GENERAL TERMS FOR DELIVERIES AND SERVICES BY AFS ENTWICKLUNG + VERTRIEBS GMBH
1. Area of validity, general
1.1 Unless contractually agreed differently in individual cases, these General Terms of Business shall apply exclusively in relation to companies, corporate public bodies or public special assets in the sense of Sec. 310 Para.1 BGB (German Civil Code).
1.2 Our General Terms of Business shall apply exclusively; we shall not recognize any regulations to the contrary, or regulations deviating from our Terms of Business, especially Purchasing Terms of the customer, unless we have explicitly agreed to their validity in writing. Our Terms of Business shall also apply, if we, knowing of regulations to the contrary or of regulations deviating from our Terms of Business of the customer, execute delivery to the customer without reservation.
1.3 In the scope of an ongoing business relation our General Terms of Business shall also apply to future business with the customer, even if they have not been explicitly agreed upon again.
2. Offers, orders and conclusion of contracts
2.1 Our offers are subject to change and non-binding. Technical modifications shall remain reserved in the scope of what is reasonable.
2.2 In ordering a delivery or a service the customer declares bindingly that we shall provide the ordered delivery or service.
2.3 We shall be entitled to accept the contractual offer included in the order within 2 weeks upon receipt at our offices.
2.4 To be legally valid, our acceptance declarations shall require written form; our fax or email shall be sufficient. The same shall apply in case of addenda, modifications or additional agreements.
2.5 With regards to our scope of delivery and/or service our written order confirmation or our commercial confirmation letter shall be binding.
2.6 The agreement shall be concluded under the condition that we are supplied by our suppliers at the conditions common to the industry as well as correctly and timely.
This shall only apply in case that we are not accountable for any non-delivery, especially in case of a congruent hedge transaction with our suppliers. The customer shall be informed about the non-availability of the delivery/service immediately; his compensation shall be reimbursed without delay.
2.7 Illustrations and service descriptions as well as technical and commercial information about dimensions, weights and other performance and consumption data in our offers, order confirmations, commercial confirmation letters, drawings, illustrations and other publications serve the purpose of general information; they shall only be binding if this has been agreed on in writing; however, this shall not constitute a guarantee or assurance of certain properties, as long as this has not been explicitly agreed upon in writing or declared or confirmed by us in writing.
2.8 Insofar as upon our submission of a quote or upon conclusion of a contract modifications of the contractual duties are incurred due to new or changed legal regulations or new requirements of authorities and testing institutions, said contract shall be modified while considering the interests of both parties.
3. Prices, changes in prices
3.1 All stated and agreed prices shall be net prices plus the amount of VAT valid at the time of the delivery/service.
3.2 Unless otherwise agreed they shall be valid “ex works”. The prices shall not include packaging, shipping, insurance and other additional costs (storage costs, external testing, etc.); especially the costs for set-up and installation are not included in our prices.
3.3 In case of deliveries abroad the customer shall in addition bear any taxes, customs duties and other dues to be paid abroad or reimburse them to us.
3.4 Invoicing for intra-community supplies to trading partners in a EU member state other than Germany is exempt of VAT at the trade partner’s request when their VAT number is provided. Changes to the VAT number must be communicated immediately.
If required, the trading partner will issue an entry certificate immediately, but no later than 7 days, after passing of risk. The certificate can be issued by the trade partner or any authorized representative who receives the supplied goods. If an entry certificate is not issued by the trade partner or an authorized representative, or if it is discovered that VAT exemption was incorrectly claimed, we are entitled to raise an invoice covering the VAT and compensation for any damages arising from the process.
3.5 The agreed prices shall only be binding if we are able to render our deliveries and services within 3 months upon conclusion of the contract. Otherwise we shall reserve to proportionately change the prices according to a change of the costs corresponding to the rendering of the order incurred upon conclusion of the contract (especially in case of increased wages or material prices). We shall furnish proof upon the customer’s request.
