General Conditions of Sale
Novavert GmbH & Co. KG, Greven
as at August 2015
§ 1 General; Scope of application
- Our General Conditions of Sale shall apply exclusively; we do not acknowledge the Customer's Conditions of Sale where they run counter to our Conditions of Sale or where they deviate from them, unless we have expressly issued written approval for their Conditions of Sale to apply. Our Conditions of Sale shall apply even if we carry out deliveries to the Customer, without expressing any reservations, but in the knowledge of the Customer's Conditions of Sale that run counter to our Conditions of Sale or that deviate from them.
- All arrangements made between ourselves and the Customer for purposes of the execution of the Agreement have been laid down in writing in this Agreement.
- Our Conditions of Sale shall apply only in relation to companies corresponding to §310, paragraph 1, BGB (=German Civil Code).
- Our Conditions of Sale shall also apply to all future business with the Customer.
§ 2 Offer; Offer documents
- If the order has to be qualified as an offer corresponding to §145, German Civil Code, then we may accept it within 2 weeks as from our receipt of the order. Our offer is non-binding, unless otherwise indicated in the confirmation of order.
- We hold the rights of ownership and copyright over illustrations, drawings, calculations and other documents. This shall also apply in respect of any written documents that are designated “confidential”. Before these are forwarded to any third parties, the Customer must secure our express written approval.
§ 3 Prices; Payment conditions
- Our prices are applicable “ex-works” and exclusive of packing, unless otherwise indicated in our confirmation of order; prices do not include VAT at the statutory rate; packing is charged for separately.
- Our prices do not include VAT at the statutory rate; this is itemised separately on the invoice, and at the statutory rate on the date of invoicing.
- The deduction of a discount is excluded.
- Unless otherwise indicated in the confirmation of order, the purchase price shall fall due for payment net (without discount) within 30 days following the date of invoice. The statutory legal rules concerning the consequences of arrears in payment shall apply.
- The Customer shall hold rights of offset only if its counterclaims have been confirmed with legally-enforceable effect, if they are undisputed or if they are recognised by ourselves. Furthermore, the Customer is entitled to exercise a right of withdrawal if its counterclaim is based on the same contractual relationship.
§ 4 Delivery times
- The commencement of the delivery time indicated by ourselves presupposes the clarification of all technical issues.
- Adherence to our delivery obligation, furthermore, presupposes the prompt and correct fulfilment of the Customer's obligation. We reserve the right of objection in the event of an unfulfilled agreement.
- If the Customer incurs arrears in acceptance, or if it culpably infringes other collaboration obligations, then we shall be entitled to require compensation of the losses we have consequently suffered, including any additional expenses. The entitlement to substantiate further claims or rights is reserved.
- If the criteria in paragraph 3 above are fulfilled, then the risk of fortuitous failure or fortuitous deterioration of the article shall be deemed to transfer to the Customer on the date on which the Customer incurred arrears with acceptance or with the coverage of its debts.
- We are subject to liability in accordance with legal provisions to the extent that the underlying purchase agreement represents a fixed transaction as defined by §286, paragraph 2, clause 4, German Civil Code or as defined by §376, HGB (=Commercial Statute Book). We shall also be held liable in accordance with legal provisions to the extent that the Customer is entitled to claim – as the result of delay in delivery attributable to ourselves – that its interest in further fulfilment of the Agreement has collapsed.
- We are further subject to liability in accordance with legal provisions to the extent that the delay in delivery arises from a wilful or grossly negligent infringement of contract that is attributable to ourselves; culpability attaching to our representatives or agents shall be attributable to ourselves. To the extent that the delay in delivery arises from a grossly negligent breach of contract attributable to ourselves, our liability for compensation shall be restricted to the typical, foreseeable losses arising.
- We shall also be liable under legal provisions to the extent that the delay in delivery attributable to ourselves arises from the culpable infringement of a substantial contractual obligation; in that event, however, liability for compensation shall be restricted to the typical, foreseeable losses arising.
- Furthermore, we shall be liable – in the event of delay in delivery – for each complete week of delay on a scale of flat rate compensation for delay corresponding to 3% of the consignment value, but not for more than 15% of the consignment value.
