§ 1 General
1. These General Terms of Sale and Delivery apply to all present and future business relations. They shall also apply where Avermann does not refer again to the General Terms of Sale and Delivery in the case of subsequent transactions. The customer’s General Terms of Sale and Delivery shall in no circumstances form the subject of this contract. This shall even apply if Avermann acknowledges or does not explicitly oppose again the validity thereof, unless the validity thereof is explicitly consented to in writing.
2. The General Terms of Sale and Delivery shall apply vis-à-vis business persons and legal entities under public law and also vis-à-vis special funds under public law. Businesspersons within the meaning of the General Terms of Sale and Delivery are natural or legal entities or partnerships with legal capacity that enter into business relations, which act in performance of a commercial or independent function.
3. The General Terms of Sale and Delivery also apply to Avermann’s construction and repair services. In this case our General Construction Terms appended to the offer or order confirmation, shall, in addition, apply.
4. In cases of doubt, the Incoterms in force from time to time shall be decisive with respect to the interpretation of commercial clauses.
§ 2 Offer and Conclusion of Contract
1. Offers are always subject to confirmation and subject to technical changes as well as to reasonable changes in form, colour and/or weight. Pictures, drawings, volumes, weights and other performance data shall only be binding if this has been explicitly stipulated in writing.
2. Avermann retains the ownership right and copyright to cost estimates, drawings and other documents. Third parties may not be given access to the said documents without explicit written consent.
3. The contract shall be formed by means of a written order confirmation issued by Avermann or, in the absence of such confirmation, by the performance of the order.
4. In order to be legally effective, all changes, amendments or supplementary agreements to this contract must be made or confirmed in writing. Our sales staff is not authorized to conclude supplementary agreements or make representations going beyond the contents of the written stipulations.
5. Should an order be made electronically, Avermann shall, generally speaking, confirm receipt of the order. The said confirmation of receipt only documents receipt of the order and shall not constitute a binding acceptance. However, the declaration of acceptance may be combined with the confirmation of receipt.
§ 3 Price and Payment
1. In the absence of any special agreement prices shall be effective ex works in Euros. Sales Tax in the amount applicable from time to time shall be added to prices. With regard to additional performance-related costs we refer to the provisions of § 4 (1) and (3). In a case where delivery takes place more than eight weeks following conclusion of the contract, the Avermann prices valid on the date of dispatch shall be charged.
2. In the absence of any special agreement invoices are payable on a net basis.
3. Where there are several outstanding accounts Avermann reserves the right to first apply a payment, instalment or down payment of the customer in settlement of the debt. The payment, instalment or down payment shall be applied to the debt with the lowest security; in the case of debts with the same security this shall apply to the oldest debt; in the case of debts of the same age this shall apply to all the debts proportionally.
4. The customer shall only have a right of setoff if its counterclaims have been declared final and absolute or recognized by Avermann. The customer may only exercise a right of retention if its counterclaim is based on the same contractual relationship.
5. Late payments shall be determined by the statutory provisions, subject to the condition that the customer shall become in default by means of a demand following the due date or, without any further requirements, by a failure to make the due payment within 14 days of the due date and receipt of Invoice. During the period of default the customer shall pay 8 % interest above the base rate on the debt. Avermann reserves the right to prove and assert greater damage.
6. Bills of exchange, cheques and other negotiable instruments shall only be accepted in payment [pending full discharge of the debt] and following a prior written agreement. All costs connected with receipt (e.g. collection and discount charges) shall be promptly refunded by the customer. The term of bills shall be limited to 90 days from the date of the invoice.
7. Claims by Avermann for the purchase price or labour shall become time-barred after five years.
§ 4 Packaging and Dispatch
1. The costs of packaging, dispatch, payment transactions and customs duties shall, insofar as nothing is agreed to the contrary, shall be separately charged to the customer’s account. In doing so, Avermann may, at its discretion, charge either for a lump sum payment or for the effective costs. The lump sum payment shall consist of 5 % of the gross invoice amount. The customer shall be entitled to prove smaller costs to Avermann.
2. The packing method as well as the dispatch method shall be chosen by Avermann according to its best judgment.
3. The goods shall only be insured against damage in transit at the customer’s special instructions. The customer shall be charged separately for the said insurance.
4. In case the delivery or acceptance is delayed for reasons attributable to the customer the costs arising due to the delay shall be borne by the customer. Avermann shall, at its discretion, charge a lump sum or the effective costs. The lump sum amounts to 0.5% of the gross invoice amount for each month commenced. The lump sum is limited to 0.5% of the gross invoice amount. The customer shall be entitled to prove that the costs were less. Moreover, Avermann shall be entitled, after the fruitless passage of an appropriate time limit, to otherwise dispose of the object of the delivery, and to supply the customer subject to an appropriately extended time limit.
