General Terms and Conditions of Business
This English translation of the German AGB (General Terms & Conditions of Business) is provided for the convenience of our non-German speaking customers and does not supersede the German version, which remains legally binding.
1. All documents accompanying an offer, such as illustrations, drawings, weights and other measurements are approximate unless specified as binding.
2. All deliveries and services are made under these basic Terms & Conditions and under any special contractual arrangements that may be made. Any purchasing conditions of the Buyer that deviate from these Terms & Conditions do not become contractual despite acceptance of the order.
Any deviation from these Terms & Conditions will only be binding if specifically acknowledged as such by us in writing. A contract comes into force – in the absence of any special agreement – with the Seller’s written confirmation of an order.
3. The Seller remains the owner and copyright holder of all models, quotations, drawings and other material and immaterial information including those in electronic format; they may not be made accessible to third parties. The Seller pledges not to make available to a third party any information or documentation which is identified by the Buyer as confidential, without the agreement of the Buyer.
II. Price and Payment
1. Prices, if not otherwise negotiated, are ex works including loading but excluding packaging and unloading. Prices do not include VAT (Sales Tax) which will be added at the current relevant statutory rate.
2. Payment without deduction is due 30 days after date of invoice unless otherwise agreed.
3. The Buyer retains the right to withhold payment as long as the Buyerâ€™s requirements are uncontested. Up to 10% of the invoice total may be withheld if the delivery may be utilised.
4. The right to offset payments against counterclaims is only permitted if determined by the Seller that such are extant and due or valid.
5. Should payment be delayed, the Seller has the right to apply interest at a rate of 8% p.a. over the base rate from the due date onwards.
6. We are entitled to transfer claims arising from our business relationships.
7. Should the Buyer come into default with any due payment, all open payments shall immediately fall due.
8. All payments are to be made in full to VR FACTOREM GmbH, Ludwig-Erhard-Strasse 30 â€“ 34, 65760 Eschborn (to whom we have transferred all present and future payments receivable) only. We have also transferred all RoT (Retention of Title) goods to VR FACTOREM GmbH.
9. The Buyer is prohibited from offsetting any counter-claims unless these are uncontested or legally valid. The assertion of any right to retain payment by the Buyer is precluded unless based on the same contractual relationship or the counter-claim is uncontested or legally valid.
III. Delivery Schedules, Delivery Delays
1. Delivery schedules are according to the agreements of the two parties involved. The Sellerâ€™s obligation to keep to the schedule is dependent on the satisfactory answering of all and any business and/or technical questions between the parties, and on the Buyerâ€™s fulfilment of all and any obligations such as, for example, technical specifications (measurements, weights) necessary for construction of the goods or on the Buyerâ€™s payment of any amounts due. Should this not be the case, then delivery dates will be delayed accordingly. This however does not apply should the Seller be the cause of the delay.
2. Adherence to delivery schedules is dependent on correct and timely delivery from our own suppliers. The Seller will disclose any legitimate delays as quickly as possible.
3. Delivery deadlines are considered met when the goods have left the factory or notification has been given that they are ready for shipping. If receipt of the article is to be made then the date of receipt is the deciding factor or, alternatively , notification of readiness to receive the goods.
4. Should the consignment or, alternatively, receipt of the goods be delayed due to factors caused by the Buyer, the costs generated by the delay will be charged to the Buyer, beginning one month after the notification of the notification of readiness to ship or to receive goods.
5. Should the lack of adherence to delivery schedule be traced to force majeure, labour disputes or other events which are outside the Sellerâ€™s control, the delivery schedule will be extended accordingly. The Seller will inform the Buyer of the beginning and ending of such circumstances as soon as is possible.
6. The Buyer may terminate the contract without notice should it become impossible for the Seller to fulfil the entire contract due to transfer of risk. In addition, the Buyer may terminate the contract should completion of part of the delivery become impossible and there be justifiable reason to refuse partial delivery. Should this not be so, the Buyer is obliged to pay the relevant portion of the contract price for the partial delivery. The same holds true for in case of Sellerâ€™s inability to complete the contract. Otherwise Part VII.2 applies.
Should impossibility or inability to perform occur during the delay of receipt, or should the Buyer be wholly or largely responsible for the circumstances, the Buyer is then obliged to offer due consideration.