- The Customer's further statutory claims & rights are reserved.
- If the failure to fulfil deadlines is attributable to
- Force majeure, e.g. mobilisation, war, terrorist acts, uprising or similar events (e.g. strikes, lockout),
- Virus attacks or other attacks on our IT system, to the extent that such attacks take place despite the fulfilment of the normal degree of caution in the exercise of protective measures,
- Impediments arising due to German, USA or any other applicable national, EU or international regulations for foreign trade or those arising due to other circumstances outside of our control, or
- Our suppliers' failure to provide prompt or correct supply, then
The deadlines shall be reasonably extended.
§ 5 Transfer of risk; Packing costs
- Unless otherwise indicated on the confirmation of order, delivery is agreed to be "ex-works".
- If required by the Customer, deliveries are made at its expense to the Customer's business address. In that event, risk shall transfer to the purchaser upon handover of the consignment to the shipper.
- The taking-back of packs is subject to separate agreements.
- If desired by the Customer, we shall arrange transport insurance cover for the consignment; the costs arising shall be borne by the Customer.
§ 6 Liability for deficiencies
- The Customer's rights in the event of deficiencies presuppose that the Customer has correctly fulfilled its obligations of investigation and of reporting as defined in §377, Commercial Statute Book.
- To the extent that there is a deficiency in the article, then we shall be entitled – at our discretion – either to provide rectification in the form of elimination of the defect or to supply a fresh and defect-free product. In the event of rectification, we shall be obliged to bear the burden of all expenditures entailed in rectifying the deficiency or the defect, with particular reference to the cost of transportation, carriage, labour and materials unless such costs are expanded due to the fact that the article was stored in a location other than the place of fulfilment. In that event, furthermore, we shall not be obliged to bear the burden of any costs of dismantling and installation.
- If the attempt at rectification is unsuccessful, then the Customer shall be entitled at its own discretion to require withdrawal or a reduction in charge.
- We shall be liable under legal provisions to the extent that the Customer substantiates compensation claims that arise from wilful intent or gross negligence, including the wilful intent or gross negligence of our representatives or of our agents. Where we are not accused of any deliberate infringement of contract, then our liability for compensation shall be restricted to the typical foreseeable losses arising.
- We shall be liable in pursuance of legal provisions to the extent that we have culpably infringed a cardinal obligation of contract; in that event, however, our liability for compensation shall be restricted to the typical, foreseeable losses arising. A substantial breach of contract is held to arise if the infringement of the obligation concerned an obligation whose fulfilment the Customer was expecting and was also entitled to expect.
- Furthermore, where the Customer holds entitlement for compensation in place of fulfilment, due to a negligent breach of contract, our liability for compensation shall be restricted to the typical foreseeable losses arising.
- This does not affect our liability for culpable causation of loss of life, physical injury or damage to health; and this also applies in respect of mandatory liability under product liability regulations.
- Unless ruled otherwise, above, liability is excluded. Claims arising on the grounds of deficiencies shall, in particular, not apply in the event of only minor deviation from the agreed characteristics, in the event of only minor effects on usability, in the event of natural wear & tear or in the event of losses or damage arising following the transfer of risk and caused by incorrect or negligent treatment, overloading, unsuitable operating media, deficient building works or claims arising due to separate, external influences which are not covered under the Agreement. Constructed systems require regular servicing and replacement of wearing parts, with particular reference to drive cables. No losses or damage arising due to the omission of servicing tasks and/or the failure to replace wearing parts can attract our liability.
- The statutory expiry period for claims arising on the grounds of deficiencies shall be 12 months as counted from the date of transfer of risk. However, this shall not be applicable where the matter relates to the sale of a product which is normally used for a building project and which has caused the corresponding defect or deficiency.
- The expiry period for claims against the supplier corresponding to §§478, 479, Commercial Statute Book, is unaffected; such expiry period shall be five years as calculated from the delivery of the defective or deficient product.
§ 7 Overall liability
- Liability for compensation further to the extent indicated in §6 shall be excluded, irrespective of the legal nature of the claims substantiated. This shall apply in particular to compensation claims arising from culpability at this stage of negotiation of contract, and shall also apply in particular to other breaches or to criminal-law claims for reimbursement of material losses as defined by §823, German Civil Code.