4. Delivery times, damage caused by delay
4.1 The delivery times named or agreed by us are on principle only approximate and non-binding. Any deviating agreements with regards to a binding delivery time shall be made explicit and in writing.
4.2 Non-binding delivery times shall always be subject to the condition of timely clarification of all details of the order and of the advance performances to be supplied by the customer, especially supply of any materials, pre-products, documents and approvals, information about the necessary technical details, possible release of drawings to be supplied by the customer, and timely receipt of agreed down payments or instalments as well as the timely provision of a payment guarantee that may have been agreed.
4.3 We shall not be bound to a binding delivery time, if, a conclusion of a congruent hedge transaction of our supplier notwithstanding, we are not, not properly, or not timely supplied; the provision under paragraph 2.6 shall be additionally referred to.
4.4 The dates agreed for a delivery shall be deemed fulfilled as of our notification of readiness for shipment, if the goods to be supplied cannot be shipped timely and we are not accountable for said delay. In case of deliveries and services with installation due by us that are delayed and we are not accountable for said delay, the agreed delivery times shall be deemed fulfilled as soon a the time stated or agreed by us for shipment and installation, or, alternatively the appropriate period as of notification of readiness for shipment, has expired.
4.5 We shall be entitled to supply partial deliveries or partial services at any time. The customer shall not be entitled to derive any rights from delays of partial deliveries or partial services as regards to the other partial deliveries or partial services.
4.6 We shall not be liable in case of delays of deliveries or services incurred due to acts of god or caused by events that make delivery/service considerably more difficult or impossible – these include especially strike, lockout, prohibition of import or export as well as other orders imposed by the authorities, disruptions in raw material and energy supply, fire, operational, production or traffic disruptions that we are not accountable for, unforeseeable transport problems, unaccountable machine defects, accidents or similar events, even if they should occur at our suppliers’, their suppliers’ or our sub-contractors’ – even in case of bindingly agreed times and dates. Said events shall entitle us to defer the delivery or services by the period of the impediment plus a reasonable start-up time, or to withdraw from the contract partially or in total as regards to the part that has not yet been fulfilled. Occurring delivery delays shall be communicated to the customer without delay.
4.7 If the impediment should last for longer than 3 months, the customer shall be entitled upon a reasonable grace period to withdraw from the contract as regards to the part that has not yet been fulfilled. In case the delivery/service time is extended as a result of the events stated in paragraph 4.6 or in case we therefore are freed of our obligations to deliver/render services or therefore withdraw from the contract, the customer shall not be entitled to assume liability claims for said reason. However, we shall only be able to invoke the said circumstances if we have notified the customer without delay.
4.8 The provisions above in paragraphs 4.6 and 4.7 shall apply accordingly if the customer is in arrears with his obligations to pay, or does not fulfil his obligation to cooperate in matters of commercial or technical questions, or if the customer has otherwise delayed execution of the contract.
4.9 For damage caused by delay incurred to the customer we shall be liable as follows:
4.9.1 In case of death or damage to health or body accountable to us we shall be liable without limits
4.9.2 This shall also apply if we or our vicarious agents are guilty of intent or culpable negligence in terms of the delay.
4.9.3 In case of slight negligence liability shall be excluded, if the delay relates to unessential contractual obligations.
4.9.4 Further the claim of the customer shall be limited to a compensation for delay of 0.5 % for each completed week of the delay, in total maximally up to 5 % of the invoiced value of the deliveries and services concerned with the delay.
4.9.5 In addition, the provisions of the limitation of liability according to paragraph 9 of these General Terms of Business shall apply.
4.10 In case the customer is in delay to accept we shall be entitled to store the goods in an external warehouse or at our place and to invoice the storage costs to the customer. In case we are storing the goods at our place, storage costs of 0.5 % of the invoicing value for each started month in relation to the goods concerned with the delay to accept shall be agreed, maximally however 5 %. The customer shall be entitled to proof that no or lower costs were incurred to us than stated in the flat rate stated above. On the other hand, we shall be entitled to claim further costs and compensation for damage based on corresponding proof against the customer.
