Terms and Conditions for Sale, Delivery and Payment
HydroService Zylinderbau GmbH (Version: June 2014)
1. The terms and conditions for sale, delivery and payment given in the following apply to all legal transactions between HydroService Zylinderbau GmbH and our customers (Purchasers). We reject the applicability of terms and conditions other than our own, unless these have been expressly agreed to by us in writing.
2. If there is a master agreement between the Purchaser and us, the following terms and conditions shall be applicable to both the master agreement and also to the individual order.
3. Our current terms and conditions for purchase shall be applicable to our purchases.
1. Our offers are subject to confirmation provided that they are not limited to a specific period of time.
2. The documentation associated with the offer such as drawings, figures, technical specifications, information on standards and that provided in advertising materials do not assure any properties or characteristics unless there has been some assurance in writing provided to this effect.
3. Any deviations in the goods from the offers, samples and advance deliveries are permissible in accordance with the respective DIN standards applicable or other relevant technical standards.
III. Conclusion of the Contract
1. An order is deemed to have been accepted by us only if it has been confirmed us in writing.
2. Our written order confirmation is solely decisive for the content and scope of the contract. In case of an offer provided by us with validity and acceptance in writing for a specific period of time by the Purchaser, the offer is deemed to be binding.
3. Verbal agreements made by the Purchaser with our representatives or employees are valid for us if they have been confirmed by us in writing.
1. The prices given in price lists, offers and order confirmations are subject to confirmation and are in EURO, but do not include the statutory VAT (Value-Added Tax). They are ex-warehouse excluding packaging, cartage, freight costs, insurance and other expenses.
2. Price amendments are permissible if the period of time between the conclusion of the contract and the delivery date agreed to, is more than four months. If the price amendment is more than 5 % of the original price agreed to, the Purchaser is entitled to withdraw from the contract within 2 weeks of the receipt of the notification by a written declaration to this effect.
3. A processing fee of € 25.00 shall be levied for copies of certificates, documentation and credentials etc., which are requested subsequently or additionally.
V. Delivery and Risk Transfer
1. Dispatch and transport take place at the risk of the Purchaser even if the goods are supplied with delivery free at the destination.
2. The risk is transferred to the Purchaser when the goods leave our warehouse or the delivery works or when it leaves the relevant Customs service centre or if the Purchaser delays acceptance of the goods.
3. Goods lost or damaged in transit exempt the Purchaser from payment of the invoice only if the loss or damage is attributable to a gross negligence or intentional act on our part.
4. If the mode of dispatch is not specified, we shall decide the same. The Purchaser shall bear the cost of freight. If dispatch is made by express delivery, express parcel and overnight express or similar, the extra costs must be borne by the Purchaser.
5. We may make partial deliveries.
VI. Delivery Lead Time, Right of Revocation and Retention
1. If we are unable to comply with the delivery period, the Purchaser must grant reasonable grace period to complete the delivery. The grace period begins on the day on which we are notified in writing of the delay, even if a binding delivery date was agreed to prior to this. Any claim for compensation in this connection is ruled out, provided that there is no deliberate or grossly negligent fault on our part.
2. The delivery period begins at the earliest from the time of submission of documentation, approvals, clearances and other declarations to be procured by the Purchaser.
3. Any interruptions in operations that are not attributable to us, particularly strikes and lockouts, Force Majeure conditions as well as disruption of operations in the works both at our premises and also at those of our pre-suppliers (or upstream suppliers) that have an impact on the delivery periods shall be notified to the Purchaser. The Purchaser is entitled to withdraw from the contract in such cases only if he gives a reminder regarding the delivery in writing after the expiry of the delivery period mutually agreed to and threatens to withdraw from the contract after granting a reasonable grace period. The Purchaser may derive claims for compensation based on this only if there is deliberate or grossly negligent conduct on our part.
4. We may withdraw from the contract without paying any damages if a pre-supplier (or upstream supplier) or manufacturer discontinues production or based on other reasons, does not deliver despite repeated requests and threat of legal action by us or there is a case of Force Majeure conditions and the goods can no longer be procured from another supplier, and the above circumstances have come to our notice only after concluding the contract or remain unknown to us but not as a consequence of gross negligence. We shall inform the Purchaser promptly about the non-availability and reimburse the payments received immediately.