§ 5 Passage of Risk and Acceptance
1. The risk passes to the customer as soon as the merchandise has been handed to the person due to carry out the delivery, or has left our storeroom for the purpose of dispatch.
2. In case the merchandise is ready for dispatch and dispatch is delayed at the request of the customer or for other reasons attributable to the customer, the risk passes to the customer upon his being notified of the readiness of the merchandise for dispatch.
3. Where the customer does not accept the merchandise after notification of readiness for dispatch, or where he is in default regarding compliance with other material contractual obligations, Avermann shall be entitled, after having fixed an appropriate time limit, to repudiate the contract and to demand compensation instead of performance. It may demand to be recompensed for the actual damage, or a lump sum of 15% of the gross invoice amount, unless the customer can demonstrate that the actual damage has been less.
§ 6 Delivery Dates
1. The time of delivery is a function of the contractual agreements. In order to be valid binding delivery dates or time limits require written confirmation on the part of Avermann. Compliance with the delivery dates is contingent upon the customer having complied with his contractual obligations and responsibilities as agreed. Should this does not be the case, the delivery time shall be prolonged appropriately, unless the delay is attributable to Avermann.
2. Compliance with the time of delivery is subject to timely and correct delivery to Avermann. This only applies in case the non-delivery is not attributable to Avermann, in particular in the case a congruent hedging transaction is concluded with its own supplier. Avermann shall inform the customer promptly of the non-availability of the performance. A counter performance already executed shall be reimbursed promptly.
3. Dates or time limits of delivery shall be appropriately postponed or extended in case force majeure, labour troubles or other circumstances not attributable to us prevent the timely performance of our obligation. This also applies if similar circumstances prevail with our own suppliers. Avermann shall not be legally responsible for damages caused thereby. In case the obstacle occurs for longer than three months the customer shall be entitled, after having conceded an appropriate additional time limit, to withdraw from the contract in respect of the part thereof that has not yet been fulfilled. He shall not be entitled to claims for compensation.
4. Should the customer suffer damage due to a delay in delivery attributable to Avermann the statutory provisions shall apply. In case it is incumbent upon Avermann to pay compensation pursuant to such provisions, this shall be limited to the typical damage that was foreseeable at the time the contract was concluded. It shall amount to 0.5% for each full week of delay, but altogether shall not exceed 5% of that part of the total delivery that, due to the delay, was not usable in time or in accordance with the contract. Further claims shall be excluded. The aforesaid limitations do not apply to the extent that Avermann is compulsorily responsible due to wrongful intent, gross negligence or personal injury.
5. Avermann shall, at all times, be entitled to render partial deliveries or services, unless the customer has no interest in partial fulfilment of the contract.
6. It is incumbent upon the customer to accept items delivered, even if they contain minor defects.
§ 7 Customer's Claims on Account of Defects
1. Avermann warrants for a period of 12 months from delivery of merchandise or acceptance of the work respectively, that the products delivered and the services rendered are free of defects. The short limitation period does not apply insofar as the rights of the customer refer to construction work or work that consists of the provision of planning and supervision services in respect of construction, or if claims arising from product liability are affected, or if Avermann can be accused of malicious intent or gross negligence, or injury to life, limb or health can be ascribed to it.
2. If the equipment supplied is operated by the customer on a multi-shift basis then instead of the warranty period of 12 months a period of 2000 operating hours shall apply. This limitation shall not be applicable in the case of the exceptions listed in sub-section 1.
3. In principle, it is agreed that the quality of the merchandise shall conform only to the product description of Avermann. Public utterances, promotions or advertisements shall not represent a contractual statement of quality of the merchandise. The customer shall not be provided with guarantees in the legal sense.
4. With regard to defects in the merchandise we will, in the first instance and at our discretion, fulfil the guarantee by effecting repairs or making a substitute delivery (subsequent fulfilment). If the subsequent fulfilment fails the customer can, at his discretion, demand a reduction in price, or cancellation of the contract (withdrawal), or compensation within the framework of the limitation of liability (§ 8). However, when a minor infraction of the contract is involved, especially only a minor defect, the customer shall not be entitled to rescind the contract.
5. Obvious defects in the merchandise shall be reported promptly in writing, at the latest within a week of reception. If such a report is not submitted no claim in respect of defects shall be admitted. In order to comply with the time limit, timely dispatch is sufficient. It is incumbent upon the customer to provide full proof regarding the prior conditions of the claim, especially regarding the defect itself, the time of ascertainment of the defect and the timeliness of the complaint about the defects.
6. In case the customer chooses to cancel the contract because of a legal or physical defect after subsequent fulfilment has failed, he shall not in addition also be entitled to compensation in respect of the defect. In case the customer opts for compensation after subsequent fulfilment has failed, then the merchandise delivered remains with the customer, if this is reasonable. In this case the compensation is limited to the difference between the purchase price and the value of the defective item. The aforesaid limitations do not apply if the infraction of the contract is due to malicious intent or gross negligence on the part of Avermann, or involves bodily or health damage or cases of death respectively.