5. Shipping, packaging and passing of risk
5.1 Unless otherwise in individual cases agreed, our deliveries are due “ex works“.
5.2 For deliveries or services without installation, the risk is transferred to the customer as soon as the goods leave out factory or our warehouse or is supplied to the customer or his representative (including a commissioned shipping agent) at the supplier’s or warehouse; this shall also apply if, in individual cases we are bearing the shipping costs. If the shipping or collection of the goods is delayed or impossible for reasons that we are not accountable for, the risk is passed to the customer upon notification of readiness for shipment.
5.3 For services with installation as well as agreed trial operation the risk shall be passed to the customer upon acceptance. If the installation or the trial operation is delayed for reason that we are not accountable for, the risk shall be passed to the customer in case of a delayed installation upon delivery at the site of installation, in case of a delayed trial operation upon completion of the installation.
5.4 Goods reported from our side as contractually ready-to-ship shall be collected immediately; otherwise we shall be entitled to ship said goods at the customer’s cost and risk at our choice or to store them at our discretion and to invoice immediately. In any case a new date for collection shall be immediately agreed with us by the customer.
5.5 We shall ensure special packaging protection, transport or transport equipment only upon the customer’s explicit request in writing; the costs incurred shall be borne by him.
5.6 As regards to the duration of transport we shall bear no liability; our information shall always be given at the best of our knowledge, however, it shall not be binding.
5.7 Absent special instructions for shipping we shall conduct said shipping with suitable transport equipment at our own discretion without assuming an obligation for the cheapest form of shipment. We shall not be liable for transport damage, unless we or our vicarious agents acted with intent or culpable negligence.
5.8 In case of transport damage, the customer shall during unloading or upon receipt of the goods have the damage discovered in a way that he may claim compensation for damage against the shipping agent on the basis of this discovery
5.9 In addition, the General German Terms of Shipping Agents (ADSp) shall apply in their valid version at the time of the conclusion of the contract also in relation between us and the customer.
6.1 In case we require a formal approval upon completion of our services or in case said approval has been contractually agreed the customer shall conduct said approval immediately, however at the latest within 14 calendar days upon receipt of our request.
6.2 Approval shall be considered granted if the customer does not conduct approval procedures within a sensible grace period, although he is obliged to do so.
6.3 The customer shall create the conditions necessary for the execution of approval procedures. With the exception of our personnel costs the customer shall bear the total costs in relation to the approval.
7. Terms of payment
7.1 Unless otherwise agreed our invoices are due within 30 days upon the invoicing date and without discount.
7.2 The timeliness of the due payments is determined by our receipt of the payment.
7.3 Advance and down payments shall not be interest-bearing.
7.4 Cheques and drafts shall only be accepted upon special written agreement and for reasons of payment. Discounts and charges shall be borne by the customer; he shall pay them immediately. We shall only be liable for timely presentation, protestation, notification and return of the draft if it is not redeemed in case we or our vicarious agent acted with intent with culpable negligence.
7.5 In case we learn of circumstances which result in reasonable doubt in the credit-worthiness on the customer, especially if a draft of cheque submitted by him is not redeemed or re-debited of if payment periods are not observed repeatedly, we shall be entitled to demand our remaining debt immediately.
In said case we shall further be entitled to execute due deliveries or services only upon pre-payment or against provision of securities, and until then interrupt continuation of ongoing orders.
7.6 Balancing with counterclaims shall be excluded, insofar as the counterclaims are not acknowledged by us or have not been legally determined. Right of retention shall be executed by the customer only if his counterclaim is a result of the same contractual relation and the claim that forms the basis of this right has been legally determined or has been acknowledged by us.
7.7 Our sales representatives and field staff shall not be entitled without special written authorization to receive payments on our behalf.
8. Liability for defects (guarantee)
8.1 All wearing parts, such as ceramic electrodes, roller coverings, etc., shall be excluded from guarantee.
8.2 Claims for defects on the part of customer shall require that he has properly fulfilled his due obligations as regards to examination and notice of defect according to Sec 377 HGB (German Commercial Code).
