damage or the violation of rights by third parties.
9. RETENTION OF TITLE AND SECURITY RIGHTS
a) We retain the title to the goods delivered by us until all payments, present and future, under the business relation with the Buyer, including contracts concluded at the same time or later, including further all claims for compensation from bills which we have accepted in the exceptional interest of the Buyer, have been received in full. Payments by the Buyer for meeting certain obligations and the inclusion of claims in a current account or the balance and its acceptance have no effect on the retention of title. Payment is considered to be made when the appropriate countervalue has been received by us.
b) Treatment and processing for us are subject to the following terms, without creating on obligation for us and without our ownership being forfeited by it. If the Buyer combines or processes our reserved goods with other goods, the Buyer hereby assigns to us co-ownership in the new thing in the ratio of the invoice value of our retained goods to the invoice value of all combined goods. This also applies if the goods owned by the Buyer are the principal item. The new thing is considered as retained goods within the meaning of these provisions.
c) The Buyer undertakes to treat reserved goods properly. He mediates the ownership on the basis of a gratuitous storage arrangement. Reserved goods may be treated or processed, combined or sold only in the course of ordinary business, in which the Buyer is obliged to inform the owner of the new thing of our retention of title or himself retain title until his claims from the sale of these goods are fulfilled. Any other disposition, particularly pledging or assigning the goods as security, are forbidden.
d) All claims due to the Buyer from the utilisation of the reserved goods, together with all subsidiary rights, are hereby assigned to us in advance. If the reserved goods, either without or after being treated or processed or pledged, are sold together with other goods not belonging to us, the assignment extends to the proportion of the sales proceeds realised from our ownership or co-ownership. If the Buyer includes a claim from the delivery of reserved goods to a third party into a current account with a buyer the current account claim is assigned in full. After striking the balance the accepted balance replaces it, the accepted balance also being considered assigned in the amount equal to the original current account claim.
e) The Buyer is permitted to collect assigned claims only in the ordinary course of business. The Buyer is not permitted to make arrangements with a third party that would exclude or impair our rights. In particular, the Buyer may agree on advance assignments/factoring or offer assignments to a third party only with our previous consent.
f) The Buyer is obliged to inform us of the attachment of reserved goods by any third party without delay. All cost for counteractions in this connection shall be on the Buyer.
g) In the event of sub-clause 4. e) as well as in cases of default on any other payment or security obligations such as protest of bills of exchange or cheques the Buyer’s authorisation to dispose of the reserved goods, including their treatment or processing or combination and the collection of claims shall cease to be valid. In any such case, the Buyer is obliged, on our request, to provide all information and surrender all documents required for the enforcement of the assigned claims and to inform the debtor of the assignment. We can also take possession of the reserved goods and for that purpose enter the Buyer’s premises and sell the goods in the free market against set-off of the purchase price, auction the goods or utilise them in any other way. All cost accruing in this connection shall be borne by the Buyer. Unless proven in any other way, the cost of utilisation amount to 10 % of the proceeds of utilisation. The acceptance back of goods does not involve withdrawal from the contract unless we specifically express that.
h) If the value of the securities provided to us exceeds our claims totally by more than 10 %, we are obliged, on being requested, to release excess securities at our choice.
i) We can insure the Buyer’s goods against theft, damage caused by machines, fire, water or any other damage unless the Buyer submits proof of such insurance.
10. TOOLS, RECORDS, PROTECTIVE RIGHTS
a) Tools manufactured or procured on the instruction of the Buyer remain our property and can be used by us without restriction even if the Buyer has paid an appropriate part of the cost.
b) All drawings, illustrations, cost estimates and other records attached to offers submitted by us remain our property, including any copyright involved. No such records must be disclosed to any third party or utilised commercially except with our previous consent and shall be returned to us on our request without delay.
c) The Buyer can insist on the ownership of protective rights or know-how only if he informs us of the existence of such rights in writing within one week of the receipt of our documents.
11. PLACE OF PERFORMANCE AND LEGAL VENUE, APPLICABLE LAW
a) The place of performance for all obligations from the contractual relationship and the legal venue is the registered office of this company. We can sue the Buyer also at his registered place of business. This includes receivables from bills and cheques.
b) This contract is subject to German law to the exclusion of the UN Convention on Contracts for the International Sale of Goods.