TERMS & Conditions
General Terms and Conditions (terms of delivery, payment and warranty) of ATV Technologie GmbH
1. Conclusion of agreements
All our offers are subject to confirmation. The conclusion of an agreement shall be dependent on our confirmation of the order, which will be given subject exclusively to these terms and conditions of delivery and payment. Any terms and conditions of the customer’s that deviate from these and which we do not specifically accept shall not be binding on us even if we do not expressly reject them. Any supplements, amendments and side agreements shall only become effective when confirmed in writing by us.
2. Delivery and payment
2.1. Our prices are quoted ex works/FCA production plant, uninsured, in the currency quoted in the offer concerned, plus the statutory value-added tax at the rate applicable at the date of the invoice. All packaging material included in the offer is suitable for air freight; any additional costs incurred for packaging for other means of transport will be added to the invoice.
2.2. Only our list prices valid on the date of delivery shall apply. Any deviations therefrom shall require our confirmation in writing. All payments must be made no later than 30 days after the date of the invoice or, in the case of international transactions, by letter of credit upon presentation of all the documents, free of any expenses for us. The deduction of discounts for shorter periods of payment shall require our agreement in writing. Repair services and service call-outs shall fall due for payment immediately after receipt of the invoice, without deduction. Payment shall only be deemed to have been made when we are able to dispose freely over the full amount invoiced. If a payment is not made in cash, the payment obligation shall only be deemed to have been fulfilled when we are able to dispose freely over the amount, unencumbered by any claims by the buyer or third parties. This applies in particular to cheques, bills, letters of credit and payment instructions. For late payments we charge interest on the arrears of 5 % above the base interest rate applicable at the time, pursuant to sec. 1 of the Discount Rate Transitional Law of 9th June, 1998.
2.3. Offsetting our claims to payment against counter-claims on the part of the customer shall not be permissible unless it is a claim which we do not dispute or which has been established in a final judgment. The customer shall not be entitled to assert any right of retention wherever the claim concerned is not one originating from this contractual relationship.
2.4. A delivery deadline shall only be binding on us if this has been agreed in writing and the customer meets his contractual obligations, in particular by making available on time and in perfect condition any documents and accessories to be provided by him and be meeting his agreed payment obligations. In addition, we reserve the right not to deliver if we have not received our own correct supplies in good time. Any delivery deadline agreed shall be extended by a reasonable time in the event of unforeseen obstacles which we are unable to avert despite exercising all reasonable care considering the circumstances of the case. This shall apply irrespective of whether these circumstances occur in our plant or at our subcontractor’s. They include, for example, interruptions of operations, breakage of specially formed parts which are needed for the production of the goods, intervention by the authorities and industrial action, or delays in the delivery of essential raw and building materials. The same shall apply if official or other permits are not received, even during a delay in delivery etc. Later amendments to the agreement which affect the delivery times shall extend said times by a reasonable period unless special agreements have been reached on the subject. The customer shall be informed immediately about any delays in delivery.
2.5. Part shipments shall be permissible.
2.6. At the customer’s request, we shall insure the goods as we see fit against damage in transit. The cost of the insurance shall be borne by the customer. Transport will be effected by the means we judge to be appropriate and quickest for the goods. The risk of accidental loss and accidental deterioration of the goods shall pass to the customer upon their being handed over to the carrier, though no later than when they leave the plant or the warehouse. If the goods are ready for shipment and their despatch or acceptance are delayed for reasons beyond our control, the risk shall pass to the customer upon receipt of the notification that they are ready for shipment. In the event of damage, the customer shall be obliged to adopt all the measures customary in standard commercial practice to assess the damage for insurance purposes. Damage in transit shall not relieve the customer of his obligation to pay within the agreed periods.
3. Reservation of title
3.1. The goods supplied remain our property until all our outstanding accounts from the business connections between us and the customer have been paid in full.
3.2. Even at this stage, the customer assigns to us all his own receivables from the resale of the goods to which title is reserved; we accept the assignment. At our request, the customer shall provide us with all the details of the assigned receivables which we need in order to collect them and shall notify the debtor of the assignment.
