General terms and conditions
TERMS & CONDITIONS OF DELIVERY & PAYMENT
GENERAL TERMS AND CONDITIONS
1. The following terms & conditions of delivery & payment shall apply to all our deliveries and services, including but not limited to information, advisory services and repairs. Our customers' terms & conditions shall only apply if they are explicitly accepted in writing and then only to the extent agreed !herein.
2. Any and all agreements, side agreements and contractual amendments shall be in writing. Any oral or written undertakings that deviate from our contractual terms shall only be binding and enforceable if explicitly approved by our Management or a quorum of signing executives. Apart from this, our employees, representatives and agents are not authorised to agree any deviating terms or grant any special conditions of any kind.
II. Quotations and conclusion of the contract, samples
1. All quotations are considered to be subject to confirmation and availability. A contract for delivery or other purpose does not come into existence unless and until we confirm acceptance of the customer's order in writing or have dispatched the goods.
2. Sam pi es are deemed to be non-binding specimens provided on approval. lf an order is placed on the basis of the samples supplied, we reserve the right to deviate from the samples if the deviations are within the standards considered normal for the relevant products in the market or in the course of standard production processes. When delivery is made on the basis of samples supplied, the characteristics of the samples are not warranted unless otherwise explicitly confirmed in the confirmation of order.
3. Samples must be returned to us within 4 (four) weeks in perfect condition. Where a sample is not returned in perfect condition within this period, the standard list price of the product is due.
4. All the details relating to our products, in particular the illustrations, drawings, weights, dimensions and performance information provided in our quotations and published documents are deemed to be typical average details. They are not to be understood as warranted characteristics but as general descriptions or designations of the products. Unless specific permissible deviation levels have been communicated in the confirmation of order, the deviations considered normal in the industry are deemed permissible.
III. Pricing & delivery
1. Prices valid on the date of receipt of the order shall be applicable.
2. All prices are to be understood as net prices without VAT, which shall be added to the price payable by the customer at the currently applicable rate.
3. Prices include standard packaging. The following individual terms shall apply:
Within Germany deliveries are made, at our discretion, carriage paid, unless the net value of the goods is less than EUR 500.00, in which case delivery is ex works carriage not paid.
Outside Germany: we reserve the right to apply special terms for deliveries outside Germany.
4. In the case of first deliveries to new customers, dispatch is on the basis of cash on delivery (COD) or advance payment, and follow-up orders shall continue to be made on the same basis until we, at our discretion, are satisfied with the results of our enquiries relating to the customer's creditworthiness.
5. Partial deliveries are permissible provided the Seiler has reasonable grounds for them and they do not cause the Buyer unreasonable hardship. This might be the case, for example, where a partial delivery is of advantage to the Seiler for logistical and packaging reasons or if individual items belonging to a complete order are currently not available.
IV. Delivery time
1. Where delivery deadlines and dates are not explicitly mutually agreed and confirmed, the customer may only stipulate a delivery deadline in writing three weeks alter the initial date has passed. We are not considered to be in default until that deadline has passed.
2. In the event of delays in delivery or impossibility to deliver - irrespective of the reasons - we shall only entertain claims for damages of any kind in accordance with the terms in Section XI of these Terms & Conditions.
3. In cases of force majeure and similar incidents over which we have no power and for which we are not responsible and which are anticipated to cause us considerable difficulty in delivering our products for a longer period or make delivery impossible, e.g. in the event of interruptions to production, transport delays, industrial disputes, authorised lockouts, action by the authorities, difficulty sourcing raw materials, and in the case of non-delivery, incorrect or delayed delivery by our suppliers, for whatever reason, the Seiler reserves the right to withdraw from or terminate the contract. Obstacles of a transient nature shall only release the Seiler from his obligations under the individual contract for delivery for the duration of the obstacle plus a reasonable start-up period. Where the customer cannot be expected to take the late delivery, he is entitled to withdraw from the contract alter prior consultation with us by means of immediate declaration in writing.
V. Transfer of risk
1. Shipping and transport shall always be at the risk of the customer unless delivery carriage paid has been agreed. In all cases, including partial delivery, risk is transferred to the customer as soon as the consignment has been handed over to the person or company charged with the transport or has left our warehouse or, in the case of ex works delivery, our factory in preparation for dispatch.
2. lf dispatch is delayed for reasons for which the customer is responsible, risk is transferred the moment the customer is notified !hat the goods are ready for transport. From that date on, the customer undertakes to pay warehousing costs for the items involved for the duration of storage in line with typical warehousing and forwarding costs in the country of the registered office of the Seiler.
VI. Warranty and obligation to notify defects
1. The customer undertakes to inspect all the products supplied without delay on receipt to ensure the quantities are correct and to ensure the products are defect-free - even if the order was placed on the basis of samples. A delivery is deemed to have been approved if, within 7 days of receipt at the destination, no complaints in writing about defects have been received by us or, if a defect is not apparent during the initial inspection, within 7 working days of its discovery. This period is deemed to have been adhered to if the written notification is dispatched by the customer within said period.