7. Should the Seller fall behind in schedule, causing verifiable damages to the Buyer, the Buyer is entitled to claim a fixed compensation for the delay from the 3rd (third) week of delay without ruling out further claims. This compensation may be up to 0.5% per full week of delay, up to a maximum total of 5% in all, based on the value of that part of the delivery that cannot be delivered on time or according to contract due to such delay.
Should the Buyer allow the Seller reasonable additional time after the due date for part of the invoiced procedures to perform as expected and this deadline â€“ under due consideration of exceptions as outlined by law - not be met, the Buyer has the right to terminate the contract as provided by law. All further claims based on delayed delivery shall be determined exclusively by the provisions of Clause VII.2 of these Terms & Conditions.
IV. Transfer of Risk, Receipt of Goods
1. Risk is transferred to the Buyer when the goods have left the factory and also when partial delivery is made or when the Seller has taken over other services such as shipping and handling costs or delivery and installation. Should formal receipt of goods be necessary, it is definitive for the transfer of risk. It must be made immediately on scheduled date of receipt, or, alternatively, after the Sellerâ€™s notification that the goods are ready for delivery. The Buyer may not refuse formal receipt due to the presence of minor deficiencies.
2. Should shipping or formal receipt be delayed or not occur due to circumstances unattributable to the Seller, the transfer of risk to the Buyer occurs on the date of notification of shipping or of readiness to deliver to the Buyer. The Seller is obliged to take out insurance according to the Buyerâ€™s wishes and at the Buyerâ€™s expense.
3. Partial deliveries are permitted if acceptable to the Buyer.
V. Retention of Title (RoT)
1. The Seller retains full title of all goods until all outstanding payments, including incidental expenses and interest, have been made and cleared. The same holds true for payments made involving changing of foreign currency and/or encashment of cheques. In case of a current account, RoT serves as the Sellerâ€™s security for outstanding balances.
2. Processing and use of RoT goods does not put the Seller under any obligations. Usage, inter-connection or mixture of the RoT goods with others which do not belong to the Seller gives the Seller co-ownership of the new object at a ratio of the invoice value of the RoT goods in proportion to the value of the other goods with which they are used, inter-connected or mixed at the time of this event. Should the Buyer obtain sole ownership of the new object, the Seller is to receive immediate co-ownership of the new object at a ratio of the invoice value of the RoT goods in proportion to the value of the other goods with which they are used, inter-connected or mixed at the time of this event and the Buyer is to keep the object safely for the Seller.
3. Resale of the item, whether used, inter-connected or mixed with any other is only permitted in the course of normal business and with RoT and only when payment from the resale devolves to the Seller. The Buyer is prohibited from using the items to pledge or assign security, also from agreements of non-transfer and transfer within the context of factoring, without prior agreement of the Seller. The Buyer hereby assigns in advance to the Seller all current and future claim entitlements arising from the resale of the goods supplied or due to any other legal reason, to the value of the RoT goods. The Seller accepts the assignment. The value of the RoT goods is the amount of the Sellerâ€™s invoice plus a security surcharge of 10% that is not to be taken into consideration should third party rights conflict. The Buyerâ€™s right to collection or to resale or further processing expires should contractual obligations to the Seller not be duly met. Should the Seller so wish, the Buyer is obliged to make retreat from formal acceptance known and to give the Seller the required information and documentation necessary to allow enforcement of the Sellerâ€™s rights.
4. The Buyer is obliged to adequately secure the RoT goods, particularly against fire, theft, breakage, water and other damage. The Buyer assigns Insurance claim to the value of the RoT goods to the Seller. The value of the RoT goods in this context is the value that such goods would have on the date of occurrence of loss according to our valid prices excluding VAT. The Buyer is obliged to inform the Insurer of the assignment of claim. The Seller is entitled to insure the RoT goods at the expense of the Buyer.
5. The Buyer may neither pledge not assign the goods as security. Should the goods be seized, confiscated or be under other third party proceedings, the Buyer must immediately inform the Seller of such.
6. Should the Buyer behave contrary to contract, particularly as regards to payment, the Seller is entitled to retrieval of goods after suitable warning and the Buyer is obliged to surrender such goods to the Seller.
The assertion of RoT, as well as the seizure of the goods by the Seller, will not be considered revocation of contract.