3.3. If the goods supplied for installation purposes are used in such a way that they become a major component of another device, we shall acquire a partial right of co-ownership in the new item in proportion to the ratio of the value of the goods to which title is reserved to the value of the other device at the time when they are connected together. If the customer acquires sole ownership of the new item, it is deemed to have been agreed that the customer grants us a partial right of co-ownership therein corresponding to the value of the goods to which title is reserved and that he will hold the item in safe custody for us free of charge.
3.4. If third parties levy execution against the goods to which title is reserved or against the receivables which have been assigned in advance, the customer shall notify us immediately and hand over any documents needed for us to intervene. We undertake to release, at the customer’s request and at our option, the security interests to which we are entitled pursuant to the above provisions, provided their value exceeds the account receivable by 20 %.
3.5. We retain property rights and copyright in illustrations, drawings, sketches and other documents enclosed with our offers or placed at the customer’s disposal for use in any other way. The documents referred to above must not be made available to third parties without our prior approval; they must be returned immediately upon request.
4. Warranty, liability and notification of defects
4.1. A precondition for any claims under warranty is that the customer gives written notification of obvious defects within seven working days of delivery to the customer, and of non-obvious defects within one year.
4.2. If, at the time of passing of the risk, the goods are not of the agreed quality, or if they are not suitable for the purpose intended according to the agreement, or if they are not of the quality appropriate for normal use, we shall be entitled - at our option - to eliminate the defect or to supply the item free of defects. If the cost of the subsequent performance rises because of the fact that the object sold is shipped to a place other than the place of delivery, any additional costs caused as a result shall be borne by the customer.
4.3. If the subsequent performance is unsuccessful, or if it is not rendered within a reasonable time, the customer shall be entitled, to the exclusion of all other claims, to rescind the contract or to demand a reduction in the purchase price.
4.4. The warranty period is 1 year. It begins upon delivery of the goods to the customer or to an agent appointed by him. The same warranty period shall apply, in the case of subsequent performance, upon completion of said performance or, in the case of a substitute delivery, upon delivery of the substitute item.
4.5. The above limitations on liability shall not apply if the defect is fraudulently concealed or if we have assumed a guarantee for the quality of the item.
5.1. If any neglect of duty for which we are responsible leads to any damage or injury
to the customer’s life, person or health, we shall bear unlimited liability.
5.2. We shall only be liable for other losses in the event of a wilful or grossly negligent breach of duty for which we are responsible. Nothing in this shall affect the customer’s right, in the event of a loss for which we are responsible, and which does not consist in a defect in the goods, to rescind the contract - to the exclusion of all other claims.
5.3. Any liability for damage which is not based on a wilful breach of duty shall be restricted to losses which are foreseeable at the time of conclusion of the contract and which typically occur.
6. Conditions for delivery including installation
6.1. If it is agreed that the goods are to be set up or installed at customer’s, the customer shall bear all the costs involved therein. If no lump sum has been agreed, all the wages, travel expenses and daily allowances shall be borne by the customer. We, the persons employed by us in the performance of our obligation or our vicarious agents shall be entitled, at the customer’s expense, to travel there and back by the fastest means of transport available within a reasonable time.
6.2. All the structural preparations and connections (e.g. water, gas, exhaust air removal system, etc.) must be completed before our arrival. Any necessary assistance on the part of the customer must be provided at our request free of charge.
6.3. If the work of setting up/installation is delayed by circumstances beyond out control, the customer shall bear the cost of the waiting period and any necessary additional travel on the part of our assembly personnel.
6.4. The time of the passage of risk (item 2.6.) shall not be affected by any installation of the product carried out by us.
7. The place of performance and legal venue is Munich, provided that it is permissible to stipulate this.
8. If any items in this Agreement and these General Terms and Conditions are or become invalid, the remainder of the Agreement shall remain fully valid. The Agreement shall be subject exclusively to German substantive and procedural law. The United Nations Convention Relating to Agreements Concerning the International Sale of Goods (CISG or any successor laws) shall not apply.
ATV Technologie GmbH