5. Delivery schedules are deemed to have been complied with if the goods have left the works making the supply or they have been reported as being ready for shipment, unless the parties to the contract have expressly agreed in writing to a debt to be discharged at the creditor's domicile for the goods.
6. If the Purchase is unable to make payments due from him, we are entitled to retain the goods. This is applicable until the complete fulfilment of the payments due.
7. If the Purchaser does not accept the goods within a reasonable period of time despite reminders, we can claim 15 % of the price agreed to as compensation without providing any further evidence. The right to enforce any other claims remains unaffected by this. If the Purchaser proves that the loss or damage suffered by us is less than the flat rate amount in this clause, then he only needs to pay this amount by way of compensation. The statutory regulations for purchases pertaining to consumer goods are applicable in this respect.
VII. Payment Terms and Prohibition of Offset
1. Invoices are due for payment immediately on their issue without any deduction.
2. In the absence of any special agreement, payments for supplies and services must be made in full and without any deductions as follows:
1/3 on placement of an order or on order confirmation
1/3 with intimation to the Purchaser that the main parts are ready for shipment or pick-up
1/3 on receipt of the invoice.
Any payment terms other than this shall be confirmed by us in writing.
3. We may request advance payments for the amount of the order value.
4. The Purchaser is deemed to be in default of payment if he has not paid within 10 days after the due date.
5. Cheques and drafts are accepted only with our prior declaration of consent and in accordance with an agreement in writing to this effect. They are accepted only for the sake of payment and not in place of performance. The costs of receipt, discount and draft charges must be reimbursed to us immediately. We do not assume any liability for timely submission, objection, notification or return of the draft provided that we are not responsible for any intent or gross negligence. The goods are deemed to have been paid for only if the draft has been cashed and there is no reversal of the amounts credited.
6. The Purchaser may not refuse or retain any payment based on any counter claims, nor may he offset payment against any counter claims, unless these counter claims have been declared by a Court of law or they have been acknowledged or not disputed by us.
VIII: Return of Goods
1. Goods that have been supplied against purchase or works contracts that have been performed properly shall not be accepted by us if they are returned. Under exceptional circumstances, we may declare our consent for the sake of goodwill and fairness to accept goods that are returned, if the following conditions are accepted by the Purchaser:
a) goods returned are accepted only after our express consent.
b) goods returned must be delivered to us basically with freight prepaid.
c) For return of goods, we shall basically charge 15% of the net value of the goods, but minimum EURO 30.00, unless the Purchaser enforces a legal right of revocation or withdrawal from the contract.
d) Specially manufactured or customised goods or special orders, which have had to be produced or procured especially by us, are basically excluded from the option of cancellation of the order or return of the goods.
2. The right of revocation or withdrawal from the contract based on consumer protection rights remain unaffected by clauses 1 a) to d). For this purpose, Articles 312 b to f of the BGB (German Civil Code) shall be applicable (Distance contracts).
IX. Reservation of Title and Assignment
1. The items delivered remain our property until we do not have any more claims from the order or from any current claims against the Purchaser.
2. The handling and processing of goods supplied by us is done for us as the manufacturer in the context of Article 950 of the BGB (German Civil Code) without any further obligations from our side. If the items subject to our retention of title are processed to new movable items, then we acquire co-ownership of the same. Our share in these new items is determined in accordance with the ratio of the invoice price for the item delivered by us and the value that the new items have in the course of their processing up to their manufacture and sale.
3. The Purchaser may not change objects that are subject to our retention of title or co-ownership, the latter even in cases of bonding, processing or mixing in accordance with Articles 947 and 940 of the BGB (German Civil Code), and he should avail of them in the course of proper business transactions only with our consent. We may revoke this authorisation if the Purchaser gets delayed in meeting any obligation towards us or the fulfilment of our claims appears to be endangered.
4. If a third party acquires ownership of items that are subject to our ownership or co-ownership, the Purchaser shall assign his claim against the buyer to us at this stage itself for the purchase price or the equivalent value of the payment. The assignment is accepted herewith and no special acceptance of the assignment is needed from our side.