8.3 We shall be provided with the opportunity to determine the cause of the defect which we were notified about. The customer shall be obliged upon our request – insofar as technically possible and reasonable – to send to us the rejected goods at our cost.
The decision as to whether the claim will be treated as a guarantee matter, or as a result of mishandling or inappropriate usage on behalf of the claimant will be determined by expert appraisal by the manufacturer. In the case of an unjustified notice of defect we shall charge the claimant for all associated costs.
Until all facts pertaining to the claim have been clarified, all requests for the supply of replacement parts or for a service visit must be made to us in writing. Written orders, with comments such as “Free-of-charge”, “Under Guarantee” or “Warrantee”, will not be acknowledged by us, unless we have verified that the matter will be treated as such in writing.
8.4 In case of just notices of defect we shall at first be entitled at our discretion to rework or to provide a substitute delivery. If the defect is not repaired this way we shall be entitled to these rights a second time.
The expenses necessary for the purpose of re-fulfilment (reworking or substitute delivery), especially transport-, road-, labour and material costs shall be borne by us; however, this shall not apply for such additional costs incurred by the fact that the delivery or the service is no longer at the agreed place of delivery or installation.
The transport costs to be borne by us in case of a re-fulfilment shall be restricted as a rule to the most economic means of transport; additional costs of a different means of transport desired/required by the customer, e.g. additional costs for air freight as compared to sea freight shall be borne by the customer or reimburse to us.
8.5 If the re-fulfilment (reworking or substitute delivery) fails, the customer may as a rule at his discretion require decreasing the payment (discount) or cancellation of the contract (withdrawal). However, in case of a minor violation of the contract, especially in case of minor defects, the customer shall not be entitled to withdraw from the contract.
8.6 If the goods supplied by us is only partially defective the customer may only withdraw from the contract to the full extend if a faultless partial delivery is not of interest for him; otherwise he shall remain obliged to accept the faultless part of the goods.
8.7 If the customer demands compensation in the scope of the warranty, the provisions of the limitation of liability of paragraph 9 below shall apply.
8.8 The above warranty provisions shall apply accordingly to the reworked goods or the substitute delivery.
8.9 The warranty period for our deliveries and services is 2 years, from the time of the passing of risk (cf. the provisions in paragraphs 5.2 and 5.3 of these General Terms of Business).
8.10 The customer shall not receive any guarantees by us in a legal sense. This shall not apply to explicit manufacturer’s guarantees by us or third parties.
8.11 We shall not assume liability for any information and advice given by our personnel or sales representatives which exceeds the product description or the content of the written agreement.
9. Limitations of liability
9.1 If we, on the basis of the legal regulations on the basis of these General Terms for Deliveries and Services, are obliged to bear responsibility for a damage incurred by the customer and caused due to slight negligence, we shall be liable only according to provisions below:
9.2 Liability shall only apply in case of a violation of obligations that are essential to the contract (cardinal obligations) and shall be limited to a typical damage foreseeable when the contract is concluded. This limitation shall not apply in case of damage to life, body or health.
9.3 Our culpability notwithstanding possible liability in case of wilful concealment of a defect, from assumption of a guarantee or a risk of acquisition or according to the product liability law shall remain untouched.
9.4 Liability due to delayed delivery is chiefly regulated in paragraph 4.9 including the corresponding sub-paragraphs of these General Terms of Business.
9.5 The above provisions pertaining to limitation of liability shall apply also if the customer claims reimbursement of monies expended in vain instead of the compensation for the service (Sec. 284 German Civil Code, BGB).
9.6 Insofar as our liability is excluded or limited, this shall also apply to personal liability of our legal representatives, personnel, sales representatives and vicarious agents.
10. Retention of title
10.1 Until all receivables have been paid – for companies including all payment balance requests from open accounts -, that we are due on the basis of any legal reason against the customer now or in the future, we shall be granted the following securities, which we shall upon request and at our discretion release, insofar as the realizable value exceeds the claims by more than 10 %.