2. Any and all transit damage shall be notified to the forwarder; the provisions contained in the German Freight Forwarder's Standard Terms and Conditions relating to the notification of damage shall apply.
3. In each case of complaints about defects, we reserve the right to inspect the goods in an unchanged state. Where a complaint about a defect is notified within the allotted period and is considered to be justified, we shall, at our discretion, arrange for remedial performance or a replacement delivery free-of-charge. We are, however, entitled to refuse remedial performance where the corresponding legal provisions apply.
4. lf we should fail to meet our obligations regarding remedial performance, the customer can, at his discretion, withdraw from the contract or reduce the price paid after he has granted us a reasonable grace period, unless legal provisions make a grace period unnecessary.
5. Further claims by the custorner for material defects and expenses resulting from or in connection with defects or consequential damages arising from a defect, whatever their legal basis, shall only be entertained within the restrictive terms and conditions contained in Section XI. In such cases, too, we shall only be liable for defects considered typical and predictable.
6. Where, in connection with the processing of a customer's warranty claim, it is discovered that the complaint about the defect was unjustified, we reserve the right to charge for any shipping costs incurred.
7. The warranty shall be void where defects are the result of our operating and maintenance instructions not being correctly applied, or where unauthorised modifications have been made to the products, individual parts replaced or consumables used that do not correspond to the original specifications.
8. Claims against us under the warranty shall lapse at the latest 12 months after delivery of the goods to the customer or the destination stipulated by the customer.
9. In the event that a customer fails in a fraudulent manner to disclose a defect or in the case of a guarantee regarding quality, the rights of the customer shall be governed exclusively by the relevant legal provisions.
10. We undertake to participate in arbitration proceedings brought before a conciliation & arbitration service.
VII. Retention of title
1. We reserve title in all the goods delivered by us (hereinafter referred to as conditionally delivered goods) until the customer has paid in full the delivery price for those goods and all other unsettled amounts resulting from that transaction and any other contractual agreements, whatever their legal basis, existing before that transaction or coming into effect after that transaction.
2. The customer may only resell, process or combine the conditionally delivered goods with other items (hereinafter referred to jointly as resale) provided the entire transaction has been completed in the proper course of business. All other use of the conditionally delivered goods is not permitted. The customer undertakes to inform us without delay of any forfeiture, attachment or similar claims by Third Parties to those goods. All costs arising from intervention will be charged to the customer. lf the customer allows his customer to defer payment of the purchase price, he shall reserve title in the conditionally delivered goods on the same conditions as we apply in retaining title to the goods as supplied to our customer. Otherwise the customer is not entitled to resell the goods.
3. The customer hereby agrees to assign to us with immediate effect any and all claims against his customers regarding the conditionally delivered goods that accrue to him from the resale of those goods. We hereby accept this assignment. These rights are deemed to be collateral in the same way as the goods delivered. The Buyer is only permitted and authorised to resell the goods on condition that the rights to payment accruing to him through that sale are assigned to us.
4. lf the conditionally delivered goods are sold for a total price by our customer together with other goods not supplied by us, the amount of our customer's assignment to us fröm that sale shall be the same as the amount invoiced by us for those conditionally delivered goods.
5. lf the assigned claim becomes part of an invoice, the customer hereby assigns to us that portion of the total invoice amount that corresponds to our claim from the unsettled amounts owed to him.
6. Processing and incorporating our conditionally delivered goods shall always be with reference to us as the manufacturer but this shall not be construed as generating any liabilities on our part. lf the conditionally delivered goods are processed, converted or incorporated by the customer as an integral part of some other combined product, we become joint owners of that other product to an extent which is proportionale to the value of our property in the new product at the time of its lncorporation. The amount invoiced for the combined product shall be binding for determining the value of our proportion. The customer shall take care of the new item on our behalf with all due care and attention. The provisions contained in Section VII relating to conditionally delivered goods shall also apply.
7. Where the value of the collateral in our favour exceeds the value of the claims secured by that collateral by more than 20% in total, the customer is entitled to demand a release from a corresponding amount of collateral at our discretion.
8. The customer is entitled, unless and until revoked by us, to call up the amounts assigned to us. We reserve the right to rescind the contract in cases where the customer does not fulfil his payment obligations arising from the transaction or where circumstances become known to us that might reasonably suggest that the customer's creditworthiness might be considerably impaired. lf the conditions allowing us to exercise our right to cancel exist, the customer shall, at our request, communicate to us the details of the claims assigned and the identities of the debtors, and all other details required by us to call up these amounts, hand over the relevant documents and communicate the assignment to the debtors. Furthermore, we retain the right to communicate the assignment to the debtors ourselves.