7. No liability shall attach due to normal wear and tear or in respect of damages caused by unsuitable or unprofessional use. Liability in respect of defects shall be completely excluded in case operational, activating or maintenance instructions are not followed, changes are made in products, parts exchanged, or consumable materials are used that do not conform to the original specifications, unless the customer is able to rebut a substantiated assertion that the defect occurred because of these circumstances.
8. Second-hand items are, in the absence of a contrary agreement, sold without any liability for defects unless there is a malicious or grossly negligent breach of the contract on the part of Avermann, or there is injury to life, limb or health that can be attributed to the latter.
9. Should the customer receive defective installation instructions we shall merely be obliged to supply installation instructions that are free of defects. But this obligation shall exist only if the defect in the installation instructions prevents the normal regular installation.
§ 8 Liability
1. Claims for compensation shall be excluded in the case of slightly negligent breaches of minor contractual obligations. This also applies in the case of slightly negligent breaches of duties on the part of our legal representatives or persons employed in fulfilling the contract or vicarious agents. Liability shall be limited to the direct average damage typical of the contract and foreseeable at the time the contract is concluded. The preceding limitations shall not apply in so far as body or health damage or cases of death are concerned.
2. Claims of the customer arising from product liability and other claims arising from manufacturers' liability shall not be affected.
3. The liability of Avermann shall be limited to the direct average damage typical in individual cases of the contract and foreseeable at the time the contract is concluded.
4. Compensation claims of the customer shall be time barred after one year from delivery of the merchandise, or acceptance of the work, respectively. Any different provision shall apply only in case Avermann can be accused of malicious intent or gross negligence or if major contractual obligations were not complied with, or body or health damage or cases of death occur.
§ 9 Reservation of Ownership
1. All merchandise supplied shall remain the property of Avermann until all claims of Avermann resulting from the business relations with the customer have been paid, including all claims for balances from the current account. In case the value of all rights of security that are due to Avermann under this section exceed the extent of all secured claims by more than 20% Avermann shall, upon the customer's request, release a corresponding part of the rights of security.
2. The customer shall be entitled to process and sell the reserved merchandise in the course of his regular business, as long as he is not in arrears with his payments. Hypothecation or passing of title of the security shall not be permitted. For the purpose of safeguarding Avermann's rights the customer assigns in full already now to Avermann the claims arising from the sale or other legal reasons (insurance, forbidden action) concerning the reserved merchandise. The latter accepts the assignment. Avermann irrevocably authorizes the customer to collect the assigned claims for the customer's account and in his name. The authority to collect may only be revoked in case the customer does not meet his payment obligations in an orderly manner.
3. In case third parties seize the reserved merchandise the customer shall draw attention to Avermann’s property rights and inform Avermann forthwith. Moreover, in case of seizure of the reserved merchandise by third parties the costs of voiding the seizure, in particular by means of a third party action against execution, and replacing the item, shall be borne by the customer.
4. In case of behaviour of the customer that is contrary to the contract, and especially in case of payment delays, Avermann shall be entitled to take the reserved merchandise back. The customer shall be obliged to surrender said merchandise. Avermann shall be entitled, for the purpose of retrieving the merchandise, to enter the customer’s premises or other accommodation of the latter in which the reserved merchandise is situated.
Unless Avermann has specifically declared as much, no withdrawal from the contract shall be implied in the retrieval, or enforcement of the property reservation, or distrait. Avermann shall be entitled, after having threatened to do so, to realize the retrieved reserved merchandise, and to satisfy its outstanding claims out of the proceeds.
5. In case of deliveries outside the German Federal Republic, where the above security rights in rem cannot be effectively agreed, such proprietary security rights shall be deemed to have been agreed in respect of all outstanding claims arising from the business relations between the customer and Avermann which, according to the legal system involved, are most similar to the above security rights.
§ 10Final Provisions
1. The law of the Federal Republic of Germany shall apply exclusively. The application of UN commercial law is specifically excluded also where its application is provided for in customer’s business terms.
2. Our business domicile shall be the exclusive place of jurisdiction for all disputes arising from this contract. This also applies in case the customer does not have a general legal venue in Germany, or his domicile or normal place of residence is unknown at the time the action is filed. Avermann shall, however, be entitled to sue the customer at the place of his business domicile or his business establishment.
3. Osnabrück shall be the place of performance for all obligations arising from the business relationship.
4. Should individual provisions of this contract with the customer, including these General Term of Sale and Delivery, be or become partly or wholly ineffective, the validity of the remainder of the provisions shall not be affected thereby. The complete or partial provisions shall be replaced by a provision the economic effect of which shall be as similar as possible to the ineffective provisions. |
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