10.2 The goods supplied shall remain our property (goods subject to retention of title).
10.3 If the goods subject to retention of title are processed to form a new movable object by the customer, said processing shall be carried out for us, however, this shall not result in any obligations for us; the new object shall become out property. In case of processing, mixing or mingling with goods that are not our property we shall acquire shared property of this new object according to the proportion of the invoicing amount of our goods that are subject to retention of title in relation to the total value. The customer shall keep our property /shared property for us free of charge.
10.4 The customer may sell the goods subject to retention of title only in ordinary business transactions at his normal Terms of Business and insofar as he is not in arrears, under the condition that he has agreed on retention of title with his customer and that the claims from said resale are actually transferred to us according to paragraphs 10.5 to 10.8.
10.5 The customer shall at this time cede his claims including all additional rights – including possible payment balance requests – at the amount of the final invoicing amount (including sales tax) of our claim as security which he may gain from resale or on the basis of other legal reasons against his customers or third parties. We shall accept this cession. The claims ceded to us preliminarily by the customer also includes the acknowledged balance as well as in case of the customer’s insolvency to the then existing “causal” balance.
10.6 If the goods subject to retention of title were processed, mixed or mingled and so that we have thereof acquired shared ownership at the amount of our invoicing amounts, we shall be entitled to the claim of the customer against his customer at the proportion of our title to the goods.
10.7 If the goods subject to retention of title are installed into a site/building, the customer shall at this time cede the claim resulting from this for compensation or from resale of the site/building at the amount of the invoicing value of the goods subject to retention of title including all additional rights including those of concession of a security mortgage with priority before others. We shall accept this cession.
10.8 If the customer has sold the claim in the scope of real factoring, our claim shall become due immediately and the customer shall cede the claims incurred instead against the factor to us and shall forward his profit to us immediately. We shall accept this cession.
10.9 The competence of the customer to sell or process in proper business transactions the goods subject to retention of title shall end in case if his payments are in arrears or in case of cancellation on our part as a result of a continued aggravation of the financial situation of the customer, at the latest however if he defaults or files for insolvency proceedings over his assets.
The customer shall then be obliged to submit to us upon request an exact list of the claims due to him with names and addresses of his customers, the amount of the individual claims, the invoicing date etc. and to furnish us with information necessary as regards to the assertion of the ceded claims as well as to concede to us examination these claims.
10.10 Pledging or transfer by way of security of the goods subject to retention of title or of the ceded claims is not permitted.
10.11 The customer shall be obliged to maintain the goods subject to retention of title in faultless condition and to carry out repairs and maintenance works immediately and properly. He shall be obliged to provide to us at any time information about the goods subject to retention of title, especially as regards to the respective location where they are kept. In case of assertion of justified rights we shall be entitled to inspect the goods subject to retention of title.
10.12 In case of access of third parties to the goods subject to retention of title, especially in case of impounding, as well as in other – maybe future but expectable – detriment of our rights the customer shall be obliged to indicate our property/shared property and to inform us immediately. If we have to file suit against third parties according to Sec. 771 Code of Civil Procedure, ZPO and said third party is not able to reimburse us the costs of these legal proceedings or the corresponding lawsuit, the customer shall be liable for the expenses incurred.
10.13 The customer shall be obliged to insure the goods subject to retention of title at his own cost against any damage in the commonly recognized scope and, upon request, prove this to us. He shall hereby cede his claims for compensation which may be due to him from damage of the aforementioned kind against insurance companies or other parties liable to provide compensation to us at the amount of the invoicing value of our goods. We shall accept this cession.
If the customer does not fulfil his obligations in the sense of the above paragraph we shall be entitled to conclude the aforementioned common insurances in the scope of what we deem necessary at the cost auf of the customer under the condition that we are the immediate beneficiaries from the insurance contracts.