5. If the claims assigned pertain simultaneously to objects that are in the co-ownership of third parties, the amount of the claim assigned to us is calculated in accordance with clause IX. 2.
6. Partial payments that the Purchaser receives against claims, which have been assigned to us (Retention of Title) in accordance with clause IX. cannot be counted towards our claims. The Purchaser must inform us promptly of any attachment or other impairment of our ownership, co-ownership or claims assigned to us. We may demand information from him that is necessary to enforce our claims at any time. Moreover, the Purchaser must notify us promptly in writing, at our request, about the assignments of his debtors in our favour.
7. If the value of the securities that are granted to us by the provisions given above exceeds our respective claims by more than 25%, we shall release relevant securities at our choice on request.
1. The identification of material defects must be notified to the supplier promptly – for identifiable defects within 6 days of the acceptance of the goods, and for unidentifiable defects immediately after they are identified – in writing. Article 378 of the HGB (German Commercial Code) remains unaffected by this clause.
2. Damaged deliveries must be checked immediately in the presence of the delivery agent. If any damage is identifiable externally at the time of delivery, the consignee must declare the loss or the damage by furnishing general information about the same in the consignment note to the freight forwarder. Damage that is not identifiable externally must be notified by the consignee to the freight forwarder making the delivery in writing and promptly, but latest on the sixth day after delivery.
3. Any damage identified must be sent to us immediately.
4. The warranty period for new parts is 6 months from the time of risk transfer. Warranty for used parts is excluded. The minimum time periods mentioned in Article 475, paragraph 2 of the BGB (German Civil Code) are applicable with respect to the warranty claims made by consumers in accordance with Article 13 of the BGB (German Civil Code).
5. Warranty claims on account of supply of defective material, defective design or defective execution as well as unusable or damaged parts may be settled based on our choice by repair or new supply. Article 439 of the BGB (German Civil Code) continues to remain dispensable with respect to such claims for supplementary performance made by consumers according to Article 13 of the BGB (German Civil Code).
6. A defect attributable to customary wear is excluded from the scope of the warranty.
7. The claims for warranty shall become null and void in the event of improper assembly, handling or use of influences damaging the material or improper rectification of defects that have been carried out by the Purchaser or third parties. The same is applicable to damage that occurs as a result of improper handling, unsuitable working material and similar.
8. The parts pertaining to warranty claims must be supplied free of charge to our works. Only if transport to our factory is not possible, we shall carry out the warranty claim on-site; the costs for arrival and departure as well as for the working time must be borne by the Purchaser. This clause is not applicable to warranty claims of consumers in the context of Article 13 of the BGB (German Civil Code).
9. The presence of any warranty claims does not justify any right of withholding payments that are due. This is not applicable with respect to justified warranty claims made by consumers in accordance with Article 13 of the BGB (German Civil Code).
According to Articles 19a, 20 and 4a of the BDSG (Federal Data Protection Act) we would like to inform the Purchaser that we save the personal information that is necessary to execute the commercial processing of the business transaction. If the Purchaser does not agree to this information being saved by us, the same may be contradicted or objected to by the Purchaser.
1. We reserve the right of ownership and copyright on cost estimates, drawings, storage media etc. Such documentation, even photocopies of this documentation, should not be made accessible to third parties without our written consent.
2. We reserve the right to forward orders accepted by us to third parties.
3. If any specific clauses or other contractual agreements are ineffective or become ineffective, the effectiveness of the rest of the contract remains unaffected by this.
XIII. Place of Fulfilment, Jurisdiction and Applicability of German Law
1. The place of fulfilment for all supplies and services pertaining to the contract agreement is Kamen.
2. The place of jurisdiction for all mutual claims of the parties is Kamen.
3. The parties agree that only substantive German law shall be applicable with the exclusion of the UN CISG (Convention on the International Sale of Goods).
HydroService Zylinderbau GmbH - Hemsack 4 – 59174 Kamen
Telephone + 49 (0) 2307 / 9 77 00 – Fax + 49 (0) 2307 / 76 84