- The restriction defined in paragraph 1 above shall also apply if the Customer requires compensation of lost expenditures rather than substantiating a claim for compensation for damage or loss.
- To the extent that our liability for compensation is excluded or restricted, the same shall apply in respect of the direct liability for compensation incumbent upon our salesmen, workers, employees, representatives and agents.
§ 8 Confirmation of reservation of ownership
- We reserve ownership over the article pending the fulfilment of all claims already in place on the date of the negotiation of this Agreement, including all claims arising from follow-up orders, re-orders, and spares orders. In the event of the Customer's action in breach of contract, with particular reference to arrears in payment, we shall be entitled to take back the article. Our taking-back of the article shall represent our withdrawal from contract. Following the taking-back of the article for its disposal, the proceeds of disposal shall be offset against the Customer's liabilities, minus the reasonable costs of the disposal procedure.
- The Customer is under obligation to treat the article with care; in particular, it is under obligation at its own expense to provide it with adequate insurance fire damage, water damage and theft cover for replacement (new). To the extent that servicing and inspection works may be required, the Customer must conduct them promptly at its own expense.
- In the event of instances of distraint or other interventions by third parties, the Customer must promptly notify us in writing so that we can raise a claim corresponding to §771, ZPO (=Civil Proceedings Regulations). If the third party is not able to reimburse us for the Court costs and extrajudicial costs arising from a claim corresponding to §771, Civil Proceedings Regulations, then the Customer shall be liable for the loss suffered by ourselves.
- The Customer shall be entitled to resell the article in the normal course of business; however, it hereby assigns to ourselves all claims to the extent of the final amount on invoice (including VAT) corresponding to our claim, as accruing to the Customer against its customers or third parties on the basis of the resale, irrespective of whether the article has been sold on without processing, or whether processing has already been conducted. The Customer shall also be entitled to collect on such a claim after assignment. This does not affect our entitlement to collect on claims directly. However, we undertake not to collect on the claim until the Customer has fulfilled its payment obligations by drawing on the proceeds collected, and provided that the Customer has not incurred arrears in payments and – in particular – provided that no application has been filed for the institution of composition or insolvency proceedings, and provided that there is no discontinuation of payments. However, if any such instance has arisen, then we may require that the Customer should notify ourselves of the claims assigned and of the corresponding debtors, and should provide us with all information required for purposes of collecting on claims, that the Customer should provide us with the corresponding documentation and should notify the debtor (third party) of the fact of assignment.
- The processing or conversion of the article by the Customer is always deemed conducted on our behalf. Should the article be processed in conjunction with other items not belonging to ourselves, then we acquire coownership over the new product in proportion to the value of the article (final amount invoiced, including VAT) with other processed items at the time of processing. Furthermore, the products arising as a result of processing shall be subject to the same provisions as a product supplied subject to reservation of ownership.
- If the product is inseparably combined with other items not belonging to ourselves, then we acquire coownership of the new product in proportion to the value of the article (final amount invoiced, including VAT) with other combined items at the time of combination. If combination is conducted such that the Customer's product has to be regarded as the main product, then it is agreed that the Customer should transfer to ourselves a portion of co-ownership. The Customer shall protect the resultant sole ownership or co-ownership on our behalf.
- The Customer shall also assign to ourselves any claims for protection of our claims against the Customer itself that arise against any third party due to the combination of the article with a plot of land.
- We undertake at the Customer's request to release securities accruing to ourselves to the extent that the value that can be realised from our securities exceeds the correspondingly secured claims by more than 10%. It shall be for us to select the securities to be released.
§ 9 Place of jurisdiction; Place of fulfilment
- If the Customer is a business entity, then our place of jurisdiction shall be our place of business. However, we shall be entitled also to bring action against the Customer before the Court in the Customer's domicile.
- German law shall apply; the application of UN commercial law shall be excluded.
- Should these General Conditions of Sale be or become wholly or partially no longer a part of the Agreement, then the Agreement shall remain valid in other respects. In that event, the provisions of law shall apply.
- Our place of fulfilment shall be our place of business unless otherwise indicated in the confirmation of order.
Greven, August 2015