10.14 In case of a violation of the customer against the obligations of this paragraph 10 we shall be entitled, upon expiration of a reasonable period of grace to make due the total remainder of the debt for the goods subject to retention of title immediately or to demand securities; a period of grace shall not be required if the violation of the customer against these provisions in paragraph 10 is severe or if granting a period of grace would imperil our rights or commercial interests.
If the customer does not pay the total remainder of the debt within 7 days upon being requested to do so or if he does not provide the requested securities within this period, his usufruct to the goods subject to retention of title. We shall then be entitled to request immediate surrender at the cost of the customer, excluding any rights of retention.
10.15 The obligations to pay of the customer notwithstanding we shall be entitled to use the goods subject to retention of title repossessed by us in free sale best possible or to acquire them at the current market price. The market price for the goods subject to retention of title shall be estimated bindingly for the customer and us, unless otherwise explicitly agreed with the customer, by a sworn expert nominated by the chamber of trade and commerce competent for the supplier/warehouse where the repossessed goods subject to retention of title are located (alternatively, especially abroad, of a comparable institution). The proceeds from the use or the market price shall be balanced against the debts of the customer, upon deduction of the costs incurred to us, including those incurred by the aforementioned expert.
11. Intellectual property rights
11.1 Our deliveries and services do not include transfer of intellectual property rights.
11.2 We shall retain all property and intellectual property rights to illustrations, drawings, drafts, estimates, quotes and other documents. This shall also apply to such written documents designated as “confidential“. Such documents shall be copied or made available to third parties only upon our written agreement.
12. Applicable law, court of jurisdiction, place of fulfillment, void in part and data processing
12.1 For these Terms of Business and the overall legal relations between us and the customer the law of the Federal Republic of Germany shall apply exclusively, excluding the UN Convention of 11.04.1980 on Contracts for the International Sale of Goods (so-called UN-Sales Right).
12.2 If the customer is a merchant, corporate public body or public special assets, the uniform place of fulfilment shall be our location of business. The court of jurisdiction shall be Augsburg. However, we shall be entitled to file legal proceedings against the customer at the competent court for his place of residence or his business location.
12.4 For our internal purposes only we shall reserve the right to save and process data of the goods and service and payment traffic with the customer.
General terms and conditions for sale of products
13. REACH conformity and information requirements/RoHS EU Directive 2011/65/EC
13.1 AFS Entwicklungs + Vertriebs GmbH undertakes to comply with the REACH Regulation (Regulation EC No. 1907/2006) with regard to the delivered goods including packaging. In particular, we assure that the delivered goods / products and their packaging do not contain any substances of the current candidate list according to Art. 33 para. 1 of the regulation in a quantity exceeding 0.1 % mass percent (SVHC). We are obliged to (pre-) register all delivered substances ourselves or to have them (pre-) registered by our suppliers, if registration obligations according to REACH apply to them. If the manufacturer himself is not obliged to register under the REACH regulation, we oblige our suppliers to comply with the REACH regulation.
13.2 The manufacturer shall ensure that if the goods / products delivered by him or their packaging contain substances covered by REACH, these are registered in accordance with REACH. We undertake to provide our customers with all information and documentation required by the regulation (in particular in accordance with Art. 31 et seq. of the REACH regulation) within the periods stipulated in REACH or to forward the information from his upstream supplier to the customer without delay.
13.3 AFS Entwicklungs + Vertriebs GmbH complies with the environmental requirements of German and European law, including EU Directive 2011/65/EC “Restriction of the use of certain hazardous substances in electrical and electronic equipment” and the Electrical and Electronic Equipment Act.
13.4 Electrical and electronic equipment of each equipment category as well as components are in compliance with the substance prohibitions of the EU Directive 2011/65/EC and the laws, ordinances, decisions and other provisions issued for its implementation. The manufacturer must provide a written declaration of conformity. These devices bear a CE mark and the symbol according to Annex IV of EU Directive 2002/96/EC (WEEE).
13.5 AFS Entwicklungs + Vertriebs GmbH guarantees that all products comply with the requirements of the RoHS Directive according to the above numbers 13.3 and 13.41.