9. lf our customer is in default of payment, we reserve the right, alter terminating the contract, to demand return of the goods delivered at the expense of the customer as interim collateral. This shall also apply in the event that the customer is in violation of the contract with respect to the conditionally delivered goods.
VIII. Terms of payment
1. Unless otherwise agreed, our invoices are due net in full within 30 days of the date of the invoice. Where payment is received by us within 8 days of date of invoice, we shall grant discount of 3%, and if payment is received by us within 14 days, we grant 2% cash discount. This provision shall apply by analogy to direct debil agreements.
2. Cash discounts shall not apply to sales outside Germany, repairs or when the customer has other unpaid amounts outstanding. Where goods are collected in person from the factory or warehouse and paid immediately in cash, cash discount is only applicable where the net value of the goods is in excess of EUR 250.00.
3. lf payment deadlines are exceeded, in particular where payment is long overdue, we reserve the right to charge interest in accordance with typical legally applicable rates.
4. Wth effect from the second reminder and in the event of unauthorised discount deductions, we reserve the right to charge a fee of EUR 20.00. The Buyer is then entitled to present evidence to demonstrate that the actual costs were considerably lower.
5. lf the customer is in default of payment, or in cases where a bill of exchange is protested or the customer ceases to make payments, we reserve the right to insist on immediate settlement of all outstanding amounts - including any such amounts from outstanding bills of exchange - irrespective of the agreed due dates.
The same shall apply where we become aware of circumstances which may provide reasonable grounds for doubting the solvency or creditworthiness of the customer, even if these circumstances existed at the time of conclusion of the contract but were unknown to us at that time and we could not be reasonably expected to have been aware of them at that time. In all the cases mentioned above, we reserve the right to insist on prepayment or collateral for any outstanding orders and, if the prepayment or collateral is not forthcoming within two weeks, to withdraw from the contract without further notice and without prejudice to any other remedies open to us.
6. The customer is only entitled to offset his claims or withhold payment against counterclaims if his counterclaims are legally enforceable or uncontested.
IX. Returned goods
Where goods are returned for which no legal claim is made, we shall issue a credit note. The amount of the credit note is governed by the state in which the goods and packaging reach us and any reduction in value that may have occurred. As compensation for our handling and inspection, we reserve the right to charge 15% of the original invoiced price.
X. Changes in the state of the customer
Our customers undertake to notify us without delay of all and any changes to the company name, its registered office or the type of company or its modus operandi.
XI. Claims for damages
1. Where claims for compensation or damages are made against us for a violation of obligations, for whatever legal reason, we shall only accept liability for minor negligence in the event of a violation of a key contractual obligation that might negate the purpose of the contract. In all other cases, we do not accept any liability for minor negligence.
2. In the event of liability as defined at Point 1 above or non-culpable liability, our liability is restricted to replacement of the damage to a reasonable and predictable degree. Claims for the restitution of expenses incurred in vain by the customer are not permitted.
3. In the event of consequential damages resulting from delay in delivery due to minor negligence, we shall only be held liable up to 5% of the purchase price.
4. The customer alone is responsible for deciding how to use the products and services provided by us. Unless we have confirmed in writing the suitability of the products and their specific quality in connection with a contractually defined application, our application advice shall be considered non-binding. We shall only be liable for advice given or not given that does not relate specifically to the quality and suitability of the products as defined in Point 1 above.
The disclaimer in accordance with Points 1 to 4 also applies to the same extent to claims against our administrative institutions, legally appointed agents, executive and non-executive staff and all other agents and employees.
6. The provisions of Points 1 to 5 shall not apply if a claim is made against us under product liability legislation, or if liability for injury to life and limb or health generally applies or if we have accepted a quality guarantee or in the case of fraudulent failure to disclose a defect.
7. All claims against us for damages or compensation of expenditure shall lapse at the latest 12 months alter delivery of the goods or, in the case of culpable liability, from the moment of discovery or grossly negligent failure to notice the circumstances giving rise to the claim or the person liable to make compensation. This shall not apply in the case of intent or those cases listed in Point 6.
XII. Applicable law
All relationships between us and the customer are subject exclusively to the laws of the Federal Republic of Germany and the provisions of the UN commercial codes and international civil law are hereby excluded .
XIII. Court of jurisdiction, place of performance
The place of performance for all matters resulting from the delivery transaction shall be Haan/Rheinland. The Court of jurisdiction for all disputes in connection with the delivery transaction shall be, at our discretion, Mettmann or the registered office of the customer, where jurisdiction for action taken against us by the customer shall only be Mettmann. Legal provisions relating to exclusive responsibility remain unaffected.
XIV. Data protection
VISATON GmbH & Co. KG, PO Box 101652, 42760 Haan, Ohligser Strasse 29 - 31, 42781 Haan, Phone: +49 (0) 2129 552-0, Fax: +49 (0) 2129 552 10 - lssued August 2012