7. Assertion of RoT rights does not require revocation of contract unless the debtor is the customer.
VI. Warranty Claims
The Seller is liable for material damage and defects of title to the exclusion of all other claims â€“ subject to Clause VII â€“ as follows:
1. Any parts that turn out to be in defective condition before transfer of title are to be repaired or replaced in good condition and free of charge by the Seller. The Seller must be informed of the determination of such defect in writing. Replaced parts become property of the Seller.
2. In order to render all improvements and replacement deliveries deemed necessary by the Seller, the Buyer, after agreement with the Seller, is to provide the required time and opportunity for such; otherwise the Seller is freed from the liability ensuing. Only in urgent cases involving risk to operational safety or to avert disproportionately large damages, in which case the Seller is to be informed immediately, does the Buyer have the right to remedy the defect or to have it remedied by a third party and to demand reimbursement of the requisite cost from the Seller.
3. From the direct costs arising from the improvement and/or spare part delivery â€“ as far as the claim is justifiable - the Seller is to bear the costs of the spare part including shipping. In addition, the Seller bears the costs of dismantling and installation and the costs of any necessary provision of installers and assistants, including their transportation costs, as long as this does not lead to any disproportionate charge for the Seller.
4. Within the framework of the provisions of the law, the Buyer has the right to withdraw from the contract if the Seller â€“ under due consideration of exceptional cases as described by law â€“ allows an appropriate period of time allotted for the repair or delivery of a replacement due to material defect to elapse unproductively. If the defect is negligible, this gives the Buyer the right to reduce the contract price. The right to reduce the contract price is otherwise excluded. Further claims are to be determined according to Clause VII.2 of these Terms & Conditions.
5. No warranty is accepted in the following cases:
Used delivery items, inappropriate or improper use, faulty installation or operation by the Buyer or a third party, wear and tear, faulty or negligent usage, non-adherence to service schedules, improper equipment, faulty construction, improper foundation and flooring, chemical, electro-chemical or electrical effects â€“ insofar as these are not the responsibility of the Seller.
6. Should the Buyer or a third party make improper repairs, the Seller shall carry no liability for the ensuing consequences. This also holds true for changes to the goods that are delivered which are not agreed with the Seller in advance.
Defects of Title
7. Should the use of the delivery item lead to infringement of German industrial property rights or copyrights, the Seller will, at own expense, procure for the Buyer the basic rights for further use or modify the item in a manner reasonable to the Buyer such that no infringement of industrial property right continues.
Should this not be possible under economically reasonable conditions or within a reasonable amount of time, the Buyer is permitted to withdraw from the contract. The Seller also has the right to withdraw from the contract under the same conditions.
In addition, the Seller will indemnify the Buyer from uncontested or legally ascertained claims of the holder of the industrial property right concerned.
8. In conclusion, the obligations of the Seller as described in Clause VI.7 are subject to Clause VII.2 should industrial property right or copyright damage occur.
This occurs only when:
- the Buyer informs the Seller immediately of any valid industrial property right or copyright damage,
- the Buyer supports the Seller to a reasonable extent in the defence of such valid claims or, alternatively, allows the Seller to carry out modifications according to Clause VI.7,
- the Seller reserves the right to all defensive measures, including out-of-court settlements,
- defect of title is not based on the Buyerâ€™s instruction and the infringement of these rights does not result from the Buyerâ€™s unauthorised modification of the goods supplied or on the Buyerâ€™s use of the item in a manner not compliant with the contract.
1. If it is the Sellerâ€™s fault that the goods supplied cannot be used in the way stipulated in the contract following failure to perform or improper performance of any of the recommendations or advice given before or after the close of contract, or that the goods cannot be used correctly by the Buyer due to the violation of collateral contractual obligations - in particular instructions referring to proper use and maintenance of the goods â€“then the stipulations of Clause VI and VI.2 apply to the exclusion of further claims.
2. Irrespective of legal basis, the Seller is not liable for damages occasioned by:
a. wilful intent
b. gross negligence on the part of the owner / executive body or senior employees,
c. culpable fatal injury or culpable injury to body or health,
d. defect that the Seller has either fraudulently concealed or has guaranteed to be absent,
e. defect in the item where liability is required by the Product Liability Law (Consumer Protection Act) for personal injury or damage to property for private use.
In the case of negligent violation of substantial contractual obligations, the Seller is also liable for gross negligence by its non-managerial employees and for minor negligence, this being limited to reasonably foreseeable damages typical to this kind of contract.
We hereby disclaim all further liability.